S-8

As filed with the Securities and Exchange Commission on November 9, 2018

Registration No. 333- __________

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8
REGISTRATION STATEMENT 

UNDER

THE SECURITIES ACT OF 1933

Contura Energy, Inc.

(Exact Name of Registrant as Specified in its Charter)

Delaware	81-3015061
(State or Other Jurisdiction of	(I.R.S. Employer
Incorporation or Organization)	Identification No.)

Contura Energy, Inc.

340 Martin Luther King Jr. Blvd. 

Bristol, Tennessee 37620

(423) 573-0300 

(Address of Principal Executive Offices)

Contura Energy, Inc. Management Incentive Plan

Contura Energy, Inc. 2017 Long-Term Incentive Plan 

ANR, Inc. 2017 Equity Incentive Plan

(Full Title of the Plans)

Kevin S. Crutchfield 

Chief Executive Officer

Contura Energy, Inc. 

340 Martin Luther King Jr. Blvd.

Bristol, Tennessee 37620 

(423) 573-0300

(Telephone Number, Including Area Code, of Agents for Service)

With a copy to: 

Jeffrey P. Crandall
Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, NY 10017

(212) 450-4000

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer ☐	Accelerated filer	☐
Non-accelerated filer   ☒ (Do not check if a smaller reporting company)	Smaller reporting company	☐
	Emerging growth company	☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

CALCULATION OF REGISTRATION FEE

Title of Each Class of Securities to be Registered	Amount to Be Registered(1)		Proposed Maximum Offering Price Per Share(2)		Proposed Maximum Aggregate Offering Price(2)		Amount of Registration Fee(3)
Common Stock, par value $0.01, to be issued under the Contura Energy, Inc. Management Incentive Plan		750,000	$	73.60	$	38,419,522.25	$	4,656.45
Common Stock, par value $0.01, to be issued under the Contura Energy, Inc. 2018 Long-Term Incentive Plan		1,100,000	$	73.60	$	80,960,000.00	$	9,812.35
Common Stock, par value $0.01, to be issued under the ANR, Inc. 2017 Equity Incentive Plan		120,000	$	73.60	$	8,832,000.00	$	1,070.44
Total		1,970,000	$	73.60	$	128,211,522.25	$	15,539.24

(1) This Registration Statement on Form S-8 (this “Registration Statement”) covers 1,970,000 shares of Common Stock, par value $0.01 per share (“Common Stock”), of Contura Energy, Inc. (the “Company” or the “Registrant”) (i) 750,000 of which are issuable pursuant to the Contura Energy, Inc. Management Incentive Plan, 1,100,000 of which are issuable pursuant to the Contura Energy, Inc. 2018 Long-Term Incentive Plan and 120,000 of which are issuable pursuant to the ANR, Inc. 2017 Equity Incentive Plan ( collectively, the “Plans”), (ii) to be issued in the future under the Plans and (iii) pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), any additional shares of Common Stock that become issuable under the Plans by reason of any stock dividend, stock split, or other similar transaction.

(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) under the Securities Act. The Proposed Maximum Offering Price Per Share is based on the price per share of Common Stock on November 2, 2018 and, in the case of outstanding warrants and stock options to purchase Common Stock, the exercise price on the date of grant of such stock options.

(3) Rounded up to the nearest penny.

PART I

The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act and the introductory note to Part I of the Form S-8 instructions. The document containing the information specified in Part I will be delivered to the participants in the Plans as required by Rule 428(b)(1).

PART II

INFORMATION REQUIRED IN THE

REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents are incorporated herein by reference:

(a)       The Company’s Registration Statement on Form S-4 (File No. 333-226953), as originally filed on August 21, 2018, including any amendments or supplements thereto; and

(b)       The description of the Company’s capital stock which is contained in the Company’s Registration Statement on Form 8-A, dated November 7, 2018 (File No. 001-38735), including any amendments or supplements thereto.

In addition, all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing of such documents.

Any statement contained herein and in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein (or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein) modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

Item 4. Description of Securities.

Not applicable.

Item 5. Interests of Named Experts and Counsel.

Not applicable.

Item 6. Indemnification of Directors and Officers.

The Company’s Second Amended and Restated Certificate of Incorporation provides that no director will be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except as required by applicable law, as in effect from time to time. Currently, Delaware law requires that liability be imposed for the following:

· Any breach of the director’s duty of loyalty to the company or its stockholders;

· Any act or omission not in good faith or which involved intentional misconduct or a knowing violation of law;

· Unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law (the “DGCL”); and

· Any transaction from which the director derived an improper personal benefit.

As a result, neither the Company nor its stockholders have the right, through stockholders’ derivative suits on our behalf, to recover monetary damages against a director for breach of fiduciary duty as a director, including breaches resulting from grossly negligent behavior, except in the situations described above.

The Company’s Second Amended and Restated Certificate of Incorporation provides that each person who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed proceeding by reason of the fact that such person is or was a director or officer of the Company or is or was serving at the request of the Company as a director or officer of another enterprise, will be indemnified and held harmless by the Company to the fullest extent permitted by the DGCL. This right to indemnification includes the right to be paid by the Company the expenses incurred in connection with any such proceeding in advance of its final disposition to the fullest extent authorized by the DGCL. Amending this provision will not reduce the Company’s indemnification obligations relating to actions taken before an amendment.

Section 145 of the DGCL provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent to the Company. The DGCL provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise. Section 8(a) of the Company’s Second Amended and Restated Certificate of Incorporation provides for indemnification by the Company of its directors, officers and employees to the fullest extent permitted by the DGCL. The Company has entered into indemnification agreements with each of its current directors and executive officers to provide these directors and executive officers additional contractual assurances regarding the scope of the indemnification set forth in the Company’s Second Amended and Restated Certificate of Incorporation and Second Amended and Restated Bylaws and to provide additional procedural protections. There is no pending litigation or proceeding involving a director or executive officer of the Company for which indemnification is sought.

Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions, or (iv) for any transaction from which the director derived an improper personal benefit. The Company’s Second Amended and Restated Certificate of Incorporation provides for such limitation of liability.

The Company maintains standard policies of insurance under which coverage is provided (a) to its directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act and (b) to the Company with respect to payments which may be made by the Company to such officers and directors pursuant to the above indemnification provision or otherwise as a matter of law.

The Company has entered into an Indemnification Agreement with each of its current directors and executive officers. Under the terms of that agreement, when the director or officer is, or is threatened to be made, a party to or a participant in any proceeding, other than a proceeding by or in the right of the Company to procure a judgment in its favor, the director or officer shall be indemnified to the fullest extent permitted by applicable law against all expenses, judgments fines and amounts paid in settlement actually and reasonably incurred by the director or officer or on the director’s or officer’s behalf in connection with such proceeding or any claim, issue, or matter therein, if the director or officer acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful.  If the director or officer is, or is threatened to be made, a party to or a participant in any proceeding by or in the right of the Company to procure a judgment in its favor, the director or officer shall be indemnified to the fullest extent permitted by applicable law against all expenses actually and reasonably incurred by the director or officer or on the director’s or officer’s behalf in connection with such proceeding or claim, issue, or matter therein, if the director or officer acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company. However, no indemnification shall be made in respect of any claim, issue or matter as to which the director or officer has been adjudged by a court of competent jurisdiction to be liable to the Company, unless and only to the extent that the court in which the proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all

the circumstances of the case, the director or officer is fairly and reasonably entitled for such expenses as the court shall deem proper.

To the extent that the director or officer is a party to or a participant in and is successful (on the merits or otherwise) in defense of any proceeding or any claim, issue or matter therein, the Company shall indemnify the director or officer against all expenses actually and reasonably incurred by the director or officer or on the director’s or officer’s behalf in connection therewith. To the extent permitted by applicable law, if the director or officer is not wholly successful in such proceeding but is successful, on the merits or otherwise, in defense of one or more but less than all claims, issues or matters in such proceeding, the Company shall indemnify the director or officer to the fullest extent permitted by applicable law against all expenses actually and reasonably incurred by the director or officer or on the director’s or officer’s behalf in connection with each successfully resolved claim, issue or matter.  The termination of any claim, issue or matter in such a proceeding by dismissal, with or without prejudice, is deemed to be a successful result as to such claim, issue or matter.

The Company is not obligated to indemnify the director or officer under the Indemnification Agreement in connection with any proceeding for any reimbursement of the Company by the director or officer of any bonus or other incentive-based or equity-based compensation or of any profits realized by the director or officer from the sale of securities of the Company, as required under the Exchange Act (including any reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002, or the payment to the Company of profits arising from the purchase and sale by the director or officer of securities in violation of Section 306 of the Sarbanes-Oxley Act of 2002).  Further, the Company is not obligated to indemnify the director or officer if the director or officer is held liable for a disgorgement of profits made from the purchase and sale by the director or officer pursuant to Section 16(b) of the Exchange Act. The Company is not obligated to indemnify against a proceeding initiated by the director or officer, including any proceeding initiated by the director or officer against the Company or its directors, officers, employees agents or other indemnitees, unless the proceeding is (i) authorized by the board of directors, (ii) otherwise authorized by the Indemnification Agreement, or (iii) otherwise required by applicable law.

Under the Indemnification Agreement, the Company agrees to advance, to the extent not prohibited by law, the expenses incurred by the director or officer in connection with any proceeding.  Advances are unsecured and interest free and made without regard to the director’s or officer’s ability to repay the advances. The situations outlined in the preceding paragraph in which the Company is not obligated to indemnify the director or officer are also situations in which the Company is not obligated to advance the expenses of the director. The director or officer agrees to repay any advance to the extent that it is ultimately determined that the director or officer is not entitled to be indemnified by the Company. The Form of Indemnification Agreement is filed as Exhibit 10.28 to the Company’s Registration Statement on Form S-4 filed on August 21, 2018 (File No. 333-226953).

Item 7. Exemption from Registration Claimed.

Not applicable.

Item 8. Exhibits.

Exhibit Number
4.1	Second Amended and Restated Certificate of Incorporation of Contura Energy, Inc. (incorporated herein by reference to Exhibit 3.1 to the Company’s Registration Statement on Form S-4 filed with the SEC on August 21, 2018 (File No. 333-226953))
4.2	Second Amended and Restated Bylaws of Contura Energy, Inc. (incorporated herein by reference to Exhibit 3.2 to the Company’s Registration Statement on Form S-4 filed with the SEC on August 21, 2018 (File No. 333-226953))
5	Opinion of Davis Polk & Wardwell LLP
23.1	Consent of KPMG LLP
23.2	Consent of Davis Polk & Wardwell LLP (included in Exhibit 5)
99.1	Contura Energy, Inc. Management Incentive Plan, effective as of July 26, 2016

99.2	Amendment No.1 to Contura Energy, Inc. Management Incentive Plan, dated as of January 18, 2017
99.3	Contura Energy, Inc. 2018 Long-Term Incentive Plan
99.4	ANR, Inc. 2017 Equity Incentive Plan, adopted on May 3, 2017 and amended February 15, 2018 and April 6, 2018

Item 9. Undertakings.

(a) The undersigned Registrant hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;

(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in this Registration Statement; and

(iii) To include any material information with respect to the Plans not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post- effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant, Contura Energy, Inc., certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Bristol, Tennessee, on the 9th day of November, 2018.

Contura Energy, Inc.
By:	/s/ Kevin S. Crutchfield
	Name:	Kevin S. Crutchfield
	Title:	Chief Executive Officer and Director

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Charles Andrew Eidson and Mark M. Manno, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and any and all additional registration statements pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agents full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed this 9th day of November, 2018 by the following persons in the following capacities.

Signature	Title	Date
/s/ Kevin S. Crutchfield	Chief Executive Officer and Director (Principal Executive Officer)	November 9, 2018
Kevin S. Crutchfield
/s/ Charles Andrew Eidson	Executive Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)	November 9, 2018
Charles Andrew Eidson
/s/ Neale X. Trangucci	Chairman	November 9, 2018
Neale X. Trangucci
/s/ Albert E. Ferrara, Jr.	Director	November 9, 2018
Albert E. Ferrara, Jr.
	Director	November 9, 2018
Daniel Geiger
	Director	November 9, 2018
John E. Lushefski
/s/ Anthony Orlando	Director	November 9, 2018
Anthony Orlando
	Director	November 9, 2018
David Stetson
	Director	November 9, 2018
Harvey L. Tepner

/s/ Michael Ward	Director	November 9, 2018
Michael Ward

EXHIBIT INDEX

Exhibit Number
4.1	Second Amended and Restated Certificate of Incorporation of Contura Energy, Inc. (incorporated herein by reference to Exhibit 3.1 to the Company’s Registration Statement on Form S-4 filed with the SEC on August 21, 2018 (File No. 333-226953))
4.2	Second Amended and Restated Bylaws of Contura Energy, Inc. (incorporated herein by reference to Exhibit 3.2 to the Company’s Registration Statement on Form S-4 filed with the SEC on August 21, 2018 (File No. 333-226953))
5	Opinion of Davis Polk & Wardwell LLP
23.1	Consent of KPMG LLP
23.2	Consent of Davis Polk & Wardwell LLP (included in Exhibit 5)
99.1	Contura Energy, Inc. Management Incentive Plan, effective as of July 26, 2016
99.2	Amendment No. 1 to Contura Energy, Inc. Management Incentive Plan, dated as of January 18, 2017
99.3	Contura Energy, Inc. 2018 Long-Term Incentive Plan
99.4	ANR, Inc. 2017 Equity Incentive Plan, adopted on May 3, 2017 and amended February 15, 2018 and April 6, 2018

EX-5

EXHIBIT 5

[Davis Polk Letterhead]

Davis Polk & Wardwell LLP

450 Lexington Avenue 

New York, NY 10017

November 9, 2018

Contura Energy, Inc.

340 Martin Luther King Jr. Blvd. 

Bristol, Tennessee 37620

Ladies and Gentlemen:

We have acted as special counsel for Contura Energy, Inc. (the “Company”) in connection with the filing of a Registration Statement on Form S-8 under the Securities Act of 1933, as amended, relating to 1,970,000 shares (the “Shares”) of the Company’s common stock, par value $0.01 per share, issuable pursuant to the Contura Energy, Inc. Management Incentive Plan, the Contura Energy Inc. 2018 Long-Term Incentive Plan and the ANR, Inc. 2017 Equity Incentive Plan (collectively, the “Plans”).

We have examined such documents and such matters of fact and law as we have deemed necessary for the purposes of rendering the opinion expressed herein.

Upon the basis of the foregoing, we are of the opinion that the Shares, when delivered in accordance with the Plans upon receipt by the Company of adequate consideration therefor, will be validly issued, fully paid and nonassessable.

We are members of the Bar of the State of New York, and the foregoing opinion is limited to the laws of the State of New York, the federal laws of the United States of America and the General Corporation Law of the State of Delaware.

We consent to the filing of this opinion as an exhibit to the Registration Statement.

Very truly yours,

/s/ Davis Polk & Wardwell LLP

EX-23.1

EXHIBIT 23.1

[KPMG Letterhead]

Consent of Independent Registered Public Accounting Firm

The Board of Directors

Contura Energy, Inc.:

We consent to the use of our report incorporated by reference herein.

Our report dated March 29, 2018 contains an explanatory paragraph that states that effective July 26, 2016, the Company acquired certain core coal operations of Alpha Natural Resources, Inc. in a transaction accounted for as a business combination. As a result of the acquisition, the financial information for the successor periods is presented on a different cost basis than that for the predecessor periods and, therefore, is not comparable. 

/s/ KPMG LLP

Greensboro, North Carolina

November 9, 2018

EX-99.1

Exhibit 99.1

CONTURA ENERGY, INC.

MANAGEMENT INCENTIVE PLAN

Article 1
Purpose

Contura Energy, Inc., a Delaware corporation (the “Company”), hereby establishes the Contura Energy, Inc. Management Incentive Plan (the “Plan”), effective as of July 26, 2016 (the “Effective Date”). The purpose of the Plan is to advance the interests of the Company and its stockholders by providing a means by which the Company and its Affiliates and Subsidiaries can attract, retain and motivate selected directors, officers, other employees and consultants and provide such personnel with an opportunity to participate in the increased value of the Company which their effort, initiative and skill have helped produce.

Article 2
Definitions

“Affiliate” means, with respect to any person or entity, any other person or entity that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, such person or entity through the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through ownership of the voting securities, by contract or otherwise.

“Award” means any grant of an Option, Restricted Share, Restricted Stock Unit, Other Share-Based Award or Other Cash-Based Award under the Plan.

“Award Agreement” means any written agreement, contract or other instrument or document evidencing any Award, which may, but need not (as determined by the Committee), be required to be executed or acknowledged by a Participant as a condition precedent to receiving an Award or the benefits under an Award.

“Beneficial owner” or “beneficially own” has the meaning given to such term in Rule 13d-3 under the Exchange Act.

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

“Cause” means, unless otherwise provided in any applicable Award Agreement, with respect to the termination of a Participant who is an Employee, the following: (a) in cases in which there is an employment agreement (the “Employment Agreement”) or an individual severance (Change in Control or otherwise) agreement in effect between the Company or any Subsidiary thereof and the Participant at the time of the grant of the Award, “cause” as defined under and during the term of the applicable severance agreement and, if there is no such agreement, the applicable employment agreement, and (b) in all other cases, termination of the Participant due to: (i) the Participant’s intentional breach (including breaches due to inaction) of one or more of a Participant’s material duties or intentional failure to follow reasonable directions of the Participant’s supervisor, the Chief Executive Officer of the Company, or the Board, provided the Participant has not reasonably corrected such breach or failure within 30

days after receipt of written notice (including by email) from the Company, the Participant’s supervisor, the Chief Executive Officer of the Company or the Board specifying such breach or failure; provided that neither an act nor a failure to act on the part of the Participant shall be considered “intentional” if the Participant has acted or failed to act with a reasonable and good faith belief that the Participant’s action or failure to act was in the best interest of the Company; (ii) conviction of, or entering of a plea of guilty or nolo contendere to, a felony charge or a crime involving moral turpitude; (iii) engaging in a fraudulent activity with respect to the Company (whether or not prosecuted), (iv) misconduct by the Participant that has caused a material loss to the Company or any Subsidiary thereof, (v) receipt of any kickback, side payment, or rebate of any fee or expense paid by the Company or from any customer, vendor, or supplier of the Company, (vi) any act of gross negligence or any dishonesty (including misreporting of financial information) to the Company or any Subsidiary thereof; provided, however, that with regard to any agreement under which the definition of “cause” only applies on occurrence of a change in control, such definition of “cause” shall not apply until a change in control actually takes place and then only with regard to a termination thereafter. With respect to a termination of a Participant who is a non-employee director of the Board, “cause” means an act or failure to act that constitutes cause for removal of a non-employee director of the Board under applicable law.

“Change in Control” means (a) any merger, consolidation or business combination in which the stockholders of the Company immediately prior to the merger, consolidation or business combination do not own at least a majority of the outstanding equity interests of the surviving parent entity; (b) the sale of all or substantially all of the Company’s assets in a single transaction or a series of related transactions; (c) the acquisition of beneficial ownership or control of (including, without limitation, power to vote) a majority of the outstanding common stock of the Company by any person or entity (including a "group" as defined by or under Section 13(d)(3) of the Exchange Act); (d) the stockholders of the Company approve any plan for the dissolution or liquidation of the Company; or (e) a contested election of directors, as a result of which or in connection with which the persons who were directors of the Company before such election or their nominees cease to constitute a majority of the Company’s Board.

“Change in Control Grant” has the meaning set forth in ‎Section 7.02.

“Code” means the Internal Revenue Code of 1986, as amended, and applicable rules and regulations thereunder.

“Committee” means the Compensation Committee of the Board, or if no such committee has been designated, the Board.

“Company” has the meaning set forth in ‎Article 1.

“Disability” means the Participant's physical or mental incapacity to perform his or her usual duties with such condition likely to remain continuously and permanently as determined by the Company.

“Effective Date” has the meaning set forth in ‎Article 1.

2 

“Eligible Individual” means any officer, employee, director, independent contractor or consultant to, the Company or a Subsidiary and includes any holders of Substitute Awards (whether or not employed by the Company or a Subsidiary).

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and applicable rules and regulations thereunder.

“Encumbrance” means any lien, security interest, pledge, claim, option, right of first refusal, marital right or other encumbrance with respect to any Share issued in respect of any Award.

“Exercise Price” means the price at which a Share may be purchased by a Participant pursuant to an Option as set forth in the relevant Award Agreement.

“Fair Market Value” means (a) if the Shares are not listed or traded on the New York Stock Exchange, the NYSE MKT LLC or the Nasdaq Stock Market, or reported by OTC Markets Group, or any similar successor organization, the fair market value as determined by the Committee in good faith, and (b) otherwise, the average of the closing prices of all Shares (at the end of the regular session, as reported on the Consolidated Tape) on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market, as applicable, or, if there have been no sales on any such exchange on any day, the average of the highest bid and lowest asked prices on all such applicable exchanges (at the end of the regular session, as reported on the Consolidated Tape) on such day, as the Committee may determine, or the volume weighted average price in the domestic over-the-counter market as reported by OTC Markets Group, or any similar successor organization, over a 30-day period ending on of the day as of which such Fair Market Value is being determined.

“Incentive Stock Option” means an Option granted pursuant to ‎Section 6.01 that is intended to meet the requirements of Section 422 of the Code.

“Involuntary Transfer” means a transfer of a Participant’s Award or any Share issued in respect of any Award by operation of law including, without limitation, as a result of (a) a sale or other disposition by a trustee or debtor in possession appointed or retained in a bankruptcy case, (b) a sale at any creditors’ or judicial sale or (c) a transfer arising out of a divorce or separation proceeding.

“Option” means an option to purchase Shares granted to an Eligible Individual under the Plan.

“Other Cash-Based Award” means any award denominated or paid in cash, pursuant to ‎Section 6.05.

“Other Share-Based Award” means any award denominated in or based on Shares granted to a Participant, pursuant to ‎Section 6.04.

“Participant” means an Eligible Individual who receives an Award under the Plan.

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“Permitted Transferee” (a) with respect to any Shares issued in respect of an Award held by a Participant, shall have the meaning designated in the Stockholders Agreement and (b) with respect to any Awards held by a Participant, means any person to whom such Awards are transferred by will or the laws of descent or distribution.

“Person” means an partnership, joint venture, limited partnership, limited liability partnership, limited liability limited partnership, corporation, limited liability company, professional corporation, professional association, trust, estate, custodian, trustee, executor, administrator, nominee, representative, unincorporated organization, sole proprietorship, employee benefit plan, tribunal, governmental entity, department, agency, quasi-governmental entity, any other business, entity or organization, including a government or political subdivision or an agency, unit or instrumentality thereof, or any natural person (regardless of citizenship or residency).

“Plan” has the meaning set forth in ‎Article 1.

“Restricted Share” means a Share that is subject to service, performance or other conditions, granted to a Participant pursuant to ‎Section 6.02.

“Restricted Stock Unit” means a contractual right to receive a designated number of Shares or the Fair Market Value thereof, granted to a Participant pursuant to ‎Section 6.03.

“Section 409A” has the meaning assigned to it in ‎Article 16.

“Section 457A” has the meaning assigned to it in ‎Article 16.

“Securities Act” means the Securities Act of 1933, as amended, and applicable rules and regulations thereunder.

“Share” means a share of common stock, par value $0.01, of the Company.

“Stockholder” shall have the meaning designated in the Stockholders Agreement.

“Stockholders Agreement” means any Stockholders Agreement that may be entered into at any time by and among the Company and certain other Persons listed on the signature page of the Stockholders Agreement, as the same may be amended from time to time.

“Subsidiary” means (a) any company during any period in which it is a “subsidiary corporation” as that term is defined in Section 424(f) of the Code with respect to the Company, or (b) any other entity of which ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by the Company.

“Substitute Award” means an Award granted pursuant to ‎Article 5 in assumption of, or as an alternative to or replacement of, an outstanding award previously granted by a business or entity all or a portion of which is acquired by the Company or any of its Affiliates or Subsidiaries, or with which the Company or any of its Affiliates or Subsidiaries combines.

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“Unvested Award” means, as of any date, any Award (or any portion thereof) which by its terms has not yet vested and become exercisable as of such date.

“Vested Award” means, as of any date, any Award (or any portion thereof) which by its terms has vested and become exercisable as of such date.

“Warrants” means the Company’s Series A Warrants to acquire shares of common stock of the Company, evidenced by the Global Warrant with CUSIP no. 21241B 118.

Article 3
Administration

Section 3.01. Committee. The Plan shall be administered by the Committee.

Section 3.02. Authority of the Committee. Subject to the provisions of the Plan, the Committee shall have the authority, in its discretion and on behalf of the Company:

(a)to select from among the Eligible Individuals those persons who shall receive Awards, to determine the time or times of receipt, to determine the types of Awards and the number of Shares covered by the Awards, to establish the terms, conditions, performance criteria, restrictions and other aspects of the Awards and the provisions of the applicable Award Agreement and to modify, amend, cancel or suspend Awards;

(b)to interpret the Plan;

(c)to prescribe, amend and rescind any rules and regulations relating to the Plan;

(d)to determine whether, to what extent and under what circumstances Awards may be settled in cash, Shares, other Awards or other property, including without limitation the authority to settle Awards in cash or property upon a Change in Control or other similar corporate transaction;

(e)to determine whether, to what extent and under what circumstances cash, Shares, other Awards, other property and any other amounts payable with respect to an Award shall or may be deferred either automatically or at the election of the Participant or of the Committee;

(f)to cancel and regrant, accelerate vesting or otherwise adjust the Exercise Price of an Award previously granted under the Plan; and

(g)to make all other determinations and findings, including factual findings, deemed necessary or advisable for the administration of the Plan.

Section 3.03. Committee Discretion. In exercising its authority, the Committee shall have the broadest possible discretion. Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations and other decisions made in good faith by the Committee under or with respect to the Plan, any Award or Award Agreement shall be final, binding and conclusive on all persons.

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Section 3.04. Committee Delegation. To the extent permitted by applicable law, the Committee may delegate its authority, or specified items thereof, to one or more designated individuals or other committees of the Board.

Article 4
Shares Subject To The Plan

Section 4.01. General Limitation.

(a)Subject to ‎Section 4.02 below, the maximum number of Shares that may be issued under the Plan is 1,201,202 Shares provided, however, that no more than 1,111,112 Shares may be made subject to Awards hereunder unless and until the per share “Fair Market Value” of a “Series A Warrant” has, on five consecutive “Trading Days”, exceeded the “Exercise Price” (each, as defined in the Warrant) of the Warrant.

(b)To the extent any Shares covered by an Award, other than a Substitute Award, are not issued because the Award is forfeited, canceled, expires without being exercised, or the Shares are not delivered because the Award is settled in cash or used to satisfy applicable minimum tax withholding obligations or otherwise, such Shares shall not be deemed to have been issued for purposes of determining the maximum number of Shares available for issuance under the Plan.

(c)If the Exercise Price of any Option or the Exercise Price of any Other Share-Based Award granted under the Plan, other than a Substitute Award, is satisfied by tendering Shares to the Company (by either actual delivery or by attestation), only the number of Shares issued net of the Shares tendered shall be deemed issued for purposes of determining the maximum number of Shares remaining available for issuance under the Plan.

(d)Any Shares underlying a Substitute Award shall not be deemed to have been issued for purposes of determining the maximum number of Shares remaining available for issuance under the Plan.

Section 4.02. Adjustments. In the event that any corporate transaction or distribution (including, without limitation, any stock split, stock dividend, extraordinary cash dividend, issuance of Shares upon exercise of the Warrants, recapitalization, reorganization, merger, consolidation, split up, spin off, repurchase, combination or exchange of Shares or other securities of the Company, but not including ordinary dividends) affects the Shares such that an adjustment is appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Committee shall, in such manner as it may deem equitable, adjust any or all of (a) the number of Shares or other securities of the Company (or number and kind of other securities or property) with respect to which Awards may be granted under ‎Section 4.01; (b) the number of Shares or other securities of the Company (or number and kind of other securities and property) subject to outstanding Awards; and (c) the Exercise Price or other terms and conditions of any Award or, if deemed appropriate, the Committee may make provision for a cash payment to the holder of an outstanding Award in full satisfaction of such Award as set forth in ‎Section 4.03, provided that in respect of an adjustment pursuant to this ‎Section 4.02 as a result of an issuance of Shares upon exercise of the Warrants,

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the Committee shall only adjust the number of Shares or other securities of the Company (or number and kind of other securities or property) with respect to which Awards may be granted under ‎‎Section 4.01.

Section 4.03. Cancellation of Awards. For the avoidance of doubt, if an adjustment is appropriate under ‎Section 4.02, the Committee may, if deemed equitable by the Committee in light of the applicable circumstances, cause any Award granted hereunder to be canceled in consideration of a cash payment to the holder of such Award equal in value to the product of (a) the number of Shares subject to such Award, multiplied by (b) the Fair Market Value of a Share as of the date of such cancellation (less any Exercise Price or other applicable exercise, hurdle or similar price) with respect to such canceled Award, provided, for the avoidance of doubt, if the Award has an Exercise Price that exceeds the Fair Market Value of the Shares underlying the Award, the Award may be cancelled for no consideration.

Section 4.04. Other Provisions. The grant of any Award may also be subject to such other provisions as the Committee deems appropriate (whether or not applicable to any Award granted to any other Participant).

Article 5
Eligibility And Participation

Subject to the terms and conditions of the Plan, the Committee shall determine and designate, from time to time, from among the Eligible Individuals those persons who will be granted one or more Awards under the Plan and thereby become Participants in the Plan. Awards may be granted on conditions specified by the Committee. Awards may be granted as alternatives to or in replacement of Awards outstanding under the Plan or any other plan or arrangement of the Company or any of its Affiliates or Subsidiaries (including a plan or arrangement of a business or entity, all or a portion of which is acquired by or combines with the Company or any of its Affiliates or Subsidiaries).

Article 6
Awards

Section 6.01. Options.

(a)General. The Committee is authorized to grant Options under the Plan, which shall be evidenced by an Award Agreement and shall contain terms and conditions not inconsistent with the following limitations and conditions.

(b)Exercise Price. The Exercise Price of each Option shall be established by the Committee at the time the Option is granted. Unless otherwise determined by the Committee and specified in the Award Agreement, the Exercise Price shall be the Fair Market Value of a Share on the date of grant of the Option (which shall not be less than the “fair market value” of a Share within the meaning of Section 409A).

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(c)Vesting. The vesting schedule, if any, for each grant of Options shall be set forth in the applicable Award Agreement, including the treatment of outstanding Options upon a Participant’s termination of employment or service. An Option shall be exercisable only in accordance with the terms and conditions and during such periods as may be established by the Committee in the Award Agreement or otherwise in accordance with the Plan and the Award Agreement. The Committee may, in its discretion, provide that such an Option may be exercised in whole or in part, in installments, cumulative or otherwise, for any period of time specified by the Committee or based on performance or other criteria established by the Committee.

(d)Payment. No Shares shall be delivered pursuant to any exercise of an Option until payment in full of the Exercise Price, or adequate provision therefor (in the discretion of the Committee), is received by the Company. Such payment may be made, (i) in cash; (ii) in Shares owned by the Participant or in Shares which may be received by the Participant upon exercise of the Option (in each case, the value of such Shares shall be their Fair Market Value on the date of exercise); (iii) in other property acceptable to the Committee; (iv) by any combination thereof or (v) by any other means which the Committee, in its sole discretion, determines to both provide legal consideration for the Shares, and to be consistent with the purposes of the Plan..

(e)Term of Options. An Option and all rights and obligations thereunder shall expire on the date to be determined by the Committee and set forth in the applicable Award Agreement, which shall be not later than ten years from the date of grant of such Option.

(f)Incentive Stock Options. The terms of any Incentive Stock Option granted under this Plan shall comply in all respects with the provisions of Section 422 of the Code. Subject to adjustment under ‎Section 4.02, the maximum number of Common Shares that may be issued under Incentive Stock Options under the Plan is 1,000,000.

Section 6.02. Restricted Shares.

(a)General. The Committee is authorized to grant Restricted Shares to Participants with the following terms and conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Committee will determine:

(b)Purchase Price. The issuance of Restricted Shares may be conditioned upon the Participant’s payment of a purchase price with respect to such Restricted Shares, as determined by the Committee.

(c)Terms of Grant. Restricted Shares granted pursuant to the Plan will be subject to such restrictions as the Committee may impose, including service, performance or other criteria, which restrictions may lapse in each case on a specified date or dates, over any period or periods or on the occurrence of one or more events, as determined by the Committee. The Committee will set forth the treatment of Restricted Shares, as applicable, upon a Participant’s termination of employment or service with the Company and any of its Affiliates and Subsidiaries in the applicable Award Agreement.

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(d)Vesting. The vesting schedule for each grant of Restricted Shares shall be set forth in the applicable Award Agreement, including the treatment of outstanding Restricted Shares upon a Participant’s termination of employment or service.

(e)Rights. Subject to the Stockholders Agreement, if any, a Participant will have all rights of a holder of Shares as to any Restricted Shares, including the right to vote and the right to receive dividends (subject to such restrictions, including forfeiture provisions, as may be imposed by the Committee in its sole discretion), subject to the restrictions set forth in the Plan and the applicable Award Agreement.

(f)Restricted Share Certificates. Restricted Shares will be evidenced in such manner as the Committee may deem appropriate, including book-entry registration or issuance of one or more share certificates. Any certificate issued in respect of Restricted Shares will be registered in the name of the applicable Participant and will bear an appropriate legend referring to the terms, conditions and restrictions applicable to such Award. The Committee may require that the certificates evidencing such Shares be held in custody by the Company until the restrictions thereon shall have lapsed and that, as a condition of any Award of Restricted Shares, the applicable Participant shall have delivered a stock power, endorsed in blank, relating to the Shares covered by such Award.

(g)Section 83(b) Election. An Award of Restricted Shares may be conditioned upon a Participant’s making an election with respect to the Award under Section 83(b) of the Code, in which case the Participant will be required to file promptly a copy of such election with the Company or otherwise forfeit such Award.

Section 6.03. Restricted Stock Units.

(a)General. The Committee is authorized to grant Restricted Stock Units to Participants with the following terms and conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Committee will determine:

(b)Terms of Grant. Restricted Stock Units granted pursuant to the Plan will be subject to such restrictions as the Committee may impose, including service, performance or other criteria, which restrictions may lapse in each case on a specified date or dates, over any period or periods or on the occurrence of one or more events, as determined by the Committee. The Committee will set forth the treatment of Restricted Stock Units, as applicable, upon a Participant’s termination of employment or service with the Company and any of its Affiliates and Subsidiaries in the applicable Award Agreement.

(c)Vesting. The vesting schedule, if any, for each grant of Restricted Stock Units shall be set forth in the applicable Award Agreement, including the treatment of outstanding Restricted Stock Units upon a Participant’s termination of employment or service.

(d)Settlement. Restricted Stock Units may be settled in Shares, in cash, or a combination thereof, as determined by the Committee and set forth in the applicable Award Agreement. The Award Agreement shall also specify the settlement date of any such Award.

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(e)Rights. Restricted Stock Units shall have no voting rights, and shall not receive dividends, but the applicable Award Agreement shall specify the effect, if any, of dividends paid on Shares during the period such Award is outstanding.

Section 6.04. Other Share-Based Awards. The Committee is authorized to grant unrestricted Shares or Other Share-Based Awards under the Plan to Participants, alone or in tandem with other Awards, in such amounts and subject to such terms and conditions, including vesting schedules or other criteria, including performance criteria, as the Committee will from time to time in its sole discretion determine.

Section 6.05. Other Cash-Based Awards. The Committee is authorized to grant Awards denominated or payable in cash under the Plan to Participants, alone or in tandem with other Awards (other than Options), in such amounts and subject to such terms and conditions, including vesting schedules or other criteria, including performance criteria, as the Committee will from time to time in its sole discretion determine.

Section 6.06. Settlement of Award. Shares delivered pursuant to the exercise of an Option or the exercise or vesting and settlement of Restricted Shares, Restricted Stock Units, Other Share-Based Awards and Other Cash-Based Awards shall be subject to such conditions (other than vesting conditions), restrictions and contingencies as the Committee may establish pursuant to the Plan and Award Agreement, in addition to the conditions set forth herein.

Section 6.07. Amendment to Awards. The Committee may waive any conditions or rights under any Award theretofore granted, prospectively or retroactively.

Section 6.08. Other Provisions. The grant of any Award may also be subject to such other provisions as the Committee deems appropriate (whether or not applicable to any Award granted to any other Participant), including the treatment of Awards and Shares upon the occurrence of any corporate transaction or distribution involving the Company, including any merger, reorganization, recapitalization or other similar corporate event.

Article 7
Change in Control

Section 7.01. Committee Actions on a Change in Control. In the event of a Change in Control, the Committee will have full discretion, subject to any applicable regulatory approvals, to take whatever actions that it deems necessary or appropriate with respect to outstanding Awards, including: (a) to provide for full or partial accelerated vesting of any Award or portion thereof, either immediately prior to such Change in Control or on such terms and conditions following the Change in Control as the Committee may determine in its sole discretion; (b) to provide for the assumption of an Award (or portions thereof) or the issuance of Substitute Awards with similar awards of the surviving or acquiring company (subject to Section 409A, where applicable); (c) to provide for the cash-out and cancellation of any Award (or portion thereof) immediately prior to such Change in Control, which cash-out may (subject to Section 409A, where applicable) be subject to any escrow, earn-out or other contingent or deferred payment arrangement that is contemplated by such Change in Control, provided, for the avoidance of doubt, if the Award has an Exercise Price that exceeds the Fair Market Value of the

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Shares underlying the Award, the Award may be cancelled for no consideration; or (d) to take any other actions as the Committee deems necessary or advisable in connection with such Change in Control. The Committee may, in connection with a Change of Control, take different actions with respect to different Participants under the Plan, different Awards under the Plan and different portions of Awards granted under the Plan.

Section 7.02. Change in Control Grants. Immediately prior to a Change in Control, the number of Shares authorized to be granted pursuant to ‎Section 4.01(a) of this Plan, but which have not yet been granted or have been granted and subsequently become available for grant pursuant to ‎Section 4.01(b) of this Plan (the “CIC Pool”), shall be allocated to Participants as described in this ‎Section 7.02 (“Change in Control Grants”). The Change in Control Grants shall be allocated (i) only to Participants who remain employed by the Company on the date such Change in Control Grants are made and (ii) in an amount for each Participant determined by multiplying the CIC Pool by a fraction, the numerator of which is the number of Shares subject to Awards previously granted to such Participant under the Plan and the denominator of which is the applicable number of Shares set forth in Section 4.01(a). Change in Control Grants will be granted on a fully vested basis immediately prior to a Change in Control in the form of cash, Shares or Restricted Stock Units or a combination thereof, as determined by the Committee in its sole discretion.

Article 8
Tax Withholding

Section 8.01. Tax Withholding. All distributions under the Plan are subject to minimum tax withholding obligations, and the Committee may condition the delivery of Shares or other benefits upon satisfaction of all applicable withholding requirements. The Committee, in its sole discretion and subject to such requirements as it may prescribe, may permit such withholding obligations to be satisfied through any combination of the following: (a) cash payment by the Participant; (b) payroll withholding of the Participant’s salary, wages or other compensation; (c) surrender of Shares which the Participant already owns (either by actual surrender or attestation); or (d) surrender of Shares or other benefits to which the Participant is otherwise entitled (e.g., upon exercise of an Option) under the terms of the Plan.

Section 8.02. Shares Not Publicly Traded. Notwithstanding anything to the contrary in Section 8.01, in the event the Shares are not listed for trading on an established national securities exchange on the date an Award is required to be settled, then the Company shall, at the request of the Employee, deduct or withhold Shares having a Fair Market Value equal to the amount required to be withheld to satisfy any federal, state, local and foreign taxes of any kind (including, but not limited to, the Employee’s FICA and SDI obligations) to the maximum extent permitted by the accounting rules applicable to the Company as then in effect without increasing the amount of compensation expense or other adverse accounting treatment, and with respect to which the Company, in its sole discretion, deems necessary to comply with the Code and/or any other applicable law, rule or regulation with respect to such Award.

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Article 9
Transferability

Section 9.01. Transferability of Awards. Except as otherwise expressly provided in an Award Agreement or ‎Section 9.04, no Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a Participant other than by will or by the laws of descent and distribution. An Option (or Other Share-Based Award subject to exercise) may be exercised during the lifetime of the Participant only by him or her or by his or her legal representative.

Section 9.02. Transferability of Shares. Except as otherwise expressly provided in an Award Agreement or the Stockholders Agreement, if any, Shares issued in respect of an Award may not be anticipated, assigned, attached, garnished, optioned, transferred or made subject to any creditor’s process, whether voluntarily, involuntarily or by operation of law.

Section 9.03 Transferability of Restricted Shares. Except as otherwise expressly provided in an Award Agreement or the Stockholders Agreement, if any, Restricted Shares or other Shares issued in connection with any Award may not be anticipated, assigned, attached, garnished, optioned, transferred or made subject to any creditor’s process, whether voluntarily, involuntarily or by operation of law.

Section 9.04 Permitted Transfers. Notwithstanding the foregoing, a Participant may transfer an Award or any Shares issued with respect to an Award to a Permitted Transferee with the prior written consent of the Committee; provided that (a) the Permitted Transferee agrees to be bound by the terms of the Plan and the applicable Award Agreement and (b) the provisions of the Plan and the Award Agreement with respect to any Award or Shares so transferred will continue to apply as though the Award or Shares were still held by the applicable Participant.

Article 10
Limitation On Implied Rights

Section 10.01. Property Rights. Neither a Participant nor any other Person shall, by reason of participation in the Plan, acquire any right in or title to any assets, funds or property of the Company or any of its Affiliates or Subsidiaries whatsoever including without limitation, any specific funds, assets or other property which the Company or any of its Affiliates or Subsidiaries, in its or their sole discretion, may set aside in anticipation of a liability under the Plan. Subject to the terms of the Plan, a Participant shall have only a contractual right to the Shares or amounts, if any, payable under the Plan, unsecured by any assets of the Company or any of its Affiliates or Subsidiaries, and nothing contained in the Plan shall constitute a representation or guarantee that the assets of the Company or any of its Affiliate or Subsidiaries shall be sufficient to pay any benefits to any Person.

Section 10.02. Employment Rights. Nothing in this Plan nor in any Award Agreement shall confer upon any Participant any promise or commitment by the Company or its Affiliates or Subsidiaries regarding employment, employment positions, work assignments, compensation or any other term or condition of employment or affiliation.

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Section 10.03. No Implied Rights or Obligations. The Company, in establishing and maintaining this Plan as a voluntary and unilateral undertaking, expressly disavows the creation of any rights in Participants or others claiming entitlement under the Plan or any obligations on the part of the Company, any of its Affiliates or Subsidiaries or the Committee, except as expressly provided herein. No Award shall be deemed to be salary or compensation for the purposes of computing benefits under any employee benefit, severance, pension or retirement plan of the Company or any of its Affiliates or Subsidiaries, unless the Committee shall determine otherwise, applicable local law provides otherwise or the terms of such plan specifically include such compensation.

Section 10.04. No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any of its Affiliates or Subsidiaries and a Participant or any other Person. To the extent that any Person acquires a right to receive payments from the Company or any of its Affiliates or Subsidiaries pursuant to an Award, such right shall be no greater than the right of any unsecured general creditor of the Company.

Section 10.05. Rights as a Stockholder. Subject to ‎Section 6.02(e), no Participant or holder of any Award shall have any rights as a Stockholder with respect to any Shares underlying such Award until the Award has been exercised or settled, and the Participant or holder has been issued Shares in accordance with the terms of the Plan.

Section 10.06. Additional Conditions of Awards. The Committee may specify in an Award Agreement that the Participant’s rights, payments and benefits with respect to an Award will be subject to reduction, cancellation, forfeiture or recoupment upon the occurrence of certain specified events, in addition to any otherwise applicable vesting or performance conditions of an Award. Such events may include a termination of the Participant’s employment or service with the Company and any of its Affiliates and Subsidiaries, a violation of material policies, breach of noncompetition, confidentiality or other restrictive covenants that may apply to the Participant or other conduct by the Participant that is detrimental to the business or reputation of the Company and/or its Affiliates and/or Subsidiaries.

Section 10.07. No Fractional Shares. No fractional Shares will be issued or delivered pursuant to the Plan or any Award, and the Committee will determine whether cash or other securities will be paid or transferred in lieu of any fractional Shares, or whether such fractional Shares or any rights thereto will be canceled, terminated or otherwise eliminated.

Section 10.08. Variations by Jurisdiction. Awards may be granted to Participants in different legal jurisdictions on such terms and conditions as may, in the judgment of the Committee, be necessary or desirable to recognize differences in local law, tax policy or custom. The Committee also may impose conditions on the exercise or vesting of Awards in order to minimize the Company’s obligation with respect to tax equalization for Participants on assignments outside their home country.

Section 10.09. Data Protection. By participating in the Plan, the Participant consents to the holding and processing of personal information provided by the Participant to the Company

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or its Affiliates or Subsidiaries, trustee or third-party service provider, for all purposes relating to the operation of the Plan. These include:

(a)administering and maintaining Participant records;

(b)providing information to the Company or its Affiliates or Subsidiaries, trustees of any employee benefit trust, registrars, brokers or third-party administrators of the Plan;

(c)providing information to future purchasers or other transaction counterparties of the Company or its Affiliates or Subsidiaries, or the business in which the Participant works; and

(d)transferring information about the Participant to any country or territory that may not provide the same protection for the information as the Participant’s home country.

Article 11
Government And Stock Exchange Regulations

The Committee may refuse to issue or transfer any Shares or other consideration under an Award if, acting in its sole discretion, it determines that the issuance or transfer of such Shares or such other consideration violate any applicable law or regulation or entitle the Company to recover the same under Section 16(b) of the Exchange Act, and any payment tendered to the Company by a Participant, other holder or beneficiary in connection with the exercise of such Award shall be promptly refunded to the relevant Participant, holder or beneficiary. Without limiting the generality of the foregoing, no Award granted hereunder shall be construed as an offer to sell securities of the Company, and no such offer shall be outstanding, unless and until the Committee in its sole discretion has determined that any such offer, if made, would be in compliance with all applicable requirements of the U.S. federal and state securities laws and any other laws to which such offer, if made, would be subject.

Upon the issuance of Shares in connection with the settlement award, vesting, exercise or settlement of an Award at a time when there is not in effect a registration statement under the Securities Act relating to such Shares and available for delivery a prospectus meeting the requirements of Section 10(a)(3) of the Securities Act, or if the rules or interpretations of the Securities and Exchange Commission so require, such Shares may be issued only if the Company and the holder of such Shares are in material compliance with all securities law requirements for an exemption from registration and the holder represents and warrants in writing to the Company that the Shares purchased are being acquired for investment and not with a view to distribution thereof. Shares issued hereunder may, as the Committee may determine, bear an appropriate legend referring to any restriction applicable to such shares.

The Company is under no duty to ensure that Shares may legally be delivered under the Plan, and shall have no liability to Award recipients in the event such delivery of Shares may not be made.

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Article 12
Amendments, Suspensions Or Termination Of Plan

Section 12.01. Amendment and Termination of the Plan. The Board may at any time suspend or terminate the Plan and may amend it from time to time in such respects as the Board may deem advisable in order that Awards granted thereunder shall conform to any change in the law, or in any other respect which the Board may deem to be in the best interests of the Company; provided, however, that no such amendment, alteration, suspension, discontinuation or termination shall be made without approval by the stockholders of the Company if such approval is necessary to comply with any tax or regulatory requirement for which or with which the Board deems it necessary or desirable to qualify or comply. Notwithstanding the foregoing, ‎Section 7.02 and the other provisions of the Plan relevant for determining the number of Shares that will be eligible to be granted pursuant to ‎Section 7.02 may not be amended to reduce the benefits provided thereby and will not be adversely affected by a termination of the Plan before its original expiration date specified in ‎Article 13.

Section 12.02. Amendment of Award Agreements. The Committee may, to the extent consistent with the terms of any applicable Award Agreement, waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Award theretofore granted or the associated Award Agreement, prospectively or retroactively; provided that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would adversely impair the rights of any Participant or any holder of any Award theretofore granted will not to that extent be effective without the consent of the affected Participant or holder.

Section 12.03. Corrections. The Committee may correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award in the manner and to the extent that it shall deem desirable to carry the Plan into effect.

Article 13
Termination

The Plan shall continue in effect until the tenth anniversary of the Effective Date, unless earlier terminated by the Board pursuant to ‎Article 12.

Article 14
Governing Law; Waiver of Jury Trial

The validity, construction and effect of the Plan, the Award Agreements and any rules, regulations or procedures relating thereto shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflicts of laws rules of such state. Participants acknowledge and agree that any controversy which may arise under or relate to the Plan or an Award Agreement is likely to involve complicated and difficult issues, and the Company and each Participant will agree to irrevocably waive any and all right to trial by jury in any legal proceeding arising out of or relating to the Plan or an Award Agreement, or the transactions and matters contemplated hereby or thereby.

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Article 15
Arbitration Of Disputes

Any controversy arising out of or relating to the Plan or an Award Agreement shall be resolved by arbitration conducted pursuant to the arbitration rules of the American Arbitration Association. The arbitration shall be final and binding on the parties. The arbitration shall be conducted in the Commonwealth of Virginia.

Article 16
Section 409a and Section 457A Of The Code

The Plan is intended to comply with the requirements of Section 409A and Section 457A of the Code and the regulations and guidance thereunder (respectively, “Section 409A” and “Section 457A”), the provisions of the Plan shall be interpreted in a manner that satisfies such requirements, and the Plan shall be operated accordingly. If any provision of the Plan would otherwise frustrate or conflict with this intent, the provision will be interpreted and deemed amended so as to avoid this conflict. If an operational failure occurs with respect to the requirements of Section 409A and Section 457A, any affected Participant shall fully cooperate with the Company to correct the failure, to the extent possible, in accordance with any correction procedure established by the Internal Revenue Service. No provision of the Plan shall be interpreted to transfer any liability for a failure to comply with Section 409A or Section 457A from a Participant or any other Person to the Company.

Notwithstanding any provision of the Plan or any Award Agreement, if at the time of termination of a Participant’s employment or service with the Company he or she is a “specified employee” (as defined in Section 409A) and any payments upon such termination under the Plan or such Award Agreement are treated as deferred compensation subject to Section 409A, he or she will not be entitled to such payments until the earlier of (a) the date that is six months after such termination or (b) any earlier date that does not result in any additional tax or interest to such Participant under Section 409A. For purposes of Section 409A, any payment or settlement of an Award made under the Plan shall be designated as a “separate payment” within the meaning of Section 409A.

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EX-99.2

Exhibit 99.2

AMENDMENT NO. 1 TO CONTURA ENERGY, INC.

MANAGEMENT INCENTIVE PLAN

THIS AMENDMENT NO. 1 (this “Amendment”), is dated as of January 18, 2017 (the “Effective Date”) and amends that certain Management Incentive Plan (the “Plan”) of Contura Energy, Inc. (the “Company”) effective as of July 26, 2016. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Plan.

RECITALS

WHEREAS, the Board previously adopted the Plan; and

WHEREAS, Board deems it in the best interest of the Company to amend the Plan as set forth herein, effective as of the Effective Date.

NOW, THEREFORE, the Board hereby amends the Plan as follows:

1.       A new Section 7.03 is hereby added as follows:

“Section 7.03 Initial Public Offering. Notwithstanding anything to the contrary contained herein, on the date immediately prior to the date on which the Company initially sells its common stock in a bona fide, firm commitment underwriting pursuant to a registration statement under the Securities Act (the “IPO”), but contingent upon the consummation of the IPO, all then-outstanding Awards shall immediately vest and the Company shall make the Change in Control Grants in accordance with Section 7.02 hereof. For the sake of clarity, the occurrence of an IPO will be considered to be a Change in Control for purposes of Section 7.02.”

2.       This Amendment shall only serve to amend and modify the Plan to the extent specifically provided herein. All terms, conditions, provisions and references of and to the Plan which are not specifically modified, amended and/or waived herein shall remain in full force and effect and shall not be altered by any provisions herein contained. All prior agreements, promises, negotiations and representations, either oral or written, relating to the subject matter of this Amendment not expressly set forth in this Amendment are of no force or effect.

EX-99.3

Exhibit 99.3

CONTURA ENERGY, INC.

2018 LONG-TERM INCENTIVE PLAN

Section 1. Purpose. The purpose of the Contura Energy, Inc. 2018 Long-Term Incentive Plan (as amended from time to time, the “Plan”) is to advance the interests of Contura Energy, Inc. (the “Company”) and its stockholders by motivating and retaining employees and other selected individuals who contribute significantly to the strategic and long-term performance objectives and growth of the Company.

Section 2. Definitions. Certain capitalized terms applicable to the Plan are set forth in Appendix A.

Section 3. Administration.

(a)Administration of the Plan. The Plan shall be administered by the Committee. All decisions of the Committee shall be final, conclusive and binding upon all parties, including the Company, its stockholders, Eligible Persons and any Beneficiaries thereof. The Committee may issue rules and regulations for administration of the Plan. It shall meet at such times and places as it may determine.

(b)Composition of Committee. To the extent necessary or desirable to comply with applicable regulatory regimes, any action by the Committee shall require the approval of Committee members who are (i) independent, within the meaning of and to the extent required by applicable rulings and interpretations of the applicable stock market or exchange on which the Common Shares are quoted or traded; and (ii) non-employee Directors within the meaning of Rule 16b-3 under the Exchange Act. The Board may designate one or more Directors as alternate members of the Committee who may replace any absent or disqualified member at any meeting of the Committee. To the extent permitted by applicable law, including under Section 157(c) of the Delaware General Corporation Law, the Committee may delegate to one or more officers of the Company some or all of its authority under the Plan, including the authority to grant Options and Stock Appreciation Rights or other Awards in the form of Common Share rights (except that such delegation shall not be applicable to any Award for a Person then covered by Section 16 of the Exchange Act), and the Committee may delegate to one or more committees of the Board (which may consist of solely one Director) some or all of its authority under the Plan, including the authority to grant all types of Awards, in accordance with applicable law.

(c)Authority of Committee. Subject to the terms of the Plan and applicable law, the Committee (or its delegate) shall have full discretion and authority to: (i) designate Eligible Persons; (ii) determine the type or types of Awards (including Substitute Awards) to be granted to each Eligible Person under the Plan; (iii) determine the number of Common Shares to be covered by (or with respect to which payments, rights or other matters are to be calculated in connection with) Awards; (iv) determine the terms and conditions of any Award and prescribe the form of each Award Agreement which need not be identical for each Participant; (v) determine whether, to what extent and under what circumstances Awards may be settled or exercised in cash, Common

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Shares, other Awards, other property, net settlement, or any combination thereof, or canceled, forfeited or suspended, and the method or methods by which Awards may be settled, exercised, canceled, forfeited or suspended; (vi) determine whether, to what extent and under what circumstances cash, Common Shares, other Awards, other property and other amounts payable with respect to an Award under the Plan shall be deferred either automatically or at the election of the holder thereof or of the Committee; (vii) amend terms or conditions of any outstanding Awards in a manner consistent with Section 5(b) hereof; (viii) correct any defect, supply any omission and reconcile any inconsistency in the Plan or any Award, in the manner and to the extent it shall deem desirable to carry the Plan into effect; (ix) interpret and administer the Plan and any instrument or agreement relating to, or Award made under, the Plan; (x) establish, amend, suspend or waive such rules and regulations and appoint such agents, trustees, brokers, depositories and advisors and determine such terms of their engagement as it shall deem appropriate for the proper administration of the Plan and due compliance with applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations; and (xi) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan and due compliance with applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations. Notwithstanding anything to the contrary contained herein, the Board may, in its sole discretion, at any time and from time to time, grant Awards or administer the Plan. In any such case, the Board shall have all of the authority and responsibility granted to the Committee herein.

Section 4. Participation.

Consistent with the purposes of the Plan, the Committee shall have exclusive power to select the Eligible Persons who may participate in the Plan and be granted Awards under the Plan. Eligible Persons may be selected individually or by groups or categories, as determined by the Committee in its discretion.

Section 5. Shares Available for Award.

(a) Share Reserve.

(i)Subject to adjustment as provided in Section 5(b) and except for Substitute Awards, the maximum number of Common Shares available for issuance under the Plan is 1,000,000. The maximum number of Common Shares available for issuance with respect to Incentive Stock Options shall be 940,800.

(ii)If any Award, in whole or in part, is forfeited, cancelled, expires, terminates or otherwise lapses, or is settled in cash without the delivery of Common Shares, or Common Shares are withheld by the Company in respect of taxes, then the corresponding Common Shares shall again be available for grant under the Plan. For the avoidance of doubt, any Common Shares tendered or withheld to pay the exercise price of Options, or that are covered by a Stock Appreciation Right (to the extent that it is settled in Common Shares, without

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regard to the number of Shares that are actually issued upon exercise), will not again become available for issuance under the Plan.

(iii) Common Shares issued pursuant to the Plan may be either authorized but unissued shares, treasury shares, reacquired shares or any combination thereof.

(b) Adjustments. In the event that the Committee determines that, as a result of any dividend or other distribution (other than an ordinary dividend or distribution), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, separation, rights offering, split-up, spin-off, combination, repurchase or exchange of Common Shares or other securities of the Company, issuance of warrants or other rights to purchase Common Shares or other securities of the Company, issuance of Common Shares pursuant to the anti-dilution provisions of securities of the Company, or other similar corporate transaction or event affecting the Common Shares, or changes in applicable laws, regulations or accounting principles, an adjustment is appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Committee shall, subject to compliance with Section 409A of the Code and other applicable law, adjust equitably so as to ensure no undue enrichment or harm (including, without limitation, by payment of cash) any or all of:

(i)the number and type of Common Shares (or other securities) which thereafter may be made the subject of Awards, including the aggregate limit specified in Section 5(a) and the individual limits specified in Section 5(c);

(ii)the number and type of Common Shares (or other securities) subject to outstanding Awards; and

(iii)the grant, purchase, exercise or hurdle price with respect to any Award or, if deemed appropriate, make provision for a cash payment to the holder of an outstanding Award;

provided, however, that the number of Common Shares subject to any Award denominated in Common Shares shall always be a whole number.

(c) Non-Employee Director Limits. No non-employee Director may be granted (i)  Award(s) (denominated in Common Shares) in excess of 34,285 Common Shares (or if greater, in the case of Restricted Stock Units, Restricted Stock, Performance Awards and Other Stock-Based Awards, Common Shares with an aggregate Fair Market Value of $300,000, as calculated on the grant date of the applicable Award) or (ii) Award(s) denominated in cash in excess of $150,000 under the Plan in any one fiscal year of the Company.

Section 6. Awards under the Plan.

(a) Types of Awards. Awards under the Plan may include, but need not be limited to, one or more of the following types, either alone or in any combination thereof:

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(i) Stock Options, (ii) Stock Appreciation Rights, (iii) Restricted Stock, (iv) Restricted Stock Units, (v) Performance Awards, (vi) Other Cash-Based Awards and (vii) Other Stock-Based Awards.

(b) Rights with Respect to Common Shares and Other Securities. Except as provided in Section 9(c) with respect to Awards of Restricted Stock and unless otherwise determined by the Committee in its discretion, a Participant to whom an Award is made (and any Person succeeding to such a Participant’s rights pursuant to the Plan) shall have no rights as a stockholder with respect to any Common Shares or as a holder with respect to other securities, if any, issuable pursuant to any such Award until the date a stock certificate evidencing such Common Shares or other evidence of ownership is issued to such Participant or until such Participant’s ownership of such Common Shares shall have been entered into the books of the registrar in the case of uncertificated shares.

(c) Award Agreements. Each Award granted or sold under the Plan shall be evidenced by an Award Agreement in such form as the Committee shall prescribe from time to time in accordance with the Plan and shall comply with the applicable terms and conditions of the Plan and applicable law, and with such other terms and conditions, including, but not limited to, treatment of the Award upon a Separation from Service and restrictions upon a Stock Option or the Common Shares issuable upon exercise thereof, as the Committee, in its discretion, shall establish.

Section 7. Stock Options. The Committee may grant Stock Options to Eligible Persons with the following terms and conditions and with such additional terms and conditions, in each case, not inconsistent with the provisions of the Plan, as the Committee shall determine; provided that an Incentive Stock Option may be granted only to Eligible Persons who are employees of the Company or any parent or subsidiary of the Company within the meaning of Sections 424(e) and (f) of the Code, including a subsidiary which becomes such after adoption of the Plan.

(a)The Committee shall determine the number of Common Shares to be subject to each Stock Option. The exercise price of a Stock Option shall not be less than the Fair Market Value of the Common Shares subject to such Stock Option on the date of grant, as determined by the Committee; provided, however, if an Incentive Stock Option is granted to a Ten Percent Employee, such exercise price shall not be less than 110% of such Fair Market Value at the time the Stock Option is granted.

(b)Any Stock Option may be exercised during its term only at such time or times and in such installments as the Committee may establish.

(c)     A Stock Option shall not be exercisable:

(i)in the case of any Incentive Stock Option granted to a Ten Percent Employee, after the expiration of five years from the date it is granted, and, in the case of any other Stock Option, after the expiration of ten years from the date it is granted; and

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(ii)     no Common Shares shall be issued unless payment in full is made for the Common Shares being acquired under such Stock Option at the time of exercise as provided in Section 7(e).

(d)    In the case of an Incentive Stock Option, the amount of the aggregate Fair Market Value of Common Shares (determined at the time of grant of the Stock Option) with respect to which Incentive Stock Options are exercisable for the first time by an employee of the Company or a Subsidiary during any calendar year (under all such plans of his or her employer corporation and its parent and subsidiary corporations within the meaning of Sections 424(e) and (f) of the Code) shall not exceed $100,000 or such other amount as is specified in the Code. An Incentive Stock Option that is exercised at a time that is beyond the time an Incentive Stock Option may be exercised in order to qualify as such under the Code shall cease to be an Incentive Stock Option.

(e)The Committee shall determine the method or methods by which, and the form or forms, including cash, Common Shares, other Awards, other property, net settlement, broker-assisted cashless exercise or any combination thereof, having a Fair Market Value (if such form is other than cash) on the exercise date equal to the exercise price of the Common Shares as to which the Option shall be exercised, in which payment of the exercise price with respect thereto may be made or deemed to have been made.

(f)If the exercise of a Stock Option is prevented by Section 19(e), the Stock Option shall remain exercisable until thirty days after the date such exercise first would no longer be prevented by such provision, but in any event no later than the expiration date of such Stock Option.

Section 8. Stock Appreciation Rights. The Committee may grant Stock Appreciation Rights to Eligible Persons with the following terms and conditions, and with such additional terms and conditions in each case not inconsistent with the provisions of the Plan, as the Committee shall determine.

(a)The Committee shall determine the number of Common Shares to be subject to each Stock Appreciation Right. Stock Appreciation Rights shall have an exercise price no less than the Fair Market Value of the Common Shares subject to such Stock Appreciation Right on the date of grant, as determined by the Committee.

(b)Any Stock Appreciation Right may be exercised during its term only at such time or times and in such installments as the Committee may establish and shall not be exercisable after the expiration of ten years from the date it is granted.

(c)A Stock Appreciation Right shall entitle the holder to exercise such Award and to receive from the Company in exchange thereof, without payment to the Company, that number of Common Shares or cash having an aggregate value equal to the excess of the Fair Market Value of one Common Share, at the time of such exercise, over the exercise price, times the number of Common Shares subject to the Award, or portion thereof, that is so exercised or surrendered, as the case may be.

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(d)    If the exercise of a Stock Appreciation Right is prevented by Section 19(e), the Stock Appreciation Right shall remain exercisable until thirty days after the date such exercise first would no longer be prevented by such provision, but in any event no later than the expiration date of such Stock Appreciation Right.

Section 9. Restricted Stock and Restricted Stock Units. The Committee is authorized to grant Awards of Restricted Stock and Restricted Stock Units to Eligible Persons with the following terms and conditions, and with such additional terms and conditions in each case not inconsistent with the provisions of the Plan, as the Committee shall determine.

(a)The Committee shall determine the number of Common Shares to be issued to a Participant pursuant to the Award of Restricted Stock or Restricted Stock Units, and the extent, if any, to which they shall be issued in exchange for cash, other consideration, or both. The Award Agreement shall specify the applicable conditions and restrictions and, with respect to Restricted Stock Units, the delivery schedule (which may include deferred delivery later than an applicable vesting date).

(b)Until the expiration of such period as the Committee shall determine from the date on which the Award is granted and subject to such other terms and conditions as the Committee, in its discretion, shall establish (the “Restricted Period”), a Participant to whom an Award of Restricted Stock is made shall be issued, but shall not be entitled to the delivery of, a stock certificate or other evidence of ownership representing the Common Shares subject to such Award.

(c)      Unless otherwise determined by the Committee in its discretion, a Participant to whom an Award of Restricted Stock has been made (and any Person succeeding to such a Participant’s rights pursuant to the Plan) shall have, after issuance of a  certificate for the number of Common Shares awarded (or after the Participant’s ownership of such Common Shares shall have been entered into the books of the registrar in the case of uncertificated shares) and prior to the expiration of the Restricted Period, ownership of such Common Shares, including the right to vote such Common Shares and to receive dividends or other distributions made or paid with respect to such Common Shares, provided that, such Common Shares, and any new, additional or different shares, or Other Company Securities or property, or other forms of consideration that the Participant may be entitled to receive with respect to such Common Shares as a result of a  stock split, stock dividend or any other change in the corporation or capital structure of the Company, shall be subject to the restrictions set forth in the Award Agreement. A Restricted Stock Unit shall not convey to the Participant the rights and privileges of a stockholder with respect to the Common Share subject to the Restricted Stock Unit, such as the right to vote or the right to receive dividends, unless and until a Common Share is issued to the Participant to settle the Restricted Stock Unit.

(d)The Committee may, in its discretion, specify in the applicable Award Agreement that any or all dividends, Dividend Equivalents or other distributions, as applicable, paid on Awards of Restricted Stock or Restricted Stock Units prior to vesting or settlement, as applicable, be paid either in cash or in additional Common Shares and

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either on a current or deferred basis and that such dividends, dividend equivalents or other distributions may be reinvested in additional Common Shares, which may be subject to the same restrictions as the underlying Awards. Notwithstanding the foregoing, dividends and Dividend Equivalents with respect to Restricted Stock and Restricted Stock Units that are granted as Performance Awards shall vest only if and to the extent that the underlying Performance Award vests, as determined by the Committee.

Section 10. Performance Awards.

(a)Grant. The Committee may grant a Performance Award to Eligible Persons which shall consist of a right that is (i) denominated and/or payable in cash, Common Shares or any other form of Award issuable under the Plan (or any combination thereof) (other than Stock Options or Stock Appreciation Rights), (ii) valued, as determined by the Committee, in accordance with the achievement of such performance goals applicable to such performance periods as the Committee shall establish and (iii) payable at such time and in such form as the Committee shall determine.

(b)Terms and Conditions. Performance Awards may be conditioned upon the achievement of pre-established goals relating to one or more of the following performance measures, as determined by the Committee and subject to such modifications as specified by the Committee: cash flow; cash flow from operations; earnings (including, but not limited to, earnings before interest, taxes, depreciation and amortization or some variation thereof); earnings per share, diluted or basic; earnings per share from continuing operations; net asset turnover; inventory turnover; capital expenditures; debt; debt reduction; working capital; return on investment; return on sales; net or gross sales; market share; economic value added; cost of capital; change in assets; expense reduction levels; productivity; delivery performance; safety record and/or performance; environmental record and/or performance; stock price; return on equity; total or relative increases to stockholder return; return on invested capital; return on assets or net assets; revenue; income or net income; operating income or net operating income; operating profit or net operating profit; gross margin, operating margin or profit margin; and completion of acquisitions, business expansion, product diversification, new or expanded market penetration, and other non-financial operating and management performance objectives. The Committee may determine that certain adjustments shall apply, in whole or in part, to exclude or include the effect of specified events that occur during a performance period. Performance measures may be determined either individually, alternatively or in any combination, applied to either the Company as a whole or to a business unit or subsidiary entity thereof, either individually, alternatively or in any combination, and measured over a period of time including any portion of a year, annually or cumulatively over a period of years, on an absolute basis or relative to a pre-established target, to previous fiscal years’ results or to a designated comparison group, in each case as specified by the Committee.

(c)Additional Restrictions/Exercise of Discretion. The Committee, in its sole discretion, may also establish such additional restrictions or conditions that must be satisfied as a condition precedent to the payment of all or a portion of any Performance Awards. Such additional restrictions or conditions need not be performance-based and

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may include, among other things, the receipt by a Participant of a specified annual performance rating, the continued employment by the Participant and/or the achievement of specified performance goals by the Company, business unit or Participant. Furthermore, and notwithstanding any provision of the Plan to the contrary, the Committee, in its sole discretion, may retain the discretion to adjust the amount of any Performance Award payable to a Participant if it concludes that such adjustment is necessary or appropriate.

(d) Payment of Performance Awards. Performance Awards may be paid in a lump sum or in installments following the close of the relevant Performance Period or, in accordance with procedures established by the Committee, on a deferred or accelerated basis.

Section 11. Other Cash-Based Awards and Other Stock-Based Awards. The Committee may grant Other Cash-Based Awards and Other Stock- Based Awards to Eligible Persons with the following terms and conditions, and with such additional terms and conditions in each case not inconsistent with the provisions of the Plan, as the Committee shall determine, which shall consist of any right that is (i) not an Award described in Sections 7 through 10 above and (ii) an Award of Common Shares or cash or an Award denominated or payable in, valued in whole or in part by reference to, or otherwise based on or related to, Common Shares (including, without limitation, securities convertible into Common Shares), as deemed by the Committee to be consistent with the purposes of the Plan. Subject to the terms of the Plan and any applicable Award Agreement, the Committee shall determine the terms and conditions of any such Other Cash-Based Award or Other Stock-Based Award.

Section 12. Effect of Separation from Service or a Change in Control on Awards.

(a)The Committee may provide, by rule or regulation or in any applicable Award Agreement, or may determine in any individual case, the circumstances in which, and the extent to which, an Award may be exercised, settled, vested, paid or forfeited in the event of the Participant’s Separation from Service prior to the end of a Performance Period or vesting, exercise or settlement of such Award.

(b)In the event of a Change in Control, the Committee may, in its sole discretion, and on such terms and conditions as it deems appropriate, take any one or more of the following actions with respect to any outstanding Award, which need not be uniform with respect to all Participants and/or Awards:

(i)continuation or assumption of such Award by the Company (if it is the surviving corporation) or by the successor or surviving corporation or its parent;

(ii)substitution or replacement of such Award by the successor or surviving corporation or its parent with cash, securities, rights or other property to be paid or issued, as the case may be, by the successor or surviving corporation

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(or a parent or subsidiary thereof), with substantially the same terms and value as such Award (including, without limitation, any applicable performance targets or criteria with respect thereto);

(iii)acceleration of the vesting of such Award and the lapse of any restrictions thereon and, in the case of an Option or Stock Appreciation Right, acceleration of the right to exercise such Award during a specified period (and the termination of such Option or Stock Appreciation Right without payment of any consideration therefor to the extent such Award is not timely exercised), in each case, upon (A) the Participant’s involuntary Separation from Service (including upon a termination of the Participant’s employment by the Company (or a successor corporation or its parent) without “cause” or by the Participant for “good reason”) as such terms may be defined in the applicable Award Agreement and/or the Participant’s employment agreement or offer letter, as the case may be) on or within 24 months following such Change in Control or (B) the failure of the successor or surviving corporation (or its parent) to continue or assume such Award;

(iv)in the case of a Performance Award, determination of the level of attainment of the applicable performance condition(s); and

(v)cancellation of such Award in consideration of a payment, subject to the following: (A) such payment shall be made in cash, securities, rights and/or other property; (B) the amount of such payment shall equal the value of such Award, as determined by the Committee in its reasonable discretion; provided that, in the case of an Option or Stock Appreciation Right, if such value equals the Intrinsic Value of such Award, such value shall be deemed to be valid; provided further that, if the Intrinsic Value of an Option or Stock Appreciation Right is equal to or less than zero, the Committee may, in its sole discretion, provide for the cancellation of such Award without payment of any consideration therefor (for the avoidance of doubt, in the event of a Change in Control, the Committee may, in its sole discretion, terminate any Option or Stock Appreciation Right for which the exercise or hurdle price is equal to or exceeds the per Common Share value of the consideration to be paid in the Change in Control transaction without payment of consideration therefor); and (C) such payment shall be made promptly following such Change in Control or on a specified date or dates following such Change in Control; provided that the timing of such payment shall comply with Section 409A.

Section 13. Section 409A. Notwithstanding any provision of the Plan or an Award Agreement to the contrary, if any Award provided under the Plan is subject to the provisions of Section 409A, the provisions of the Plan and any applicable Award Agreement shall be administered, interpreted and construed in a manner necessary in order to comply with Section 409A or an exception thereto (or disregarded to the extent such provision cannot be so administered, interpreted or construed), and the following provisions shall apply, as applicable and as required by Section 409A:

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(a)If a Participant is a Specified Employee for purposes of Section 409A and a payment subject to Section 409A (and not excepted therefrom) to the Participant is due upon Separation from Service, such payment shall be delayed for a period of six (6) months after the date the Participant Separates from Service (or, if earlier, the death of the Participant). Any payment that would otherwise have been due or owing during such six-month period will be paid immediately following the end of the six-month period unless another compliant date is specified in the applicable Award Agreement.

(b)For purposes of Section 409A, and to the extent applicable to any Award under the Plan, it is intended that distribution events qualify as permissible distribution events for purposes of Section 409A and shall be interpreted and construed accordingly. Whether a Participant has Separated from Service will be determined by the Committee based on all of the facts and circumstances and, to the extent applicable to any Award, in accordance with the guidance issued under Section 409A.

(c)The grant of Nonqualified Stock Options and Stock Appreciation Rights are intended to be granted under terms and conditions consistent with Treas. Reg. § 1.409A-1(b)(5) such that any such Award does not constitute a deferral of compensation under Section 409A.

Section 14. Deferred Payment of Awards. The Committee, in its discretion, may specify the conditions under which the payment of all or any portion of any cash compensation, or Common Shares or other form of payment under an Award, may be deferred until a later date. Deferrals shall be for such periods or until the occurrence of such events, and upon such terms and conditions, as the Committee shall determine in its discretion, in accordance with the provisions of Section 409A; provided, however, that no deferral shall be permitted with respect to Stock Options or Stock Appreciation Rights.

Section 15. Transferability of Awards. Except pursuant to the laws of descent and distribution, a Participant’s rights and interest under the Plan or any Award may not be assigned or transferred, hypothecated or encumbered in whole or in part, including, but not by way of limitation, execution, levy, garnishment, attachment, pledge, bankruptcy or in any other manner; provided, however, the Committee may permit such transfer to a Permitted Transferee; and provided, further, that, unless otherwise permitted by the Code, any Incentive Stock Option granted pursuant to the Plan shall not be transferable other than by will or by the laws of descent and distribution, and shall be exercisable during the Participant’s lifetime only by Participant.

Section 16. Amendment or Substitution of Awards under the Plan.

(a) The terms of any outstanding Award under the Plan may be amended or modified from time to time after grant by the Committee in its discretion in any manner that it deems appropriate (including, but not limited to, acceleration of the date of exercise of any Award and/or payments under any Award) in accordance with the terms of the Plan; provided that no such amendments or acceleration shall adversely affect in a material manner any right of a Participant under the Award without his or her written consent. The Committee may, in its discretion, permit holders of Awards under the Plan

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to surrender outstanding Awards in order to exercise or realize the rights under other Awards, or in exchange for the grant of new Awards, or require holders of Awards to surrender outstanding Awards as a condition precedent to the grant of new Awards under the Plan.

(b) No Repricing. Notwithstanding the foregoing, except as provided in Section 5(b), no action (including the repurchase of Options or Stock Appreciation Right Awards (in each case, that are “out of the money”) for cash and/or other property) shall directly or indirectly, through cancellation and regrant or any other method, reduce, or have the effect of reducing, the exercise or hurdle price of any Award established at the time of grant thereof without approval of the Company’s stockholders.

Section 17. Termination of a Participant . For all purposes under the Plan, the Committee shall determine whether a Participant has Separated from Service, terminated employment with, or terminated the performance of services for, the Company or any Subsidiary; provided, however, an absence or leave approved by the Company, to the extent permitted by applicable provisions of the Code, shall not be considered an interruption of employment or performance of services for any purpose under the Plan.

Section 18. Designation of Beneficiary by Participant. A Participant may name a beneficiary to receive any payment to which such Participant may be entitled with respect to any Award under the Plan in the event of his or her death, on a written form to be provided by and filed with the Committee, and in a manner determined by the Committee in its discretion (a “Beneficiary”). The Committee reserves the right to review and approve Beneficiary designations. A Participant may change his or her Beneficiary from time to time in the same manner, unless such Participant has made an irrevocable designation. Any designation of a Beneficiary under the Plan (to the extent it is valid and enforceable under applicable law) shall be controlling over any other disposition, testamentary or otherwise, as determined by the Committee in its discretion. If no designated Beneficiary survives the Participant and is living on the date on which any amount becomes payable to such a Participant’s Beneficiary, such payment will be made to the legal representatives of the Participant’s estate, and the term “Beneficiary” as used in the Plan shall be deemed to include such Person or Persons. If there are any questions as to the legal right of any Beneficiary to receive a distribution under the Plan, the Committee in its discretion may determine that the amount in question be paid to the legal representatives of the estate of the Participant, in which event the Company, the Board, the Committee and the members thereof, will have no further liability to anyone with respect to such amount.

Section 19. Miscellaneous Provisions.

(a)     Any proceeds from Awards shall constitute general funds of Company.

(b)No fractional shares may be delivered under an Award, but in lieu thereof a cash or other adjustment may be made as determined by the Committee in its discretion.

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(c)No Eligible Person or other Person shall have any claim or right to be granted an Award under the Plan. Determinations made by the Committee under the Plan need not be uniform and may be made selectively among Eligible Persons under the Plan, whether or not such Eligible Persons are similarly situated. Neither the Plan nor any action taken under the Plan shall be construed as giving any Eligible Person any right to continue to be employed by or perform services for the Company, and the Company specifically reserves the right to terminate the employment of, or performance of services by, Eligible Persons at any time and for any reason.

(d)No Participant or other Person shall have any right with respect to the Plan or the Common Shares reserved for issuance under the Plan or in any Award, contingent or otherwise, until written evidence of the Award shall have been delivered to the Participant and all the terms, conditions and provisions of the Plan and the Award applicable to such Participant (and each Person claiming under or through him or her) have been met.

(e)Notwithstanding anything to the contrary contained in the Plan or in any Award agreement, each Award shall be subject to the requirement, if at any time the Committee shall determine, in its sole discretion, that such requirement shall apply, that the listing, registration or qualification of any Award under the Plan, or of the Common Shares, Other Company Securities or property or other forms of payment issuable pursuant to any Award under the Plan, on any stock exchange or other market quotation system or under any federal or state law, or the consent or approval of any government regulatory body, is necessary as a condition of, or in connection with, the granting of such Award or the exercise or settlement thereof, such Award shall not be granted, exercised or settled in whole or in part until such listing, registration, qualification, consent or approval shall have been effected, obtained and maintained free of any conditions not acceptable to the Committee. Notwithstanding anything to the contrary contained in the Plan or in any Award agreement, no Common Shares, Other Company Securities or property or other forms of payment shall be issued under the Plan with respect to any Award unless the Committee shall be satisfied that such issuance will be in compliance with applicable law and any applicable rules of any stock exchange or other market quotation system on which such Common Shares are listed. If the Committee determines that the exercise of any Stock Option or Stock Appreciation Right would fail to comply with any applicable law or any applicable rules of any stock exchange or other market quotation system on which Common Shares are listed, the Participant holding such Stock Option or Stock Appreciation Right shall have no right to exercise such Stock Option or Stock Appreciation Right until such time as the Committee shall have determined that such exercise will not violate any applicable law or any such applicable rule.

(f)Although it is the intent of Company that the Plan and Awards hereunder, to the extent the Committee deems appropriate and to the extent applicable, comply with Rule 16b-3 and Sections 409A and 422; (i) the Company does not warrant that any Award under the Plan will qualify for favorable tax treatment under any provision of federal, state, local or non-United States law; and (ii) in no event shall any member of the Committee or the Company (or its employees, officers or directors) have any liability to

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any Participant (or any other Person) due to the failure of an Award to satisfy the requirements of Rule 16b-3 or Section 409A or 422 or, as applicable, for any tax, interest, or penalties the Participant might owe as a result of the grant, holding, vesting, exercise, or payment of any Award under the Plan.

(g)The Company shall have the right to deduct from any payment made under the Plan any federal, state, local or foreign income or other taxes required by law to be withheld with respect to such payment. It shall be a condition to the obligation of Company to issue Common Shares, Other Company Securities, other securities or property, or other forms of payment, or any combination thereof, upon exercise, settlement or payment of any Award under the Plan, that the Participant (or any Beneficiary or Person entitled to act) pay to the Company, upon its demand, such amount as may be required by the Company for the purpose of satisfying any liability to withhold federal, state, local or foreign income or other taxes. If the amount requested is not paid, the Company may refuse to issue Common Shares, Other Company Securities, other securities or property, or other forms of payment, or any combination thereof. Notwithstanding anything in the Plan to the contrary, the Committee may, in its discretion, permit an Eligible Person (or any Beneficiary or Person entitled to act) to elect to pay a portion or all of the amount requested by the Company for such taxes with respect to such Award, at such time and in such manner as the Committee shall deem to be appropriate (including, but not limited to, by authorizing the Company to withhold, or agreeing to surrender to the Company on or about the date such tax liability is determinable, Common Shares, Other Company Securities, other securities or property, or other forms of payment, or any combination thereof, owned by such Person or a portion of such forms of payment that would otherwise be distributed, or have been distributed, as the case may be, pursuant to such Award to such Person, having a Fair Market Value equal to the amount of such taxes); provided, however, that any broker-assisted cashless exercise shall comply with the requirements of Financial Accounting Standards Board, Accounting Standards Codification, Topic 718, and any withholding satisfied through a net-settlement of an Award shall be limited to the maximum statutory withholding requirements.

(h)     The expenses of the Plan shall be borne by the Company.

(i)The Plan shall be unfunded. The Company shall not be required to establish any special or separate fund or to make any other segregation of assets to assure the payment of any Award under the Plan, and rights to the payment of Awards shall be no greater than the rights of the Company’s general creditors.

(j)By accepting any Award or other benefit under the Plan, each Participant (and each Person claiming under or through him or her) shall be conclusively deemed to have indicated his or her acceptance and ratification of, and consent to, any action taken under the Plan by the Company, the Board or the Committee.

(k)Records of the Company shall be conclusive for all purposes under the Plan or any Award, unless determined by the Committee to be incorrect.

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(l)If any provision of the Plan or any Award is held to be illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining provisions of the Plan or any Award, but such provision shall be fully severable, and the Plan or Award, as applicable, shall be construed and enforced as if the illegal or invalid provision had never been included in the Plan or Award, as applicable.

(m)The terms of the Plan shall govern all Awards under the Plan and in no event shall the Committee have the power to grant any Award under the Plan that is contrary to any of the provisions of the Plan.

(n)Notwithstanding the foregoing, any Award granted under the Plan which is or becomes subject to recovery under any Company policy adopted after the Effective Date or required by law, regulation or stock exchange listing requirement, shall be subject to such deductions, recoupment, and clawback as may be required to be made pursuant to such Company policy (the “Clawback Policy”) or applicable law, regulation or stock exchange listing requirement. Upon the adoption of the Clawback Policy, the Committee is hereby granted the authority, in its discretion, to amend and/or terminate any similar recoupment and clawback provisions in outstanding Awards which are inconsistent with, similar to, or duplicative of, such Clawback Policy.

(o)The Committee may from time to time establish sub-plans under the Plan for purposes of satisfying securities, tax or other laws of various jurisdictions in which the Company intends to grant Awards. Any sub-plans shall contain such limitations and other terms and conditions as the Committee determines are necessary or desirable. All sub-plans shall be deemed a part of the Plan, but, if applicable, each sub-plan shall apply only to the Participants in the jurisdiction for which the sub-plan was designed. Awards may be granted to Participants who are non-United States nationals or employed or providing services outside the United States, or both, on such terms and conditions different from those applicable to Awards to Participants who are employed or providing services in the United States as may, in the judgment of the Committee, be necessary or desirable to recognize differences in local law, tax policy or custom.

Section 20. Effective Date and Approval Date. The Plan shall become effective upon the date of approval of the Plan by the Board (the “Effective Date”); provided, however, that the Plan shall be subject to the subsequent approval by the Company’s stockholders, such stockholder approval to be obtained not later than one year after the Effective Date. Any Awards granted under the Plan prior to such approval by stockholders shall be subject to such approval, and, in the absence of such approval, such Awards shall be null and void

Section 21. Plan Amendment or Suspension. The Plan may be amended or suspended in whole or in part at any time and/or from time to time by the Committee; provided that no such change or amendment shall be made without stockholder approval if such approval is necessary to qualify for or comply with any tax or regulatory requirement or other applicable law for which the Committee deems it necessary or desirable to qualify or comply. No amendment of the Plan shall adversely affect in a material manner any right of any Participant with respect to any Award previously

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granted without such Participant’s written consent, except as permitted under Section 5(b). Notwithstanding the foregoing or any provision of the Plan to the contrary, the Committee may at any time (without the consent of any Participant) modify, amend or terminate any or all of the provisions of the Plan or an Award to the extent necessary to conform the provisions of the Plan with Section 409A or any other provision of the Code or other applicable law, the regulations issued thereunder or an exception thereto, regardless of whether such modification, amendment or termination of the Plan shall adversely affect the rights of a Participant.

Section 22. Term of the Plan. No Awards shall be granted under the Plan after earlier of the following dates or events to occur:

(a) upon the adoption of a resolution of the Board terminating the Plan; or

(b) the tenth anniversary of the Effective Date.

Section 23. Governing Law. The Plan and any Award granted under the Plan as well as any determinations made or actions taken under the Plan shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Delaware without regard to its choice or conflicts of laws principles.

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APPENDIX A

The following terms shall have the meaning indicated:

“Affiliate” means any entity that, directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Company.

“Award” means an award of Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Awards, Other Cash-Based Awards or Other Stock-Based Awards to an Eligible Person under the Plan.

“Award Agreement” means any agreement, contract or other instrument or document (including in electronic form) evidencing any Award granted under the Plan, which may, but need not, be executed or acknowledged by a Participant.

“Beneficiary” has the meaning set forth in Section 18.

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

“Clawback Policy” has the meaning set forth in Section 19(n).

“Change in Control” means the occurrence of any one or more of the following events:

(i)any Person, other than (A) any employee plan established by the Company or any Subsidiary, (B) the Company or any of its Affiliates, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, or (D) a corporation owned, directly or indirectly, by stockholders of the Company in substantially the same proportions as their ownership of the Company, is (or becomes, during any 12-month period) the beneficial owner, directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its Affiliates other than in connection with the acquisition by the Company or its Affiliates of a business) representing 50% or more of the total voting power of the stock of the Company; provided that the provisions of this subsection (i) are not intended to apply to or include as a Change in Control any transaction that is specifically excepted from the definition of Change in Control under subsection (iii) below;

(ii)a change in the composition of the Board such that, during any 12-month period, which shall in no event begin prior to the Initial Public Offering, the individuals who constitute the Board at the time of the Initial Public Offering (the “Existing Board”) cease for any reason to constitute at least 50% of the Board; provided, however, that any individual becoming a member of the Board subsequent to the Initial Public Offering whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the Directors immediately prior to the date of such appointment or election shall be considered as though such individual were a member of the

16 

Existing Board; provided further, that, notwithstanding the foregoing, no individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 or Regulation 14A promulgated under the Exchange Act or successor statutes or rules containing analogous concepts) or other actual or threatened solicitation of proxies or consents by or on behalf of an individual, corporation, partnership, group, associate or other entity or Person other than the Board, shall in any event be considered to be a member of the Existing Board;

(iii)the consummation of a merger or consolidation of the Company with any other corporation or other entity, or the issuance of voting securities in connection with a merger or consolidation of the Company pursuant to applicable stock exchange requirements; provided that immediately following such merger or consolidation the voting securities of the Company outstanding immediately prior thereto do not continue to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity of such merger or consolidation or parent entity thereof) 50% or more of the total voting power of the Company’s stock (or, if the Company is not the surviving entity of such merger or consolidation, 50% or more of the total voting power of the stock of such surviving entity or parent entity thereof); and provided, further, that a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the beneficial owner, directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its Affiliates other than in connection with the acquisition by the Company or its Affiliates of a business) representing 50% or more of either the then-outstanding Common Shares or the combined voting power of the Company’s then-outstanding voting securities shall not be considered a Change in Control; or

(iv)the sale or disposition by the Company of the Company’s assets in which any Person acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such Person) assets from the Company that have a total gross fair market value equal to more than 50% of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions.

Notwithstanding the foregoing, (A) no Change in Control shall be deemed to have occurred if there is consummated any transaction or series of integrated transactions immediately following which the record holders of the Common Shares immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in an entity which owns substantially all of the assets of the Company immediately prior to such transaction or series of transactions, (B) for purposes of any compensation that constitutes “nonqualified deferred compensation” pursuant to Section 409A, no event or circumstances described in any of clauses (i) through (iv) above shall constitute a Change in Control unless such event or circumstances also constitute a change in the ownership or effective control of the Company, or in the

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ownership of a substantial portion of the Company’s assets, in each case, as defined in Section 409A. Terms used in the definition of a Change in Control shall be as defined or interpreted in a manner consistent with Section 409A of the Code.

“Code” shall mean the Internal Revenue Code of 1986, as it now exists or may be amended from time to time, and the rules and regulations promulgated thereunder, as they may exist or may be amended from time to time.

“Committee” shall mean the person or persons responsible for administering the Plan as appointed by the Board; provided, however, that at any time the Board may designate itself as the Committee or designate itself to administer certain of the Committee’s authority under the Plan, including administering certain Awards under the Plan.

“Common Shares ” means shares of common stock, par value $0.01 per share, of the Company and stock of any other class into which such shares may thereafter be changed.

“ Consultant” means any individual, including an advisor, who is providing services to the Company or any Subsidiary or who has accepted an offer of service or consultancy from the Company or any Subsidiary.

“Director” means any member of the Board.

“Dividend Equivalents” means an award of cash or other property with a Fair Market Value equal to the dividends which would have been paid on the Common Shares underlying an outstanding Award of Restricted Stock Units had such Common Shares been outstanding.

“Effective Date” has the meaning set forth in Section 21.

“Eligible Person(s)” means those persons who are (i) full or part-time employees or Consultants of the Company or any Subsidiary or (ii) other individuals who perform services for the Company or any Subsidiary, including, without limitation, Directors who are not employees of the Company or any Subsidiary.

“Exchange Act” means the Securities Exchange Act of 1934, as it now exists or may be amended from time to time, and the rules promulgated thereunder, as they may exist or may be amended from time to time.

“ Fair Market Value” means (i) with respect to the Common Shares, as of any date (A) if the Company’s Common Shares are listed on any established stock exchange, system or market, the closing market price of the Common Shares as quoted in such exchange, system or market on the day before such date as reported in the Wall Street Journal or such other source as the Committee deems reliable or (B) in the absence of an established market for the Common Shares, as determined in good faith by the Committee or (ii) with respect to property other than Common Shares, the value of such property, as determined by the Committee, in its sole discretion.

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“Incentive Stock Option” means a Stock Option that is an incentive stock option as defined in Section 422 of the Code.

“Intrinsic Value” with respect to an Option or Stock Appreciation Right means (i) the excess, if any, of the price or implied price per Common Share in a Change in Control or other event over (ii) the exercise or hurdle price of such Award multiplied by (iii) the number of Common Shares covered by such Award.

“Nonqualified Stock Option” means a Stock Option that is not an incentive stock option as defined in Section 422 of the Code.

“Option” means an Incentive Stock Option or a Non-Qualified Stock Option.

“ Other Company Securities” means Company securities (which may include, but need not be limited to, unbundled stock units or components thereof, debentures, preferred stock, warrants, securities convertible into Common Shares or other property) other than Common Shares.

“Other Cash-Based Award” means an Award granted pursuant to Section 11, including cash awarded as a bonus or upon the attainment of specified performance criteria or otherwise as permitted under the Plan.

“Other Stock-Based Award” means an Award granted pursuant to Section 11 that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Common Shares or factors that may influence the value of Common Shares, including convertible or exchangeable debt securities, other rights convertible or exchangeable into Common Shares, purchase rights for Common Shares, dividend rights or dividend equivalent rights or Awards with a value and payment contingent upon performance of the Company or business units thereof or any other factors designated by the Committee.

“Participant” means an Eligible Person to whom an Award has been granted under the Plan.

“Performance Award” means an Award subject, in part, to the terms, conditions and restrictions described in Section 10, pursuant to which the recipient may become entitled to receive cash, Common Shares, Other Company Securities or other property issuable under the Plan, or any combination thereof, as determined by the Committee.

“Performance Period” means the period established by the Committee with respect to any Performance Award during which the performance goals specified by the Committee with respect to such Award are to be measured.

“Permitted Transferee” means (i) any person defined as an employee in the Instructions to Registration Statement Form S-8 promulgated by the Securities and Exchange Commission, as such form may be amended from time to time, which persons include, as of the date of adoption of the Plan, executors, administrators or beneficiaries of the estates of deceased Participants, guardians or members of a committee for

19 

incompetent former Participants, or similar persons duly authorized by law to administer the estate or assets of former Participants, and (ii) Participants’ family members who acquire Awards from the Participant other than for value, including through a gift or a domestic relations order. For purposes of this definition, “family member” includes any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the Participant’s household (other than a tenant or employee), a trust in which these persons have more than fifty percent of the beneficial interest, a foundation in which these persons (or the Participant) control the management of assets, and any other entity in which these persons (or the Participant) own more than fifty percent of the voting interests. For purposes of this definition, neither (i) a transfer under a domestic relations order in settlement of marital property rights, nor (ii) a transfer to an entity in which more than fifty percent of the voting or beneficial interests are owned by family members (or the Participant) in exchange for an interest in that entity is considered a transfer for “value”.

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

“Restricted Period” has the meaning set forth in Section 9(b).

“Restricted Stock” means an Award of Common Shares that are issued subject, in part, to the terms, conditions and restrictions described in Section 9.

“Restricted Stock Units” means an Award of the right to receive either (as the Committee determines) Common Shares or cash equal to the Fair Market Value of a Common Share on the payment date, issued subject, in part, to the terms, conditions and restrictions described in Section 9.

“Rule 16b-3” means Rule 16b-3 promulgated by the Securities and Exchange Commission under the Exchange Act and any successor rule.

“Section 409A” means Section 409A of the Code, any rules or regulations promulgated thereunder, as they may exist or may be amended from time to time, or any successor to such section.

“Section 422” means Section 422 of the Code, any rules or regulations promulgated thereunder, as they may exist or may be amended from time to time, or any successor to such section.

“Separation from Service” and “Separate from Service” means the Participant’s death, retirement or other termination of employment or service with the Company (including all persons treated as a single employer under Sections 414(b) and 414(c) of the Code) that constitutes a “separation from service” (within the meaning of Section 409A).

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“Specified Employee” means a key employee (as defined in Section 416(i) of the Code without regard to paragraph (5) thereof) of the Company as determined in accordance with Section 409A and the procedures established by the Company.

“ Stock Appreciation Right” means an Award of a right to receive (without payment to the Company) cash, Common Shares, Other Company Securities or other property, or other forms of payment, or any combination thereof, as determined by the Committee, based on the increase in the value of the number of Common Shares specified in the Stock Appreciation Right. Stock Appreciation Rights are subject, in part, to the terms, conditions and restrictions described in Section 8.

“Subsidiary” means an entity of which the Company directly or indirectly holds at least a majority of the value of the outstanding equity interests of such entity or a majority of the voting power with respect to the voting securities of such entity.

“Substitute Award” means an Award granted in assumption of, or in substitution for, an outstanding award previously granted by a company or other business acquired by the Company or with which the Company combines.

“Ten Percent Employee” means an employee of the Company or any Subsidiary who owns stock representing more than ten percent of the voting power of all classes of stock of the Company or any parent or subsidiary of the Company within the meaning of Sections 424(e) and (f) of the Code.

“Treasury Regulation” means a final, proposed or temporary regulation of the Department of Treasury under the Code and any successor regulation.

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EX-99.4

Exhibit 99.4

ANR, INC.
2017 EQUITY INCENTIVE PLAN
(As adopted on May 3, 2017; amended February 15, 2018 and April 6, 2018)

1.       Purpose. The purpose of the ANR, Inc. 2017 Equity Incentive Plan is to encourage key management employees and members of the Board of Directors of ANR, Inc. (the “Company”) and such subsidiaries of the Company as the Administrator designates, to acquire shares of $0.01 par value class C-1 common stock of the Company (“Common Stock”) or to receive monetary payments based on the value of such stock or based upon achieving certain goals on a basis mutually advantageous to such employees and the Company and thus provide an incentive for employees to contribute to the success of the Company and align the interests of key employees with the interests of the shareholders of the Company.

2.       Administration. The Plan shall be administered by the Board of Directors of the Company or, in the event such committee is established, the Compensation Committee of the Board of Directors (the “Administrator”).

The authority to select persons eligible to participate in the Plan, to grant benefits in accordance with the Plan, and to establish the timing, pricing, amount and other terms and conditions of such grants (which need not be uniform with respect to the various participants or with respect to different grants to the same participant), may be exercised by the Administrator in its sole discretion. Awards may, in the discretion of the Administrator, be granted either alone or in addition to, in tandem with, or in substitution for any other award granted under the Plan or any award granted under any other plan of the Company. If an award is granted in substitution or exchange for another award, the Administrator may require the surrender of such other award in consideration for the grant of the new award.

Subject to the provisions of the Plan, the Administrator shall have exclusive authority to interpret and administer the Plan, to establish appropriate rules relating to the Plan, to delegate some or all of its authority under the Plan and to take all such steps and make all such determinations in connection with the Plan and the benefits granted pursuant to the Plan as it may deem necessary or advisable. The validity, construction, and effect of the Plan shall be determined in accordance with the laws of the State of Tennessee.

The Board of Directors in its discretion may delegate and assign specified duties and authority of the Administrator to any other committee and retain the other duties and authority of the Administrator to itself. Also, the Board of Directors in its discretion may appoint a separate committee of outside directors to make awards that satisfy the requirements of Section 162(m) of the Internal Revenue Code.

3.       Shares Reserved Under the Plan. Subject to the provisions of Section 12 (relating to adjustment for changes in capital stock) an aggregate to million (2,000,000) shares of Common Stock of the Company shall be available for issuance under the Plan. The shares of Common Stock issued under the Plan may be made

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available from authorized but unissued shares or shares re-acquired by the Company, including shares purchased in the open market or in private transactions.

As used in this Section, the term “Plan Maximum” shall refer to the number of shares of Common Stock of the Company that are available for grant of awards pursuant to the Plan. Stock underlying outstanding options, stock appreciation rights, or performance awards will reduce the Plan Maximum while such options, stock appreciation rights or performance awards are outstanding. Shares underlying expired, canceled or forfeited options, stock appreciation rights or performance awards shall be added back to the Plan Maximum. When the exercise price of stock options is paid by delivery of shares of Common Stock of the Company, or if the Administrator approves the withholding of shares from a distribution in payment of the exercise price, the Plan Maximum shall be reduced by the net (rather than the gross) number of shares issued pursuant to such exercise, regardless of the number of shares surrendered or withheld in payment. If the Administrator approves the payment of cash to an optionee equal to the difference between the fair market value and the exercise price of stock subject to an option, or if a stock appreciation right is exercised for cash or a performance award is paid in cash, the Plan Maximum shall be increased by the number of shares with respect to which such payment is applicable. Restricted stock issued pursuant to the Plan will reduce the Plan Maximum while outstanding even while subject to restrictions. Shares of restricted stock shall be added back to the Plan Maximum if such restricted stock is forfeited or is returned to the Company as part of a restructuring of benefits granted pursuant to this Plan.

Notwithstanding the above, the maximum number of shares subject to stock options that may be awarded in any calendar year to any individual shall not exceed four hundred thousand (400,000) shares (as adjusted in accordance with Section 12).

4.       Participants. Participants will consist of such officers, key employees, consultants and members of the Board of Directors of the Company or any designated subsidiary as the Administrator in its sole discretion shall determine. Designation of a participant in any year shall not require the Administrator to designate such person to receive a benefit in any other year or to receive the same type or amount of benefit as granted to the participant in any other year or as granted to any other participant in any year. The Administrator shall consider such factors as it deems pertinent in selecting participants and in determining the type and amount of their respective benefits.

5.       Types of Benefits. The following benefits may be granted under the Plan: (a) stock appreciation rights (“SARs”); (b) restricted stock (“Restricted Stock”); (c) performance awards (“Performance Awards”); (d) incentive stock options (“ISOs”); (e) nonqualified stock options (“NQSOs”); and (f) Stock Units, all as described below.

6.       Stock Appreciation Rights. A SAR is the right to receive all or a portion of the difference between the fair market value of a share of Common Stock at the time of exercise of the SAR and the exercise price of the SAR established by the Administrator, subject to such terms and conditions set forth in a SAR agreement as may be established by the Administrator in its sole discretion. At the discretion of the

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Administrator, SARs may be exercised (a) in lieu of exercise of an option, (b) in conjunction with the exercise of an option, (c) upon lapse of an option, (d) independent of an option or (e) each of the above in connection with a previously awarded option under the Plan. If the option referred to in (a), (b) or (c) above qualified as an ISO pursuant to Section 422 of the Internal Revenue Code of 1986 (“Code”), the related SAR shall comply with the applicable provisions of the Code and the regulations issued thereunder. At the time of grant, the Administrator may establish, in its sole discretion, a maximum amount per share which will be payable upon exercise of a SAR, and may impose conditions on exercise of a SAR. At the discretion of the Administrator, payment for SARs may be made in cash or shares of Common Stock of the Company, or in a combination thereof. SARs will be exercisable not later than ten years after the date they are granted and will expire in accordance with the terms established by the Administrator.

7.       Restricted Stock. Restricted Stock is Common Stock of the Company issued or transferred under the Plan (other than upon exercise of stock options or as Performance Awards) at any purchase price less than the fair market value thereof on the date of issuance or transfer, or as a bonus, subject to such terms and conditions set forth in a Restricted Stock agreement as may be established by the Administrator in its sole discretion. In the case of any Restricted Stock:

(a)       The purchase price, if any, will be determined by the Administrator.

(b)       The period of restriction shall be established by the Administrator for any grants of Restricted Stock;

(c)       Restricted Stock may be subject to (i) restrictions on the sale or other disposition thereof; (ii) rights of the Company to reacquire such Restricted Stock at the purchase price, if any, originally paid therefor upon termination of the employee’s employment within specified periods; (iii) representation by the employee that he or she intends to acquire Restricted Stock for investment and not for resale; and (iv) such other restrictions, conditions and terms as the Administrator deems appropriate.

(d)       The participant shall be entitled to all dividends paid with respect to Restricted Stock during the period of restriction and shall not be required to return any such dividends to the Company in the event of the forfeiture of the Restricted Stock.

(e)       The participant shall be entitled to vote (or direct the voting of) the Restricted Stock during the period of restriction.

(f)       The Administrator shall determine whether Restricted Stock is to be delivered to the participant with an appropriate legend imprinted on the certificate or if the shares are to be issued in the name of a nominee or deposited in escrow pending removal of the restrictions.

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8.       Performance Awards. Performance Awards are Common Stock of the Company, monetary units or some combination thereof, to be issued without any payment therefor, in the event that certain performance goals established by the Administrator are achieved over a period of time designated by the Administrator, but not in any event more than five years. The goals established by the Administrator may include return on average total capital employed, earnings per share, increases in share price or such other goals as may be established by the Administrator. In the event the minimum corporate goal is not achieved at the conclusion of the period, no payment shall be made to the participant. Actual payment of the award earned shall be in cash or in Common Stock of the Company or in a combination of both, as the Administrator in its sole discretion determines. If Common Stock of the Company is used, the participant shall not have the right to vote and receive dividends until the goals are achieved and the actual shares are issued.

9.       Incentive Stock Options. ISOs are stock options to purchase shares of Common Stock at not less than 100% of the fair market value of the shares on the date the option is granted, subject to such terms and conditions set forth in an option agreement as may be established by the Administrator in its sole discretion that conform to the requirements of Section 422 of the Code. Such purchase price may be paid (a) by check or (b), in the discretion of the Administrator, by the delivery of shares of Common Stock of the Company owned by the participant for at least six months, or (c), in the discretion of the Administrator, by a combination of any of the foregoing, in the manner provided in the option agreement. The aggregate fair market value (determined as of the time an option is granted) of the stock with respect to which ISOs are exercisable for the first time by an optionee during any calendar year (under all option plans of the Company and its subsidiary corporations) shall not exceed $100,000.

10.       Nonqualified Stock Options. NQSOs are nonqualified stock options to purchase shares of Common Stock at purchase prices established by the Administrator on the date the options are granted, subject to such terms and conditions set forth in an option agreement as may be established by the Administrator in its sole discretion. The purchase price may be paid (a) by check, (b) if provided in the option agreement, by the delivery (either actually or by attestation) of shares of Common Stock of the Company valued at their Fair Market Value, (c) if provided in the option agreement, by withholding shares of Common Stock otherwise issuable upon the exercise of the options, valued at their Fair Market Value, (d) through any other method specified in the option agreement (including through a broker-assisted cashless exercise program), or (e) if provided in the option agreement, by a combination of any of the foregoing, in the manner provided in the option agreement.

11.       Stock Units. A Stock Unit represents the right to receive a share of Common Stock from the Company at a designated time in the future, subject to such terms and conditions set forth in a Stock Unit agreement as may be established by the Administrator in its sole discretion. The participant generally does not have the rights of a shareholder until receipt of the Common Stock. The Administrator may in its discretion provide for payments in cash, or adjustment in the number of Stock Units,

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equivalent to the dividends the participant would have received if the participant had been the owner of shares of Common Stock instead of the Stock Units.

12.       Adjustment Provisions.

(a)       If the Company shall at any time change the number of issued shares of Common Stock without new consideration to the Company (such as by stock dividends or stock splits), the total number of shares reserved for issuance under this Plan and the number of shares covered by each outstanding benefit shall be adjusted so that the aggregate consideration payable to the Company, if any, and the value of each such benefit shall not be changed. Benefits may also contain provisions for their continuation or for other equitable adjustments after changes in the Common Stock resulting from reorganization, sale, merger, consolidation, issuance of stock rights or warrants, or similar occurrence.

(b)       Notwithstanding any other provision of this Plan, and without affecting the number of shares reserved or available hereunder, the Board of Directors may authorize the issuance or assumption of benefits in connection with any merger, consolidation, acquisition of property or stock, or reorganization upon such terms and conditions as it may deem appropriate.

13.       Nontransferability. Each benefit granted under the Plan to an employee shall not be transferable otherwise than by will or the laws of descent and distribution; provided, however, NQSOs granted under the Plan may be transferred, without consideration, to a Permitted Transferee (as defined below); provided further, vested restricted shares shall not be subject to this Section 13. Benefits granted under the Plan shall be exercisable, during the participant’s lifetime, only by the participant or a Permitted Transferee. In the event of the death of a participant, exercise or payment shall be made only:

(a)       By or to the Permitted Transferee, executor or administrator of the estate of the deceased participant or the person or persons to whom the deceased participant’s rights under the benefit shall pass by will or the laws of descent and distribution; and

(b)       To the extent that the deceased participant or the Permitted Transferee, as the case may be, was entitled thereto at the date of his death.

For purposes of this Section, “Permitted Transferee” shall include (i) one or more members of the participant’s family, (ii) one or more trusts for the benefit of the participant and/or one or more members of the participant’s family, or (iii) one or more partnerships (general or limited), corporations, limited liability companies or other entities in which the aggregate interests of the participant and members of the participant’s family exceed 80% of all interests. For this purpose, the participant’s family shall include only the participant’s spouse, children and grandchildren.

14.       Taxes. The Company shall be entitled to withhold the amount of any tax attributable to any amounts payable or shares deliverable under the Plan after giving the

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person entitled to receive such payment or delivery notice as far in advance as practicable, and the Company may defer making payment or delivery as to any benefit if any such tax is payable until indemnified to its satisfaction. The Administrator may permit, in an award agreement or otherwise, any holder of options or other awards under the Plan to satisfy such obligation for the payment of such taxes by directing the Company to retain shares of Common Stock (valued at their Fair Market Value) equal to the maximum individual rate for the participant in their applicable jurisdiction (or such other lesser rate that as will not cause an adverse accounting consequence or cost) and otherwise deliverable in connection with the award’s exercise or settlement. The Company makes no representation as to the taxability of the awards issued under the Plan or the exercise of the Administrator’s discretion hereunder.

15.       Tenure. A participant’s right, if any, to continue to serve the Company and its subsidiaries as an officer, employee, or otherwise, shall not be enlarged or otherwise affected by his or her designation as a participant under the Plan.

16.       Duration, Interpretation, Amendment and Termination. No benefit shall be granted more than ten years after the date of adoption of this Plan; provided, however, that the terms and conditions applicable to any benefit granted within such period may thereafter be amended or modified by mutual agreement between the Company and the participant or such other person as may then have an interest therein. Also, by mutual agreement between the Company and a participant hereunder, stock options or other benefits may be granted to such participant in substitution and exchange for, and in cancellation of, any benefits previously granted such participant under this Plan. To the extent that any stock options or other benefits which may be granted within the terms of the Plan would qualify under present or future laws for tax treatment that is beneficial to a recipient, then any such beneficial treatment shall be considered within the intent, purpose and operational purview of the Plan and the discretion of the Administrator, and to the extent that any such stock options or other benefits would so qualify within the terms of the Plan, the Administrator shall have full and complete authority to grant stock options or other benefits that so qualify (including the authority to grant, simultaneously or otherwise, stock options or other benefits which do not so qualify) and to prescribe the terms and conditions (which need not be identical as among recipients) in respect to the grant or exercise of any such stock option or other benefits under the Plan.

The Board of Directors may amend the Plan from time to time or terminate the Plan at any time. However, no action authorized by this paragraph shall reduce the amount of any existing benefit or change the terms and conditions thereof without the participant’s consent.

17.       Effective Date. This ANR, Inc. Equity Incentive Plan shall become effective as of the date it is adopted by the Board of Directors of the Company.

18.       Fair Market Value. As used in the Plan, “Fair Market Value” means, as of any given date, (a) if shares of Common Stock are traded on any established stock exchange, the volume weighted average price of the Common Stock reported by such

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exchange (or such other source as the Administrator may deem reliable for such purposes) for the number of trading days (which shall not be fewer than five trading days) immediately preceding such date, for which the aggregate volume of shares traded is at least one million shares); or (b) if shares of Common Stock are not traded on an exchange but are quoted or reported on or for a national market or other system, the volume weighted average price of the Common Stock reported by such market or other system (or such other source as the Administrator may deem reliable for such purposes) for the number of trading days (which shall not be fewer than five trading days) immediately preceding such date, for which the aggregate volume of shares traded is at least one million shares); or (c) in the absence of an established market for the shares of Common Stock of the type described in (a) or (b) of this Section 18, the fair market value established by the Administrator acting in good faith using the reasonable application or reasonable valuation method based on the facts and circumstances existing on the valuation date; provided, that any determination under this Section 18 shall be consistent with the principles of Section 409A of the Code to the extent applicable.

The undersigned hereby certifies that this ANR, Inc. 2017 Equity Incentive Plan was adopted by the Board of Directors of the Company on May 3, 2017 and has been amended as of February 15, 2018 and April 6, 2018.

By:

Title:

Date:

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