Exhibit 10.4 As amended and
- ------------ restated as of:
December 8, 1999
TIME WARNER TELECOM INC.
1998 STOCK OPTION PLAN
ARTICLE I
Purpose of the Plan
-------------------
The purpose of the Time Warner Telecom Inc. (the "Company") 1998 Stock
Option Plan (hereinafter the "Plan") is to provide for the granting of options
to directors and employees of the Company and its Subsidiaries in recognition of
the valuable services provided, and contemplated to be provided, by such
directors and employees. The general purpose of the Plan is to promote the
interests of the Company and its stockholders and to reward dedicated directors
and employees of the Company and its Subsidiaries by providing them additional
incentives to continue and increase their efforts with respect to, and to remain
in the employ of, the Company or its Subsidiaries.
ARTICLE II
Certain Definitions
-------------------
The following terms (whether used in the singular or plural) have the
meanings indicated when used in the Plan:
(a) "Agreement" means the option agreement specified in Article XI.
(b) "Approved Transaction" means any transaction in which the Board
(or, if approval of the Board is not required as a matter of law, the
stockholders of the Company) shall approve (i) any consolidation or merger of
the Company in which the Company is not the continuing or surviving company or
pursuant to which shares of Class A Common Stock would be converted into cash,
securities or other property, other than a merger of the Company in which the
equity holders of the Company immediately prior to the merger have the same
proportionate ownership of the equity value of the surviving company immediately
after the merger or (ii) any sale, lease, exchange, or other transfer (in one
transaction or a series of related transactions) of all, or substantially all,
of the assets of the Company, or (iii) the adoption of any plan or proposal for
the liquidation or dissolution of the Company; provided that the reconstitution
-------- ----
of the Company as a corporation or other entity or a public offering of the
equity of the Company (or its successor) shall not constitute an Approved
Transaction.
(c) "Award" means grants of Options under this Plan.
(d) "Board" means the Board of Directors of the Company.
(e) "Board Change" means such time as the Class B Stockholders and
their respective affiliates as a group cease to have the ability to elect a
majority of the Board of Directors (other than the chief executive officer of
the Company and independent directors; provided that independent directors shall
-------- ----
be included in calculating whether the foregoing majority requirement is
satisfied if the directors nominated by the Class B Stockholders and their
respective affiliates do not constitute a majority of the committee that selects
the Board's nominees for independent directors) and a "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) (other
than the Class B Stockholders and their respective affiliates) has become the
ultimate "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of
more than 35% of the total voting power of the voting interests of the Company
on a fully diluted basis and such ownership represents a greater percentage of
the total voting power of the voting interests of the Company, on a fully
diluted basis, than is held by the Class B Stockholders and their respective
affiliates as a group on such date.
(f) "Class A Common Stock" means the class A common stock, par value
$.01 per share, of the Company.
(g) "Class B Stockholders" means Time Warner Inc., Media One Group,
Inc., Advance/Newhouse Partnership and the affiliates of each of the foregoing.
(h) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute or statutes thereto. Reference to any
specific Code section shall include any successor section.
(i) "Committee" means the Committee comprised of members of the Board
appointed pursuant to Article IV.
(j) "Company" means Time Warner Telecom Inc, a Delaware corporation,
and any successor thereto.
(k) "Effective Date" means the date the Plan becomes effective
pursuant to Article XV.
(l) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor statute or statutes thereto.
Reference to any specific Exchange Act section shall include any successor
section.
(m) "Fair Market Value" of a share of Class A Common Stock shall mean
the fair market value of such a share of Class A Common Stock as determined in
good faith by the Board after consultation with an independent appraiser or
other third party deemed appropriate by the Board. In the event of an Approved
Transaction involving the sale of shares of Class A Common Stock of the
Company, the Fair Market Value of a share shall be based upon the price per
share paid by the acquiror in connection with such Approved Transaction, subject
to appropriate adjustment to reflect relative differences among the shares as
determined in good faith by the Board.
(n) "Holder" means a director or an employee of the Company or any of
its Subsidiaries who has received an Award under this Plan. An individual shall
continue to be considered a Holder for purposes of this Plan during the period
such individual holds shares of Class A Common Stock acquired pursuant to an
exercise of an Option.
(o) "Option" means any option granted pursuant to this Plan.
(p) "Plan" has the meaning ascribed thereto in Article I.
(q) "Subsidiary" of a person means any present or future subsidiary
of such person as such term is defined in Section 425 of the Code and any
present or future trade or business, whether or not incorporated, controlled by
or under common control with such person. An entity shall be deemed a
Subsidiary of a person only for such periods as the requisite ownership or
control relationship is maintained.
(r) "Total Disability" means a permanent and total disability as
defined in Section 22(e)(3) of the Code.
ARTICLE III
Shares Subject to the Plan
--------------------------
SECTION 3.01. Number of Shares. Subject to the provisions of Section
-----------------
3.02 and Section 6.06, the maximum number of shares of Class A Common Stock in
respect of which Awards may be granted under the Plan shall be determined by the
Board as of the date of the initial grant of Awards under the Plan, but shall in
no event represent more than 10% of the total number of shares of the Company
outstanding as of that date. The maximum number of shares of Class A Common
Stock in respect of which Awards may be granted during any calendar year to any
one individual under the Plan shall not exceed one-half the number of shares
that may be subject to Awards granted under the Plan under the preceding
sentence. If and to the extent that an Option shall expire, terminate or be
canceled for any reason without having been exercised, the shares subject to
such expired, terminated or canceled portion of the Option shall again become
available for purposes of the Plan.
SECTION 3.02. Adjustments. In addition to the adjustment in the
------------
Options as described in Section 6.06, in the event that the Board determines
that any dividend or other distribution (whether in the form of cash, shares of
Class A Common Stock, securities or other property), recapitalization,
reorganization, merger, consolidation, issuance or exchange of shares of Class A
Common Stock, other ownership interests or other securities of the Company,
issuance of warrants or other rights to purchase shares of Class A Common Stock,
other ownership interests or other securities of the Company or other similar
corporate transaction or event affects the shares of Class A Common Stock such
that an adjustment is determined by the Board in its discretion to be
appropriate in order to prevent inappropriate dilution or enlargement of the
benefits or potential benefits intended to be made available under the Plan,
then the Board may, in such manner as it may deem equitable, adjust any or all
of (a) the number of shares of Class A Common Stock, other ownership interests
or other securities of the Company (or number and kind of other securities or
property) with respect to which Awards may be granted, (b) the number of shares
of Class A Common Stock,
other ownership interests or other securities of the Company (or number and kind
of other securities or property) subject to outstanding Awards or the percentage
of Interests, other ownership interests or other securities of the Company
subject to shares of Class A Common Stock and (c) the exercise price with
respect to any Option or, if deemed appropriate, make provision for a cash
payment to the Holder of an outstanding Option in consideration for the
cancelation of such Option. No adjustment shall be made on account of the
issuance of shares of Class A Common Stock with respect to Options.
ARTICLE IV
Administration
--------------
SECTION 4.01. Powers. The Plan shall be administered by the Board.
-------
Subject to the express provisions of the Plan, the Board shall have plenary
authority, in its discretion, to grant Awards under the Plan and to determine
the terms and conditions (which need not be identical) of all Awards so granted,
including without limitation, (a) the individuals to whom, and the time or times
at which, Awards shall be granted or awarded, (b) the number of shares of Class
A Common Stock to be subject to each Award, (c) when an Option can be exercised
and whether in whole or in installments, and (d) the form, terms and provisions
of any Agreement (which terms may be amended, subject to Article XIII).
SECTION 4.02. Factors to Consider. In making determinations
--------------------
hereunder, the Board may take into account the nature of the services rendered
by the respective directors and employees, their dedication and past
contributions to the Company and its Subsidiaries, their present and potential
contributions to the success of the Company and its Subsidiaries and such other
factors as the Board in its discretion shall deem relevant.
SECTION 4.03. Interpretation. Subject to the express provisions of
---------------
the Plan, the Board shall have plenary authority to interpret the Plan, to
prescribe, amend and rescind the rules and regulations relating to it and to
make all other determinations deemed necessary or advisable for the
administration of the Plan. The determinations of the Board on the matters
referred to in this Article IV shall be conclusive.
SECTION 4.04. Delegation to Committee. Notwithstanding anything to
------------------------
the contrary contained herein, the Board may at any time, or from time to time,
appoint a Committee and delegate to such Committee the authority of the Board to
administer the Plan, including to the extent provided by the Board, the power to
further delegate such authority. Upon such appointment and delegation, any such
Committee shall have all the powers, privileges and duties of the Board in the
administration of the Plan to the extent provided in such delegation, except for
the power to appoint members of the Committee and to terminate, modify or amend
the Plan. The Board may from time to time appoint members of any such Committee
in substitution for or in addition to members previously appointed, may fill
vacancies in such Committee and may discharge such Committee.
Any such Committee shall hold its meetings at such times and places as
it shall deem advisable. A majority of members shall constitute a quorum and
all determinations shall be made by a majority of such quorum. Any
determination reduced to writing and signed by all of the members shall be fully
as effective as if it had been made by a majority vote at a meeting duly called
and held.
ARTICLE V
Eligibility
-----------
Awards may be made only to (a) directors, employees, including
officers and directors who are also employees, of, and consultants to, the
Company or any of its Subsidiaries, (b) prospective employees of the Company or
any of its Subsidiaries and (c) any other individuals providing services to the
Company or any of its Subsidiaries. The exercise of Options granted to a
prospective employee shall be conditioned upon such person becoming an employee
of the Company or any of its Subsidiaries. For purposes of the Plan, the term
"prospective employee" shall mean any person who holds an outstanding offer of
employment on specific terms from the Company or any of its Subsidiaries.
Awards may be made to employees who hold or have held Awards under this Plan or
any similar or other awards under any other plan of the Company or its
Subsidiaries.
ARTICLE VI
Options
-------
SECTION 6.01. Option Price. The purchase price of the shares of
-------------
Class A Common Stock under each Option shall be determined by the Board and set
forth in the applicable Agreement, but shall not be less than 100% of the Fair
Market Value of such shares on the date of grant.
SECTION 6.02. Term of Options. The term of each Option shall be for
----------------
such period as the Board shall determine, as set forth in the applicable
Agreement, but not more than 10 years from the date of grant.
SECTION 6.03. Exercise of Options. An Option granted under the Plan
--------------------
shall become (and remain) exercisable during the term of the Option to the
extent provided in the applicable Agreement and this Plan and, unless the
Agreement otherwise provides, may be exercised to the extent exercisable, in
whole or in part, at any time and from time to time during such term; provided,
--------
however, that subsequent to the grant of an Option, the Board, at any time
- -------
before complete termination of such Option, may accelerate the time or times at
which such Option may be exercised in whole or in part (without reducing the
term of such Option). The Agreement may contain conditions precedent to the
exercisability of Options, including without limitation, the achievement of
minimum performance criteria.
SECTION 6.04. Manner of Exercise. Payment of the Option purchase
-------------------
price shall be made in cash or in whole shares of Class A Common Stock already
owned by the person exercising an Option or, partly in cash and partly in such
shares of Class A Common Stock; provided, however, that such payment may be made
-------- -------
in whole or in part in shares of Class A Common Stock held for six months and
only if and to the extent permitted by the applicable Agreement. The Company
shall effect the transfer of the shares purchased under the Option as soon as
practicable. No Holder or other person exercising an Option shall have any of
the rights of a stock holder of the Company with respect to shares of Class A
Common Stock subject to an Option granted under the Plan until due exercise and
full payment has been made.
SECTION 6.05. Limited Transferability of Options. Except as set
-----------------------------------
forth in this Section 6.05 and Article XX, Options shall not be transferable
other than by will or the laws of descent and distribution, and Options may be
exercised during the lifetime of the Holder thereof only by such Holder (or his
or her court appointed legal representative). The Agreement may provide that
Options are transferable by gift to such persons or entities and upon such terms
and conditions specified in the Agreement.
SECTION 6.06. Adjustment of Options. Upon the issuance or redemption
----------------------
of shares of Class A Common Stock in the Company, the number of shares available
under the Plan and the number of shares of Class A Common Stock subject to
outstanding Options shall be equitably adjusted as determined by the Board in
its sole discretion to prevent inappropriate dilution or enlargement of the
economic interest represented by such Options.
SECTION 6.07. Section 83(b) election. Unless the Board determines
-----------------------
otherwise, an individual exercising an Option will be required to make a timely,
valid election under Section 83(b) of the Code.
SECTION 6.08. Tax Treatment of Exercise. Solely for purposes of
-------------------------
determining the appropriate tax treatment of the Class B Stockholders and the
Holder, upon exercise of an Option, a Holder will be treated as if the Company
paid him or her an amount equal to the aggregate difference between the exercise
price and the Fair Market Value of the shares of Class A Common Stock subject to
the Option and the Holder then purchased from the Company for cash the
applicable number of shares of Class A Common Stock at the then-current Fair
Market Value of such shares.
ARTICLE VII
Acceleration of Options
-----------------------
Notwithstanding any contrary waiting period or installment period in
any Agreement or in the Plan, or unless the applicable Agreement provides
otherwise, if a Holder's employment shall terminate by reason of death or Total
Disability, or in the event of any Approved Transaction or Board Change each
outstanding Option granted under the Plan shall immediately become exercisable
in full in respect of the aggregate number of shares of Class A Common Stock
covered thereby.
ARTICLE VIII
Termination of Employment
-------------------------
SECTION 8.01. General. If a Holder's employment shall terminate prior
--------
to the complete exercise of an Option, then such Option shall thereafter be
exercisable in accordance with the provisions of the applicable Agreement
(including the provisions of any other agreement referred to in the Agreement);
provided, however, that (a) no Option may be exercised after the scheduled
- -------- -------
expiration date of such Option; (b) if the Holder's employment terminates by
reason of death or Total Disability, Options shall remain exercisable for a
period of at least one year following such termination (but not later than the
scheduled expiration of such Option); and (c) any termination by the employing
company for cause will be treated in accordance with the provisions of Section
8.02.
SECTION 8.02. Termination for Cause. If a Holder's employment with
----------------------
the Company or any of its Subsidiaries shall be terminated for cause, by the
Company or such Subsidiary prior to the exercise of any Option, then all Options
held by such Holder and any permitted transferee pursuant to Section 6.05 shall
immediately terminate For the purposes of this Section 8.02, cause shall have
the meaning ascribed thereto in any employment agreement to which such Holder is
a party. In the absence of an employment agreement, cause means (a)
insubordination, (b) dishonesty, (c) moral turpitude, (d) the Holder's refusal
to perform his duties and responsibilities for any reason other than illness or
incapacity, or (e) fraud, misappropriation, embezzlement, operation of a Company
vehicle when intoxicated or other behavior that in the opinion of counsel to the
Company (which opinion will be conclusive) constitutes a misdemeanor or felony
under applicable law, regardless of whether the Holder is actually prosecuted
for or convicted of an offense; provided, however, that if such termination
-------- -------
occurs within 12 months after an Approved Transaction or Board Change,
termination for cause in the absence of an employment agreement shall mean only
a felony conviction
SECTION 8.03. Miscellaneous. The Board may determine whether any
--------------
given leave of absence constitutes a termination of employment. Awards made
under the Plan shall not be affected by any change of employment so long as the
Holder continues to be an employee of the Company or one of its Subsidiaries.
ARTICLE IX
Right of Company to Terminate Employment
----------------------------------------
Nothing contained in the Plan or in any Award shall confer on any
Holder any right to continue in the employ of the Company or any of its
Subsidiaries or interfere in any way with the right of the Company or a
Subsidiary to terminate the employment of the Holder at any time, with or
without cause; subject, however, to the provisions of any employment agreement
between the Holder and the Company or any of its Subsidiaries.
ARTICLE X
Nonalienation of Benefits
-------------------------
Except as specifically provided in Section 6.05 and Article XX, no
right or benefit under the Plan shall be subject to anticipation, alienation,
sale, assignment, hypothecation, pledge, exchange, transfer, encumbrance or
charge, and any attempt to anticipate, alienate, sell, assign, hypothecate,
pledge, exchange, transfer, encumber or charge the same shall be void. No right
or benefit hereunder shall in any manner be liable for or subject to the debts,
contracts, liabilities or torts of the person entitled to such benefits.
ARTICLE XI
Written Agreement
-----------------
Each grant of an Option shall be evidenced by an Option Agreement in
such form and containing such terms and provisions not inconsistent with the
provisions of the Plan as the Board from time to time shall approve; provided,
--------
however, that such Awards shall be evidenced by a single agreement. The
- -------
effective date of the granting of an Award shall be the date on which the Board
approves such grant. Each grantee of an Option shall be notified promptly of
such grant and a written Agreement shall be promptly executed and delivered by
the Company and the grantee; provided that such grant of Options shall terminate
-------- ----
if such written Agreement is not signed by such grantee (or his attorney) and
delivered to the Company within 90 days after the date the Agreement is sent to
such grantee for signature. Any such written Agreement may contain (but shall
not be required to contain) such provisions as the Board deems appropriate to
ensure that the penalty provisions of section 4999 of the Code will not apply to
any stock or cash received from the Company or any of its Subsidiaries by the
Holder or a transferee of such Holder if the Award, or any part thereof, has
been transferred pursuant to Section 6.05 or Article XX.
ARTICLE XII
Right of First Refusal
----------------------
The Agreement may contain such provisions as the Board shall determine
to the effect that if a Holder, or such other person exercising an Option,
elects to sell all or any shares of Class A Common Stock that such Holder or
other person acquired upon the exercise of an Option awarded under the Plan,
then such Holder or other person shall not sell such shares unless such Holder
or other person shall have first offered in writing to sell such shares to the
Company at Fair Market Value on a date specified in such offer (which date shall
be at least three business days and not more than 10 business days following the
date of such offer). If the Company does not accept such offer within 10 days,
the shares may be sold on terms no more favorable than those offered to the
Company. If the shares (i) are not sold within 10 days of the date the Company
declined to purchase such shares or (ii) would be sold on terms more favorable
than those offered to the Company, the holder of the shares must again offer the
shares for sale to the Company in accordance with this Article XII before any
subsequent sale of such shares. Any transfer of shares that occurs after any
violation of this Article XII shall be null and void.
ARTICLE XIII
Termination And Amendment
-------------------------
SECTION 13.01. General. Unless the Plan shall theretofore have been
--------
terminated as hereinafter provided, no Awards may be made under the Plan on or
after the tenth anniversary of the Effective Date. The Board may at any time
prior to the tenth anniversary of the Effective Date terminate the Plan, and the
Board may at any time modify or amend the Plan in such respects as it shall deem
advisable. The Company will at all times maintain a current copy of the Plan on
its intranet site, which will be updated to include amendments and will upon
request of a Holder provide a hard copy of the most current version. No further
notice of Plan modifications is required.
SECTION 13.02. Modification. No termination, modification or
-------------
amendment of the Plan may, without the consent of the person to whom any Award
shall theretofore have been granted (or a transferee of such person if the
Award, or any part thereof, has been transferred pursuant to Section 6.05 or
Article XX), adversely affect the rights of such person with respect to such
Award. No modification, extension, renewal or other change in any Award granted
under the Plan shall be made after the grant of such Award, unless the same is
consistent with the provisions of the Plan. With the consent of the Holder (or
a transferee of such Holder if the Award, or any part thereof, has been
transferred pursuant to Section 6.05 or Article XX) and subject to the terms and
conditions of the Plan (including Section 13.01), the Board may amend
outstanding Agreements with any Holder (or any such transferee), including,
without limitation, any amendment which would (a) accelerate the time or times
at which the Award may be exercised and/or (b) extend the scheduled expiration
date of the Award. Without limiting the generality of the foregoing, the Board
may, but solely with the Holder's consent, agree to cancel any Award under the
Plan held by such Holder and issue a new Award in substitution therefor;
provided that the Award so substituted shall satisfy all of the requirements of
- -------- ----
the Plan as of the date such new Award is made.
SECTION 13.03. Sale or Merger Transaction.
--------------------------
(a) The Board shall have the right to require all Holders to
participate in a sale or merger transaction and to sell their shares of Class A
Common Stock to a third party purchaser in connection with such sale or merger.
Such right shall be exercisable by written notice (the "Buyout Notice") given to
each Holder which shall state (i) that there has been a proposal to effect the
sale of the Class A Common Stock, par value $.01 per share, of the Company to
such third party purchaser, (ii) the proposed purchase price per share to be
paid by the third party purchaser, and (iii) the name of the third party
purchaser, and to which shall be attached a copy of all writings between such
selling stockholder and the other parties to such transaction necessary to
establish the terms of such transaction. Each such Holder agrees that, upon
receipt of a Buyout Notice, each such Holder shall be obligated to sell his
Option Interests upon the terms and conditions of such transaction (and
otherwise take all reasonably necessary action to cause consummation of the
proposed transaction, including voting any such Option Interest in favor of such
transaction). The third party purchaser shall furnish evidence reasonably
satisfactory to the Board to the effect that it has the financial ability to
consummate the proposed purchase of the Interests of all of the stockholders.
For purposes of this paragraph, "Holder" means a person who holds an unexercised
Option or who holds shares of Class A Common Stock acquired upon exercise of an
Option. The term "Option Interest" means either an Option or a share of
Class A Common Stock acquired pursuant to exercise of an Option.
ARTICLE XIV
Effectiveness of the Plan
-------------------------
The Plan became effective on August 5, 1998, upon approval by the
affirmative vote of a majority of the members of the Management Committee of
Time Warner Telecom LLC, the predecessor of the Company. Pursuant to Article
XIII, this amended and restated Plan became effective on June 10, 1999, upon
approval by the affirmative vote of a majority of the Board of Directors of the
Company.
ARTICLE XVI
Government and Other Regulations
--------------------------------
The obligation of the Company with respect to Awards shall be subject
to all applicable laws, rules and regulations and such approvals by any
governmental agencies as may be required, including, without limitation, the
effectiveness of any registration statement required under the Securities Act of
1933, and the rules and regulations of any applicable securities exchange.
ARTICLE XVI
Withholding
-----------
The Company's obligation to deliver shares of Class A Common Stock in
respect of any Award under the Plan shall be subject to applicable Federal,
state and local tax withholding requirements. Federal, state and local
withholding taxes paid upon the exercise of any Option may be paid in shares of
Class A Common Stock upon such terms and conditions as the Board shall
determine; provided, however, that the Board in its sole discretion may
-------- -------
disapprove such payment and require that such taxes be paid in cash.
ARTICLE XVII
Separability
------------
If any of the terms or provisions of this Plan conflict with the
requirements of applicable law or applicable rules and regulations thereunder,
including the applicable requirements, if any, of Section 162(m) of the Code or
Rule 16b-3 under the Exchange Act, then such terms or provisions shall be deemed
inoperative to the extent necessary to avoid the conflict with applicable law,
or applicable rules and regulations, without invalidating the remaining
provisions hereof.
ARTICLE XVIII
Non-Exclusivity of the Plan
---------------------------
Neither the adoption of the Plan by the Board nor the submission of
the Plan to the Board of Directors of the Company for approval shall be
construed as creating any limitations on the power of the Board to adopt such
other incentive arrangements as it may deem desirable, including, without
limitation, the granting of stock options and the awarding of stock and cash
otherwise than under the Plan, and such arrangements may be either generally
applicable or applicable only in specific cases.
ARTICLE XIX
Exclusion from Pension and Profit-Sharing Computation.
------------------------------------------------------
By acceptance of an Award, each Holder shall be deemed to have agreed
that such Award is special incentive compensation that will not be taken into
account, in any manner, as salary, compensation or bonus in determining the
amount of any payment under any pension, retirement or other employee benefit
plan of the Company or any of its Subsidiaries. In addition, each beneficiary of
a deceased Holder shall be deemed to have agreed that such Award will not affect
the amount of any life insurance coverage, if any, provided by the Company or
any of its Subsidiaries on the life of the Holder which is payable to such
beneficiary under any life insurance plan covering employees of the Company or
any of its Subsidiaries.
ARTICLE XX
Beneficiaries
-------------
Each Holder may designate any person(s) or legal entity(ies),
including his or her estate, as his or her beneficiary under the Plan. Such
designation shall be made in writing on a form filed with the Secretary of the
Company or his or her designee and may be revoked or changed by such Holder at
any time by filing written notice of such revocation or change with the
Secretary of the Company or his or her designee. If no person shall be
designated by a Holder as his or her beneficiary or if no person designated as a
beneficiary survives such Holder, the Holder's beneficiary shall be his or her
estate.
ARTICLE XXI
Governing Law
-------------
The Plan shall be governed by, and construed in accordance with, the
laws of the State of New York.