Exhibit 4.3


 


SL GREEN REALTY CORP.


 


2008 EMPLOYEE STOCK PURCHASE PLAN


 


1.             Purpose.  The Company wishes to attract employees to
the Company and its Subsidiaries and to induce employees to remain with the
Company and its Subsidiaries, and to encourage them to increase their efforts
to make the Company’s business more successful, whether directly or through its
Subsidiaries.  In furtherance thereof,
the Plan is designed to provide equity-based incentives to the eligible
employees of the Company and its Subsidiaries. 
The Plan is intended to comply with the provisions of Section 423
of the Code and shall be administered, interpreted and construed accordingly.


 


2.             Definitions.  As used herein, the following definitions
shall apply:


 


(a)           “Applicable Laws”
means the legal requirements relating to the administration of employee stock
purchase plans, if any, under applicable provisions of federal securities laws,
state corporate and securities laws, the Code, the rules of any applicable
stock exchange or national market system, and the rules of any foreign
jurisdiction applicable to participation in the Plan by residents therein.


 


(b)           “Board” means
the Board of Directors of the Company.


 


(c)           “Change in
Control” shall be deemed to occur upon:


 


(1)           any “person,”
including a “group” (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act, together with all “affiliates” and “associates” (as such
terms are defined in Rule 12b-2 under the Exchange Act) of such person,
shall become the “beneficial owner” (as such term is defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing 25% or more of either (A) the combined voting power of the
Company’s then outstanding securities having the right to vote in an election
of the Board (“Voting Securities”) or (B) the then outstanding shares of
all classes of stock of the Company (in either such case other than as a result
of the acquisition of securities directly from the Company); or


 


(2)           the members of the Board at the
beginning of any consecutive 24-calendar-month period commencing on or after
the initial effective date of the Plan (the “Incumbent Directors”) cease for
any reason including without limitation, as a result of a tender offer, proxy
contest, merger or similar transaction, to constitute at least a majority of
the Board; provided that any person becoming a director of the Company whose
election or nomination was approved by a vote of at least a majority of the
members of the Board then still in office who were members of the Board at the
beginning of such 24-calendar-month period, shall, for purposes hereof, be
considered an Incumbent Director; or


 


(d)           the shareholders of
the Company shall approve (A) any consolidation or merger of the Company
or any subsidiary where the shareholders of the Company, immediately prior to
the consolidation or merger, would not, immediately after the consolidation or
merger, beneficially own (as such term is defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, shares representing in the aggregate at
least 50% of the voting shares of the corporation issuing cash or securities in
the consolidation or merger (or of its ultimate parent corporation, if any), (B) any
sale, lease, exchange or other transfer (in one transaction or a series of
transactions contemplated or arranged by any party as a single plan) of all or
substantially all of the assets of the Company or (C) any plan or proposal
for the liquidation or dissolution of the Company.


 


 


 

















 


 


Notwithstanding the
foregoing clause (i), an event described in clause (i) shall not be a
Change in Control if such event occurs solely as the result of an acquisition
of securities by the Company which, by reducing the number of shares of stock
or other Voting Securities outstanding, increases (x) the proportionate
number of shares of stock of the Company beneficially owned by any “person” (as
defined above) to 25% or more of the shares of stock then outstanding or (y) the
proportionate voting power represented by the Voting Securities beneficially
owned by any “person” (as defined above) to 25% or more of the combined voting
power of all then outstanding Voting Securities; provided, however, that if any
“person” referred to in clause (x) or (y) of this sentence shall
thereafter become the beneficial owner of any additional stock of the Company
or other Voting Securities (other than pursuant to a share split, stock
dividend, or similar transaction), then a Change in Control shall be deemed to
have occurred for purposes of the foregoing clause (i).


 


(e)           “Code”
means the Internal Revenue Code of 1986, as amended.


 


(f)            “Committee” means either the
Board, a committee of the Board, or such executive officer appointed by the
Board, that is responsible for the administration of the Plan as is designated
from time to time by resolution of the Board.


 


(g)           “Common Stock”
means the shares of common stock of the Company as constituted on the effective
date of the Plan, and any other shares into which such common stock shall
thereafter be changed by reason of a recapitalization, merger, consolidation,
split-up, combination, exchange of shares or the like.


 


(h)           “Company”
means SL Green Realty Corp., a Maryland corporation.


 


(i)            “Compensation”
means an Employee’s base salary from the Company or one or more Designated
Subsidiaries, including such amounts of base salary as are deferred by the
Employee (i) under a qualified cash or deferred arrangement described in Section 401(k) of
the Code, or (ii) to a plan qualified under Section 125 of the Code.  Compensation does not include overtime,
commissions, bonuses, reimbursements or other expense allowances, fringe
benefits (cash or noncash), moving expenses, deferred compensation,
contributions (other than contributions described in the first sentence) made
on the Employee’s behalf by the Company or one or more Subsidiaries under any
employee benefit or welfare plan now or hereafter established, and any other
payments not specifically referenced in the first sentence.


 


(j)            “Designated
Subsidiary” means a Subsidiary that has been designated by the Committee
from time to time for participation in this Plan.


 


(k)           “Effective Date”
means the date the Committee deems appropriate to commence the first Offer
Period.  However, should any Designated
Subsidiary become a participating company in the Plan after such date, then
such entity shall designate a separate Effective Date with respect to its
employee-participants.


 


(l)            “Employee”
means any individual, including an officer or director, who is an employee of
the Company or a Designated Subsidiary for purposes of Section 423 of the
Code.


 


(m)          “Enrollment Date”
means the first day of each Offer Period.


 


(n)           “Exchange Act”
means the Securities Exchange Act of 1934, as amended.


 


(o)           “Exercise Date”
means the last day of each Purchase Period.


 


 


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(p)           “Fair Market
Value” per share of Common Stock as of a particular date means (i) if
such shares are then listed on a national stock exchange, the closing sales
price per share on the exchange as quoted in the Wall Street Journal for the
applicable date or, if there are no sales on such date, for the last preceding
date on which there was a sale of Shares on such exchange, (ii) if such
shares are not then listed on a national stock exchange but are then traded on
an over-the-counter market, the average of the closing bid and asked prices for
the shares in such over-the-counter market for the last preceding date on which
there was a sale of such shares in such market, as determined by the Committee,
or (iii) if such shares are not then listed on a national stock exchange
or traded on an over-the-counter market, such value as the Committee in its
discretion may in good faith determine; provided that, where the shares are so
listed or traded, the Committee may make such discretionary determinations
where the shares have not been traded for 10 trading days.


 


(q)           “Offer Period”
means an Offer Period established pursuant to Section 4 hereof.


 


(r)            “Parent”
means a “parent corporation,” whether now or hereafter existing, as defined in Section 424(e) of
the Code.


 


(s)           “Participant”
means an Employee of the Company or Designated Subsidiary who is actively
participating in the Plan.


 


(t)            “Plan” means
this SL Green Realty Corp. 2008 Employee Stock Purchase Plan, as amended from
time to time.


 


(u)           “Purchase Period”
means a period specified as such pursuant to Section 4(b) hereof.


 


(v)           “Purchase Price”
shall mean the purchase price for a share of Common Stock for a Purchase
Period, which shall be determined by the Committee before the beginning of the
Offer Period that contains such Purchase Period to be either:


 


(i)            A fixed percentage (to be determined in the Committee’s
discretion before the beginning of such Offer Period, but not to be less than
85%) of the Fair Market Value of a share of Common Stock on the Exercise Date,
or


 


(ii)           The lesser of (A) a fixed percentage (to be
determined in the Committee’s discretion before the beginning of such Offer
Period, but not to be less than 85%) of the Fair Market Value of a share of
Common Stock on the Exercise Date, and (B) a fixed percentage (to be
determined in the Committee’s discretion before the beginning of such Offer
Period, but not to be less than 85%) of the Fair Market Value of a share of Common
Stock on the Enrollment Date.


 


(w)          “Reserves”
means the sum of the number of shares of Common Stock covered by each option
under the Plan which have not yet been exercised and the number of shares of
Common Stock which have been authorized for issuance under the Plan but not yet
placed under option.


 


(x)            “Subsidiary”
means, with respect to the Company, a “subsidiary corporation,” whether now or
hereafter existing, as defined in Section 424(f) of the Code.


 


 


 


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3.             Eligibility.


 


(a)           General.  Any individual who is an Employee on a given
Enrollment Date shall be eligible to participate in the Plan for the Offer
Period commencing with such Enrollment Date.


 


(b)           Limitations on
Grant and Accrual.  Any provisions of
the Plan to the contrary notwithstanding, no Employee shall be granted an
option under the Plan if, (i) immediately after the grant, such Employee
(taking into account stock owned by any other person whose stock would be
attributed to such Employee pursuant to Section 424(d) of the Code)
would own stock and/or hold outstanding options to purchase stock possessing
five percent (5%) or more of the total combined voting power or value of all
classes of stock of the Company or of any Subsidiary, or (ii) such option
permits the Employee’s rights to purchase stock under all employee stock
purchase plans of the Company and its Subsidiaries to accrue at a rate which
exceeds $25,000 worth of stock (determined at the Fair Market Value of the
shares at the time such option is granted) for each calendar year in which such
option is outstanding at any time.  Any
amounts received from an Employee which cannot be used to purchase Common Stock
as a result of this limitation will be returned as soon as practical to the
Employee without interest.  The
determination of the accrual of the right to purchase stock shall be made in
accordance with Section 423(b)(8) of the Code and the regulations
there under.


 


(c)           Other Limits on
Eligibility.  Notwithstanding
sub-section (a), above, the following Employees shall not be eligible to
participate in the Plan for any relevant Offer Period, unless otherwise
determined by the Committee: (i) Employees whose customary employment is
20 hours or less per week; (ii) Employees whose customary employment is
for not more than five months in any calendar year; (iii) Employees who
have  been employed less than one year;
and (iv) Employees who are subject to rules or laws of a foreign
jurisdiction that prohibit or make impractical the participation of such
Employees in the Plan. Notwithstanding the foregoing, the employment of an
Employee of a Subsidiary which ceases to be a Subsidiary shall, automatically
and without any further action, be deemed to have been terminated (and such
employee shall cease to be an Employee hereunder).  The Committee may establish special rules with
respect to (i) the administration of the rules contained in this
sub-section (c), and (ii) the eligibility of and the prior service credit
for employees of companies that become affiliated with the Company prior to the
Effective Date or during an Offer Period.


 


4.             Offer Periods.


 


(a)           The Plan shall be
implemented through overlapping or consecutive Offer Periods until such time as
(i) the maximum number of shares of Common Stock available for issuance
under the Plan shall have been purchased, or (ii) the Plan shall have been
sooner terminated in accordance with Section 19 hereof.  The duration of each Offer Period shall be
set in advance by the Committee, and no Offer Period shall have a duration
greater than 27 months.


 


(b)           A Participant shall
be granted a separate option for each Offer Period in which he or she
participates.  The option shall be
granted on the Enrollment Date and shall be automatically exercised on the last
day of the Offer Period.  However, with
respect to any Offer Period, the Committee may specify shorter Purchase Periods
within an Offer Period, such that the option granted on the Enrollment Date
shall be automatically exercised in successive installments on the last day of
each Purchase Period ending within the Offer Period.


 


(c)           Except as
specifically provided herein, the acquisition of Common Stock through
participation in the Plan for any Offer Period shall neither limit nor require
the acquisition of Common Stock by a Participant in any subsequent Offer
Period.


 


 


 


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5.     Participation.


 


(a)           An eligible Employee
may become a Participant in the Plan by completing a subscription agreement
authorizing payroll deductions on such form the Committee designates for
evidencing elections to participate in this Plan and filing it in accordance
with procedures established by the Committee for such purpose at least
10 business days prior to the Enrollment Date for the Offer Period in
which such participation will commence, unless a later time for filing the
subscription agreement is set by the Committee for all eligible Employees with
respect to a given Offer Period or the Committee establishes another procedure
for an eligible Employee to become a Participant in the Plan.


 


(b)           Payroll deductions
for a Participant shall commence with the first scheduled payroll date
commensurate with or immediately following the Enrollment Date and shall end on
the last scheduled payroll date during the Offer Period, unless sooner
terminated by the Participant as provided in Section 10.


 


6.             Payroll
Deductions.


 


(a)           At the time a
Participant files a subscription agreement, unless otherwise determined by the
Committee, the Participant shall elect to have payroll deductions made during
the Offer Period in a fixed whole percentage of his or her Compensation, in
accordance with uniform rules established by the Committee, but such
payroll deductions shall not exceed 15% of such Participant’s Compensation in
effect on the Enrollment Date.


 


(b)           All payroll
deductions made for a Participant shall be credited to the Participant’s
account under the Plan.


 


(c)           A Participant may
discontinue participation in the Plan as provided in Section 10, during
the Offer Period by completing and filing with the Company a change of status
notice on the form established by the Committee for such purpose authorizing a
suspension of the Participant’s payroll deductions.  Any such suspension shall be effective with
the first scheduled payroll date commencing 10 business days after the Company’s
receipt of the change of status notice unless the Company elects to process a
given change in participation more quickly.


 


(d)           Notwithstanding the
foregoing, to the extent necessary to comply with the limits set forth in Section 423(b)(8) of
the Code and Section 3(b) herein, a Participant’s payroll deductions
shall be decreased to zero dollars ($0). 
Payroll deductions shall recommence at the rate provided in such
Participant’s subscription agreement, as amended, at the time when permitted
under Section 423(b)(8) of the Code and Section 3(b) herein,
unless such participation is sooner terminated by the Participant as provided
in Section 10.


 


7.             Grant of Option.  On the Enrollment Date of each Offer Period,
each eligible Employee participating in such Offer Period shall be granted an
option to purchase on the Exercise Date of such Offer Period (at the applicable
Purchase Price) up to a number of shares of the Company’s Common Stock determined
by dividing such Employee’s payroll deductions accumulated prior to such
Exercise Date and retained in the Participant’s account as of the Exercise Date
by the applicable Purchase Price; provided that in no event shall an Employee
be permitted to purchase during each Offer Period more than the number of
shares of Common Stock determined by dividing $25,000 by the Fair Market Value
of one share of Common Stock on the first day of the Offer Period, such limit
to be adjusted ratably by the Committee for Offer Periods greater than or less
than 12 months (subject to any adjustment pursuant to Section 18), and
provided further that such purchase shall be subject to the limitations set
forth in Sections 3(b) and 12 hereof. 
Exercise of the option shall occur as provided in Section 8 hereof,
unless the Participant has withdrawn pursuant to Section 10 hereof.  The Committee may, for future Offer Periods,
increase or decrease, in its absolute discretion, the maximum number of shares
of the Company’s 




 


 


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Common
Stock an employee may purchase during an Offer Period.  Exercise of the option shall occur as
provided in Section 8 hereof, unless the Participant has withdrawn
pursuant to Section 10 hereof. 
The option shall expire on the last day of the Offer Period.


 


8.             Exercise of
Option.  Unless a Participant
withdraws from the Plan as provided in Section 10 hereof, his or her
option for the purchase of shares shall be exercised automatically on the
Exercise Date, and the maximum number of full, and to the extent permitted by
the Committee, fractional, shares subject to option shall be purchased for such
Participant at the applicable Purchase Price with the accumulated payroll
deductions in his or her account.  Any
other monies left over in a Participant’s account after the Exercise Date shall
be retained in the Participant’s account for the subsequent Offer Period,
subject to earlier withdrawal by the Participant as provided in Section 10 hereof.  A Participant’s option to purchase shares
hereunder is exercisable only by him or her.


 


9.             Delivery.


 


(a)           Prior
to the beginning of any Offer Period, the Committee may require that
Participants not be permitted to voluntarily or involuntarily sell or transfer
any shares acquired during such Offer Period, and any subsequent Offer Period,
for such period of time as shall be determined by the Committee and
communicated to Participants prior to beginning of such initial Offer Period.


 


(b)           Following
the purchase of shares after the exercise of a Participant’s option, a “book
entry” (by computerized or manual entry) shall be made in the records of the
Company to evidence such acquisition of shares under the Plan.  After the expiration of any required holding
period during which shares may not be transferred, upon receipt of a request
from a Participant, the Company shall arrange the delivery to such Participant,
as promptly as practicable, of a certificate representing the shares purchased
upon exercise of the Participant’s option. 
Notwithstanding the foregoing, upon such a request from a Participant,
the Company may permit the electronic transfer of the shares acquired upon
exercise of the Participant’s option.


 


10.           Withdrawal;
Termination of Employment.


 


(a)           A
Participant may terminate participation during any Offer Period by electing to
withdraw all but not less than all the payroll deductions credited to the
Participant’s account and not yet used to exercise the Participant’s option
under the Plan.  Upon such election, all
of the Participant’s payroll deductions credited to the Participant’s account
will be paid to such Participant as promptly as practicable after receipt of
notice of withdrawal, and the Participant’s option for the Offer Period will be
automatically terminated, and no further payroll deductions for the purchase of
shares will be made during the Offer Period. 
If a Participant withdraws from an Offer Period, payroll deductions will
not resume at the beginning of the succeeding Offer Period unless the
Participant timely delivers to the Company a new subscription agreement.  The election described above will be
effective only upon a Participant giving written notice to the Company, at such
time as may be required by the Committee, on the form established by the
Committee for such purpose.


 


(b)           Upon termination of
a Participant’s employment relationship for any reason whatsoever, including
with or without cause, at a time more than three (3) months from the next
scheduled Exercise Date, the payroll deductions credited to such Participant’s
account during the Offer Period but not yet used to exercise the option will be
returned to such Participant or, in the case of his/her death, to the person or
persons entitled thereto under Section 14, and such Participant’s option
will be automatically terminated.  Upon
termination of a Participant’s employment relationship for any reason
whatsoever, including with or without cause within three (3) months of the
next scheduled Exercise Date, the payroll deductions credited to such Participant’s
account during the Offer Period but not yet used to 




 


6

















 


 


exercise
the option will be applied to the purchase of Common Stock on the next Exercise
Date, unless the Participant (or in the case of the Participant’s death, the
person or persons entitled to the Participant’s account balance under Section 14)
withdraws from the Plan by submitting a change of status notice in accordance
with sub-section (a) of this Section 10.  In such a case, no further payroll deductions
will be credited to the Participant’s account following the Participant’s
termination of employment and the Participant’s option under the Plan will be
automatically terminated after the purchase of Common Stock on the next
scheduled Exercise Date.


 


(c)           The Committee may,
in its sole discretion, require that any shares credited to a Participant’s
account be delivered to the Participant in the form of a physical certificate,
or otherwise transferred to an outside account maintained by the Participant,
following the termination of the Participant’s employment with the
Company.  A Participant shall execute any
documents required by the Company to effectuate the foregoing.


 


11.           Interest.  Unless otherwise determined by the Committee,
no interest shall accrue on the payroll deductions credited to a Participant’s
account under the Plan.


 


12.           Stock; Maximum
Purchasable.


 


(a)           The maximum number
of shares of Common Stock which shall be made available for sale under the Plan
shall be 500,000 shares, subject to adjustment upon changes in capitalization
of the Company as provided in Section 18. 
In addition, the Committee may, in its discretion, impose a maximum
limit on the number of shares of Common Stock available for sale during any
Offer Period or Purchase Period.  If the
Committee determines that on a given Exercise Date the number of shares with
respect to which options are to be exercised may exceed (x) the number of
shares then available for sale under the Plan or (y) the number of shares
available for sale under the Plan on the Enrollment Date of the Offer Period,
or on the first day of a Purchase Period, in which such Exercise Date is to
occur, the Committee may make a pro rata allocation of the shares remaining
available for purchase on such Enrollment Dates or Exercise Date, as
applicable, in as uniform a manner as shall be practicable and as it shall
determine to be equitable, and shall either continue all Offer Periods then in
effect or terminate any one or more Offer Periods then in effect pursuant to Section 19,
below.   If and to the extent that
any right to purchase reserved shares of Common Stock shall not be exercised by
any Employee for any reason or if such right to purchase shall terminate as
provided herein, such shares that have not been so purchased hereunder shall
again become available for the purposes of the Plan unless the Plan shall have
been terminated, but such unpurchased shares shall not be deemed to increase
the aggregate number of shares specified above to be reserved for purposes of
the Plan (subject to adjustment as provided in Section 18).


 


(b)           A Participant will
have no interest or voting right in shares covered by the Participant’s option
until such shares are actually purchased on the Participant’s behalf in
accordance with the applicable provisions of the Plan.


 


(c)           No adjustment shall
be made with respect to any shares subject to an option for dividends,
distributions or other rights for which the record date is prior to the actual
date of purchase of such shares.


 


(d)           Unless otherwise
determined by the Committee, shares to be delivered to Participants under the
Plan will be registered in the name of the Participant.


 


 


 


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13.           Administration.


 


(a)           In General.  The Plan shall be administered by the
Committee which shall have full and exclusive discretionary authority to
construe, interpret and apply the terms of the Plan, to determine eligibility
and to adjudicate all disputed claims filed under the Plan.  Every finding, decision and determination
made by the Committee shall, to the full extent permitted by Applicable Law, be
final and binding upon all persons. 
Except as set forth in Section 13(b), the Committee may delegate
its duties to one or more officers of the Company or other persons.


 


(b)           Rule 16b-3
Limitations.  Notwithstanding the
provisions of Section 13(a), in the event that the Company shall at any
time be subject to Section 16 promulgated under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), and Rule 16b-3 promulgated
there under or any successor provision (“Rule 16b-3”) provides specific
requirements for the administrators of plans of this type, then at such time
the Plan shall be administered with respect to Participants who are “officers”
within the meaning of Rule 16a-1(f) only by such a body and in such a
manner as shall comply with the applicable requirements of Rule 16b-3;
provided, however, that no failure of the Committee to meet such applicable
requirements of Rule 16b-3 shall render ineffective or void any option
granted under this Plan.


 


14.           Designation of
Beneficiary.


 


(a)           Each Participant
will file a written designation of a beneficiary who is to receive any shares
and cash, if any, from the Participant’s account under the Plan in the event of
such Participant’s death.  If a
Participant is married and the designated beneficiary is not the spouse,
spousal consent shall be required for such designation to be effective.


 


(b)           Such designation of
beneficiary may be changed by the Participant (and the Participant’s spouse, if
any) at any time by written notice.  In
the event of the death of a Participant and in the absence of a beneficiary
validly designated under the Plan who is living (or in existence) at the time
of such Participant’s death, the Company shall deliver such shares and/or cash
to the executor or administrator of the estate of the Participant.


 


15.           Transferability.  Neither payroll deductions credited to a
Participant’s account nor any rights with regard to the exercise of an option
or to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution, or as provided in Section 14 hereof) by the
Participant.  Any such attempt at
assignment, transfer, pledge or other disposition shall be without effect,
except that the Committee may treat such act as an election to withdraw funds
from an Offer Period in accordance with Section 10.


 


16.           Use of Funds.  All payroll deductions received or held by
the Company under the Plan may be used by the Company for any corporate
purpose, and the Company shall not be obligated to segregate such payroll
deductions.


 


17.           Reports.  Individual accounts will be maintained for
each Participant in the Plan.  Statements
of account will be made available to Participants electronically, or in
hardcopy if requested, at least annually, which statements will set forth the
amounts of payroll deductions, the Purchase Price, the number of shares
purchased and the remaining cash balance, if any.


 


18.           Adjustments Upon
Changes in Capitalization; Changes in Control.


 


(a)           Adjustments Upon
Changes in Capitalization.  Subject
to any required action by the shareholders of the Company, the Reserves, the
Purchase Price, the maximum number of shares that 


 


 


 


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may
be purchased in any Offer Period or Purchase Period, as well as any other terms
that the Committee determines require adjustment shall be proportionately
adjusted for any (i) merger, consolidation, dissolution,
liquidation, reorganization, exchange of shares, sale of all or substantially
all of the assets or stock of the Company or its Subsidiaries or a transaction
similar thereto, (ii) any stock dividend, extraordinary cash dividends,
stock split, reverse stock split, stock combination, reclassification,
recapitalization or other similar change in the capital structure of the
Company or its Subsidiaries, or any distribution to holders of Common Stock
other than ordinary course cash dividends, shall occur or (iii) any other
event shall occur which in the judgment of the Committee necessitates action by
way of adjusting the terms of the outstanding Awards.  Such adjustment shall be made by the
Committee and its determination shall be final, binding and conclusive.  Except as the Committee determines, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason hereof shall be made with respect to, the Reserves and the Purchase
Price.


 


(b)           Changes in
Control.  In the event of a proposed
Change in Control, each option under the Plan shall be assumed by such
successor corporation or a parent or subsidiary of such successor corporation,
unless the Committee determines, in the exercise of its sole discretion and in
lieu of such assumption, to shorten the Offer Period then in progress by
setting a new Exercise Date (the “New Exercise Date”).  If the Committee shortens the Offer Period
then in progress in lieu of assumption in the event of a Change in Control, the
Committee shall notify each Participant in writing, at least ten (10) days
prior to the New Exercise Date, that the Exercise Date for the Participant’s
option has been changed to the New Exercise Date and that the Participant’s
option will be exercised automatically on the New Exercise Date, unless prior
to such date the Participant has withdrawn from the Offer Period as provided in
Section 10.  For purposes of this
Subsection, an option granted under the Plan shall be deemed to be assumed if,
in connection with the Change in Control, the option is replaced with a
comparable option with respect to shares of capital stock of the successor
corporation or Parent thereof.  The
determination of option comparability shall be made by the Committee prior to
the Change in Control and its determination shall be final, binding and
conclusive on all persons.


 


(c)           Dissolution or
Liquidation.  In the event of the
proposed dissolution or liquidation of the Company, the Offer Period shall
terminate immediately prior to the consummation of such proposed action, unless
otherwise provided by the Board.


 


19.           Amendment
or Termination.


 


(a)           The Committee may at any time and for any reason terminate
or amend the Plan.  Except as provided in
Section 18, no such termination can affect options previously granted,
provided that the Plan or any one or more Offer Periods may be terminated by
the Committee on any Exercise Date or by the Committee establishing a new
Exercise Date with respect to any Offer Period and/or any Purchase Period then
in progress if the Committee determines that the termination of the Plan or
such one or more Offer Periods is in the best interests of the Company and its
shareholders.  Except as provided in Section 18
and this Section 19, no amendment may make any change in any option
theretofore granted which adversely affects the rights of any Participant
without the consent of affected Participants. 
To the extent necessary to comply with Section 423 of the Code (or
any successor rule or provision or any other Applicable Law), the Company
shall obtain shareholder approval in such a manner and to such a degree as
required.


 


(b)           Without
shareholder consent and without regard to whether any Participant rights may be
considered to have been “adversely affected,” the Committee shall be entitled
to limit the frequency and/or number of changes in the amount withheld during
Offer Periods, change the amount of shares of Common Stock available for
purchase during an Offer Period or a Purchase Period, change the 


 


 


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length of Purchase Periods within any Offer Period, determine the
length of any future Offer Period, determine whether future Offer Periods shall
be consecutive or overlapping, establish the exchange ratio applicable to
amounts withheld in a currency other than U.S. dollars, establish additional
terms, conditions, rules or procedures to accommodate the rules or
laws of applicable foreign jurisdictions, permit payroll withholding in excess
of the amount designated by a Participant in order to adjust for delays or
mistakes in the Company’s processing of properly completed withholding
elections, establish reasonable waiting and adjustment periods and/or
accounting and crediting procedures to ensure that amounts applied toward the
purchase of Common Stock for each Participant properly correspond with amounts
withheld from the Participant’s Compensation, and establish such other
limitations or procedures as the Committee determines in its sole discretion
advisable and which are consistent with the Plan.


 


(c)           In
the event the Board determines that the ongoing operation of the Plan may
result in unfavorable financial accounting consequences, the Board may, in its
discretion and, to the extent necessary or desirable, modify or amend the Plan
to reduce or eliminate such accounting consequence including, but not limited
to:


 


(1)           altering the
Purchase Price for any Offer Period including an Offer Period underway at the
time of the change in Purchase Price;


 


(2)           shortening any Offer
Period so that Offer Period ends on a new Exercise Date, including an Offer
Period underway at the time of the Board action; and


 


(3)           allocating shares.


 


Such modifications or
amendments shall not require shareholder approval or the consent of any
Participants.


 


20.           Notices.  All notices or other communications by a
Participant to the Company under or in connection with the Plan shall be deemed
to have been duly given when received in the form specified by the Committee at
the location, or by the person, designated by the Committee for the receipt
thereof.


 


21.           Conditions Upon
Issuance of Shares.


 


(a)           The
Plan, and the grant and exercise of the rights to purchase shares of Common
Stock hereunder, and the Company’s obligation to sell and deliver shares upon
the exercise of rights to purchase such shares, shall be subject to all
applicable federal, state and foreign laws, rules and regulations, and to
such approvals by any regulatory or governmental agency as may be
required.  The Company shall not be
required to issue or deliver any certificates for such shares prior to the
completion of any registration or qualification of such shares under, and the
obtaining of any approval under or compliance with, any state or federal law,
or any ruling or regulation of any government body which the Company shall, in
its sole discretion, determine to be necessary or advisable.  Certificates for shares issued hereunder may
be legended as the Committee may deem appropriate.


 


(b)           The
Participant shall take whatever additional actions and execute whatever
additional documents the Committee may in its reasonable judgment deem
necessary or advisable in order to carry out or effect one or more of the
obligations or restrictions imposed on the Participant pursuant to the Plan.


 


22.           Term of Plan.  The Plan shall become effective upon the
earlier to occur of its adoption by the Board or its approval by the
shareholders of the Company.  It shall
continue in effect until all 


 


 


 


10

















 


 


shares
of Common Stock authorized for sale under Section 12(a) have been
sold, unless earlier terminated by the Committee under Section 19.


 


23.           Plan Approval.  The effective date of the
Plan is January 1, 2008, provided that the Plan is approved by the requisite percentage of the holders of the Common Stock
of the Company.


 


24.           Disqualifying
Dispositions.  If shares of Common
Stock acquired under the Plan are disposed of in a disposition that does not
satisfy the holding period requirements of Section 423(a) of the
Code, such Participant shall notify the Company in writing as soon as
practicable thereafter of the date and terms of such disposition and, if the
Company (or any affiliate thereof) thereupon has a tax-withholding obligation,
shall pay to the Company (or such affiliate) an amount equal to any withholding
tax the Company (or affiliate) is required to pay as a result of the
disqualifying disposition (or satisfy such other arrangements as may be
permitted by the Committee.)


 


25.           No Employment
Rights.  The Plan does not, directly
or indirectly, create any right for the benefit of any employee or class of
employees to purchase any shares under the Plan, or create in any employee or
class of employees any right with respect to continuation of employment by the
Company or a Subsidiary, and it shall not be deemed to interfere in any way
with such employer’s right to terminate, or otherwise modify, an employee’s
employment at any time for any reason, including with or without cause.


 


26.           No Effect on
Retirement and Other Benefit Plans. 
Except as specifically provided in a retirement or other benefit plan of
the Company or a Subsidiary, participation in the Plan shall not be deemed
compensation for purposes of computing benefits or contributions under any
retirement plan of the Company or a Subsidiary, and shall not affect any
benefits under any other benefit plan of any kind or any benefit plan
subsequently instituted under which the availability or amount of benefits is
related to level of compensation.  The
Plan is not a “Retirement Plan” or “Welfare Plan” under the Employee Retirement
Income Security Act of 1974, as amended.


 


27.           Effect of Plan.  The provisions of the Plan shall, in
accordance with its terms, be binding upon, and inure to the benefit of, all
successors of each Participant, including, without limitation, such Participant’s
estate and the executors, administrators or trustees thereof, heirs and
legatees, and any receiver, trustee in bankruptcy or representative of
creditors of such Participant.


 


28.           Governing Law.  The Plan is to be construed in accordance
with and governed by the internal laws of the State of Maryland (a) without
giving effect to any choice of law rule that would cause the application
of the laws of any jurisdiction other than the internal laws of the State of
Maryland to the rights and duties of the parties, except to the extent the
internal laws of the State of Maryland are superseded by the laws of the United
States, and (b) regardless of any provision in an employment agreement
that designates the applicable law for purposes of such employment agreement to
be other than the laws of the State of Maryland.  Should any provision of the Plan be determined
by a court of law to be illegal or unenforceable, the other provisions shall
nevertheless remain effective and shall remain enforceable.


 


29.           Dispute
Resolution.  Any controversy or claim arising out of or relating to this Plan that is
not resolved by the Company and a Participant shall be submitted to arbitration
in New York, New York in accordance with New York law and the procedures of the
American Arbitration Association.  The
determination of the arbitrator(s) shall be conclusive and binding on the
Company and the Participant and judgment may be entered on the arbitrator(s)’
award in any court having jurisdiction.


 


 


 


 


 


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