Exhibit 10.1


 




 





 


THE MILLS
CORPORATION


 


AMENDED AND
RESTATED 2004 STOCK INCENTIVE PLAN


 




 





 





















 


TABLE OF
CONTENTS


	
  1.

  	
  PURPOSE

  	
   

  
	
  2.

  	
  DEFINITIONS

  	
   

  
	
   

  	
  2.1.

  	
  “Affiliate

  	
   

  
	
   

  	
  2.2.

  	
  “Annual Incentive Award

  	
   

  
	
   

  	
  2.3.

  	
  “Award

  	
   

  
	
   

  	
  2.4.

  	
  “Award Agreement

  	
   

  
	
   

  	
  2.5.

  	
  “Board

  	
   

  
	
   

  	
  2.6.

  	
  “Cause

  	
   

  
	
   

  	
  2.7.

  	
  “Change in Control

  	
   

  
	
   

  	
  2.8.

  	
  “Code

  	
   

  
	
   

  	
  2.9.

  	
  “Committee

  	
   

  
	
   

  	
  2.10.

  	
  “Company

  	
   

  
	
   

  	
  2.11.

  	
  “Conversion Multiple

  	
   

  
	
   

  	
  2.12.

  	
  “Covered Employee

  	
   

  
	
   

  	
  2.13.

  	
  “Disability

  	
   

  
	
   

  	
  2.14.

  	
  “Dividend Equivalent Right

  	
   

  
	
   

  	
  2.15.

  	
  “Effective Date

  	
   

  
	
   

  	
  2.16.

  	
  “Exchange Act

  	
   

  
	
   

  	
  2.17.

  	
  “Fair Market Value

  	
   

  
	
   

  	
  2.18.

  	
  “Family Member

  	
   

  
	
   

  	
  2.19.

  	
  “Grant Date

  	
   

  
	
   

  	
  2.20.

  	
  “Grantee

  	
   

  
	
   

  	
  2.21.

  	
  “Incentive Stock Option

  	
   

  
	
   

  	
  2.22.

  	
  “Limited Partnership

  	
   

  
	
   

  	
  2.23.

  	
  “Limited Partnership Agreement

  	
   

  
	
   

  	
  2.24.

  	
  “Non-qualified Stock Option

  	
   

  
	
   

  	
  2.25.

  	
  “Option

  	
   

  
	
   

  	
  2.26.

  	
  “Option Price

  	
   

  
	
   

  	
  2.27.

  	
  “Outside Director

  	
   

  
	
   

  	
  2.28.

  	
  “Partnership Unit

  	
   

  
	
   

  	
  2.29.

  	
  “Performance Award

  	
   

  
	
   

  	
  2.30.

  	
  “Performance-Based Compensation

  	
   

  
	
   

  	
  2.31.

  	
  “Plan

  	
   

  
	
   

  	
  2.32.

  	
  “Profits Interest

  	
   

  
	
   

  	
  2.33.

  	
  “Purchase Price

  	
   

  
	
   

  	
  2.34.

  	
  “Restricted Stock

  	
   

  
	
   

  	
  2.35.

  	
  “SAR Exercise Price

  	
   

  
	
   

  	
  2.36.

  	
  “Section 162(m)

  	
   

  
	
   

  	
  2.37.

  	
  “Securities Act

  	
   

  
	
   

  	
  2.38.

  	
  “Service

  	
   

  
	
   

  	
  2.39.

  	
  “Service Provider

  	
   

  
	
   

  	
  2.40.

  	
  “Stock

  	
   

  
	
   

  	
  2.41.

  	
  “Stock Appreciation Right

  	
   

  



 


i





















 


	
   

  	
  2.42.

  	
  “Stock Unit

  	
   

  
	
   

  	
  2.43.

  	
  “Subsidiary

  	
   

  
	
   

  	
  2.44.

  	
  “Termination Date

  	
   

  
	
   

  	
  2.45.

  	
  “Ten Percent Stockholder

  	
   

  
	
   

  	
  2.46.

  	
  “Unrestricted Stock

  	
   

  
	
  3.

  	
  ADMINISTRATION OF THE
  PLAN

  	
   

  
	
   

  	
  3.1.

  	
  Board

  	
   

  
	
   

  	
  3.2.

  	
  Committee

  	
   

  
	
   

  	
  3.3.

  	
  Terms of Awards

  	
   

  
	
   

  	
  3.4.

  	
  Book-Entry

  	
   

  
	
   

  	
  3.5.

  	
  Deferral Arrangement

  	
   

  
	
   

  	
  3.6.

  	
  No Liability

  	
   

  
	
   

  	
  3.7.

  	
  Issuance of Units -
  Options

  	
   

  
	
   

  	
  3.8.

  	
  Issuance
  of Partnership Units — Restricted Stock or Unrestricted Stock

  	
   

  
	
   

  	
  3.9.

  	
  Issuance
  of Partnership Units — Other Awards

  	
   

  
	
   

  	
  3.10.

  	
  Form
  of Payment For Options, Restricted Stock and Other Awards

  	
   

  
	
  4.

  	
  STOCK
  AND PARTNERSHIP UNITS SUBJECT TO THE PLAN

  	
   

  
	
  5.

  	
  EFFECTIVE
  DATE, DURATION AND AMENDMENTS

  	
   

  
	
   

  	
  5.1.

  	
  Effective Date

  	
   

  
	
   

  	
  5.2.

  	
  Term

  	
   

  
	
   

  	
  5.3.

  	
  Amendment
  and Termination of the Plan and Outstanding Awards

  	
   

  
	
  6.

  	
  AWARD ELIGIBILITY
  AND LIMITATIONS

  	
   

  
	
   

  	
  6.1.

  	
  Service
  Providers and Other Persons

  	
   

  
	
   

  	
  6.2.

  	
  Successive Awards

  	
   

  
	
   

  	
  6.3.

  	
  Limitation
  on Shares of Stock Subject to Awards and Cash Awards

  	
   

  
	
   

  	
  6.4.

  	
  Limitations
  on Incentive Stock Options

  	
   

  
	
   

  	
  6.5.

  	
  Stand-Alone,
  Additional, Tandem, and Substitute Awards

  	
   

  
	
  7.

  	
  AWARD
  AGREEMENT

  	
   

  
	
  8.

  	
  OPTIONS

  	
   

  
	
   

  	
  8.1.

  	
  Option Price

  	
   

  
	
   

  	
  8.2.

  	
  Vesting

  	
   

  
	
   

  	
  8.3.

  	
  Term

  	
   

  
	
   

  	
  8.4.

  	
  Termination of Service

  	
   

  
	
   

  	
  8.5.

  	
  Limitations on
  Exercise of Option

  	
   

  
	
   

  	
  8.6.

  	
  Method of Exercise

  	
   

  
	
   

  	
  8.7.

  	
  Rights of Holders of
  Options

  	
   

  
	
   

  	
  8.8.

  	
  Delivery of Stock
  Certificates

  	
   

  
	
   

  	
  8.9.

  	
  Transferability of
  Options

  	
   

  
	
   

  	
  8.10.

  	
  Family Transfers

  	
   

  
	
  9.

  	
  STOCK APPRECIATION RIGHTS

  	
   

  
	
   

  	
  9.1.

  	
  Right to Payment

  	
   

  
	
   

  	
  9.2.

  	
  Other Terms

  	
   

  
	
  10.

  	
  RESTRICTED STOCK
  AND STOCK UNITS

  	
   

  
	
   

  	
  10.1.

  	
  Grant of
  Restricted Stock or Stock Units

  	
   

  
	
   

  	
  10.2.

  	
  Restrictions

  	
   

  
	
   

  	
  10.3.

  	
  Restricted Stock
  Certificates

  	
   

  



 


ii





















 


	
   

  	
  10.4.

  	
  Rights of
  Holders of Restricted Stock

  	
   

  
	
   

  	
  10.5.

  	
  Rights of
  Holders of Stock Units

  	
   

  
	
   

  	
  10.6.

  	
  Termination of Service

  	
   

  
	
   

  	
  10.7.

  	
  Purchase of
  Restricted Stock

  	
   

  
	
   

  	
  10.8.

  	
  Delivery of Stock

  	
   

  
	
  11.

  	
  PARTNERSHIP
  UNITS; PROFITS INTERESTS

  	
   

  
	
   

  	
  11.1.

  	
  Grant
  of Partnership Units and Profits Interests

  	
   

  
	
   

  	
  11.2.

  	
  Restrictions

  	
   

  
	
   

  	
  11.3.

  	
  Rights
  of Holders of Partnership Units and Profits Interests

  	
   

  
	
   

  	
  11.4.

  	
  Termination of Service

  	
   

  
	
  12.

  	
  UNRESTRICTED STOCK AWARDS

  	
   

  
	
  13.

  	
  DIVIDEND EQUIVALENT
  RIGHTS

  	
   

  
	
   

  	
  13.1.

  	
  Dividend Equivalent
  Rights

  	
   

  
	
   

  	
  13.2.

  	
  Termination of Service

  	
   

  
	
  14.

  	
  PERFORMANCE
  AND ANNUAL INCENTIVE AWARDS

  	
   

  
	
   

  	
  14.1.

  	
  Awards
  Subject to Performance Conditions

  	
   

  
	
   

  	
  14.2.

  	
  Performance
  or Annual Incentive Awards Granted to Designated Covered Employees

  	
   

  
	
   

  	
  14.3.

  	
  Performance Goals
  Generally

  	
   

  
	
   

  	
  14.4.

  	
  Business Criteria

  	
   

  
	
   

  	
  14.5.

  	
  Timing
  For Establishing Performance Goals; Award Pools; Form of Settlement of Awards

  	
   

  
	
   

  	
  14.6.

  	
  Written Determinations

  	
   

  
	
   

  	
  14.7.

  	
  Status of
  Awards Under Section 162(m)

  	
   

  
	
  15.

  	
  PARACHUTE LIMITATIONS

  	
   

  
	
  16.

  	
  REQUIREMENTS OF LAW

  	
   

  
	
   

  	
  16.1.

  	
  General

  	
   

  
	
   

  	
  16.2.

  	
  Rule 16b-3

  	
   

  
	
  17.

  	
  EFFECT
  OF CHANGES IN CAPITALIZATION; CHANGE IN CONTROL

  	
   

  
	
   

  	
  17.1.

  	
  Changes in
  Capitalization

  	
   

  
	
   

  	
  17.2.

  	
  Change in Control

  	
   

  
	
   

  	
  17.3.

  	
  No Limitations on
  Company

  	
   

  
	
  18.

  	
  GENERAL PROVISIONS

  	
   

  
	
   

  	
  18.1.

  	
  Disclaimer of Rights

  	
   

  
	
   

  	
  18.2.

  	
  Nonexclusivity of the
  Plan

  	
   

  
	
   

  	
  18.3.

  	
  Withholding Taxes

  	
   

  
	
   

  	
  18.4.

  	
  Captions

  	
   

  
	
   

  	
  18.5.

  	
  Other Provisions

  	
   

  
	
   

  	
  18.6.

  	
  Number and Gender

  	
   

  
	
   

  	
  18.7.

  	
  Severability

  	
   

  
	
   

  	
  18.8.

  	
  Governing Law

  	
   

  



 


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THE MILLS
CORPORATION


 


AMENDED AND
RESTATED 2004 STOCK INCENTIVE PLAN


 


The
Mills Corporation (the “Company”) sets forth herein the terms of its Amended
and Restated 2004 Stock Incentive Plan (the “Plan”), as follows:


 


1.             PURPOSE


 


The
Plan is intended to enhance the Company’s and its Affiliates’ (as defined
herein) ability to attract and retain highly qualified officers, directors, key
employees, and other persons, and to motivate such officers, directors, key
employees and other persons to serve the Company and its Affiliates and to
expend maximum effort to improve the business results and earnings of the
Company, by providing to such persons an opportunity to acquire or increase a
direct proprietary interest in the operations and future success of the
Company.  To this end, the Plan provides for the grant of stock options, stock
appreciation rights, restricted stock, stock units, unrestricted stock,
dividend equivalent rights, partnership units, profits interests, other
equity-based awards, award based on the profits or performance of the Limited
Partnership (as defined below) and cash
awards.  Any of these awards may, but
need not, be made as performance incentives to reward attainment of annual or
long-term performance goals in accordance with the terms hereof.  Stock options granted under the Plan may be
non-qualified stock options or incentive stock options, as provided herein.


 


2.             DEFINITIONS


 


For
purposes of interpreting the Plan and related documents (including Award
Agreements), the following definitions shall apply:


 


2.1.       “Affiliate” means, with respect to the Company, any company
or other trade or business that controls, is controlled by or is under common
control with the Company within the meaning of Rule 405 of Regulation C under
the Securities Act, including, without limitation, any Subsidiary.


 


2.2.       “Annual Incentive Award” means an Award made subject to
attainment of performance goals (as described in Section 14)
over a performance period of up to one year (the fiscal year, unless otherwise
specified by the Committee).


 


2.3.       “Award” means a grant under the Plan of an Option, Stock
Appreciation Right, Restricted Stock, Unrestricted Stock, Stock Unit, Dividend
Equivalent Rights, Partnership Unit, Profit Interest, cash award, any other
equity-based award or any award based on the attainment of performance goals
(as described in Section 14), as the Board
determines to facilitate the intended purpose of the Plan.


 


2.4.       “Award Agreement”
means the written agreement between the Company and a Grantee that evidences
and sets out the terms and conditions of an Award.


 


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


 





















 


2.6.       “Cause” with respect to any Grantee has the meaning set forth
in the Award Agreement between the Company and the Grantee, or if no such
meaning is set forth in the Award Agreement, means, (a) Grantee commits an act
of fraud or embezzlement with respect to the Company or any of its Affiliates,
(b) Grantee is convicted of, or enters a plea of guilty or nolo contendere to, any
felony, (c) Grantee commits any act of dishonesty, breach of fiduciary duty or
misconduct (whether in connection with Grantee’s responsibilities as an
employee or otherwise) that, in the Committee’s reasonable judgment, either (i)
materially impairs the Company’s business, goodwill or reputation or (ii)
materially compromises Grantee’s ability to perform Grantee’s job duties or
represent the Company with the public, (d) Grantee fails to substantially
perform any of his or her duties (other than any such failure resulting from a
material breach by the Company of an employment agreement, if any, between
Grantee and the Company or the disability of Grantee), which failure continues
for more than 30 days after written notice by the Company or any Affiliate, (e)
such carelessness, lack of judgment, ineffectiveness or inefficiency in
performance by Grantee of his or her duties that Executive is determined by the
Executive Compensation Committee to be unfit to continue in service; or (f)
Grantee materially violates any confidentiality or non-competition obligation
owing to the Company or any Affiliate (including any such obligations contained
in an employment agreement, if any, between Grantee and the Company).


 


2.7.       “Change in Control” with respect to any Grantee has the meaning set
forth in the Award Agreement between the Company and the Grantee, or if no such
meaning is set forth in the Award Agreement, means the first day on which any
one or more of the following conditions shall have been satisfied:


 


(a)           The
acquisition of beneficial ownership, as such term is defined in the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), in a single transaction
or series of related transactions (by tender offer or otherwise), of more than
fifty percent (50%) of the voting securities of the Company by a single person
or entity (other than the Company) or “group” within the meaning of Section
13(d)(3) of the Exchange Act, whether through the acquisition of previously
issued and outstanding voting securities, or of voting securities that have not
been previously issued, or any combination thereof; or


 


(b)           There
shall be consummated any consolidation, merger, business combination or
reorganization involving the Company or the securities of the Company in which
holders of voting securities of the Company immediately prior to such consummation
own, as a group, immediately after such consummation, voting securities of the
Company (or, if the Company does not survive such transaction, voting
securities of the corporation surviving such transaction) having less than
fifty percent (50%) of the total voting power in an election of directors of
the Company (or such other surviving corporation);


 


(c)           The
individuals who constituted the Company’s Board of Directors as of the
effective date of the Plan (the “Incumbent Board”) cease for any reason to
constitute at least a majority of the directors of the Company; provided,
however, that individuals whose election, or whose nomination for election by
the Company’s shareholders, was approved by a vote of at least two-thirds (2/3)
of the persons then 


 


2





















 


comprising
the Incumbent Board shall be considered, for purposes of this Agreement,
members of the Incumbent Board; and provided, further, that no individual shall
be considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened “election contest”
(as described in Rule 14a-11 promulgated under the Exchange Act) (an “Election
Contest”) or other actual or threatened solicitation of proxies or consents by
or on behalf of a person or entity other than the Company’s Board of Directors
(a “Proxy Contest”), including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or


 


(d)           There
shall be consummated 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 (on a consolidated basis) to a party that is not a
direct or indirect wholly owned subsidiary of the Company, including, without
limitation, any sale, lease, exchange or other transfer of all or substantially
all of the assets of the Company (on a consolidated basis) that includes the
assets of the Limited Partnership; or


 


(e)           The
Company (or its successor) no longer serves as the sole general partner of the
Limited Partnership other than as a result of (i) the merger of the Limited
Partnership with the Company or a subsidiary of the Company, (ii) the
redemption of all limited partnership interests in the Limited Partnership by
the Limited Partnership or the purchase of all such limited partnership
interests by the Company, or (iii) the liquidation, dissolution or winding up
of the Limited Partnership.


 


Notwithstanding
the forgoing, a Change of Control shall be deemed not to have occurred with
respect to a Grantee (i) if the Grantee is an officer, director, employee,
agent, finder, consultant, partner, investor, creditor or principal, or acts in
any other individual or representative capacity whatsoever, with an entity that
acquires an interest in the Company in a transaction that otherwise would
constitute a Change in Control and, pursuant to written or unwritten agreement
or understanding with such entity entered into prior to and in contemplation of
such transaction, such Grantee receives or has the right to receive a material
economic benefit as a result of or in connection with such transaction (other
than compensation granted or awarded to such Grantee by the Company in the
ordinary course of business consistent with past practice or solely as a result
of his or her then-current ownership interest in the Company), or (ii) if any
of the foregoing transactions occurs with any employee benefit plan of the
Company or with any trustee or fiduciary or committee of any employee benefit
plan of the Company, any affiliate of the Company, any direct or indirect
wholly owned subsidiary of the Company, or any entity owned, directly or
indirectly, by the shareholders of the Company in substantially the same proportions
as their ownership of stock of the Company prior to the event that would
otherwise constitute a Change in Control. 
For purposes of this definition, a “material economic benefit” shall
mean any compensation, payment, beneficial ownership interest in the Company or
another entity that is party to any of the foregoing transactions, or other
economic benefit (other than compensation granted or awarded to such Grantee by
the Company in the ordinary course of business consistent with past practice or
solely as a result of his or her then-current ownership interest in the
Company) that has a value equal to or greater than forty percent (40%) of Grantee’s
Base Salary in effect as of the effective date of the Change in Control.


 


3





















 


2.8.       “Code” means the Internal Revenue Code of 1986, as now in
effect or as hereafter amended.


 


2.9.       “Committee” means a committee of the Board, designated from
time to time by resolution of the Board, in accordance with Section 3.2.


 


2.10.     “Company” means The
Mills Corporation, a Delaware corporation.


 


2.11.     “Conversion Multiple” shall have the meaning set forth in Article
II of the Limited Partnership Agreement.


 


2.12.     “Covered Employee” means a Grantee who is a Covered Employee
within the meaning of Section 162(m)(3) of the Code.


 


2.13.     “Disability” with
respect to any Grantee, means the Grantee has been unable, or the Committee has
reasonably determined, upon receipt of and in reliance upon independent
competent medical advice, that the Grantee is unlikely to be able,
notwithstanding such reasonable accommodations as may be required by law, to
perform each of the essential functions of such Grantee’s position by reason of
a medically determinable physical or mental impairment that is potentially
permanent in character or that can be expected to last for a continuous period
of not less than 12 months; provided, however, that, with respect to rules
regarding expiration of an Incentive Stock Option following termination of the
Grantee’s Service, Disability shall mean the Grantee is unable to engage in any
substantial gainful activity by reason of a medically determinable physical or
mental impairment which can be expected to result in death or that has lasted
or can be expected to last for a continuous period of not less than 12 months.


 


2.14.     “Dividend Equivalent Right”
means a right, granted to a Grantee under Section 13, to
receive cash, Stock, other Awards or other property equal in value to dividends
paid with respect to a specified number of shares of Stock, or other periodic
payments.


 


2.15.     “Effective Date”
means April 22, 2004, the date the Plan was approved by the Board.


 


2.16.     “Exchange Act” means
the Securities Exchange Act of 1934, as now in effect or as hereafter amended.


 


2.17.     “Fair Market Value” means the value of a share of Stock,
determined as follows:  if on the Grant
Date or other determination date the Stock is listed on an established national
or regional stock exchange, is admitted to quotation on The NASDAQ Stock
Market, Inc. or is publicly traded on an established securities market, the
Fair Market Value of a share of Stock shall be the closing price of the Stock
on such exchange or in such market (if there is more than one such exchange or
market the Board shall determine the appropriate exchange or market) on the
Grant Date or such other determination date (or if there is no such reported
closing price, the Fair Market Value shall be the mean between the highest bid
and lowest asked prices or between the high and low sale prices on such trading
day) or, if no sale of Stock is reported for such trading day, on the next
preceding day on which any sale shall have been reported.  If the 


 


4





















 


Stock
is not listed on such an exchange, quoted on such system or traded on such a
market, Fair Market Value shall be the value of the Stock as determined by the
Board in good faith.


 


2.18.     “Family Member” means a person who is a spouse, former spouse,
child, stepchild, grandchild, parent, stepparent, grandparent, niece, nephew,
mother-in-law, father-in-law, son-in-law, daughter-in-law, brother, sister,
brother-in-law, or sister-in-law, including adoptive relationships, of the
Grantee, any person sharing the Grantee’s household (other than a tenant or
employee), a trust in which any one or more of these persons have more than
fifty percent of the beneficial interest, a foundation in which any one or more
of these persons (or the Grantee) control the management of assets, and any other
entity in which one or more of these persons (or the Grantee) own more than
fifty percent (50%) of the voting interests.


 


2.19.     “Grant Date” means, as determined by the Board, the
date as of which the Board approves an Award, or such other date as may be
specified by the Board.


 


2.20.     “Grantee” means a person who receives or holds an Award under
the Plan.


 


2.21.     “Incentive Stock Option”
means an “incentive stock option” within the meaning of Section 422 of the
Code, or the corresponding provision of any subsequently enacted tax statute,
as amended from time to time.


 


2.22.     “Limited Partnership” means The Mills Limited Partnership, a
Delaware limited partnership.


 


2.23.     “Limited Partnership Agreement” means the Limited Partnership’s
Amended and Restated Limited Partnership Agreement dated April 21, 1994, as
amended or as amended and restated from time to time.


 


2.24.      “Non-qualified Stock Option” means an Option that is not an
Incentive Stock Option.


 


2.25.     “Option” means an option to purchase one or more shares of
Stock pursuant to the Plan.


 


2.26.     “Option Price” means the exercise price for each share of Stock
subject to an Option.


 


2.27.     “Outside Director” means a member of the Board who is not an
officer or employee of the Company, and who, in the case of awards intended to
qualify as Performance-Based Compensation, satisfies the requirements for
treatment as an outside director under the provisions of Section 162(m).


 


2.28.     “Partnership Unit”
means a “Partnership Unit” as that term is defined in the Limited Partnership
Agreement.  Partnership Units may be
granted in accordance with Section 11
of the Plan.


 


5





















 


2.29.     “Performance Award”
means a long-term incentive award made subject to the attainment of performance
goals (as described in Section 14)
over a performance period exceeding one year but not more than three (3) years.


 


2.30.     “Performance-Based Compensation” means an Award that is
intended to qualify as “other performance-based compensation” for purposes of
Section 162(m)(4)(C) of the Code.


 


2.31.     “Plan” means
this The Mills Corporation 2004 Stock Incentive Plan.


 


2.32.     “Profits Interest” means a profits interest in the Limited
Partnership.


 


2.33.     “Purchase Price” means the purchase price for each share of
Stock pursuant to a grant of Restricted Stock or Unrestricted Stock.


 


2.34.     “Restricted Stock” means shares of Stock awarded to a Grantee
pursuant to Section 10.


 


2.35.     “SAR Exercise Price” means the per share exercise price of an
SAR granted to a Grantee under Section 9.


 


2.36.     “Section 162(m)”
means Code Section 162(m) and related
regulations, as amended from time to time.


 


2.37.     “Securities Act” means the Securities Act of 1933, as now in
effect or as hereafter amended.


 


2.38.     “Service” means service as a Service Provider to the Company
or an Affiliate.  Unless otherwise stated
in the applicable Award Agreement, a Grantee’s change in position or duties
shall not result in interrupted or terminated Service, so long as such Grantee
continues to be a Service Provider to the Company or an Affiliate.  Subject to the preceding sentence, whether a
termination of Service shall have occurred for purposes of the Plan shall be
determined by the Board, which determination shall be final, binding and
conclusive.


 


2.39.     “Service Provider” means an employee, officer or director of the
Company or an Affiliate, or a consultant or adviser currently providing
services to the Company or an Affiliate.


 


2.40.     “Stock” means the
common stock, par value $0.01 per share, of the Company.


 


2.41.     “Stock Appreciation Right” or “SAR”
means a right granted to a Grantee under Section 9.


 


2.42.     “Stock Unit” means a bookkeeping entry representing the
equivalent of shares of Stock awarded to a Grantee pursuant to Section 10.


 


2.43.     “Subsidiary” means any “subsidiary corporation” of the Company
within the meaning of Section 424(f) of the Code.


 


6





















 


2.44.     “Termination Date”
means the date upon which an Option shall terminate or expire, as set forth in Section 8.3.


 


2.45.     “Ten Percent Stockholder” means an individual who owns more than
ten percent (10%) of the total combined voting power of all classes of
outstanding stock of the Company, its parent or any of its Subsidiaries.  In determining stock ownership, the
attribution rules of Section 424(d) of the Code shall be applied.


 


2.46.     “Unrestricted Stock”
means an Award to a Grantee pursuant to Section 12.


 


3.             ADMINISTRATION
OF THE PLAN


 


3.1.       Board


 


The
Board shall have such powers and authorities related to the administration of
the Plan as are consistent with the Company’s certificate of incorporation and bylaws and applicable law.  The Board shall have full power and authority
to take all actions, to adopt operating guidelines for the administration of
Awards granted under the Plan from time to time, and to make all determinations
required or provided for under the Plan, any Award or any Award Agreement, and
shall have full power and authority to take all such other actions and make all
such other determinations not inconsistent with the specific terms and
provisions of the Plan that the Board deems to be necessary or appropriate to
the administration of the Plan, any Award or any Award Agreement.  All such actions and determinations shall be
by the affirmative vote of a majority of the members of the Board present at a
meeting or by unanimous consent of the Board executed in writing in accordance
with the Company’s certificate
of incorporation and bylaws and applicable law. 
The interpretation and construction by the Board of any provision of the
Plan, any Award or any Award Agreement shall be final, binding and
conclusive.  Notwithstanding any other
provision of the Plan, the Board shall not take any action or make any Awards
hereunder that could cause the Company to fail to qualify as a real estate
investment trust for Federal income tax purposes.


 


3.2.       Committee


 


The Board from time to time may delegate to the
Committee any or all of its powers and authorities related to the
administration and implementation of the Plan, as set forth in Section 3.1
and 3.3 herein and other applicable provisions, as the Board shall determine,
consistent with the certificate of
incorporation and bylaws of the Company and applicable law.


 


(a)           Except as
provided in Subsection (b), the Executive Compensation Committee of the Board
shall be appointed as the Committee with the full powers and authorities of the
Board under the Plan.  Except as the
Board may otherwise determine, the Committee shall not include any director who
is not an Outside Director.


 


(b)           The Board
may also appoint one or more separate committees of the Board, each composed of
one or more directors of the Company who need not be Outside Directors, who may
administer the Plan with respect to employees or other Service Providers who
are not officers or directors of the Company, may grant Awards 


 


7





















 


under
the Plan to such employees or other Service Providers, and may determine all
terms of such Awards.


 


In the event that the
Plan, any Award or any Award Agreement entered into hereunder provides
for any action to be taken by or determination to be made by the Board, such
action may be taken or such determination may be made by the Committee.  Unless otherwise expressly determined by the
Board, any such action or determination by the Committee shall be final,
binding and conclusive.  To the extent permitted by law, the Committee
may delegate its authority under the Plan to a member of the Board.


 


3.3.       Terms of Awards


 


Subject
to the other terms and conditions of the Plan, the Board shall have full and
final authority to:


 


(a)           designate
Grantees;


 


(b)           determine
the type or types of Awards to be made to a Grantee;


 


(c)           determine
the number of shares of Stock, Partnership Units or other value to be subject
to an Award;


 


(d)           establish
the terms and conditions of each Award (including, but not limited to, the
exercise price of any Option, the nature and duration of any restriction or
condition (or provision for lapse thereof) relating to the vesting, exercise,
transfer, or forfeiture of an Award or the shares of Stock subject thereto, and
any terms or conditions that may be necessary to qualify Options as Incentive
Stock Options).  For example, the Board
may provide in an Award Agreement for (i) accelerated vesting of an Option
or other Award in the event the Grantee’s Service terminates on account of
death, Disability or another event, (ii) expiration of the Award prior to
its term in the event of the termination of the Grantee’s Service or
(iii) immediate forfeiture of the Award in the event the Grantee’s Service
is terminated for Cause;


 


(e)           prescribe
the form of each Award Agreement evidencing an Award; and


 


(f)            amend, modify, or
supplement the terms of any outstanding Award. 
Such authority specifically includes the authority, to effectuate the
purposes of the Plan but without amending the Plan, to modify Awards to
eligible individuals who are foreign nationals or are individuals who are
employed outside the United States to recognize differences in local law,
tax policy, or custom.


 


As a
condition to any subsequent Award, the Board shall have the right, at its
discretion, to require Grantees to return to the Company Awards previously made
under the Plan.  Subject to the terms and
conditions of the Plan, any such new Award shall be upon such terms and
conditions as are specified by the Board at the time the new Award is
made.  The Board shall have the right, in
its discretion, to make Awards in substitution or exchange for any other award
under another plan of the Company, any Affiliate, or any business entity to be
acquired by the 


 


8





















 


Company or an Affiliate.  The Board may retain the right in an Award
Agreement to cause a forfeiture of the gain realized by a Grantee on account of
actions taken by the Grantee in violation or breach of or in conflict with any
employment agreement, non-competition agreement, any agreement prohibiting
solicitation of employees or clients of the Company or any Affiliate thereof or any confidentiality obligation with respect to
the Company or any Affiliate thereof or
otherwise in competition with the Company or any Affiliate thereof, to the
extent specified in such Award Agreement applicable to the Grantee.  Furthermore, the Board may retain the right
in an Award Agreement to annul an Award if the Grantee is an employee of the
Company or an Affiliate thereof and is terminated for Cause as defined in the
applicable Award Agreement or the Plan, as applicable.  The grant of any Award may be contingent upon
the Grantee executing the appropriate Award Agreement.


 


The
Board may not, without approval of the Company’s stockholders, make an
amendment or modification to an outstanding Option or SAR that reduces the
Option Price or SAR Exercise Price, either by lowering the Option Price or SAR
Exercise Price or by canceling the outstanding Option or SAR and granting a
replacement Option or SAR with a lower exercise price.


 


The
Board shall have the right and may delegate to a committee, as it may appoint,
such right to take any action consistent with the terms of the Plan, either
before or after an Award has been granted, which the Board or such committee
deems necessary or advisable to comply with any government laws or regulatory
requirements of any country, including but not limited to, modifying or
amending the terms and conditions governing any Awards, or establishing any
local country plans as sub-plans to the Plan.


 


3.4.       Book-Entry


 


Notwithstanding
any other provision of the Plan to the contrary, the Board may elect to cause
the Company to satisfy any requirement under the Plan for the delivery of stock
certificates through the use of book-entry.


 


3.5.       Deferral Arrangement


 


The
Board may permit or require the deferral of any Award payment into a deferred
compensation arrangement, subject to such rules and procedures as it may
establish, which may include provisions for the payment or crediting of
interest or dividend equivalents, including converting such credits into
deferred Stock equivalents and restricting deferrals to comply with hardship
distribution rules affecting 401(k) plans. 
The Board may, but is not obligated to, cause the Company to contribute
the shares that would otherwise be issuable pursuant to an Award to a rabbi
trust.  Shares issued to a rabbi trust
pursuant to this Section 3.5 may
ultimately be issued to the Grantee in accordance with the terms of the
deferred compensation plan or the Award Agreement.


 


3.6.       No Liability


 


No
member of the Board or of the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Award or Award
Agreement.


 


9





















 


3.7.       Issuance of Units - Options


 


(a)           Issuance
of Partnership Units and Capital Account Adjustments.  Upon the exercise of an Option, the Limited
Partnership shall issue to the Company a number of Partnership Units equal to
(i) the number of shares issued to the Grantee, divided by (ii) the Conversion
Multiple.  The Company’s Limited
Partnership capital account in the Limited Partnership shall be credited with
an amount equal to the Fair Market Value of the number of shares issued upon
the exercise of an Option.


 


(b)           Cash
Contributions by the Company.  Upon
the exercise of an Option, the Company shall contribute to the Limited
Partnership an amount of cash equal to the aggregate Option Price paid by the
Grantee for the shares issued upon exercise, regardless of whether the Grantee
pays the Option Price in cash, shares or a combination thereof; provided, that
to the extent the Option Price is paid with a promissory note of the Grantee in
accordance with the Plan, the amount of cash contributed to the Limited
Partnership pursuant to this Subsection shall be contributed to the Limited
Partnership only upon receipt by the Company of any installment and interest
due under such promissory note and shall be limited to the amount of such
installment and interest and provided that, if the Grantee pays with shares,
the Company shall have the right to cancel the shares received, in which event
Partnership Units held by the Company in an amount equal to the shares canceled
multiplied by the Conversion Multiple shall be canceled by the Limited
Partnership.  The Company’s contribution
of cash to the Limited Partnership pursuant to the preceding sentence shall not
be treated as a contribution to capital and the Company’s capital account in
the Limited Partnership shall not be credited with the amount of cash so
contributed.


 


(c)           Fractional
Share Cash Reimbursements by the Limited Partnership and Treatment Thereof.  The Limited Partnership shall reimburse the
Company for any cash paid with respect to a fractional Share upon the surrender
of an Option in accordance with the Plan. 
Such reimbursement shall be treated as the reimbursement of an expense
incurred by the Company on behalf of the Limited Partnership, shall not be
treated as a distribution by the Limited Partnership to the Company and shall
not reduce the Company’s Limited Partnership capital account.


 


3.8.       Issuance of Partnership Units – Restricted Stock or Unrestricted Stock


 


Upon
the grant of Restricted Stock and Unrestricted Stock, the Limited Partnership
shall issue to the Company a corresponding number of Partnership Units, equal
to (a) the number of shares awarded to the Grantee pursuant to the
corresponding Award, divided by (b) the Conversion Multiple, that are subject
to the same restrictions or conditions as those applicable to the corresponding
Award.  Upon the lapse of restrictions or
payment (as applicable) of the Award, the restrictions applicable to the
corresponding restricted Partnership Units referred to in this Section 3.8 also shall lapse.  The Company’s capital account in the Limited
Partnership shall be adjusted, as appropriate, to reflect the issuance of
shares of Stock, and such capital account also shall be adjusted, as
appropriate, in the event that the shares of Stock subject to the Award are
forfeited or the restrictions thereon lapse.


 


10





















 


3.9.       Issuance of Partnership Units – Other Awards


 


Upon
the payment of Stock Units, SARs payable in Stock or Awards other than Options
payable in Stock, the Limited Partnership shall issue to the Company a
corresponding number of Partnership Units, equal to (a) the number of shares
awarded to the Grantee pursuant to the corresponding Award, divided by (b) the
Conversion Multiple, that are subject to the same restrictions or conditions as
those applicable to the corresponding Award. 
The Company’s capital account in the Limited Partnership shall be
adjusted, as appropriate, to reflect the issuance of shares of Stock.


 


3.10.     Form of Payment For Options, Restricted Stock and Other Awards


 


(a)           General
Rule.  Payment of the Option Price
for the shares purchased pursuant to the exercise of an Option or the Purchase
Price for Restricted Stock shall be made in cash or in cash equivalents
acceptable to the Company.


 


(b)           Surrender
of Stock.  To the extent the Award
Agreement so provides, payment of the Option Price for shares purchased
pursuant to the exercise of an Option or the Purchase Price for Restricted
Stock or other Awards may be made all or in part through the tender to the
Company of shares of Stock, which shares, if acquired from the Company, shall
have been held for at least six months at the time of tender and which shall be
valued, for purposes of determining the extent to which the Option Price or
purchase price has been paid thereby, at their Fair Market Value on the date of
exercise or surrender.


 


(c)           Cashless
Exercise.  With respect to an Option
only (and not with respect to Restricted Stock), to the extent the Award
Agreement so provides and to the extent permitted by law, payment of the Option
Price for shares purchased pursuant to the exercise of an Option may be made
all or in part by delivery (on a form acceptable to the Board) of an
irrevocable direction to a licensed securities broker acceptable to the Company
to sell shares of Stock and to deliver all or part of the sales proceeds to the
Company in payment of the Option Price and any withholding taxes described in Section 18.3.


 


(d)           Other
Forms of Payment.  To the extent the
Award Agreement so provides, payment of the Option Price for shares purchased
pursuant to exercise of an Option or the Purchase Price for Restricted Stock or
other Awards may be made in any other form that is consistent with applicable
laws, regulations and rules.


 


4.             STOCK
AND PARTNERSHIP UNITS SUBJECT TO THE PLAN


 


Subject
to adjustment as provided in Section 17,
the number of shares of Stock available for issuance under the Plan shall be
six million (6,000,000).  Notwithstanding
the preceding sentence and subject to adjustment as provided in Section 17, the aggregate number of shares of Stock and
Partnership Units that cumulatively may be available for issuance pursuant to
Awards other than Awards of Options or SARs shall not exceed one million eight
hundred thousand (1,800,000).  Grants
made in the form of Partnership Units will reduce the 1,800,000 limit on a one
for one basis.  Stock issued or to be
issued under the Plan shall be authorized but unissued shares or issued shares
that have been reacquired by the Company. 
If any shares covered by an Award are not purchased or are forfeited, or
if an Award otherwise terminates without delivery of any Stock subject thereto,
then the number of shares of Stock counted against 


 


11





















 


the aggregate number of shares available under the
Plan with respect to such Award shall, to the extent of any such forfeiture or
termination, again be available for making Awards under the Plan.


 


The
Board shall have the right to substitute or assume Awards in connection with
mergers, reorganizations, separations, or other transactions to which Section
424(a) of the Code applies, provided such substitutions and assumptions are
permitted by Section 424 of the Code and the regulations promulgated
thereunder.  The number of shares of Stock
reserved pursuant to Section 4 may
be increased by the corresponding number of Awards assumed and, in the case of
a substitution, by the net increase in the number of shares of Stock subject to
Awards before and after the substitution.


 


5.             EFFECTIVE
DATE, DURATION AND AMENDMENTS


 


5.1.       Effective Date


 


The
Plan shall be effective as of the Effective Date, subject to approval of the
Plan by the Company’s stockholders within one year of the Effective Date.  Upon approval of the Plan by the stockholders
of the Company as set forth above, all Awards made under the Plan on or after
the Effective Date shall be fully effective as if the stockholders of the
Company had approved the Plan on the Effective Date.  If the stockholders fail to approve the Plan
within one year after the Effective Date, any Awards made hereunder shall be
null and void and of no effect.


 


5.2.       Term


 


The
Plan shall terminate automatically ten (10) years after its adoption by the
Board and may be terminated on any earlier date as provided in Section 5.3.


 


5.3.       Amendment
and Termination of the Plan and Outstanding Awards


 


The
Board may, at any time and from time to time, amend, suspend, or terminate the
Plan for any reason it deems necessary, appropriate or desirable.  Any amendment shall be contingent on approval
of the Company’s stockholders to the extent stated by the Board, required by
applicable law or required by applicable stock exchange listing
requirements.  No Awards shall be made
after termination of the Plan.  The Board
may amend the terms of any outstanding Award, prospectively or
retroactively.  No amendment, suspension,
or termination of the Plan or any outstanding Award shall, without the consent
of the Grantee, materially impair the rights or obligations under any
outstanding Award.


 


6.             AWARD
ELIGIBILITY AND LIMITATIONS


 


6.1.       Service Providers and Other Persons


 


Subject
to this Section 6, Awards may be made under the
Plan to: (a) any Service Provider, (b) any non-employee director, provided that
an Award to any director who is serving as an Outside Director may only be made
for services as a director, and (c) any other individual whose participation in
the Plan is determined to be in the best interests of the Company by the Board.


 


12





















 


6.2.       Successive Awards


 


An
eligible person may receive more than one Award, subject to such restrictions
as are provided herein.


 


6.3.       Limitation on Shares of Stock Subject to Awards and Cash Awards


 


During
any time when the Company has a class of equity security registered under
Section 12 of the Exchange Act,


 


(a)           the
maximum number of shares of Stock subject to Options or SARs that can be
awarded under the Plan to any person eligible for an Award under Section 6 is five hundred thousand (500,000) per calendar
year;


 


(b)           the
maximum number of shares that can be awarded under the Plan, other than
pursuant to an Option or SARs, to any person eligible for an Award under Section 6 is two hundred thousand (200,000) per calendar
year;


 


(c)           the
maximum number of Partnership Units that may be awarded under the Plan to any
person eligible for an Award under Section 6 is two
hundred thousand (200,000) per calendar year; and


 


(d)           the maximum amount that may be paid as an
Annual Incentive Award or other cash Award with respect to any calendar year to
any one Grantee shall be $2,000,000 and the maximum amount that may be paid as
a Performance Award or other cash Award in respect of a performance period to
any one Grantee shall be $4,000,000.


 


The
preceding limitations in this Section 6.3 are
subject to adjustment as provided in Section 17.


 


6.4.       Limitations on Incentive Stock Options


 


An
Option shall constitute an Incentive Stock Option only (a) if the Grantee of
such Option is an employee of the Company or any Subsidiary of the Company; (b)
to the extent specifically provided in the related Award Agreement; and (c) to
the extent that the aggregate Fair Market Value (determined at the time the
Option is granted) of the shares of Stock with respect to which all Incentive
Stock Options held by such Grantee become exercisable for the first time during
any calendar year (under the Plan and all other plans of the Grantee’s employer
and its Affiliates) does not exceed $100,000. 
This limitation shall be applied by taking Options into account in the
order in which they were granted.


 


6.5.       Stand-Alone, Additional, Tandem, and Substitute Awards


 


Awards
granted under the Plan may, in the discretion of the Board, be granted either
alone or in addition to, in tandem with, or in substitution or exchange for,
any other Award or any award granted
under another plan of the Company, any Affiliate, or any business entity to be
acquired by the Company or an Affiliate, or any other right of a Grantee to
receive payment from the Company or any Affiliate.  Such additional, tandem, and substitute or
exchange Awards 


 


13





















 


may be granted at any time.  If an Award is granted in substitution or
exchange for another Award, the Board shall require the surrender of, or waiver
of the right to receive, such other Award in consideration for the grant of the
new Award.  In addition, Awards may be
granted in lieu of cash compensation, including in lieu of cash amounts payable
under other plans of the Company or any Affiliate, in which the value of the Award
as determined by the Board is equivalent in value to the cash compensation
surrendered.


 


7.             AWARD
AGREEMENT


 


Each
Award granted pursuant to the Plan shall be evidenced by an Award Agreement, in
such form or forms as the Board shall from time to time determine.  Award Agreements entered into from time to
time or at the same time need not contain similar provisions but shall be
consistent with the terms of the Plan.


 


8.             OPTIONS


 


The
Board is authorized to grant Options on the following terms and conditions:


 


8.1.       Option Price


 


The
Option Price of each Option shall be fixed by the Board and stated in the Award
Agreement evidencing such Option.  The
Option Price of each Option shall be at least the Fair Market Value on the
Grant Date of a share of Stock; provided, however, that in the
event that a Grantee is a Ten Percent Stockholder, the Option Price of an
Option granted to such Grantee that is intended to be an Incentive Stock Option
shall be not less than one hundred ten percent (110%) of the Fair Market Value
of a share of Stock on the Grant Date. 
In no case shall the Option Price of any Option be less than the par
value of a share of Stock.


 


8.2.       Vesting


 


Subject to Sections 8.3 and 17.2,
each Option granted under the Plan shall become exercisable at such
times and under such conditions as shall be determined by the Board and stated
in the Award Agreement.  For purposes of
this Section 8.2, fractional numbers of
shares of Stock subject to an Option shall be rounded down to the next nearest
whole number.


 


8.3.       Term


 


Each
Option granted under the Plan shall terminate, and all rights to purchase
shares of Stock thereunder shall cease, upon the expiration of ten years from
the date such Option is granted, or under such circumstances and on such date
prior thereto as is set forth in the Plan or as may be fixed by the Board and
stated in the Award Agreement relating to such Option (the “Termination Date”);
provided, however, that in the event that the Grantee is a Ten
Percent Stockholder, an Option granted to such Grantee that is intended to be
an Incentive Stock Option shall not be exercisable after the expiration of five
years from its Grant Date.


 


14





















 


8.4.       Termination of Service


 


Each
Award Agreement shall set forth the extent to which the Grantee shall have the
right to exercise the Option following termination of the Grantee’s
Service.  Such provisions shall be
determined in the sole discretion of the Board, need not be uniform among all
Options issued pursuant to the Plan, and may reflect distinctions based on the
reasons for termination of Service.


 


8.5.       Limitations on Exercise of Option


 


Notwithstanding
any other provision of the Plan, in no event may any Option be exercised, in
whole or in part, prior to the date the Plan is approved by the stockholders of
the Company as provided herein or after the occurrence of an event referred to
in Section 17 that results in
termination of the Option.


 


8.6.       Method of Exercise


 


An
Option that is exercisable may be exercised by the Grantee’s delivery to the
Company of written notice of exercise on any business day, at the Company’s
principal office, on the form specified by the Company.  Such notice shall specify the number of
shares of Stock with respect to which the Option is being exercised and shall
be accompanied by payment in full of the Option Price of the shares for which
the Option is being exercised plus if applicable, any withholding taxes
described in Section 18.3.


 


8.7.       Rights of Holders of Options


 


Unless
otherwise stated in the applicable Award Agreement, an individual holding or
exercising an Option shall have none of the rights of a stockholder (for
example, the right to receive cash or dividend payments or distributions
attributable to the subject shares of Stock or to direct the voting of the
subject shares of Stock) until the shares of Stock covered thereby are fully
paid and issued to him or her.  Except as
provided in Section 17, no adjustment
shall be made for dividends, distributions or other rights for which the record
date is prior to the date of such issuance.


 


8.8.       Delivery of Stock Certificates


 


Unless
delivery of Stock certificates is satisfied by book entry as set forth in Section 3.4 and subject to Section 16,
promptly after the exercise of an Option by a Grantee and the payment in full
of the Option Price, such Grantee shall be entitled to the issuance of a stock
certificate or certificates evidencing his or her ownership of the shares of
Stock subject to the Option.


 


8.9.       Transferability of Options


 


Except
as provided in Section 8.10, during the lifetime
of a Grantee, only the Grantee (or, in the event of legal incapacity or
incompetency, the Grantee’s guardian or legal representative) may exercise an
Option.  Except as provided in Section 8.10, no Option shall be assignable or transferable
by the Grantee to whom it is granted, other than by will or the laws of descent
and distribution.


 


15





















 


8.10.     Family Transfers


 


If
authorized in the applicable Award Agreement, a Grantee may transfer, not for
value, all or part of an Option that is not an Incentive Stock Option to any
Family Member.  For the purpose of this Section 8.10, a “not for value” transfer is a transfer that
is (a) a gift, (b) a transfer under a domestic relations order in settlement of
marital property rights; or (c) a transfer to an entity in which more than
fifty percent (50%) of the voting interests are owned by Family Members (or the
Grantee) in exchange for an interest in that entity.  Following a transfer under this Section 8.10, any such Option shall continue to be subject
to the same terms and conditions as were applicable immediately prior to
transfer.  Subsequent transfers of
transferred Options are prohibited except to Family Members of the original
Grantee in accordance with this Section  8.10 or by will or the laws of descent and
distribution.  The extent of any right to
exercise following termination of Service of the original Grantee established
in accordance with Section 8.4 shall
continue to apply following any transfer, and the Option shall be exercisable
by the transferee only to the extent, and for the periods specified with
respect to the original Grantee.


 


9.             Stock
Appreciation Rights


 


The
Board is authorized to grant Stock Appreciation Rights (“SARs”) on the
following terms and conditions:


 


9.1.       Right to Payment


 


A SAR
shall confer on the Grantee to whom it is granted a right to receive, upon
exercise thereof, the excess of (a) the Fair Market Value of one share of Stock
on the date of exercise over (b) the grant price of the SAR as determined by
the Board, for each share of Stock underlying such SAR (the “SAR Exercise Price”).  Upon exercise, SARs may be settled in cash or
Stock, as determined by the Board.  The
Award Agreement for a SAR shall specify the SAR Exercise Price, which may be
fixed at the Fair Market Value of a share of Stock on the date of grant or may
vary in accordance with a predetermined formula while the SAR is
outstanding.  A SAR granted in tandem
with an outstanding Option following the Grant Date of such Option may have a
SAR Exercise Price that is equal to the Option Price, even if such SAR Exercise
Price is less than the Fair Market Value of a share of Stock on the grant date
of the SAR.


 


9.2.       Other Terms


 


The
Board shall determine at the date of grant or thereafter, the time or times at
which and the circumstances under which a SAR may be exercised in whole or in
part (including based on achievement of performance goals and/or future service
requirements), the time or times at which SARs shall cease to be or become
exercisable following termination of Service or upon other conditions, the
method of exercise, method of settlement, form of consideration payable in
settlement, method by or forms in which Stock will be delivered or deemed to be
delivered to Grantees, whether or not a SAR shall be in tandem or in
combination with any other Award, and any other terms and conditions of any
SAR.


 


16





















 


10.           RESTRICTED
STOCK AND STOCK UNITS


 


10.1.     Grant of Restricted Stock or Stock Units


 


The
Board is authorized to grant Restricted Stock or Stock Units, subject to such
restrictions, conditions and other terms, if any, as the Board may
determine.  Awards of Restricted Stock
may be made for no consideration (other than par value of the shares which may
be deemed paid by Services already rendered).


 


10.2.     Restrictions


 


At the
time a grant of Restricted Stock or Stock Units is made, the Board may, in its
sole discretion, establish a period of time (a “restricted period”) during
which sale or other transfer of such Restricted Stock or Stock Units will be
restricted.  Each Award of Restricted
Stock or Stock Units may be subject to a different restricted period.  The Board may, in its sole discretion, at the
time a grant of Restricted Stock or Stock Units is made, prescribe restrictions
in addition to or other than the expiration of the restricted period, including
the satisfaction of corporate or individual performance objectives, which may
be applicable to all or any portion of the Restricted Stock or Stock Units in
accordance with Section 14.  Neither Restricted Stock nor Stock Units may
be sold, transferred, assigned, pledged or otherwise encumbered or disposed of
during the restricted period or prior to the satisfaction of any other
restrictions prescribed by the Board with respect to such Restricted Stock or
Stock Units.


 


10.3.     Restricted Stock Certificates


 


Subject
to the provisions of Section 3.4 and Section 16, the Company shall issue, in the name of each
Grantee to whom Restricted Stock has been granted, stock certificates
representing the total number of shares of Restricted Stock granted to the
Grantee, as soon as reasonably practicable after the Grant Date.  The Board may provide in an Award Agreement
that either (a)  the Secretary of the
Company shall hold such certificates for the Grantee’s benefit until such time
as the Restricted Stock is forfeited to the Company or the restrictions lapse
or (b)  such certificates shall be
delivered to the Grantee, provided, however, that such
certificates shall bear a legend or legends that comply with the applicable
securities laws and regulations and makes appropriate reference to the
restrictions imposed under the Plan and the Award Agreement.


 


10.4.     Rights of Holders of Restricted Stock


 


Unless
the Board otherwise provides in an Award Agreement, holders of Restricted Stock
shall have no right to vote such Stock and the right to receive any dividends
declared or paid with respect to such Stock. 
The Board may provide in the Award Agreement that any dividends paid on
Restricted Stock must be reinvested in shares of Stock, which may or may not be
subject to the same vesting conditions and restrictions applicable to such
Restricted Stock.  All distributions, if
any, received by a Grantee with respect to Restricted Stock as a result of any
stock split, stock dividend, combination of shares, or other similar
transaction shall be subject to the restrictions applicable to the original
Grant.


 


17





















 


10.5.     Rights of Holders of Stock Units


 


(a)           Voting
and Dividend Rights.  Unless the
Board otherwise provides in an Award Agreement, holders of Stock Units shall
have no rights as stockholders of the Company. 
The Board may provide in an Award Agreement evidencing a grant of Stock
Units that the holder of such Stock Units shall be entitled to receive, upon
the Company’s payment of a cash dividend on its outstanding Stock, a cash
payment for each Stock Unit held equal to the per-share dividend paid on the
Stock.  Such Award Agreement may also
provide that such cash payment will be deemed reinvested in additional Stock
Units at a price per unit equal to the Fair Market Value of a share of Stock on
the date that such dividend is paid.


 


(b)           Creditor’s
Rights.  A holder of Stock Units
shall have no rights other than those of a general creditor of the
Company.  Stock Units represent an
unfunded and unsecured obligation of the Company, subject to the terms and
conditions of the applicable Award Agreement.


 


10.6.     Termination of Service


 


Unless
the Board otherwise provides in an Award Agreement or in writing after the
Award Agreement is issued, upon the termination of a Grantee’s Service, any
Restricted Stock or Stock Units held by such Grantee that have not vested, or
with respect to which all applicable restrictions and conditions have not
lapsed, shall immediately be deemed forfeited. 
Upon forfeiture of Restricted Stock or Stock Units, the Grantee shall
have no further rights with respect to such Award, including but not limited to
any right to vote Restricted Stock or any right to receive dividends with
respect to shares of Restricted Stock or Stock Units.


 


10.7.     Purchase of Restricted Stock


 


The
Grantee shall be required, to the extent required by applicable law, to
purchase the Restricted Stock from the Company at a Purchase Price equal to the
greater of (a) the aggregate par value of the shares of Stock represented by
such Restricted Stock or (b) the Purchase Price, if any, specified in the Award
Agreement relating to such Restricted Stock. 
The Purchase Price shall be payable in a form described in Section 3.10 or, in the discretion of the Board, in
consideration for past Services rendered to the Company or an Affiliate.


 


10.8.     Delivery of Stock


 


Upon
the expiration or termination of any restricted period and the satisfaction of
any other conditions prescribed by the Board, the restrictions applicable to
shares of Restricted Stock or Stock Units settled in Stock shall lapse, and,
unless otherwise provided in the Award Agreement and subject to the provisions
of Section 3.4 and Section 16,
a stock certificate for such shares shall be delivered, free of all such
restrictions, to the Grantee or the Grantee’s beneficiary or estate, as the
case may be.


 


18





















 


11.           PARTNERSHIP
UNITS; PROFITS INTERESTS


 


11.1.     Grant of Partnership Units and Profits Interests


 


The
Board is authorized to grant Partnership Units and Profits Interests, subject
to such restrictions, conditions and other terms, if any, as the Board may
determine.  Awards of Partnership Units
and Profits Interests may be made for no consideration.  Partnership Units may relate to capital or
profits interests in the Limited Partnership.


 


11.2.     Restrictions


 


At the
time a grant of Partnership Units or Profits Interests is made, the Board may,
in its sole discretion, establish a period of time (a “restricted period”)
during which such Partnership Units or Profits Interests shall be subject to
restrictions.  Each Award of Partnership
Units and Profits Interests may be subject to a different restricted
period.  The Board may, in its sole
discretion, at the time a grant of Partnership Units or Profits Interests is
made, prescribe restrictions in addition to or other than the expiration of the
restricted period, including the satisfaction of corporate or partnership
objectives or individual performance objectives, which may be applicable to all
or any portion of the Partnership Units or Profits Interests in accordance with
Section 14.  Partnership Units and Profits Interests may
not be sold, transferred, assigned, pledged or otherwise encumbered or disposed
of during the restricted period or prior to the satisfaction of any other restrictions
prescribed by the Board with respect to such Partnership Units or Profits
Interests.


 


11.3.     Rights of Holders of Partnership Units and Profits Interests


 


Unless
the Board otherwise provides in an Award Agreement, holders of Partnership
Units and Profits Interests shall have the right to receive any distributions
declared or paid with respect to such units or interests.  The Board may provide in the Award Agreement
that holders of Partnership Units and Profits Interests shall have the right to
vote such units or interests.  The Board
may provide in the Award Agreement that any distributions paid on Partnership
Units or Profits Interests must be reinvested in Partnership Units or Profits
Interests, which may or may not be subject to the same vesting conditions and
restrictions applicable to such Partnership Units and Profits Interests.  All distributions, if any, received by a
Grantee with respect to restricted Partnership Units and Profits Interests as a
result of any stock split, stock dividend or distribution, combination of
shares, or other similar transaction shall be subject to the restrictions
applicable to the original Award.


 


11.4.     Termination of Service


 


Unless
the Board otherwise provides in an Award Agreement or in writing after the
Award Agreement is issued, upon the termination of a Grantee’s Service, any
Award to such Grantee covering Partnership Units and Profits Interests that has
not vested, or with respect to which all applicable restrictions and conditions
have not lapsed, shall immediately lapse and be forfeited.  Upon forfeiture of any such Partnership Units
or Profits Interests, the Grantee shall have no further rights with respect to
such Award, including but not limited to any right to vote Partnership Units or
Profits Interests or any right to receive distributions with respect to such
Awards.


 


19





















 


12.           UNRESTRICTED
STOCK AWARDS


 


The
Board is authorized to grant (or sell at par value or such other higher
purchase price determined by the Board) an Unrestricted Stock Award pursuant to
which the Grantee may receive shares of Stock free of any restrictions (“Unrestricted
Stock”) under the Plan.  Unrestricted
Stock Awards may be granted or sold as described in the preceding sentence in
respect of past services and other valid consideration, or in lieu of, or in
addition to, any cash compensation due to such Grantee.


 


13.           DIVIDEND
EQUIVALENT RIGHTS


 


13.1.     Dividend Equivalent Rights


 


The
Board may from time to time grant Dividend Equivalent Rights, subject to such
restrictions, conditions and other terms, if any, as the Board may
determine.  A Dividend Equivalent Right
is an Award entitling the recipient to receive credits based on cash
distributions that would have been paid on the shares of Stock specified in the
Dividend Equivalent Right (or other award to which it relates) if such shares
had been issued to and held by the recipient. 
A Dividend Equivalent Right may be granted hereunder to any Grantee as a
component of another Award or as a freestanding award.  The terms and conditions of Dividend
Equivalent Rights shall be specified in the Award Agreement.  Dividend equivalents credited to the holder
of a Dividend Equivalent Right may be paid currently or may be deemed to be
reinvested in additional shares of Stock, which may thereafter accrue
additional dividend equivalents.  Any
such reinvestment shall be at Fair Market Value on the date of
reinvestment.  Dividend Equivalent Rights
may be settled in cash or Stock or a combination thereof, in a single
installment or installments, all as determined in the sole discretion of the
Board.  A Dividend Equivalent Right
granted as a component of another Award may provide that such Dividend
Equivalent Right shall be settled upon exercise, settlement, or payment of, or
lapse of restrictions on, such other award, and that such Dividend Equivalent
Right shall expire or be forfeited or annulled under the same conditions as
such other award.  A Dividend Equivalent
Right granted as a component of another Award may also contain terms and
conditions different from such other Award.


 


13.2.     Termination of Service


 


Except
as may otherwise be provided by the Board, either in the Award Agreement or in
writing after the Award Agreement is issued, a Grantee’s rights in all Dividend
Equivalent Rights shall automatically terminate upon the Grantee’s termination
of Service for any reason.


 


14.           PERFORMANCE
AND ANNUAL INCENTIVE AWARDS


 


14.1.     Awards Subject to Performance Conditions


 


The
right of a Grantee to exercise or receive a grant or settlement of any Award,
and the timing thereof, may be subject to the attainment of such performance
conditions as may be specified by the Board. 
The Board may use such business criteria and other measures of
performance as it may deem appropriate in establishing any performance
conditions, and may exercise its discretion to reduce or increase the amounts
payable under any Award subject to 


 


20





















 


performance conditions, except as limited hereunder in
the case of a Performance Award or Annual Incentive Award intended to qualify
as Performance-Based Compensation.  If
and to the extent required under Section 162(m), any power or authority
relating to a Performance Award or Annual Incentive Award intended to qualify
as Performance-Based Compensation shall be exercised by the Committee and not
the Board.


 


14.2.     Performance or Annual Incentive Awards Granted to Designated Covered
Employees


 


If and
to the extent that the Committee determines that a Performance or Annual
Incentive Award to be granted to a Grantee who is designated by the Committee
as likely to be a Covered Employee should qualify as Performance-Based
Compensation,” the grant, exercise and/or settlement of such Performance or
Annual Incentive Award shall be contingent upon achievement of performance
goals and business criteria and other terms established in accordance with the
provisions of Sections 14.3 through 14.7 relating to Awards that are intended to qualify as
Performance-Based Compensation.


 


14.3.     Performance Goals Generally


 


The
performance goals for such Performance Awards or Annual Incentive Awards shall
be set by reference to the achievement of one or more business criteria and a
targeted level or levels of performance with respect to one or more of such
criteria, as specified by the Committee, in its sole discretion.  Performance
goals may be used to measure the performance of (i) the Company, a Subsidiary,
and/or Affiliate as a whole, (ii) any business unit of the Company, a Subsidiary,
and/or Affiliate or (iii) any combination thereof.  Performance goals may be used to measure the
performance of any one or more of the foregoing by comparison with the
performance of one or more comparison companies or business units, or published
or special index that the Committee, in its sole discretion, deems appropriate.  In the
case of Awards intended to qualify as Performance-Based Compensation, performance
goals shall be objective and shall otherwise meet the requirements of Section
162(m), including the requirement that the level or levels of performance
targeted by the Committee result in the achievement of performance goals being substantially
uncertain.  The Committee may determine
that such Performance Awards or Annual Incentive Awards shall be granted,
exercised and/or settled upon achievement of any one performance goal or that
two or more of the performance goals must be achieved as a condition to grant,
exercise and/or settlement of such Performance Awards or Annual Incentive
Awards.  Performance goals may differ for
Performance or Annual Incentive Awards granted to any one Grantee or to
different Grantees.


 


14.4.     Business Criteria


 


One or
more of the following business criteria for the Company, on a consolidated
basis, and/or specified subsidiaries or business units of the Company (except
with respect to the total stockholder return and earnings per share criteria),
shall be used exclusively by the Committee in establishing performance goals
for such Performance Awards or Annual Incentive Awards: (a) total stockholder
return; (b) net income; (c) net operating income; (d) funds from operations;
(e) funds from operations multiple; (f) pretax earnings; (g) earnings before
interest expense, taxes, depreciation and amortization; (h) pretax operating
earnings after interest 


 


21





















 


expense and before bonuses, service fees, and
extraordinary or special items; (i) operating margin; (j) earnings per share;
(k) return on equity; (l) return on capital; (m) return on investment; (n)
operating earnings; (o) working capital; (p) ratio of debt to stockholders’
equity, (q) revenue; (r) market capitalization; (s) market capitalization as
defined by the Company’s line of credit; (t) growth in funds from operations; (u)
growth in net operating income; (v) return on investment capital; and (w)
tenant sales.


 


14.5.     Timing For Establishing Performance Goals; Award Pools; Form of
Settlement of Awards


 


In the
case of Awards intended to qualify as Performance-Based Compensation, performance
goals shall be established not later than 90 days after the beginning of any
performance period applicable to such Performance or Annual Incentive Awards,
or at such other date as may be required or permitted for Performance-Based Compensation
under Section 162(m).


 


(a)           Performance
Award or Annual Incentive Award Pool. 
The Committee may establish a Performance Award or Annual Incentive
Award pool, which shall be an unfunded pool, for purposes of measuring Company
performance in connection with Performance Awards or Annual Incentive Awards.


 


(b)           Settlement
of Performance Awards or Annual Incentive Awards.  Settlement of such Performance Awards or
Annual Incentive Awards shall be in cash, Stock, other Awards or other
property, in the discretion of the Committee.


 


(c)           Other
Terms.  The Committee may, in its
discretion, reduce or, in the case of Awards not intended to qualify as
Performance-Based Compensation, increase the amount of a settlement otherwise
to be made in connection with such Performance Awards or Annual Incentive
Awards.  The Committee shall specify the
circumstances in which such Performance Awards or Annual Incentive Awards shall
be paid or forfeited in the event of termination of Service by the Grantee
prior to the end of a performance period.


 


14.6.     Written Determinations


 


All
determinations by the Committee as to the establishment of performance goals,
the amount of any Performance Award pool or potential individual Performance
Awards and as to the achievement of performance goals relating to Performance
Awards, and the amount of any Annual Incentive Award pool or potential
individual Annual Incentive Awards and the amount of final Annual Incentive
Awards, shall be made in writing in the case of any Award intended to qualify
as Performance-Based Compensation To the extent permitted or otherwise required
to comply with Section 162(m), the Committee may delegate any responsibility
relating to such Performance Awards or Annual Incentive Awards.


 


14.7.     Status of Awards Under Section 162(m)


 


Performance
Awards and Annual Incentive Awards granted to persons who are determined by the
Committee as likely to be Covered Employees within the meaning of 


 


22





















 


Section 162(m) shall, if intended by the Committee to
qualify as Performance-Based Compensation, be administered in a manner
consistent with Section 162(m).  The
foregoing notwithstanding, because the Committee cannot determine with
certainty whether a given Grantee will be a Covered Employee with respect to a
fiscal year that has not yet been completed, the term Covered Employee as used
herein shall mean only a person designated by the Committee, at the time of
grant of Performance Awards or an Annual Incentive Award, as likely to be a
Covered Employee with respect to that fiscal year.  If any provision of the Plan or any agreement
relating to Performance Award or Annual Incentive Award intended to qualify as
Performance-Based Compensation does not comply or is inconsistent with the requirements
of Section 162(m), such provision shall be construed or deemed amended to the
extent necessary to conform to such requirements.


 


15.           PARACHUTE
LIMITATIONS


 


Notwithstanding
any other provision of the Plan or of any other agreement, contract, or understanding
heretofore or hereafter entered into by a Grantee with the Company or any
Affiliate, except an agreement, contract, or understanding heretofore or
hereafter entered into that expressly modifies or excludes application of this
paragraph (an “Other Agreement”), if the Grantee is a “disqualified individual”
within the meaning of Section 280G(c) of the Code, a Grantee’s Award shall be
reduced to the extent any payments under such Award (whether alone or in
combination with any other payment (an “Other Payment”) under the Plan or
otherwise) would constitute an “excess parachute payment” under Section 280G of
the Code, but only to the extent the after-tax value of amounts received by
such Grantee after application of the above reduction would exceed the
after-tax value of the amounts received without application of such reduction.


 


If a
Grantee is eligible to receive Other Payments pursuant to one or more Company
plans or agreements that have similar Section 280G reduction provisions, all
such provisions shall be taken into account in determining whether application
of a Section 280G reduction would be advantageous to the Grantee.


 


If a
reduction is ultimately determined to be advantageous pursuant to this Section 15, the Board shall identify the benefit that will
be reduced and shall promptly inform the Grantee of the specific basis for the
reduction and extent of such reduction, and shall also provide the Grantee with
the relevant Section 280G calculations that were the basis for its
determination.


 


16.           REQUIREMENTS
OF LAW


 


16.1.     General


 


The
Company shall not be required to sell or issue any shares of Stock under any
Award if the sale or issuance of such shares would constitute a violation by
the Grantee, any other individual exercising an Option, or the Company of any
provision of any law or regulation of any governmental authority, including
without limitation any federal or state securities laws or regulations.  If at any time the Company shall determine,
in its discretion, that the listing, registration or qualification of any
shares subject to an Award upon any securities exchange or 


 


23





















 


under any governmental regulatory body is necessary,
appropriate or desirable as a condition of, or in connection with, the issuance
or purchase of shares hereunder, no shares of Stock may be issued or sold to
the Grantee or any other individual exercising an Option pursuant to such Award
unless such listing, registration, qualification, consent or approval shall have
been effected or obtained free of any conditions not acceptable to the Company,
and any delay caused thereby shall in no way affect the date of termination of
the Award.  Specifically, in connection
with the Securities Act, upon the exercise of any Option or the delivery of any
shares of Stock underlying an Award, unless a registration statement under such
Act is in effect with respect to the shares of Stock covered by such Award, the
Company shall not be required to sell or issue such shares unless the Board has
received evidence satisfactory to it that the Grantee or any other individual
exercising an Option may acquire such shares pursuant to an exemption from
registration under the Securities Act and such exemption has been fully
complied with.  Any determination in this
connection by the Board shall be final, binding, and conclusive.  The Company may, but shall in no event be
obligated to, register any securities covered hereby pursuant to the Securities
Act.  The Company shall not be obligated
to take any affirmative action to cause the exercise of an Option or the
issuance of shares of Stock pursuant to the Plan to comply with any law or
regulation of any governmental authority. 
As to any jurisdiction that expressly imposes the requirement that an Option
shall not be exercisable until the shares of Stock covered by such Option are
registered or are exempt from registration, the exercise of such Option (under
circumstances in which the laws of such jurisdiction apply) shall be deemed
conditioned upon the effectiveness of such registration or the availability of
such an exemption.


 


16.2.     Rule 16b-3


 


During
any time when the Company has a class of equity security registered under
Section 12 of the Exchange Act, it is the intent of the Company that Awards pursuant
to the Plan and the exercise of Options granted hereunder will qualify for the
exemption provided by Rule 16b-3 under the Exchange Act.  To the extent that any provision of the Plan
or action by the Board does not comply with the requirements of Rule 16b-3, it
shall be deemed inoperative to the extent permitted by law and deemed advisable
by the Board, and shall not affect the validity of the Plan.  In the event that Rule 16b-3 is revised or
replaced, the Board may exercise its discretion to modify the Plan in any
respect necessary, appropriate or desirable to satisfy the requirements of, or
to take advantage of any features of, the revised exemption or its replacement.


 


17.           EFFECT
OF CHANGES IN CAPITALIZATION; CHANGE IN CONTROL


 


17.1.     Changes in Capitalization


 


If (a)
the number of outstanding shares of Stock, Partnership Units or Profits
Interests is increased or decreased or the shares of Stock, Partnership Units
or Profits Interests are changed into or exchanged for a different number or
kind of shares, units or other securities of the Company or Limited
Partnership, as applicable, on account of any recapitalization,
reclassification, stock split, reverse split, combination of shares, units or
interests, exchange of shares, units or interests, stock dividend or other
distribution payable in capital stock or units, extraordinary cash dividend, or
other increase or decrease in such shares, Partnership Units or Profits
Interests effected without receipt of consideration by the Company or Limited 


 


24





















 


Partnership, as applicable, occurring after the
Effective Date, or (b) there is any change in applicable laws or any change in
circumstances that would result in any substantial dilation or enlargement of
rights granted hereunder or (c) for any other reason that the Board, in its
sole discretion, determines warrants equitable adjustment because it interferes
with the intended operation of the Plan, the number and kinds of shares,
Partnership Units, Profits Interests or other interests or characteristics of
other Awards for which grants of Options and other Awards may be made under the
Plan may be adjusted proportionately and accordingly as determined by the
Board.  In addition, the number and kind
of shares, Partnership Units, Profits Interests and other interests or
characteristics of other Awards for which Awards are outstanding may be
adjusted proportionately and accordingly as determined by the Board so that the
proportionate interest of the Grantee immediately following such event shall,
to the extent practicable, be the same as immediately before such event.  Any such adjustment in outstanding Options or
SARs shall not change the aggregate Option Price or SAR Exercise Price payable
with respect to shares that are subject to the unexercised portion of an
outstanding Option or SAR, as applicable, but shall include a corresponding
proportionate adjustment in the Option Price or SAR Exercise Price per
share.  The conversion of any convertible
securities of the Company shall not be treated as an increase in shares
affected without receipt of consideration. 
In addition, in the event of any distribution to the Company’s
stockholders of securities of any other entity or other assets without receipt
of consideration by the Company, the Board may, in such manner as the Board
deems necessary, appropriate or desirable, adjust (i) the number and kind of
shares Partnership Units, Profits Interests and other interests or
characteristics of other Awards subject to outstanding Awards and/or (ii) the
exercise price of outstanding Options and Stock Appreciation Rights to reflect
such distribution.  Notwithstanding the
foregoing, in the case of any Award that is intended to qualify as
Performance-Based Compensation, any such adjustments shall be made in a manner
and only to the extent they will not prevent such qualification.


 


17.2.     Change in Control


 


Except
to the extent otherwise specified in an Award Agreement, in the event of a
Change in Control, the Board may take one or more of the following actions:


 


(a)           provide
that immediately prior to the occurrence of such Change in Control (or for a
period of 15 days prior to the occurrence of such Change in Control with
respect to Options and SARs) all outstanding Awards shall become fully vested,
and all restrictions and conditions applicable to such Awards shall lapse and
(if the Board so determines) all such Awards shall become payable in full;
and/or


 


(b)           elect
to cancel any outstanding Awards and pay or deliver, or cause to be paid or
delivered, to the holder thereof an amount in cash and/or securities (as
determined by the Board) having a value (as determined by the Board, in its
sole discretion acting in good faith), in the case of Restricted Stock, Stock
Units or Partnership Units, equal to the formula or fixed price per share paid
to holders of shares of Stock or Limited Partnership interests multiplied by
the vested and/or unvested (as determined by the Board) number of shares of
Restricted Stock, Stock Units or Partnership Units and, in the case of Options
or SARs, equal to the product of the number of shares of vested and/or unvested
(as determined by the Board) Stock subject to the Option or SAR multiplied by
the amount, if any, by which (i) the formula or fixed price per share paid to
holders of shares of Stock pursuant to such transaction exceeds (ii) the Option
Price or 


 


25





















 


SAR Exercise Price applicable to such Award shares and
in the case of other Awards, as the Board determines, in its sole discretion
acting in good faith, to be appropriate; and/or


 


(c)           to
the extent that provision is made in writing in connection with such Change in
Control for the assumption or continuation of outstanding Awards, or for the
substitution for such Awards of new economically equivalent awards relating to
the stock or other ownership interests of a successor entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number of shares or
partnership units of the successor and option and stock appreciation right
exercise prices, provide that the Plan Awards, as adjusted, or such new awards,
theretofore granted, shall continue in the manner and under the terms so
provided; and/or


 


(d)           determine
the effect of a Change in Control upon Awards other than Options, SARs,
Restricted Stock, Stock Units and Partnership Units and take such other action
as the Board determines, in its sole discretion acting in good faith, to be
appropriate with respect to such Awards; and/or


 


(e)           take
no action with respect to outstanding Awards.


 


The
manner of application of the above provisions shall be in the sole discretion
of the Board and the Board may treat different Awards and different classes of
Awards differently.  The Board shall
provide adequate prior notice to Award holders of the action to be taken upon a
Change in Control.  No fractional shares,
or other securities, shall be issued pursuant to any such adjustment, and any
fractions resulting from any such adjustment shall be eliminated in each case
by rounding downward to the nearest whole share.  The Board may provide in the Award Agreements
at the time of grant, or any time thereafter with the consent of the Grantee,
for different provisions to apply to an Award in place of those described in Sections 17.1 and 17.2.


 


17.3.     No Limitations on Company


 


The
making of Awards pursuant to the Plan shall not affect or limit in any way the
right or power of the Company to make adjustments, reclassifications,
reorganizations, or changes of its capital or business structure or to merge,
consolidate, dissolve, or liquidate, or to sell or transfer all or any part of
its business or assets.


 


18.           GENERAL
PROVISIONS


 


18.1.     Disclaimer of Rights


 


No
provision in the Plan or in any Award or Award Agreement shall be construed to
confer upon any individual the right to remain in the employ or service of the
Company or any Affiliate, or to interfere in any way with any contractual or
other right or authority of the Company either to increase or decrease the compensation
or other payments to any individual at any time, or to terminate any employment
or other relationship between any individual and the Company.  In addition, notwithstanding anything
contained in the Plan to the contrary, unless otherwise stated in the
applicable Award Agreement, no Award granted under the Plan shall be affected
by any change of duties or position of the Grantee, so long as such Grantee
continues to be a director, officer, consultant or employee of the Company or
an Affiliate.  The obligation of 


 


26





















 


the Company to pay any benefits pursuant to the Plan
shall be interpreted as a contractual obligation to pay only those amounts
described herein, in the manner and under the conditions prescribed
herein.  The Plan shall in no way be
interpreted to require the Company to transfer any amounts to a third party
trustee or otherwise hold any amounts in trust or escrow for payment to any
Grantee or beneficiary under the terms of the Plan.


 


18.2.     Nonexclusivity of the Plan


 


Neither
the adoption of the Plan nor the submission of the Plan to the stockholders of
the Company for approval shall be construed as creating any limitations upon
the right and authority of the Board to adopt such other incentive compensation
arrangements (which arrangements may be applicable either generally to a class
or classes of individuals or specifically to a particular individual or
particular individuals) as the Board in its discretion determines desirable,
including, without limitation, the granting of stock options otherwise than
under the Plan.


 


18.3.     Withholding Taxes


 


The
Company or an Affiliate, as the case may be, shall have the right to deduct
from payments of any kind otherwise due to a Grantee any federal, state, or
local taxes of any kind required by law to be withheld with respect to the
vesting of or other lapse of restrictions applicable to an Award or upon the
payment of any cash, issuance of shares of Stock, units or interests or upon
the exercise of an Option.  At the time
of such vesting, lapse, or exercise, the Grantee shall pay in cash to the
Company or the Affiliate, as the case may be, all amounts that the Company or
the Affiliate may reasonably determine to be necessary to satisfy such
withholding obligation.  Notwithstanding
the preceding sentence, subject to the prior approval of the Company or the
Affiliate, which may be withheld by the Company or the Affiliate, as the case
may be, in its sole discretion, the Grantee may elect to satisfy such obligations,
in whole or in part, (a) by causing the Company or the Affiliate to
withhold cash, shares of Stock or other securities or interests underlying the
Award otherwise issuable to the Grantee or (b) by delivering to the
Company or the Affiliate shares of Stock already owned by the Grantee;
provided, however, that. the
maximum number of shares of Stock that may be withheld from any Award to
satisfy any federal, state or local tax withholding requirements upon the
exercise, vesting, lapse of restrictions applicable to such Award or payment of
shares pursuant to such Award, as applicable, cannot exceed such number of
shares having a Fair Market Value equal to the minimum statutory amount
required by the Company to be withheld and paid to any such federal, state or
local taxing authority with respect to such exercise, vesting, lapse of
restrictions or payment of shares.  Any such approval may be set forth in
an Award Agreement or separately following the grant of an Award.  The shares of Stock so delivered or withheld
shall have an aggregate Fair Market Value equal to such withholding
obligations.  The Fair Market Value of
the shares of Stock used to satisfy such withholding obligation shall be
determined by the Company or the Affiliate as of the date that the amount of
tax to be withheld is to be determined. 
A Grantee who has made an election pursuant to this Section 18.3
may satisfy his or her withholding obligation only with shares of Stock that
are not subject to any repurchase, forfeiture, unfulfilled vesting, or other
similar requirements.


 


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18.4.     Captions


 


The
use of captions in the Plan or any Award Agreement is for the convenience of
reference only and shall not affect the meaning of any provision of the Plan or
such Award Agreement.


 


18.5.     Other Provisions


 


Each
Award granted under the Plan may contain such other terms and conditions not
inconsistent with the Plan as may be determined by the Board, in its sole
discretion.


 


18.6.     Number and Gender


 


With
respect to words used in the Plan, the singular form shall include the plural
form, the masculine gender shall include the feminine gender, etc., as the
context requires.


 


18.7.     Severability


 


If any
provision of the Plan or any Award Agreement shall be determined to be illegal
or unenforceable by any court of law in any jurisdiction, the remaining
provisions hereof and thereof shall be severable and enforceable in accordance
with their terms, and all provisions shall remain enforceable in any other
jurisdiction.


 


18.8.     Governing Law


 


The
validity and construction of this Plan and the instruments evidencing the Award
hereunder shall be governed by the laws of the State of Delaware, other than
any conflicts or choice of law rule or principle that might otherwise refer
construction or interpretation of this Plan and the instruments evidencing the
Awards granted hereunder to the substantive laws of any other jurisdiction.


 


*    *    *


 


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To
record the adoption of the Plan by the Board as of April 22, 2004, and approval
of the Plan by the stockholders on June 10, 2004, and the amendment and
restatement of the Plan by the Board on May 18, 2005, but effective as of the
Effective Date, to incorporate certain clarifications and corrections, the
Company has caused its authorized officer to re-execute the Plan on the date
set forth below.


 


 


	
   

  	
  THE
  MILLS CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  



 


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