Exhibit 10.2


 


 


NEW PLAN EXCEL
REALTY TRUST, INC.


 


 


DEFERRED COMPENSATION PLAN


 


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  ARTICLE I

  	
   

  
	
  Establishment And Purpose

  	
   

  
	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
  Definitions

  	
   

  
	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
  Eligibility And
  Participation

  	
   

  
	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
  Deferral
  Elections And Participant Account Valuation

  	
   

  
	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
  Distributions And
  Withdrawals

  	
   

  
	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
  Administration

  	
   

  
	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
  Amendment And Termination

  	
   

  
	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  
	
  Informal
  Funding

  	
   

  
	
   

  	
   

  
	
  ARTICLE IX

  	
   

  
	
  Article Ix Claims

  	
   

  
	
   

  	
   

  
	
  ARTICLE X

  	
   

  
	
  General
  Conditions

  	
   

  



 


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NEW PLAN EXCEL REALTY TRUST, INC.


DEFERRED
COMPENSATION PLAN


 


ARTICLE I


ESTABLISHMENT
AND PURPOSE


 


New
Plan Excel Realty Trust, Inc. hereby adopts the New Plan Excel Realty Trust, Inc.
Deferred Compensation Plan, effective July 1, 2004.  The purpose of the Plan is to provide each
Participant with an opportunity to defer receipt of a portion of their salary,
bonus, and other specified cash and equity-based compensation permitted by the
Committee.  The Plan is not intended to
meet the qualification requirements of Section 401(a) of the Internal
Revenue Code, but is intended to be an unfunded arrangement providing deferred
compensation to eligible employees who are part of a select group of management
or highly compensated employees of the Company within the meaning of Sections
201(2), 301(a)(3) and 401(a)(1) of ERISA.  The Plan is intended to be exempt from the
requirements of Parts 2, 3 and 4 of Title I of ERISA
as a “top hat” plan, and to be eligible for the alternative method of
compliance for reporting and disclosure available for unfunded “top hat” plans.


 


ARTICLE II


DEFINITIONS


 


2.1                                 Account
Balance.  Account Balance means, with
respect to the Deferred Compensation Account, a Stock Unit Account, or an In-Service
Account, the total value of all Company Stock Units and Investment Options in
which the Participant deferrals have been Deemed Invested as of a specific
date, taking into account the value of all distributions from that Account to
that date.


 


2.2                                 Allocation
Election.  Allocation
Election means a choice by a Participant of one or more Investment Options, and
the allocation among them, in which future Participant Cash Deferrals and/or
existing Account Balances are Deemed Invested for purposes of determining
earnings in a particular Account.


 


2.3                                 Allocation
Election Form.  Allocation
Election Form means the form (or Website screen) approved by the Plan
Administrator on which the Participant makes an Allocation Election.


 


2.4                                 Annual
Valuation Date.  Annual
Valuation Date shall mean the anniversary of the Termination Valuation Date, In
Service Distribution Valuation Date, or Stock Unit Valuation Date utilized to
determine the amount of an annual installment payment.


 


2.5                                 Beneficiary.
 Beneficiary means a natural person,
estate, or trust designated by a Participant on the form designated by the Plan
Administrator to receive benefits to which a Beneficiary is entitled under and
in accordance with provisions of the Plan. 
The Participant’s spouse, or if none (or no longer living), then the
Participant’s estate shall be the Beneficiary if:


 


a.                                       Participant
has not designated a natural person or trust as Beneficiary, or


 


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b.                                      the
designated Beneficiary has predeceased the Participant.


 


2.6                                 Cash
Compensation.  Cash
Compensation means Compensation that is paid in cash, such as base salary
(including any Company contributions made of behalf of a Participant to any
qualified plan maintained by the Company or to any cafeteria plan under Section 125
of the Code), annual bonus, other cash awards and dividend-equivalent bonuses,
and such other Cash Compensation (if any) approved by the Committee as
Compensation for purposes of this Plan.


 


2.7                                 Cash Deferral.
 Cash Deferral means a deferral of base
salary, bonus, or other cash Compensation (if any) permitted to be deferred by
the Committee and properly deferred by a Participant in accordance with
provisions in Section 4.1 of this Plan.


 


2.8                                 Cash Deferral
Account.  Cash Deferral
Account shall mean part of the Deferred Compensation Account maintained to
track Cash Deferrals and Deemed Investments thereon.


 


2.9                                 Chief
Executive Officer.  Chief
Executive Officer means the individual who performs the functions of a Chief
Executive Officer for the Company.


 


2.10                           Code.
 Code means the Internal Revenue Code of
1986, as amended from time to time.


 


2.11                           Company.
 Company means New Plan Excel Realty
Trust, Inc.


 


2.12                           Company Stock.
 Company Stock shall mean shares of New
Plan Excel Realty Trust, Inc. common stock.


 


2.13                           Company Stock
Units.  Company Stock
Units shall mean notional shares of Company Stock resulting from a Deemed
Investment in Company Stock.


 


2.14                           Compensation.
 Compensation shall mean, for purposes of
this Plan, Cash Compensation.  and Company Stock Units.


 


2.15                           Compensation
Deferral Agreement.  Compensation
Deferral Agreement shall mean the deferral election form, or such other forms
furnished by the Plan Administrator (or screens on the Participant Website
approved by the Plan Administrator), on which a Participant elects Cash
Deferrals by designating: (a) the amount of deferral and type of Cash
Compensation to be deferred; (b) any In Service Distribution Dates for that
year’s, or a portion of that year’s, Cash Deferrals; and (c) the Form of
Payment elections for Cash Deferral Termination Benefits and In Service
Distributions.  The Allocation Election
Form may be part of the Compensation Deferral Agreement, in the discretion of
the Plan Administrator.


 


2.16                           Death Benefit.
 Death Benefit shall mean a distribution
of the total amount of the Participant’s Deferred Compensation Account Balance,
including any remaining unpaid


 


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In
Service Account and Stock Unit Account balances, to the Participant’s Beneficiary(ies) in accordance
with Article V of the Plan.


 


2.17                           Deemed
Investment.  A Deemed
Investment (or “Deemed Invested”) shall mean the notional conversion of a
dollar amount of deferred Compensation credited to a Participant’s Deferred
Compensation Account into shares or units (or a fraction of such measures of
ownership, if applicable) of Company Stock Units and/or the underlying
investment (e.g.,  mutual fund or other investment) which
is referred to by the Investment Option(s) selected by the Participant.  The conversion shall occur as if shares (or
units) of the designated investment were being purchased (or sold, for a
distribution) at the purchase price as of the close of business of the day on
which the Deemed Investment occurs.  At
no time shall a Participant have any real or beneficial ownership in the actual
investment to which the Company Stock Unit or Investment Option refers,
irrespective of whether such a Deemed Investment is mirrored by an actual
identical investment by the Company or a trustee acting on behalf of the
Company.


 


2.18                           Deferral
Period.  Deferral
Period shall mean the number of years specified by the Participant on the
Restricted Stock Deferral Agreement between a Restricted Stock Deferral and the
date elected by the Participant to receive (or to begin to receive)
distribution of his or her Stock Unit Benefit.


 


2.19                           Deferred
Compensation Account (“Account’).  A Participant’s Deferred Compensation Account
shall mean the aggregate of all Cash Deferral Accounts, and Stock Unit
Accounts, together with a record of Deemed Investments, minus any withdrawals
or distributions from said Account.  The
Account, and all component Accounts, shall be a bookkeeping account utilized
solely as a device for the measurement of amounts to be paid to the Participant
under the Plan.  The Account shall not
constitute or be treated as an escrow, trust fund, or any other type of funded
account for Code or ERISA purposes and, moreover,
amounts credited thereto shall not be considered “plan assets” for ERISA purposes.


 


2.20                           Deferred
Compensation Committee or “Committee”.  Deferred Compensation Committee,
or “Committee” means a committee of at least three (3) officers of the Company
appointed by the Compensation Committee of the Board or the Chief Executive
Officer, who shall serve until the earlier of termination of service or
appointment of a replacement by the Compensation Committee of the Board or the
Chief Executive Officer.


 


2.21                           Effective
Date.  Effective Date
means the date upon which the Initial Plan Year begins.


 


2.22                           Eligible
Employee.  Eligible
Employee means an Employee who is part of a select group of management or
highly compensated employees of the Company within the meaning of Sections
201(2), 301(a)(3) and 401(a)(1) of ERISA, and who is
selected by the Committee to participate in the Plan.


 


2.23                           Employee.
 Employee means a full-time salaried
employee of the Company.


 


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2.24                           ERISA.  ERISA means the Employee Retirement Income Security Act of
1974, as amended from time to time.


 


2.25                           Initial Plan
Year.  Initial Plan
Year means July 1, 2004 - December 31, 2004.


 


2.26                           In Service
Account.  In Service
Account shall mean a separate Account of the Cash Deferral Account and the
Stock Unit Account, created whenever a Participant elects a new In Service
Distribution Date (not already established with an Account) with respect to a
portion, or all, of his or her Cash or Restricted Stock Deferrals, to which
such portion of the deferral as is specified by the Participant is credited.


 


2.27                           In Service
Distribution.  In
Service Distribution shall mean a payment by the Company to the Participant
following a date elected by the Participant (the In Service Distribution Date)
of the amount represented by the account balance in the In Service Account pertaining
to that In Service Distribution.  In
Service Distributions shall be made in accordance with Participants’ In Service
Distribution form of payment election.


 


2.28                           In Service
Distribution Date.  In
Service Distribution Date shall mean the date selected by the Participant,
following which the In Service Distribution Account Balance shall be
distributed in accordance with the Plan.


 


2.29                           In Service
Distribution Valuation Date. 
In Service Distribution Valuation Date shall mean the last business day
of the calendar month in which the In Service Distribution Date occurs.


 


2.30                           Investment
Option.  Investment
Option shall mean a security or other investment such as a mutual fund, life
insurance account, or other investment approved by the Plan Administrator for
use as part of an Investment Option menu, which a Participant may elect as a
measuring device to determine Deemed Investment earnings (positive or negative)
to be valued in the Participant’s Cash Deferral Account(s).  The Participant has no real or beneficial
ownership in the security or other investment, represented by the Investment
Option.


 


2.31                           Participant.  Participant means an Eligible Employee who:
(1) is selected to participate in this Plan in accordance with Section 3.1
and has elected to defer Compensation in accordance with the Plan in any Plan
Year; or (2) has an Account Balance in his or her Deferred Compensation Account
greater than zero prior to his or her death. 
A Participant’s continued participation in the Plan shall be governed by
Section 3.2 of the Plan.


 


2.32                           Plan.  Plan means the New Plan Excel Realty Trust, Inc.
Deferred Compensation Plan as documented herein and as may be amended from time
to time hereafter.


 


2.33                           Plan
Administrator.  Plan
Administrator shall mean an employee or group of employees appointed by the
Deferred Compensation Committee who is(are)
responsible for those items of plan administration
(e.g., the day-to-day decision making, record keeping) as are


 


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delegated to him, her, or them by
the Committee.  The Plan Administrator
may further delegate duties of the Plan Administrator to employees or others
(e.g., an outside record keeper) to assist in the administration of the Plan.


 


2.34                           Plan Year.
 Plan Year means January 1
through December 31 (see also Initial Plan Year).


 


2.35                           Restricted
Stock.  Restricted
Stock shall mean a share or shares of New Plan Excel Realty Trust, Inc. common
stock that has(have) been issued by the Company to an employee, with certain
legally binding restrictions in place on the exercise of ownership rights and
disposition of the stock that are imposed for a period of time (“vesting period”)
which restrictions qualify as a substantial risk of forfeiture that results in
the delay of inclusion in income of the value of the Restricted Stock until the
restrictions, by their terms, are no longer effective (the shares “vest” “on
the “vesting date”).


 


2.36                           Restricted
Stock Deferral.  Restricted
Stock Deferral shall mean the election by a Participant to defer the receipt of
Company Stock Units in accordance with Section 4.2 of this Plan.


 


2.37                           Restricted
Stock Deferral Agreement.  Restricted Stock Deferral Agreement shall mean
the form (or, when available and authorized by the Plan Administrator, the
screen(s) on the Participant web site) on which a Participant may elect: (a)
the number of shares of Restricted Stock to be deferred in accordance with the
provisions of Section 4.3 of this Plan; (b) any In Service Distribution
Dates for that year’s, or a portion of that year’s, Restricted Stock Deferrals;
and (c) the Form of Payment elections for Stock Unit Termination Benefits and
In Service Distributions.


 


2.38                           Retirement.
 Retirement shall mean the voluntary
termination of employment with the Company upon reaching age 65, or after
reaching age 50 with ten (10) years of service with the Company.  Retirement shall also mean such involuntary
terminations as are designated as a Retirement for purposes of this Plan in the
sole discretion of the Committee.


 


2.39                           Retirement/Termination
Benefit.  Retirement/Termination
Benefit (“Cash Retirement/ Termination Benefit” and “Stock Unit
Retirement/Termination Benefit”) shall mean a distribution to the Participant
of the Participant’s Cash Deferral Account Balance and the Participant’s Stock
Unit Account Balance, including all unpaid In Service Account Balances, in
accordance with the Participant’s payment schedule election for
Retirement/Termination Benefit or as specified in Article V of the Plan.


 


2.40                           Retirement/Termination
Account.  Retirement/Termination
Account (“Cash Retirement/ Termination Account” and “Stock Unit
Retirement/Termination Account”) shall mean that portion of the Cash Deferral
Account and the Restricted Stock Deferral Account not allocated to In Service
Accounts.


 


2.41                           Stock Unit
Benefit.  Stock Unit
Benefit shall mean the distribution by the Company of the Stock Unit Deferral
Account Balance to a Participant, or if applicable, his or her


 


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Beneficiary,
on (or beginning on) an In Service Distribution Date or on, or beginning on,
the applicable distribution date following Termination of Employment with
respect to such Account and in accordance with his or her payment schedule election
applicable to such Account.  Such
distribution shall be made solely in Company Stock.


 


2.42                           Stock Unit
Deferral Account.  Stock
Unit Deferral Account shall mean a portion of the Deferred Compensation Account
created each time a Participant makes a Restricted Stock Deferral,
that is maintained to track the amount and value of the Restricted Stock
Deferral and Deemed Investment in Company Stock Units together with
distributions from such Account.


 


2.43                           Stock Unit
Valuation Date.  Stock
Unit Valuation Date shall mean the last business day of the month in which the
In Service Distribution Date, elected by the Participant with respect to a
Restricted Stock Deferral, occurs or, with respect to Restricted Stock
Deferrals to be distributed upon Termination of Employment, the last business
day of the month in which Termination of Employment occurs, or such other date
set by the Committee in its sole discretion.


 


2.44                           Termination
of Employment.  Termination
of Employment shall mean the termination of a Participant’s employment with the
Company for any reason other than Death.


 


2.45                           Termination Valuation
Date.  Termination
Valuation Date shall mean the last business day of the calendar month in which
Termination of Employment occurs.


 


ARTICLE III


ELIGIBILITY
AND PARTICIPATION


 


3.1                                 Eligibility
and Participation.  Each
Eligible Employee, determined in the sole discretion of the Committee shall be
eligible to participate in this Plan.


 


3.2                                 Duration.
 Once an Employee becomes a Participant,
such Employee shall continue to be a Participant so long as he or she is
entitled to receive benefits hereunder, notwithstanding any subsequent
Termination of Employment.


 


3.3                                 Revocation of Future
Participation.  Notwithstanding
the provisions of Section 3.2, the Committee may revoke such Participant’s
eligibility to make future deferrals under this Plan.  Such revocation will not affect in any manner
a Participant’s Deferred Compensation Account.


 


3.4                                 Notification.
 Each newly Eligible Employee shall be
notified by the Plan Administrator, in writing, of his or her eligibility to
participate in this Plan.


 


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ARTICLE IV


DEFERRAL
ELECTIONS AND PARTICIPANT ACCOUNT VALUATION 


 


4.1                                 Cash
Deferral Elections.


 


(a)                          A Participant
shall make Cash Deferral elections under the Plan by completing and submitting
to the Plan Administrator a written Compensation Deferral Agreement provided by
the Plan Administrator (or completing and electronically submitting the
deferral election screen on the Participant website, when made available by the
Plan Administrator).  Deferral elections
shall be made during an annual enrollment period which shall end no later than
the last day of the month prior to the beginning of the Plan Year to which the
deferral elections refer.  Deferral
elections for the Initial Plan Year shall be made during an enrollment period
which shall end no later than the Effective Date.  Other Cash Deferral elections (if any) shall
be made prior to the time such amounts have been earned, during special
enrollment periods, announced by the Plan Administrator.  Notwithstanding the foregoing, an Eligible
Employee who becomes eligible to be a Participant during any Plan Year
(including all Eligible Employees in the initial year of the Plan) may, in the
initial year of eligibility only, make deferral elections with respect to Cash
Compensation which will be paid during the balance of such Plan Year but after
such elections in such Plan Year, within 30 days of the date of notification of
eligibility as required in Section 3.4 of the Plan.


 


(b)                         Cash
Deferral elections shall be for a Plan Year (or, in the Initial Plan Year, for
the balance of the Plan Year), and shall remain in effect from Plan Year to
Plan Year unless modified or revoked by the Participant in writing on such
forms as may be prescribed by the Plan Administrator (or by following such
procedures as are set by the Plan Administrator regarding using the Participant
website, when available) during an enrollment period.  Such modification or revocation shall become
effective on the first day of the Plan Year following the date of the
modification or revocation.


 


(c)                          A Cash
Deferral election shall designate the amount of Cash Compensation to be
deferred in dollar amounts or whole percentages.  A Participant may defer up to 75% of base
salary, and up to 100% of his or her bonus or other Cash Compensation declared
eligible by the Committee to be paid during the Plan Year to which the election
refers.  A Participant may elect different
percentages for each form of Cash Compensation.


 


(d)                         The
foregoing notwithstanding, in the event a Participant’s deferral election
results in insufficient non-deferred Cash Compensation from which to withhold
taxes in accordance with applicable law, the deferral election shall be reduced
as necessary to allow the Company to satisfy tax withholding requirements.


 


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(e)                          Deferrals
pertaining to base salary shall be deducted on a pro rata basis from a Participant’s
base salary for each pay period during the Plan Year, and deferrals pertaining
to bonus and other Cash Compensation (if any), shall be deducted from the
Participant’s bonus or other Cash Compensation on the date of payment of the
bonus or other Cash Compensation would otherwise be paid to the
Participant.  In each case the amount
deferred shall be credited to the Participant’s Retirement/Termination Account
or In Service Account(s), and a Deemed Investment shall be made in the
investment(s) represented by the Investment Option(s) elected by the
Participant, as of the close of business on the date it would otherwise have
been paid as Compensation to the Participant.


 


(f)                            The
Compensation Deferral Agreement shall indicate the Participant’s election of a
payment schedule for his or her Retirement/Termination Benefit.  A Participant shall elect to have such
Retirement/Termination Benefit distributed: (a) a portion, or all, in a single
lump sum payable as soon as administratively practicable following the
Termination Valuation Date; and/or (b) the balance (assuming it is at least
$25,000) in up to fifteen (15) annual installment payments payable at the time
described in Section 5.3.  An
election of a payment schedule for a Participant’s Retirement/Termination
Benefit shall pertain to the entire Deferred Compensation Account Balance.  A Participant shall be permitted to change
his or her payment schedule election at any time by filing a new
Compensation Deferral Agreement (or by following such procedures as are set by
the Plan Administrator regarding using the Participant website, when
available), provided such election is made at least thirteen (13) months prior
to the Participant’s date of Termination of Employment.  Any payment schedule election made within
thirteen months of Termination of Employment shall be null and void, and the
most recent payment schedule election which is dated at least thirteen
months prior to Termination of Employment will be in effect.


 


4.2                                 Restricted
Stock Deferrals.


 


(a)                          A Participant
shall make Restricted Stock Deferral elections under the Plan by completing and
submitting to the Plan Administrator a written Restricted Stock Deferral
Agreement provided by the Plan Administrator (or completing and electronically
submitting the deferral election screen on the Participant website, when made
available by the Plan Administrator) during the Restricted Stock Deferral
enrollment period.  The Restricted Stock
Deferral election period shall occur during the Plan Year preceding the Plan Year
to which the deferral elections pertain, and shall end no later than June 30.  Restricted Stock Deferral elections must be
made at least six (6) months prior to the “vesting date” of the unvested shares
of Restricted Stock to which the deferral election refers, and must refer to
unvested shares of Restricted Stock that have a “vesting date” during the Plan
Year which begins after the date of the Restricted Stock Deferral
election.  Except as
provided in this Section 4.2 regarding changing a payment schedule election
and except as provided in Section 4.3 regarding In Service Distribution
Date changes, Restricted Stock Deferral elections are irrevocable.


 


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(b)                         When a
Participant makes a Restricted Stock Deferral election, such Participant shall
continue to hold (or otherwise be credited with ownership of) the shares of
Restricted Stock which are subject to the Restricted Stock Deferral election,
and remains able to exercise all rights of ownership accorded to owners of
unvested Restricted Stock with respect to such shares until the day immediately
prior to the “vesting date” of such deferred Restricted Stock shares.  During such period, any dividends declared
with respect to such deferred Restricted Stock shares shall be distributed in
accordance with the provisions of the plan pursuant to which the Restricted
Stock is granted (e.g.,  paid in cash to the owner of unvested
Restricted Stock, or reinvested in Company Stock, including pursuant to the
terms of the Company’s Dividend Reinvestment Plan (“DRIP”)), as provided in the
Company Restricted Stock agreement.


 


(c)                          On the day
immediately prior to the “vesting date” of the shares subject to the Restricted
Stock Deferral election, the deferred Restricted Stock shares are deemed to be
surrendered to the Company by the Participant, and exchanged for Company Stock
Units which are simultaneously “deferred” (credited to the Stock Unit Account
pursuant to provisions of this Plan). 
Thereafter, any dividends declared with respect to Company Stock shall
be treated as additional cash compensation to Participants with Stock Unit
Accounts in the amount that would have been paid (or reinvested) as a dividend
if the Participant had not made the Restricted Stock Deferral election (“dividend
equivalent compensation”), and shall be disposed of in accordance with the
Participant’s election for “dividend equivalent compensation”.


 


(d)                         The
Restricted Stock Deferral Agreement shall indicate: (i)
the number of shares of Company Stock Units a Participant elects to defer; (ii)
the disposition of “dividend equivalent compensation”; and (iii) the
Participant’s election of a payment schedule for his or her Stock Unit
Retirement/Termination Account.  A
Participant may elect to have their “dividend equivalent compensation”
distributed: (a) in cash in accordance with procedures for payment of dividends
established by the Company; or (b) credited to their Stock Unit Account.  The number of Company Stock Units into which
dividend equivalent compensation is converted will calculated on the same basis
as the Company’s DRIP or, if the DRIP has been terminated, on the basis of the
closing price of Company Stock on the day the dividend is paid.  A Participant may elect to have their Stock
Unit Retirement/Termination Account Balance distributed: (a) a portion, or all,
in a single lump sum payable as soon as administratively practicable following
the applicable Valuation Date; and/or (b) the balance (assuming it is valued at
$10,000 or more) in up to fifteen (15) annual installment payments payable at
the time described in Section 5.3. 
An election of a payment schedule for a Participant’s Stock Unit
Retirement/Termination Account Balance shall pertain to the entire Stock Unit
Retirement/Termination Account Balance. 
A Participant shall be permitted to change his or her payment schedule election
at any time by filing a new Restricted Stock Deferral Agreement (or by
following such procedures as are set by the Plan Administrator regarding using
the Participant website, when available), provided such election is made at
least thirteen (13) months prior to


 


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Termination
of Employment. 
Any payment schedule election made within thirteen (13) months of
Termination of Employment shall be null and void, and the most recent payment schedule election
which is dated at least thirteen (13) months prior to Termination of Employment
will be in effect.


 


(e)                          Restricted
Stock Deferrals shall be credited to the Stock Unit Account as soon as
administratively practicable following the day immediately prior to the “vesting
date” of the shares subject to the Restricted Stock Deferral election, in the
sole discretion of the Plan Administrator. 
A Deemed Investment shall be made in Company Stock Units on the date so
credited.


 


(f)                            The Stock
Unit Deferral Account Balance shall be fully vested from inception.


 


4.3                                 In
Service Distribution Date Election.


 


(a)                          The
Compensation Deferral Agreement and Restricted Stock Deferral Agreement shall also
indicate the Participant’s election of In Service Distribution Date(s) (if
any).  An In Service Distribution
election shall pertain to such portion of deferred Cash Compensation or
Restricted Stock for the Plan Year as elected by the Participant.  The Plan Administrator shall create a new In
Service Account for each distinct In Service Distribution Date (unless such
Account already exists), to which such portion of deferred Compensation shall
be credited.  In the event an In Service
Account has already been established for the In Service Distribution Date
referred to in the deferral election, such portion of deferred Compensation
(Cash or Stock Units) shall be credited to the existing In Service Account.


 


(b)                         A
Participant may maintain up to five (5) In Service Accounts for Cash Compensation, and up to five (5) In Service Accounts for
Stock Unit Accounts.


 


(c)                          A
Participant may change or cancel an In Service Distribution Date once only, as
follows:


 


(i)                     An In Service
Distribution Date change (including a cancellation) may be made by submitting a
new Compensation Deferral Agreement, Restricted Stock Deferral Agreement, or
such other form as may be provided for In Service Distribution Date changes by
the Plan Administrator (or completing and electronically submitting the
appropriate screen on the Participant website, when available) at any time, so
long as the date that such form is submitted to the Plan Administrator is at
least thirteen (13) months prior to the In Service Distribution Date being
changed; and


 


(ii)                  The In
Service Distribution Date may be extended to a subsequent year (and must be
extended by at least one year), but it may not be made to occur sooner than the
original date.


 


(iii)               The In
Service Distribution Date may be cancelled, even after a change.  A cancellation of an In Service Distribution
Date shall cause the In Service


 


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Account
associated with it to be merged into the Cash or Stock Unit
Retirement/Termination Account, as applicable.


 


(iv)              Making an In
Service Distribution Date change or cancellation in accordance with the Plan is
specific to the In Service Distribution to which it refers, and shall not
affect other In Service Distributions or the ability of the Participant to make
new In Service Distribution elections with respect to new deferral
contributions.


 


(d)                         Any portion
of a Cash or Restricted Stock Deferral not credited to an In Service
Distribution Account will be credited to the appropriate Retirement/Termination
Account (either Cash or Stock Unit).


 


(e)                          The
Compensation Deferral Agreement/Restricted Stock Deferral Agreement shall also
indicate the Participant’s election of payment schedule for each In
Service Distribution Date.  Permitted
payment schedules for In Service Distributions are a single lump sum or
(assuming the In Service Distribution Account Balance is at least $10,000) from
two (2) to five (5) annual installment payments.  A Participant shall be permitted to change
his or her payment schedule election for an In Service Distribution at any
time by filing a new Compensation Deferral Agreement (or by following such
procedures as are set by the Plan Administrator regarding using the Participant
website, when available), provided such election is made at least thirteen (13)
months prior to the In Service Distribution Date.


 


4.4                                 Cash
Deferral Allocation Elections and Valuation of Accounts.


 


(a)                          For Cash
Deferrals credited to Cash Deferral Accounts, a Participant shall elect
Investment Options from a menu provided by the Plan Administrator.  The initial election shall be made on the
Allocation Election form approved by the Plan Administrator (or Allocation
Election Screen on the Participant website approved by the Plan Administrator)
and shall specify the allocations among the Investment Options elected.  A Participant may make different Allocation
Elections for each In Service Account and for the Cash Retirement/Termination
Account.  A Participant’s Accounts shall
be valued as the sum of the value of all Deemed Investments minus any
withdrawals or distributions from said Account. 
Investment Options shall be utilized to determine the earnings
attributable to the Account.  Elections
of Investment Options do not represent actual ownership of, or any ownership
rights in or to, the securities or other investments to which the Investment
Options refer, nor is the Company in any way bound or directed to make actual
investments corresponding to Deemed Investments.


 


(b)                         The
Committee, in its sole discretion, shall be permitted to add or remove
Investment Options provided that any such additions or removals of Investment
Options shall not be effective with respect to any period prior to the
effective date of such change.  Any
unallocated portion of an Account or any unallocated portion of new deferrals


 


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shall be Deemed
Invested in an Investment Option referring to a money market fund.


 


(c)                          A
Participant may make a new Allocation Election with respect to future Cash
Deferrals or existing Account Balances, provided that such new allocation
elections must be in increments of one percent (1%).  Allocation elections pertaining to existing
Account Balances apply to the entire Account Balance.  New Allocation Elections may be made on any
business day and will become effective on the same business day or, in the case
of Allocation Elections received after a cut-off time established by the Plan
Administrator, the following business day.


 


(d)                         Stock Unit
Accounts shall not be eligible for the election of Investment Options.  Such Account Balances will, during the entire
Deferral Period, be Deemed Invested in Company Stock Units.


 


(e)                          Notwithstanding
anything in this Section to the contrary, the Company shall have the sole
and exclusive authority to invest any or all amounts deferred in any manner,
regardless of any Allocation Elections by any Participant.  A Participant’s Allocation Election shall be
used solely for purposes of determining the value of such Participant’s
Accounts and the amount of the corresponding liability of the Company in
accordance with this Plan.


 


4.5                                 Prohibition
Against Modifications to Deferral Elections.  A Participant may not modify or revoke a Cash
Deferral election during a Plan Year by changing the amount of the Compensation
deferral except in the case of severe financial hardship and then only with the
approval of the Plan Administrator in its sole discretion.


 


ARTICLE V


DISTRIBUTIONS
AND WITHDRAWALS  


 


5.1                                 In
Service Distributions.


 


(a)                  In Service
Distributions shall be paid in accordance with the payment schedule election
made with respect thereto, beginning as soon as administratively practicable
following the In Service Distribution Valuation Date.  In the event a Participant has elected
installment payments for an In Service Distribution, the installment payments
shall be determined as set forth in Section 5.3 of the Plan.


 


(b)                 Notwithstanding a
Participant’s election to receive an In Service Distribution, all In Service
Distribution Account Balances shall be distributed as part of a
Retirement/Termination or Death Benefit (and in accordance with the
Retirement/Termination payment schedule election, if applicable) if such
Retirement, Termination of Employment or Death occurs prior to the completion
of payment(s) elected in connection with any In Service Distribution Date.


 


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(c)                  Stock Unit In
Service Accounts shall be distributed in shares of Company Stock
, equal in number to Company Stock Units credited to the Stock Unit In
Service Account Balance.


 


5.2                                 Retirement/Termination
Benefit Distribution.  The Cash
Retirement/Termination Benefit and the Stock Unit Retirement/Termination
Benefit will be paid (or the first payment will be made) in accordance with the
Participant payment schedule election as soon as administratively
practicable following the Termination Valuation Date.


 


5.3                                 Installment
Payments.  If the Participant has
elected installment payments, annual payments will be made beginning as soon as
administratively practicable following the applicable Valuation Date or, in the
event of a partial lump sum election, following the first anniversary of the
partial lump sum payment made following Retirement or the end of a Deferral
Period.  Such payments shall continue annually
on or about the anniversary of the previous installment payment until the
number of installment payments elected has been paid.  The installment payment amount shall be
determined annually as the result of a calculation, performed on the applicable
Annual Valuation Date, where (i) is
divided by (ii):


 


(i)                             equals the value
of the applicable Account (or number of Company Stock Units credits to the
Stock Unit Account) on the Annual Valuation Date; and


 


(ii)                          equals the
remaining number of installment payments.


 


5.5                                 Small
Account Balance Lump Sum Payment.  In
the event that a Participant’s Retirement/Termination Account Balance is less
than $25,000 or a Participant’s In Service Distribution Account Balance or
Stock Unit Account Balance is less than $10,000 on the applicable Valuation
Date, the In Service Distribution, Stock Unit Benefit, or Retirement Benefit,
as applicable, shall be paid in a lump sum and any form of payment election to
the contrary shall be null and void.


 


5.6                                 Death
Benefit.  In the event of a
Participant’s death either before Termination of Employment or before complete
distribution of installment payments elected by the Participant in connection
with any In Service Distribution, Retirement/Termination Benefit, or Stock Unit
Benefit, such Participant’s Beneficiary, named on the most recently filed
Beneficiary Designation Form, shall be paid a Death Benefit in the amount of
the remaining Deferred Compensation Account Balance in a single lump sum as
soon as practicable following the end of the month in which the Participant’s
death occurred.  The Valuation Date for
purposes of determining the Death Benefit shall be the last day of the month in
which the Participant’s death occurs.


 


5.7                                 Unforeseeable
Emergency.  A Participant may
request, in writing to the Plan Administrator, a withdrawal from his or her
Deferred Compensation Account if the Participant experiences an “unforeseeable
emergency”.  An unforeseeable emergency
is a severe financial hardship to the participant resulting from a sudden and
unexpected illness or accident of the participant or of a dependent (as defined
in section 152(a)) of


 


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the participant, loss of the
participant’s property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of
the participant, as defined in Reg. 
1.457-2(h)(4). 
The Plan Administrator, in its sole discretion, shall determine whether
a Participant has experienced an unforeseeable emergency.  Withdrawals of amounts because of an
unforeseeable emergency are limited to the extent reasonably needed to satisfy
the emergency need, which cannot be met with other resources of the
Participant.  The amount of such
unforeseeable emergency withdrawal shall be subtracted first from the vested
portion of the Participant’s Cash Deferral Retirement/Termination Account until
depleted and then from the Cash Deferral In Service Distribution Accounts (if
any) beginning with the most distant, and then from the Stock Unit
Retirement/Termination Account, and finally from the Stock Unit In Service
Accounts (if any) on a pro-rata basis. 
Values for purposes of administering this Section shall be
determined on the date the Plan Administrator approves the amount of the
unforeseeable emergency withdrawal, or such other date determined by the Plan
Administrator.


 


5.8                                 Voluntary
Withdrawal.  A Participant who is an
active employee may request, in writing to the Plan Administrator, to have up
to 100% of the vested portion of his or her Deferred Compensation Account
Balance at any time and for any reason, subject to a penalty of 10% of the
amount distributed.  The penalty shall be
forfeited to the Company.  There is a
minimum withdrawal amount of $5,000. 
Deferral elections shall be deemed revoked for the balance of the Plan
Year in which such withdrawal election is made and not permitted for the
following Plan Year.  The amount of such
voluntary withdrawal shall be subtracted first from the vested portion of the
Participant’s Retirement/Termination Account until depleted, then from the In
Service Accounts (if any) beginning with the most distant, and finally from a
Participant’s Stock Unit Deferral Account on a pro-rata basis.  Values for purposes of administering this Section shall
be determined on the date the Plan Administrator approves the amount of the
withdrawal, or such other date determined by the Plan Administrator.


 


5.9                                 Change in Control.  In the event a Participant shall have a
Termination of Employment (including a Retirement) within two (2) years
following a Change in Control, such Participant shall receive his or her
Deferred Compensation Account Balance (including all In Service Accounts) in a
lump sum paid as soon as administratively practicable following the Valuation
Date, which shall be the end of the month in which the Change in Control
occurs.  All payment schedule elections
to the contrary shall be ignored.


 


5.10                           Court
Order.  In the event a Court of
competent jurisdiction orders a division of a Participant’s Account or portion
thereof pursuant to a valid Judgment, the Plan Administrator may make a
distribution to the Participant or other recipient named in the Court Order in
the amount necessary to satisfy the Judgment.


 


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ARTICLE VI


ADMINISTRATION


 


6.1                                 Plan
Administration.  This Plan shall be
administered by the Committee, which shall have discretionary authority to
make, amend, interpret and enforce all appropriate rules and regulations for
the administration of this Plan and to utilize its discretion to decide or
resolve any and all questions, including but not limited to eligibility for
benefits and interpretations of this Plan and its terms, as may arise in
connection with the Plan.  Certain of these
administrative functions may be delegated by the Committee to the Plan
Administrator.  Claims for benefits shall
be filed with the Plan Administrator and resolved in accordance with the claims
procedures in Article IX.


 


6.2                                 Withholding.  The Employer shall have the right to withhold
from any payment made under the Plan (or any amount deferred into the Plan) any
taxes required by law to be withheld in respect of such payment (or
deferral).  In addition, the Employer
shall have the right to require such payments from a Participant, or withhold
such amounts from other payments due to a Participant from the Employer or any
Affiliate.


 


6.3                                 Indemnification.  The Company shall indemnify and hold harmless
each employee, officer, director, agent or organization, to whom or to which is
delegated duties, responsibilities, and authority with respect to
administration of the Plan, against all claims, liabilities, fines and
penalties, and all expenses reasonably incurred by or imposed upon him or it
(including but not limited to reasonable attorney fees) which arise as a result
of his or its actions or failure to act in connection with the operation and
administration of the Plan to the extent lawfully allowable and to the extent
that such claim, liability, fine, penalty, or expense is not paid for by
liability insurance purchased or paid for by the Company.  Notwithstanding the foregoing, the Company
shall not indemnify any person or organization if his or its actions or failure
to act are due to gross negligence or willful misconduct or for any such amount
incurred through any settlement or compromise of any action unless the Company
consents in writing to such settlement or compromise.


 


6.4                                 Expenses.  The expenses of administering the Plan shall
be paid by the Company.


 


6.5                                 Delegation
of Authority.  In the administration
of this Plan, the Plan Administrator may, from time to time, employ agents and
delegate to them such administrative duties as it sees fit, and may from time
to time consult with legal counsel who may be legal counsel to the Company.


 


6.6                                 Binding
Decisions or Actions.  The decision
or action of the Plan Administrator in respect of any question arising out of
or in connection with the administration, interpretation and application of the
Plan and the rules and regulations thereunder shall
be final and conclusive and binding upon all persons having any interest in the
Plan.


 


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ARTICLE VII


AMENDMENT
AND TERMINATION


 


7.1                                 Amendment
and Termination.  The Plan is
intended to be permanent, but the Committee may at any time modify, amend, or
terminate the Plan, provided that such modification, amendment or termination
shall not cancel, reduce, or otherwise adversely affect the amount of benefits
of any Participant accrued (and any form of payment elected) as of the date of
any such modification, amendment, or termination, without the consent of the
Participant.  Notwithstanding the
foregoing, the Committee shall be permitted upon Plan termination to instruct
the Plan Administrator to pay each Participant (without such Participant’s
consent) a lump sum in the amount of such Participant’s Account Balance as of
the date of such Plan termination.


 


7.2                                 Adverse
Income Tax Determination.  Notwithstanding
anything to the contrary in the Plan, if any Participant receives a deficiency
notice from the United States Internal Revenue Service asserting constructive
receipt of amounts payable under the Plan, or if legislation is passed which
causes current income taxation of deferred amounts, Company contributions,
and/or the investment earnings attributed thereto due to any Participant
withdrawal right or other Plan provision, the Committee, in its sole
discretion, may terminate the Plan or such Participant’s participation in the
Plan, and/or may declare null and void any Plan provision with respect to
affected Participants, and/or may make distributions in cash or Company Stock
in an amount equal to the amount that would otherwise be subject to the claim
of constructive receipt or otherwise includable in income when deferred.  In addition, it is intended that this Plan
comply with all provisions of the Internal Revenue Code and regulations and
rulings in effect from time to time regarding the permissible deferral of
compensation and taxes thereon, and it is understood that this Plan does so
comply.  If the laws of the United States
or of any relevant state are amended or construed in such a way as to make this
Plan (or its intended deferral of compensation and taxes) in whole or in part
void, then the Deferred Compensation Committee, in its sole discretion, may
choose to terminate the Plan or it may (to the extent it deems practicable)
give effect to the Plan in such a manner as it deems will best carry out the
purposes and intentions of this Plan.


 


ARTICLE VIII


INFORMAL FUNDING


 


8.1                                 General
Assets.  All benefits in respect of a
Participant under this Plan shall be paid directly from the general funds of
the Employer, or a Rabbi Trust created by the Company and funded by the
Employers for the purpose of informally funding the Plan, and other than such
Rabbi Trust, if created, no special or separate fund shall be established and
no other segregation of assets shall be made to assure payment.  No Participant, spouse or Beneficiary shall
have any right, title or interest whatever in or to any investments which an
Employer may make to aid the Employer in meeting its obligation hereunder.  Nothing contained in this Plan, and no action
taken pursuant to its provisions, shall create or be construed to create a
trust of any kind, or a fiduciary


 


18





















 


relationship, between the
Employer or any if its subsidiaries or affiliated companies and any Employee,
spouse, or Beneficiary.  To the extent
that any person acquires a right to receive payments from the Employer
hereunder, such rights are no greater than the right of an unsecured general
creditor of the Employer.


 


8.2                                 Rabbi
Trust.  The Company may, at its sole
discretion, establish a grantor trust, commonly known as a Rabbi Trust, as a
vehicle for accumulating the assets needed to pay the promised benefit, but the
Company shall be under no obligation to establish any such trust or any other
informal funding vehicle.


 


ARTICLE IX


CLAIMS


 


9.1                                 Filing
a Claim.  Any controversy or claim
arising out of or relating to the Plan shall be filed with the Plan
Administrator which shall make all determinations concerning such claim.  Any decision by the Plan Administrator
denying such claim shall be in writing and shall be delivered to the
Participant or Beneficiary filing the claim (“Claimant”).  Such decision shall set forth the reasons for
denial in plain language.  Pertinent
provisions of the Plan document shall be cited and, where appropriate, an
explanation as to how the Claimant can perfect the claim will be provided,
including a description of any additional material or information necessary to
complete the claim, and an explanation of why such material or information is
necessary.  The claim denial also shall
include an explanation of the claims review procedures and the time limits
applicable to such procedures, including a statement of the Claimant’s right to
bring a civil action under Section 502(a) of ERISA
following an adverse decision on review. 
This notice of denial of benefits will be provided within 90 days of the
Plan Administrator’s receipt of the Claimant’s claim for benefits.  If the Plan Administrator fails to notify the
Claimant of its decision regarding the Claimant’s claim, the claim shall be
considered denied.  If the Plan
Administrator determines that it needs additional time to review the claim, the
Plan Administrator will provide the Claimant with a notice of the extension
before the end of the initial 90-day period. 
The extension will not be more than 90 days from the end of the initial
90-day period and the notice of extension will explain the special circumstances
that require the extension and the date by which the Plan Administrator expects
to make a decision.


 


9.2                                 Appeal.  Claimant who has been completely or partially
denied a benefit shall be entitled to appeal this denial of his claim by filing
a written appeal with the Committee no later than sixty (60) days after: (a)
receipt of the written notification of such claim denial, or (b) the lapse of
ninety (90) days without an announced decision notice of extension.  A Claimant who timely requests a review of
his or her denied claim (or his or her authorized representative) may review,
upon request and free of charge, copies of all documents, records and other
information relevant to the denial and may submit written comments, documents,
records and other information relevant to the claim to the Plan
Administrator.  The Committee may, in its
sole discretion and if it deems appropriate or necessary, decide to hold a
hearing with respect to the claim appeal. 
Following its review


 


19





















 


of any additional information
submitted by the Claimant, the Committee shall render a decision on its review of
the denied claim in the following manner:


 


(a)                          The
Committee shall make its decision regarding the merits of the denied claim
within 60 days following its receipt of the appeal (or within 120 days after
such receipt, in a case where there are special circumstances requiring
extension of time for reviewing the appealed claim).  It shall deliver the decision to the Claimant
in writing.  If an extension of time for
reviewing the appeal is required because of special circumstances, written
notice of the extension shall be furnished to the Claimant prior to the
commencement of the extension.  The
notice will indicate the special circumstances requiring the extension of time
and the date by which the Committee expects to render the determination on
review.


 


(b)                         The review
will take into account comments, documents, records and other information
submitted by the Claimant relating to the claim without regard to whether such
information was submitted or considered in the initial benefit determination.


 


(c)                          The decision
on review shall set forth a specific reason for the decision, and shall cite
specific references to the pertinent Plan provisions on which the decision is
based.


 


(d)                         The decision
on review will include a statement that the Claimant is entitled to receive, upon
request and free of charge, reasonable access to and copies of all documents,
records, or other information relevant to the Claimant’s claim for benefits.


 


(e)                          The decision
on review will include a statement describing any voluntary appeal procedures offered
by the plan and a statement of the Claimant’s right to bring an action under Section 502(a)
of ERISA.


 


(f)                            A Claimant
may not bring any legal action relating to a claim for benefits under the Plan
unless and until the Claimant has followed the claims procedures under the Plan
and exhausted his or her administrative remedies under such claims procedures.


 


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ARTICLE X


GENERAL
CONDITIONS


 


10.1                           Anti-assignment
Rule.  No interest of any
Participant, spouse or Beneficiary under this Plan and no benefit payable
hereunder shall be assigned as security for a loan, and any such purported
assignment shall be null, void and of no effect, nor shall any such interest or
any such benefit be subject in any manner, either voluntarily or involuntarily,
to anticipation, sale, transfer, assignment or encumbrance by or through any
Participant, spouse or Beneficiary.


 


10.2                           No
Legal or Equitable Rights or Interest. 
No Participant or other person shall have any legal or equitable rights
or interest in this Plan that are not expressly granted in this Plan.  Participation in this Plan does not give any
person any right to be retained in the service of the Company or any of its
subsidiaries or affiliated companies. 
The right and power of the Company (or any of its subsidiaries or
affiliated companies that is the Employee’s employer) to dismiss or discharge
an Employee is expressly reserved.


 


10.3                           No
Employment Contract.  Nothing
contained herein shall be construed to constitute a contract of employment
between an Employee and the Company or any of its subsidiaries or affiliated
companies.


 


10.4                           Headings.  The headings of Sections are included solely
for convenience of reference, and if there is any conflict between such
headings and the text of this Plan, the text shall control.


 


10.5                           Invalid
or Unenforceable Provisions.  If any
provision of this Plan shall be held invalid or unenforceable, such invalidity
or unenforceability shall not affect any other provisions hereof and the Plan
Administrator may elect in its sole discretion to construe such invalid or
unenforceable provisions in a manner that conforms to applicable law or as if
such provisions, to the extent invalid or unenforceable, had not been included.


 


10.6                           Governing
Law.  To the extent not preempted by ERISA, the laws of the State of New York shall govern the
construction and administration of the Plan.


 


10.7                           Successors.  The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of the Company to
expressly assume and agree to perform the Plan in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place.


 


SIGNATURES
ON NEXT PAGE


 


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IN
WITNESS WHEREOF, the Company has caused this Plan to
be adopted as of the Effective Date.


 


	
   

  	
  NEW PLAN REALTY TRUST, INC

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Steven F. Siegel

  
	
   

  	
   

  
	
   

  	
  Its:

  	
   EVP

  
	
   

  	
   

  
	
   

  	
  ATTEST:

  	
    Lynne Cohen

  
				



 


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