ex10_4.htm


     

    
      

      

    

     

    Exhibit
10.4

    


    AMENDMENT
NO. 1 TO

    WEINGARTEN
REALTY INVESTORS

    2001
LONG TERM INCENTIVE PLAN

    


    


    WHEREAS, Weingarten Realty Investors, a
Texas real estate investment trust (the "Company"), has heretofore adopted the
Weingarten Realty Investors 2001 Long Term Incentive Plan (the "Plan");
and

    WHEREAS, Section 409A (“Code Section
409A”) of the Internal Revenue Code of 1986, as amended (the “Code”), was
enacted on October 22, 2004, and related Treasury Regulations were published
April 10, 2007 and are effective January 1, 2008; and

    WHEREAS, the Company has determined it
to be necessary and advisable to amend the Plan to cause the terms of the Plan
to reflect compliance with the applicable provisions of Code Section 409A and
the Treasury Regulations issued thereunder; and

    WHEREAS, the Company intends that this
Amendment, and all Awards issued pursuant to the Plan, be interpreted and
administered consistent with the provisions of Code Section 409A and the
Treasury Regulations issued thereunder, including the exemptions from Code
Section 409A available under such Code Section and Regulations; and

    WHEREAS, the Company has the power to
amend the Plan pursuant to Section 1.13 of the Plan;

    NOW, THEREFORE, the Plan is hereby
amended as follows, effective January 1, 2008:

    1.           Section
1.3(k) of the Plan is hereby amended to be and read as follows:

     

    
      	
               
      

            	
              (k)

            	
              "Fair
      Market Value" of any Shares shall mean (i) if the Shares are readily tradable on an
      established securities market, the closing price of a share on
      the Option
      Date; (ii) if the Shares are traded on an exchange or market in
      which prices are reported on a bid and asked prices, the closing price for
      a Share on the
      Option Date; or (iii) if the Shares are not readily tradable on an
      established securities

            


    

    


    
      
        
           


        

        
          1

          
            

          

        

        
           


        

      

    

    


    


    market nor traded on
the over-the-counter market, then with respect to
Non-Qualified Share Options, such value as the Committee, in good faith, shall
determine in accordance with Treasury Regulation Section 1.409A-1(b)(5)(iv)(B),
and with respect to any other Award hereunder, such value as the
Committee, in good faith, shall determine.

    


    2.           Section
1.3(q) of the Plan is hereby amended, as underlined, to be and read as
follows:

    


    
      	
               
      

            	
              (q)

            	
              "Permitted
      Modification" shall be deemed to be any modification of an Award which is
      made in connection with a Corporate Transaction and which provides in
      connection with a Share Option, that subsequent to the consummation of the
      Corporate Transaction (i) the exercise price of such Share Option will be
      proportionately adjusted to reflect the exchange ratio applicable to the
      particular Corporate Transaction and/or (ii) the nature and amount of
      consideration to be received upon exercise of the Share option will be the
      same (on a per share basis) as was received by Persons who were holders of
      shares of Common Stock immediately prior to the consummation of the
      Corporate Transaction, provided, however, as
      follows: (i) any such adjustments to Awards that are considered “deferred
      compensation” within the meaning of Code Section 409A shall be made in
      compliance with the requirements of Code Section 409A unless the
      Participant consents otherwise; (ii) any such adjustments to Awards that
      are not considered “deferred compensation” subject to Code Section 409A
      shall be made in such a manner as to ensure that after such adjustment,
      the Awards either continue not to be subject to Code Section 409A or
      comply with the requirements of Code Section 409A unless the Participant
      consents otherwise; and (iii) the Committee shall not have the authority
      to make any adjustments under this Section to the extent that the
      existence of such authority would cause an Award that is not intended to
      be subject to Code Section 409A to be subject
    thereto.

            


    

    


    3.           Section
1.4 of the Plan is hereby amended by adding the following paragraph (f) at the
end thereof to be and read as follows:

    


    
      	
               
      

            	
              (f)

            	
              Compliance with Code
      Section 409A. It is the intention of the Company that no Award
      shall be “deferred compensation” subject to Code Section 409A unless and
      to the extent that the Committee specifically determines otherwise, and
      the Plan and the terms and conditions of all Awards shall be interpreted
      accordingly. Notwithstanding any provision of the Plan to the contrary, in
      the event that the Committee determines that any Award may be subject to
      Code Section 409A, the Committee may adopt such amendment to the Plan and
      the applicable Award agreement or adopt other policies and procedures
      (including amendments, policies and procedures with retroactive effect),
      or take any other actions that the Committee determines are necessary or
      appropriate to (1) exempt the Award from Code Section 409A and/or preserve
      the intended tax treatment of the benefits


            


    

    


    
      
        
           


        

        
          2

          
            

          

        

        
           


        

      

    

    


    
      	
               
      

            	
              provided
      with respect to the Award or (2) comply with the requirements of Code
      Section 409A.

            


    

    


    4.           Section
1.10 of the Plan is hereby amended, as underlined, to be and read as
follows:

     

    1.10       Adjustments to Number of
Shares Subject to the Plan.  In the event of any change in the
outstanding Shares of the Company by reason of any stock dividend, split,
spinoff, recapitalization, merger, consolidation, combination, extraordinary
dividend, exchange of shares or other similar change, the aggregate number of
Shares with respect to which awards may be made under the Plan, the terms and
the number of Shares of any outstanding Share Options and Restricted Shares, and
the purchase price of a Share under any Share Options, may be equitably adjusted
by the Board in its sole discretion, provided, however, as
follows: (i) any such adjustments to Awards that are considered “deferred
compensation” within the meaning of Code Section 409A shall be made in
compliance with the requirements of Code Section 409A unless the Participant
consents otherwise; (ii) any such adjustments to Awards that are not considered
“deferred compensation” subject to Code Section 409A shall be made in such a
manner as to ensure that after such adjustment, the Awards either continue not
to be subject to Code Section 409A or comply with the requirements of Code
Section 409A unless the Participant consents otherwise; and (iii) the Committee
shall not have the authority to make any adjustments under this Section to the
extent that the existence of such authority would cause an Award that is not
intended to be subject to Code Section 409A to be subject
thereto.

    


    5.           Section
1.14 of the Plan is hereby amended, as underlined, to be and read as
follows:

     

    1.14       Amendment and Adjustments to
Awards.  Subject to the limitations
described herein, the Committee may amend, modify or terminate any
outstanding Award with the Participant's consent at any time prior to payment or
exercise in any manner not inconsistent with the terms of the Plan, including,
without limitation, to change the date or dates as of which and/or the terms and
conditions pursuant to which (a) a Share Option becomes exercisable or (b) to
amend the terms of any outstanding Share Option to provide an exercise price per
share which is higher or lower than the then current exercise price per share of
such outstanding Award or (c) to cancel an Award and grant a new Award in
substitution therefore under such different terms and conditions as the
Committee determines in its sole discretion to be appropriate including, but not
limited to, having an exercise price per share which may be higher or lower than
the exercise price per share of the cancelled Award.  The Committee
may also make adjustments in the terms and conditions of, and the criteria
included in agreements evidencing Awards in recognition of unusual or
nonrecurring events (including, without limitation, the events described in
Section 1.11 of the Plan) affecting the Company, or the financial statements of
the Company or any Subsidiary, or of changes in applicable laws, regulations or
accounting principles, whenever the Committee determines that such adjustments
are appropriate to prevent reduction or enlargement of the benefits or potential
benefits intended to be made available pursuant to the Plan.  Any
provision of the Plan or any Award Agreement to the contrary notwithstanding,
the Committee may cause any Award granted to be cancelled in consideration of a
cash payment or alternative Award made to the holder of such cancelled Award
equal in value to the Fair Market Value of such

    


    
      
        
           


        

        
          3

          
            

          

        

        
           


        

      

    

    


    cancelled
Award.  The determinations of value pursuant to this Section shall be
made by the Committee in its sole discretion. Notwithstanding the
immediately preceding provisions of this Section 1.14, with respect to a
Non-Qualified Share Option, no modifications described in this Section 1.14
shall be made to such Option unless such modification is permitted pursuant to
Treasury Regulation Section 1.409A-1(b)(5)(v) and will not cause the
Non-Qualified Share Option to be considered “deferred compensation” within the
meaning of Code Section 409A.

    


    6.           Section
3.4(c) of the Plan is hereby amended, as underlined, to be and read as
follows:

    


    
      	
               
      

            	
              (c)

            	
              As
      soon as practicable following the time of exercise of a Non-Qualified
      Share Option, a certificate representing the Shares so purchased shall be
      delivered to the Participant. Upon exercise, the
      Participant shall in no event be entitled to any accumulated dividends,
      other securities or cash to which he or she would have been entitled had
      he or she actually owned the Shares subject to the Option as of the Option
      Date.

            


    

     

    


    


    [Signature
page follows]

    


    
      
        
           


        

        
          4

          
            

          

        

        
           


        

      

    

    


    IN
WITNESS WHEREOF, the Company has caused this AMENDMENT NO. 1 TO WEINGARTEN
REALTY INVESTORS 2001 LONG TERM INCENTIVE PLAN to be executed in its name and on
its behalf this 17 day of November, 2008, to be effective January 1,
2008.

    


    
      	
              WEINGARTEN
      REALTY INVESTORS

               

            
	
              By:

            	
              /s/
      Stephen C. Richter

            
	
              Name:

            	
              Stephen
      C. Richter

            
	
              Title:

            	
              Executive
      Vice President/CFO

            


    

    


    


     

     

    5