Exhibit 10.1





 


 


 


 


 


 


 


 


 


ORCHID ISLAND CAPITAL, INC.


 


2021
EQUITY INCENTIVE PLAN


 


 


 


 


 


 


 


 


 


 


 


 


 
















 












Exhibit 10.1





Article I

DEFINITIONS


As used
herein, the following terms shall have the meanings set forth below:


1.01.       
Accounting Firm


“Accounting Firm” means the independent accounting
firm engaged by the Company in connection with a Change in Control.  


1.02.       
Affiliate 


            “Affiliate” means, with respect to any
entity, any other entity, whether now or hereafter existing, which controls, is
controlled by, or is under common control with, the first entity (including,
but not limited to, joint ventures, limited liability companies and
partnerships).  For this purpose, the term “control” (including the correlative
meanings of the terms “controlled by” and “under common control with”) shall
mean ownership, directly or indirectly, of fifty percent (50%) or more of the
total combined voting power of all classes of voting securities issued by such
entity, or the possession, directly or indirectly, of the power to direct the
management and policies of such entity, by contract or otherwise. 
Notwithstanding the foregoing, the Manager shall be deemed an Affiliate of the
Company for purposes of the Plan for so long as the Manager serves as the
external manager of the Company.


 


1.03.       
Agreement 


“Agreement” means a written agreement (including
any amendment or supplement thereto) between the Company and a Participant
specifying the terms and conditions of an Award.


1.04.       
Award 


“Award” means any Option, SAR, Stock Award, award
of Restricted Stock Units, Other Equity-Based Award, Incentive Award, Cash
Award, Performance Unit or Substitute Award, together with any other right or
interest, granted to a Participant pursuant to the Plan.


1.05.       
Board 


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


1.06.       
Cash Award 


“Cash Award” means an Award denominated in cash and
granted under Article XII.   


1.07.       
Change in Control


            “Change in Control” means a change in
control of the Company which will be deemed to have occurred after the date
hereof if: 


 


(a)        any “person” as such
term is used in Section 3(a)(9) of the Exchange Act, as modified and used
in Sections 13(d) and 14(d) thereof except that such term shall not include
(A) the Company or any of its subsidiaries, (B) any trustee or other
fiduciary holding securities under an employee benefit plan of the Company or
any of its affiliates, (C) an underwriter temporarily holding securities
pursuant to an offering of such securities, (D) any corporation owned,
directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of the Company’s common stock, or 







Exhibit 10.1





(E) any person or group as used in Rule 13d-1(b)
under the Exchange Act, is or becomes the Beneficial Owner, as such term is
defined in Rule 13d-3 under the Exchange Act, directly or indirectly, of
securities of the Company representing more than 50% of the combined voting
power of outstanding Company securities;


 


(b)       during any period of two
(2) consecutive years, individuals who at the beginning of such period
constitute the Board, and any new director (other than (i) a director
designated by a person who has entered into an agreement with the Company to
effect a transaction described in clause (a), (c) or (d) of this
Section 1.07 or (ii) a director whose initial assumption of office is
in connection with an actual or threatened election contest, including but not
limited to a consent solicitation, relating to the election of directors of the
Company) whose election by the Board or nomination for election by the Company’s
stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of
the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute at least a majority thereof;


 


(c)        there is consummated a
merger or consolidation of the Company or any direct or indirect subsidiary of
the Company with any other corporation, other than a merger or consolidation in
which the holders of Company voting securities immediately before the merger or
consolidation continue to own more than 50% or more of the combined voting
power of the Company or the surviving entity in the merger or consolidation or
any parent thereof outstanding immediately after such merger or consolidation;
or 


  


            (d)       there is
consummated an agreement for the sale or disposition by the Company of all or
substantially all of the Company’s assets (or any transaction having a similar
effect, including a liquidation) other than a sale or disposition by the
Company of all or substantially all of the Company’s assets to an entity, more
than fifty percent (50%) of the combined voting power and common stock of which
is owned by stockholders of the Company in substantially the same proportions
as their ownership of the common stock of the Company immediately prior to such
sale.


If a Change in Control (as defined in clauses (a) 
through (d)  above) constitutes a payment event with respect to any Award
that provides for the deferral of compensation and is subject to
Section 409A, no payment will be made under that award on account of a
Change in Control unless the event described in clause (a), (b), (c) or
(d) above, as applicable, constitutes a “change in control event”
as defined in Section 409A. 


1.08.       
Code 


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


1.09.       
Committee 


“Committee” means the
Compensation Committee of the Board.  Unless otherwise determined by the Board,
the Committee shall consist solely of two or more non-employee members of the
Board, each of whom is intended to qualify as a “non-employee director” as
defined by Rule 16b-3 promulgated under the Exchange Act or any successor rule
and an “independent director” under the rules of any exchange or automated
quotation system on which the Common Stock is listed, traded or quoted;  provided,
however, that any action taken by the Committee shall be valid and
effective, whether or not the members of the Committee at the time of such
action are later determined not to have satisfied the foregoing requirements or
otherwise provided in any charter of the Committee. If there is no Compensation
Committee, then “Committee” means the Board. With respect to awards made to a
member of the Board who is not an 




 












Exhibit 10.1





employee of the
Company, the Manager or one (1) of their respective Affiliates, “Committee”
means the Board.


1.10.       
Common Stock


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


1.11.       
Company 


“Company” means Orchid Island Capital, Inc., a
Maryland corporation.


1.12.       
Control Change Date


“Control Change Date” means the date on which a
Change in Control occurs.  If a Change in Control occurs on account of a series
of transactions, the “Control Change Date” is the date determined by the
Committee as the date upon which the last of such transactions occurs.


1.13.       
Corresponding SAR


“Corresponding SAR” means a SAR that is granted in
relation to a particular Option and that can be exercised only upon the
surrender to the Company, unexercised, of that portion of the Option to which
the SAR relates.


1.14.       
Dividend Equivalent Right


“Dividend Equivalent Right” means the right,
subject to the terms and conditions prescribed by the Committee, of a
Participant to receive (or have credited) cash, shares or other property in
amounts equivalent to the cash, shares or other property dividends declared on
shares of Common Stock with respect to specified Restricted Stock Unit, Other
Equity-Based Award, Incentive Award or Performance Units denominated in shares
of Common Stock or other Company securities, as determined by the Committee in
its sole discretion. The Committee may provide that such Dividend Equivalent
Rights (if any) shall be distributed only when, and to the extent that, the
underlying award is vested or earned and also may provide that Dividend Equivalent
Rights (if any) shall be deemed to have been reinvested in additional shares of
Common Stock or otherwise reinvested.  


1.15.       
Effective Date


“Effective Date” means April 14, 2021.


1.16.       
Exchange Act


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


1.17.       
Fair Market Value


“Fair Market Value” means, on any given date, the
reported “closing” price of a share of Common Stock on the New York Stock
Exchange for such date or, if there is no closing price for a share of Common
Stock on the date in question, the closing price for a share of Common Stock on
the last preceding date for which a quotation exists. If, on any given date,
the Common Stock is not listed for trading on the New York Stock Exchange, then
Fair Market Value shall be the “closing” price of a share of Common Stock on
such other stock exchange on which the Common Stock is listed for trading for
such date (or, if there 




 








is no closing price for a share
of Common Stock on the date in question, the closing price for a share of
Common Stock on the last preceding date for which such quotation exists) or, if
the Common Stock is not listed on any exchange, the amount determined by the
Committee using any reasonable method in good faith and in accordance with
Section 409A.  


1.18.       
Grant Date


“Grant Date” means the date specified by the
Committee on which a grant of an Award shall become effective, which shall not
be earlier than the date on which the Committee takes action with respect
thereto.


1.19.       
Incentive Award


“Incentive Award” means an award granted under Article
XI which, subject to the terms and conditions prescribed by the Committee,
entitles the Participant to receive a payment from the Company or an Affiliate
of the Company. 


1.20.       
Initial Value


“Initial Value” means, with respect to a Corresponding
SAR, the Option price per share of the related Option and, with respect to a
SAR granted independently of an Option, the price per share of Common Stock as
determined by the Committee on the date of grant; provided, however,
that the price shall not be less than the Fair Market Value on the date of
grant (or one hundred ten percent (110%) of the Fair Market Value on the date
of grant in the case of a Corresponding SAR that relates to an incentive stock
option granted to a Ten Percent Stockholder).  Except as provided in Articles
XIV, XV  and XVIII, without the approval of stockholders (a)
the Initial Value of an outstanding SAR may not be reduced (by amendment,
cancellation and new grant or otherwise) and (b) no payment shall be made in
cancellation of a SAR if, on the date of amendment, cancellation, new grant or
payment, the Initial Value exceeds Fair Market Value.


1.21.       
Manager 


“Manager” means Bimini Advisors, LLC, a Maryland
limited liability company, the Company’s external manager, or any entity that
subsequently becomes the Company’s external manager.


1.22.       
Net After Tax Amount


“Net After Tax Amount” means the amount of any
Parachute Payments or Capped Payments, as applicable, net of taxes imposed
under Sections 1, 3101(b) and 4999 of the Code and any state or local income
taxes applicable to the Participant on the date of payment, determined using
the highest combined effective rate imposed by the foregoing taxes on income of
the same character as the Parachute Payments or Capped Payments, as applicable,
in effect on the date of payment.  


1.23.       
Non-Employee Director


“Non-Employee Director” means a member of the Board
who is not an employee or officer of the Company, the Manager or any of their
respective Affiliates.







 








1.24.       
Option 


“Option” means a stock option that
entitles the holder to purchase from the Company a stated number of shares of
Common Stock at the price set forth in an Agreement.


1.25.       
Other Equity-Based Award


“Other Equity-Based Award” means any Award other
than an Incentive Award, Option, SAR, Stock Award, award of Restricted Stock
Units or Performance Unit, which, subject to such terms and conditions as may
be prescribed by the Committee, entitles a Participant to receive Common Stock
or rights or units valued in whole or in part by reference to, or otherwise
based on, Common Stock (including securities convertible into Common Stock) or
other equity interests. 


1.26.       
Parachute Payment


“Parachute Payment” means a payment that is
described in Section 280G(b)(2) of the Code, determined in accordance with
Section 280G of the Code and the regulations promulgated or proposed
thereunder.


1.27.       
Participant 


“Participant” means an employee or officer of the
Company or an Affiliate of the Company, a member of the Board, or an individual
who provides services to the Company or an Affiliate of the Company (including
an individual who provides services to the Company or an Affiliate of the
Company by virtue of employment with, or providing services to, the Manager or
an Affiliate of the Manager), and who satisfies the requirements of Article
IV and is selected by the Committee to receive one (1) or more Awards.


1.28.       
Performance Unit


“Performance Unit” means an Award granted to a
Participant under Article XIII that is based upon one (1) or more
performance goals or objectives specified by the Committee.  The Committee may
adjust any of such performance goals or objectives as it deems equitable. 


1.29.       
Person 


“Person” means any firm, corporation, partnership,
or other entity.  “Person” also includes any individual, firm, corporation,
partnership, or other entity as defined in Sections 13(d)(3) and 14(d)(2) of
the Exchange Act.  Notwithstanding the preceding sentences, the term “Person”
does not include (a) the Company or any of its subsidiaries, (b) any director
or other fiduciary holding securities under an employee benefit plan of the
Company or any of its Affiliates, (c) any underwriter temporarily holding
securities pursuant to an offering of such securities or (d) any corporation
owned, directly or indirectly, by the stockholders of the Company in substantially
the same proportions as their ownership of the Common Stock.  


1.30.       
Plan 


“Plan” means this Orchid Island Capital, Inc. 2021
Equity Incentive Plan, as amended from time to time.







 












Exhibit 10.1





1.31.       
Prior Plan 


“Prior Plan” means the Orchid Island Capital, Inc.
2012 Equity Incentive Plan, as amended from time to time. 


1.32.       
REIT 


“REIT” means a real estate investment trust within
the meaning of Sections 856 through 860 of the Code.


1.33.       
Restricted Stock


“Restricted Stock” means a
share of Common Stock granted to a Participant that is subject to certain
restrictions and a risk of forfeiture.


1.34.       
Restricted Stock Unit


“Restricted Stock Unit” means
a right granted to a Participant under Article IX entitling the
Participant to receive a payment (in cash, shares of Common Stock or a
combination thereof) on a specified settlement date equal to the value of a
share of Common Stock.


1.35.       
SAR 


“SAR” means a stock appreciation right that in
accordance with the terms of an Agreement entitles the holder to receive, with
respect to each share of Common Stock encompassed by
the exercise of the SAR, the excess, if any, of the Fair Market Value at the
time of exercise over the Initial Value.  References to “SARs” include both
Corresponding SARs and SARs granted independently of Options, unless the
context requires otherwise.


1.36.       
Section 409A


“Section 409A” means Section 409A of the Code, as
amended from time to time, including the guidance and regulations promulgated
thereunder and successor provisions, guidance and regulations thereto.


1.37.       
Stock Award


“Stock Award” means Restricted Stock or unrestricted Common Stock awarded
to a Participant under Article VIII. 


1.38.       
Substitute Award


“Substitute Award” means an
Award granted in substitution for a similar award as a result of certain
business transactions.


1.39.       
Ten Percent Stockholder


“Ten Percent Stockholder” means any individual owning more than ten percent (10%) of
the total combined voting power of all classes of stock of the Company or of a
“parent corporation” or “subsidiary corporation” (as such terms are defined in
Section 424 of the Code) of the Company.  An individual shall be considered to
own any voting shares owned (directly or indirectly) by or for his or her
brothers, sisters, 




 












Exhibit 10.1





spouse, ancestors or lineal
descendants and shall be considered to own proportionately any voting shares
owned (directly or indirectly) by or for a corporation, partnership, estate or
trust of which such individual is a stockholder, partner or beneficiary.


Article II

PURPOSES


The Plan is intended to assist the Company and its
Affiliates in recruiting and retaining employees, members of the Board and
other individuals who provide services to the Company, the Manager or any
Affiliates of the Company or the Manager with ability and initiative by enabling
such Persons to participate in the future success of the Company and its
Affiliates and to associate their interests with those of the Company and its
stockholders.  The Plan is intended to permit the grant of both Options
qualifying under Section 422 of the Code (“incentive stock options”) and
Options not so qualifying, and the grant of SARs, Stock Awards, awards of
Restricted Stock Units, Other Equity-Based Awards, Incentive Awards, Cash
Awards, Performance Units and Substitute Awards in accordance with the Plan and
any procedures that may be established by the Committee.  No Option that is
intended to be an incentive stock option shall be invalid for failure to
qualify as an incentive stock option.


Article III

ADMINISTRATION


The Plan shall be administered by the Committee.  The
Committee shall have authority to grant Awards upon such terms (not
inconsistent with the provisions of the Plan), as the Committee may consider
appropriate.  Such terms may include conditions (in addition to those contained
in the Plan), on the transferability, forfeitability and exercisability of all
or any part of an Award.  The Committee may, in its discretion, make any
amendments, modifications or adjustments to outstanding Awards and the terms
thereof.  In addition, the Committee shall have complete authority to interpret
all provisions of the Plan; to prescribe the form of Agreements; to adopt,
amend, and rescind rules and regulations pertaining to the administration of
the Plan (including rules and regulations that require or allow Participants to
defer the payment of benefits under the Plan); and to make all other
determinations necessary or advisable for the administration of the Plan.  


The Committee’s determinations under the Plan (including
without limitation, determinations of the individuals to receive Awards, the
form, amount and timing of Awards, the terms and provisions of Awards and the
Agreements) need not be uniform and may be made by the Committee selectively
among individuals who receive, or are eligible to receive, Awards, whether or
not such persons are similarly situated.  The express grant in the Plan of any
specific power to the Committee with respect to the administration or
interpretation of the Plan shall not be construed as limiting any power or
authority of the Committee with respect to the administration or interpretation
of the Plan.  Any decision made, or action taken, by the Committee in
connection with the administration of the Plan shall be final and conclusive. 
The members of the Committee shall not be liable for any act done in good faith
with respect to the Plan or any Agreement or Award.  All expenses of
administering the Plan shall be borne by the Company.


Article IV

ELIGIBILITY


Any officer or employee of the
Company or any Affiliate of the Company (including a trade or business that
becomes an Affiliate of the Company after the adoption of the Plan) and any
member of the Board is eligible to participate in the Plan.  In addition, any
other individual who provides services to the 




 








Company
or an Affiliate of the Company (including an individual who provides services
to the Company or an Affiliate of the Company by virtue of employment with, or
providing services to, the Manager or an Affiliate of the Manager) is eligible
to participate in the Plan if the Committee, in its sole reasonable discretion,
determines that the participation of such individual is in the best interest of
the Company.  


Article V

COMMON STOCK SUBJECT TO PLAN


5.01.       
Common Stock Issued


Upon the grant, exercise or
settlement of an Award, the Company may deliver to the Participant Common Stock
from its authorized but unissued Common Stock, shares purchased on the open
market or by private purchase or a combination of the foregoing. 


5.02.       
Aggregate Limit


Subject to adjustment as provided under Article XV,
the maximum aggregate number of shares of Common Stock that may be delivered
with respect to Awards under the Plan is equal to the sum of (a) 4,000,000
shares of Common Stock, (b) 3,366,623 shares that remain available for issuance
under the Prior Plan as of the Effective Date and (c) any shares of Common
Stock that become available for Awards under this Plan pursuant to Sections
5.03 and 5.04  below. The maximum aggregate number of shares of
Common Stock that may be issued under the Plan through incentive stock options
granted under the Plan is equal to 7,366,623 shares of Common Stock. 


5.03.       
Reallocation of Shares


If any Award expires, is forfeited
or is terminated without having been exercised or is paid in cash without a
requirement for the delivery of shares of Common Stock, then any shares covered
by such lapsed, cancelled, expired, unexercised or cash-settled portion of such
Award. For the avoidance of doubt, Awards of Restricted Stock shall not be
considered “delivered shares” for this purpose until vesting. The number of
shares of Common Stock withheld in payment of the tax withholding obligation
related to an Award other than an Option or a SAR will be again available for
Awards under the Plan. If shares of Common Stock are issued in settlement of a
SAR granted under the Plan, the number of shares of Common Stock available
under the Plan shall be reduced by the number of shares of Common Stock for
which the SAR was exercised rather than the number of shares of Common Stock
issued in settlement of the SAR.  For the avoidance of doubt, (a) the number of
shares of Common Stock tendered or withheld in payment of any exercise or
purchase price of an Option or a SAR or taxes relating to an Option or a SAR,
including shares that were subject to an Option or a SAR but were not issued or
delivered as a result of the net settlement or net exercise of such Option or
SAR and (b) shares of Common Stock repurchased on the open market with the
proceeds of an Option’s exercise price, will be considered “delivered shares”
and will not, in each case, be again available for Awards. To the extent
permitted by applicable law or the rules of any exchange on which the Common
Stock is listed for trading, Common Stock issued in assumption of, or in
substitution for, any outstanding awards of any entity acquired in any form of
combination by the Company or any Affiliate of the Company shall not reduce the
number of shares of Common Stock available for issuance under the Plan.


5.04.       
Shares Available Under the Prior Plan 


Shares of Common Stock subject to an award granted under
the Prior Plan and outstanding as of the Effective Date (a “Prior Award”)
that expires, is forfeited, terminates without having been exercised 




 












Exhibit 10.1





or is settled for cash (in whole or part), the shares of
Common Stock subject to such Prior Award shall, to the extent of such expiration,
forfeiture, termination or cash settlement, become available for future grants
of Awards under the Plan. For the avoidance of doubt, a number of shares of
Common Stock equal to the difference between (a) the maximum number of shares
of Common Stock that could have been settled pursuant to performance-based
Prior Awards, and (b) the actual number of shares of Common Stock delivered
upon settlement of performance-based Prior Awards, shall become available for
future grants of Awards under the Plan. Notwithstanding anything to the contrary contained herein, the following
shares of Common Stock subject to Prior Awards shall not be added to the shares
of Common Stock authorized for grant under Section 5.02 and shall not be
available for future grants of Awards: (i) shares tendered or withheld by the
Company in payment of the exercise or grant price of a Prior Award and (ii)
shares of Stock tendered or withheld by the Company to satisfy any tax
withholding obligation with respect to a Prior Award. For the avoidance of
doubt, no awards will be granted under the Prior Plan on or following the
Effective Date.


5.05.       
Director Award Limitations 


No
Non-Employee Director may receive in any one (1) calendar year more than five
hundred thousand dollars ($500,000) in the aggregate in (a) Awards (as
calculated by the Award’s fair value as determined in accordance with Financial
Accounting Standards Board Accounting Standards Codification Topic 718, or any
successor thereto as of the Grant Date) and (b) cash compensation (including,
retainers and cash-based awards).  For any calendar year in which a
Non-Employee Director (i) first (1st) commences service on the Board, (ii)
serves on a special committee of the Board, or (iii) serves as lead director or
chairman of the Board, additional Awards, including Cash Awards or other cash
compensation whether or not paid pursuant to the Plan, may be granted to such
Non-Employee Director in excess of such limit.  Further, the limit set forth in
this Section 5.05 shall be applied without regard to grants of (x)
Awards, if any, including Cash Awards or other cash compensation whether or not
paid pursuant to the Plan, made to a Non-Employee Director during any period in
which such individual was an employee of the Company or any Affiliate of the
Company or was otherwise providing services to the Company or to any Affiliate
of the Company (including by virtue of employment with, or providing services
to, the Manager or an Affiliate of the Manager) other than in the capacity as a
director of the Company or (y) Substitute Awards granted to any Non-Employee
Director. 


Article VI

OPTIONS


6.01.       
Award 


In accordance with the
provisions of Articles III and IV, the Committee will designate
each individual to whom an Option is to be granted and will specify the number
of shares of Common Stock covered by such awards and the terms and conditions
of such awards.  


6.02.       
Option Price


The price per share of Common Stock purchased on the
exercise of an Option shall be determined by the Committee on the date of
grant, but shall not be less than the Fair Market Value on the date the Option
is granted.  Notwithstanding the preceding sentence, the price per share of
Common Stock purchased on the exercise of any Option that is an incentive stock
option granted to an individual who is a Ten Percent Stockholder on the date
such Option is granted, shall not be less than one hundred ten percent (110%)
of the Fair Market Value on the date the Option is granted.  Except as provided
in Articles XIV, XV  and XVIII, the price per share of
Common Stock of an outstanding Option may not be reduced 







Exhibit 10.1





(by
amendment, cancellation and new grant or otherwise) without the approval of
stockholders.  In addition, no payment shall be made in cancellation of an
Option without the approval of stockholders if, on the date of cancellation,
the Option price exceeds Fair Market Value.


6.03.       
Maximum Option Period


The maximum period in which an Option may be exercised
shall be determined by the Committee on the date of grant, except that no
Option shall be exercisable after the expiration of ten (10) years from the
date such Option was granted.  In the case of an incentive stock option granted
to a Participant who is a Ten Percent Stockholder on the date of grant, such
Option shall not be exercisable after the expiration of five (5) years from the
date of grant.  The terms of any Option
may provide that it is exercisable for a period less than such maximum period.


6.04.       
Incentive Stock Options


Incentive stock options may only be granted to employees
of the Company or its “parent” and “subsidiaries” (as such terms are defined in
Section 424 of the Code).  For purposes of determining the applicability of
Section 422 of the Code (relating to incentive stock options), the Committee
may decide to what extent leaves of absence for governmental or military
service, illness, temporary disability, or other reasons shall not be deemed
interruptions of continuous employment or service.


6.05.       
Exercise 


Subject to the provisions of the Plan and the applicable Agreement,
an Option may be exercised in whole at any time or in part from time to time at
such times and in compliance with such requirements as the Committee shall
determine; provided, however, that to the extent that the aggregate Fair
Market Value (determined as of the date an Option is granted) of the Common
Stock with respect to which incentive stock options (granted under the Plan and
all plans of the Company and its “parents” and “subsidiaries” (as such terms
are defined in Section 424 of the Code)) are exercisable for the first time by
an individual during any calendar year exceeds one hundred thousand dollars
($100,000), such Options shall be treated as Options that do not qualify as
incentive stock options.  An Option granted under the Plan may be exercised
with respect to any number of whole shares of Common Stock less than the full
number for which the Option could be exercised.  A partial exercise of an
Option shall not affect the right to exercise the Option from time to time in
accordance with the Plan and the applicable Agreement with respect to the
remaining shares of Common Stock subject to the Option.  The exercise of an
Option shall result in the termination of any Corresponding SAR to the extent
of the number of shares of Common Stock with respect to which the Option is
exercised.


6.06.       
Payment 


Subject to rules established by the Committee and unless
otherwise provided in an Agreement, payment of all or part of the Option price
may be made in cash, certified check, by tendering shares of Common Stock, by
attestation of ownership of Common Stock, by a broker-assisted cashless
exercise or in such other form or manner acceptable to the Committee.  If
Common Stock is used to pay all or part of the Option price, the sum of the
cash and cash equivalent and the Fair Market Value (determined on the date of
exercise) of the Common Stock so surrendered or other consideration paid must
not be less than the Option price of the shares for which the Option is being
exercised. 






6.07.       
Stockholder Rights


No Participant shall have any rights as a stockholder with
respect to shares of Common Stock subject to an Option until the date of
exercise of such Option.  


6.08.       
Disposition of Shares


A Participant shall notify the Company of any sale or
other disposition of Common Stock acquired pursuant to an Option that was an
incentive stock option if such sale or disposition occurs (a) within two
(2) years of the grant of an Option or (b) within one (1) year of the
issuance of the Common Stock to the Participant.  Such notice shall be in
writing and directed to the Secretary of the Company.


Article VII

SARS


7.01.       
Award 


In accordance with the
provisions of Articles III and IV, the Committee will designate
each individual to whom SARs are to be granted and will specify the number of
shares of Common Stock covered by such awards and the terms and conditions of
such awards.


7.02.       
SAR Price


The price per share of Common Stock
purchased on the exercise of an SAR shall be determined by the Committee on the
date of grant, but shall not be less than the Fair Market Value on the date the
SAR is granted.  Except as provided in Articles XIV, XV  and XVIII,
the price per share of Common Stock of an outstanding Option may not be reduced
(by amendment, cancellation and new grant or otherwise) without the approval of
stockholders.  In addition, no payment shall be made in cancellation of an SAR
without the approval of stockholders if, on the date of cancellation, the SAR
price exceeds Fair Market Value.


7.03.       
Maximum SAR Period


The term of each SAR shall be determined by the Committee
on the date of grant, except that no SAR shall have a term of more than ten
(10) years from the date of grant.  In the case of a Corresponding SAR that is
related to an incentive stock option granted to a Participant who is a Ten
Percent Stockholder on the date of grant, such Corresponding SAR shall not be
exercisable after the expiration of five (5) years from the date of grant. The
terms of any SAR may provide that it has a term that is less than such maximum
period.


7.04.       
Exercise 


Subject to the provisions of the Plan and the applicable
Agreement, a SAR may be exercised in whole at any time or in part from time to
time at such times and in compliance with such requirements as the Committee
shall determine; provided, however, that a Corresponding SAR that is
related to an incentive stock option may be exercised only to the extent that
the related Option is exercisable and only when the Fair Market Value exceeds
the Option price of the related Option.  A SAR granted under the Plan may be
exercised with respect to any number of whole shares less than the full number
for which the SAR could be exercised.  A partial exercise of a SAR shall not
affect the right to exercise the SAR from time to time in accordance with the
Plan and the applicable Agreement with respect to the remaining shares of
Common Stock subject to the SAR.  The exercise of a Corresponding SAR shall
result in the 







Exhibit 10.1





termination of the related Option to the
extent of the number of shares of Common Stock with respect to which the SAR is
exercised.


7.05.       
Settlement 


At the Committee’s discretion, the amount payable as a
result of the exercise of a SAR may be settled in cash, Common Stock, or a
combination of cash and Common Stock.  In accordance with the provisions of Section
17.06, a fractional share of Common Stock will not be deliverable upon the
exercise of a SAR, but a cash payment will be made in lieu thereof. 


7.06.       
Stockholder Rights


No Participant shall have any rights as a stockholder with
respect to shares of Common Stock subject to a SAR until the date that the SAR
is exercised and then only to the extent that the SAR is settled by the
issuance of Common Stock.  


Article VIII

STOCK AWARDS


8.01.       
Award 


In accordance with the
provisions of Articles III and IV, the Committee will designate
each individual to whom a Stock Award (either in the form of Restricted Stock
or unrestricted Common Stock) is to be made and will specify the number of
shares of Restricted Stock or Common Stock covered by such Stock Award and the
terms and conditions of such Stock Award. 


8.02.       
Vesting 


The Committee, on the date of the Stock Award, may
prescribe that a Participant’s rights in a Stock Award shall be forfeitable or
otherwise restricted for a period of time or subject to such conditions as may
be set forth in the Agreement.  By way of example and not of limitation, the
Committee may prescribe that a Participant’s rights in a Stock Award shall be
forfeitable or otherwise restricted subject to continued employment or service,
the attainment of performance objectives, including objectives stated with
reference to one (1) or more performance goals or objectives, or both.


8.03.       
Stockholder Rights


Unless otherwise specified in accordance with the
applicable Agreement, while the shares of Restricted Stock granted pursuant to
the Stock Award may be forfeited or are non-transferable, a Participant will
have all rights of a stockholder with respect to a Stock Award, including the
right to receive dividends (in respect of which the Committee may allow a
Participant to elect, or may require, that any cash dividends paid on a share
of Restricted Stock be automatically reinvested in additional shares of Restricted
Stock, applied to the purchase of additional Awards under the Plan or deferred
without interest to the date of vesting of the associated Award of Restricted
Stock, provided that any such election is intended to comply with Section 409A)
and vote the shares of Common Stock; provided, however, that the
Committee may prescribe that dividends payable on shares of Restricted Stock
subject to a Stock Award shall be accumulated and paid, without interest, when,
and to the extent that, the underlying Stock Award becomes nonforfeitable and
transferable; and provided further, that during the period that the
Stock Award may be forfeited or is non-transferable (a) a Participant may not
sell, transfer, pledge, exchange, hypothecate, or otherwise dispose of shares of
Restricted Stock granted pursuant to a Stock Award, (b) the Company shall
retain custody of any certificates representing shares of Restricted Stock
granted 







Exhibit 10.1





pursuant to a Stock Award, and (c) the
Participant will deliver to the Company a stock power, endorsed in blank, with
respect to each Stock Award.  The limitations set forth in the preceding
sentence shall not apply after the shares of Restricted Stock granted under the
Stock Award are transferable and are no longer forfeitable.  


Article IX

RESTRICTED STOCK UNITS


9.01.       
Award 


In accordance with the
provisions of Articles III and IV, the Committee will designate
each individual to whom an award of Restricted Stock Units is to be made and
specify the number of Restricted Stock Units covered by such awards and the
terms and conditions of such awards.  The Committee also will specify whether
Dividend Equivalent Rights are granted in conjunction with the award of
Restricted Stock Units.


9.02.       
Terms and Conditions


The Committee, at the time an award of Restricted Stock
Units is made, shall specify the terms and conditions which govern the award. 
The terms and conditions of an award of Restricted Stock Units may prescribe
that a Participant’s rights in the Restricted Stock Units shall be forfeitable,
non-transferable or otherwise restricted for a period of time, which may lapse
at the expiration of the deferral period or at earlier specified times, or may
be subject to such other conditions as may be determined by the Committee, in
its discretion and set forth in the Agreement.  By way of example and not of
limitation, the Committee may prescribe that a Participant’s rights in an award
of Restricted Stock Units shall be forfeitable or otherwise restricted subject
to continued employment or service, the attainment of performance objectives,
including objectives stated with respect to one (1) or more performance goals
or objectives, or both.  An award of Restricted Stock Units may be granted to
Participants, either alone or in addition to other Awards granted under the
Plan, and an award of Restricted Stock Units may be granted in the settlement
of other Awards granted under the Plan.  


9.03.       
Payment or Settlement


Settlement of an award of Restricted Stock Units shall
occur upon expiration of the deferral period specified for each Restricted Stock
Unit by the Committee (or, if permitted by the Committee, as elected by the
Participant). Restricted Stock Units shall be satisfied by the delivery of (a)
a number of shares of Common Stock equal to the number of Restricted Stock
Units vesting on such date or (b) an amount in cash equal to the Fair Market
Value of a specified number of shares of Common Stock covered by the vesting
Restricted Stock Units, or a combination thereof, as determined by the
Committee at the date of grant or thereafter.


9.04.       
Stockholder Rights


A Participant, as a result of receiving an award of
Restricted Stock Units, shall not have any rights as a stockholder until, and
then only to the extent that, the award of Restricted Stock Units is earned and
settled in shares of Common Stock (to the extent applicable).






Article X

OTHER
EQUITY–BASED AWARDS


10.01.   
Award 


In accordance with the provisions of Articles III
and IV, the Committee will designate each individual to whom an Other
Equity-Based Award is to be made and will specify the number of shares of
Common Stock or other equity interests covered by such awards and the terms and
conditions of such awards.  The Committee also will specify whether Dividend
Equivalent Rights are granted in conjunction with the Other Equity-Based Award.



10.02.   
Terms and Conditions


The Committee, at the time an Other Equity-Based Award is
made, shall specify the terms and conditions which govern the award.  The terms
and conditions of an Other Equity-Based Award may prescribe that a
Participant’s rights in the Other Equity-Based Award shall be forfeitable,
non-transferable or otherwise restricted for a period of time or subject to
such other conditions as may be determined by the Committee, in its discretion
and set forth in the Agreement.  By way of example and not of limitation, the
Committee may prescribe that a Participant’s rights in an Other Equity-Based
Award shall be forfeitable or otherwise restricted subject to continued
employment or service, the attainment of performance objectives, including
objectives stated with respect to one (1) or more performance goals or
objectives, or both.  Other Equity-Based Awards may be granted to Participants,
either alone or in addition to other Awards granted under the Plan, and Other
Equity-Based Awards may be granted in the settlement of other Awards granted
under the Plan.  


10.03.   
Payment or Settlement


Other Equity-Based Awards valued in whole or in part by
reference to, or otherwise based on, Common Stock, shall be payable or settled
in shares of Common Stock, cash or a combination of shares of Common Stock and
cash, as determined by the Committee in its discretion.  Other Equity-Based
Awards denominated as equity interests other than Common Stock may be paid or
settled in shares or units of such equity interests or cash or a combination of
both as determined by the Committee in its discretion.  


10.04.   
Stockholder Rights


A Participant, as a result of
receiving an Other Equity-Based Award, shall not have any rights as a
stockholder until, and then only to the extent that, the Other Equity-Based
Award is earned and settled in shares of Common Stock.










Exhibit 10.1





Article XI

INCENTIVE
AWARDS


11.01.   
Award 


In accordance with the
provisions of Articles III and IV, the Committee will designate
each individual to whom an Incentive Award is to be made and will specify the
terms and conditions of such award.  The Committee also will specify whether
Dividend Equivalent Rights are granted in conjunction with the Incentive Award.
The maximum amount payable to a Participant in any calendar year with respect
to Incentive Awards that are not granted with reference to a number of shares
of Common Stock and that will be settled in cash is one million dollars
($1,000,000).  


11.02.    Terms and
Conditions


The Committee, at the time an Incentive Award is made,
shall specify the terms and conditions that govern the award. Such terms and
conditions may prescribe that the Incentive Award shall be earned only to the
extent that the Participant, the Company or an Affiliate, during a performance
period of at least one (1) year, achieves objectives stated with reference to
one (1) or more performance measures or criteria prescribed by the Committee.


11.03.    Settlement 


An Incentive Award that is
earned shall be settled with a single lump sum payment which may be in cash,
Common Stock or a combination of cash and Common Stock, as determined by the
Committee.  


11.04.   
Stockholder Rights


No Participant shall, as a result of receiving an
Incentive Award, have any rights as a stockholder until the date that the
Incentive Award is settled and then only to the extent that the Incentive Award
is settled by the issuance of shares of Common Stock.


Article XII 


CASH AWARDS


 


The Committee is authorized to
grant Cash Awards, on a free-standing basis or as an element of, a supplement
to, or in lieu of any other Award under the Plan to Participant in such amounts
and subject to such other terms as the Committee in its discretion determines
to be appropriate. 


 


Article XIII

PERFORMANCE UNITS


13.01.    Award 


In accordance with the provisions
of Articles III and IV, the Committee will designate each
individual to whom a Performance Unit is to be made and will specify the number
of shares of Common Stock or other securities or property covered by such award
and the terms and conditions of such award. The Committee also will specify
whether Dividend Equivalent Rights are granted in conjunction with the
Performance Unit.  


13.02.    Performance
Goals Generally









Exhibit 10.1





The Committee, on the date of the
grant of a Performance Unit, shall prescribe that the Performance Unit will be
earned, and the Participant will be entitled to receive payment pursuant to the
Performance Unit, based on the satisfaction of one (1) or more performance
conditions or goals and a targeted level or levels of performance with respect to
each of such conditions or goals, subject to, if applicable, continued
employment or service. The Committee may establish any such performance
conditions or goals based on individual criteria or one (1) or more business
criteria for the Company, on a consolidated basis, and/or for specified
Affiliates of the Company or business or geographical units of the Company, or
other measures of performance, as determined to be appropriate by the Committee
in its discretion, which performance conditions or goals may be determined on
an absolute or relative basis or as compared to the performance of a published
or special index deemed applicable by the Committee, in its discretion.
Performance conditions or goals may differ for Performance Units granted to any
one (1) Participant or to different Participants. The performance period
applicable to any Performance Unit shall be set by the Committee in its
discretion but shall not exceed ten (10) years. 


13.03.    Settlement 


At or following the end of
the applicable performance period for a Performance Unit, the Committee shall
determine the amount, if any, of such Performance Unit that will become vested,
exercisable and/or settled. Settlement of such Performance Unit shall be in
shares of Common Stock or other securities or property or a combination of the
foregoing, in the discretion of the Committee. The Committee may, in its
discretion, reduce or increase the amount of vesting, exercisability and/or
settlement otherwise to be made in connection with such Performance Unit.


13.04.    Stockholder
Rights


No Participant shall, as a result of receiving an
Performance Unit, have any rights as a stockholder until the date that the
Performance Unit is settled and then only to the extent that the Performance
Unit is settled by the issuance of shares of Common Stock.


 


Article XIV

SUBSTITUTE
AWARDS


Awards may be granted in substitution or exchange for any
other Award granted under the Plan or under another plan of the Company or any
other right of a Participant to receive payment from the Company.  Awards may
be also be granted under the Plan in substitution for similar awards held by
individuals who become Participants as a result of a merger, consolidation or
acquisition of another entity or the assets of another entity by or with the
Company or an Affiliate of the Company.  Notwithstanding anything contained in
the Plan to the contrary, such Substitute Awards referred to in the immediately
preceding sentence that are Options or SARs may have an exercise price that is
less than the Fair Market Value of a share of Common Stock on the date of the
substitution if such substitution complies with Section 409A and other
applicable laws and exchange rules.  Except as provided in this Article XIV
or in Articles XV or XVIII  hereof, the terms of outstanding Awards
may not be amended to reduce the exercise price or grant price of outstanding
Options or SARs or to cancel outstanding Options and SARs in exchange for cash,
other Awards or Options or SARs with an exercise price or grant price that is
less than 



the exercise price or grant price of the
original Options or SARs without the approval of the stockholders of the
Company. 


Article XV

ADJUSTMENT UPON CHANGE IN COMMON STOCK


The maximum number of shares of Common Stock that may be
issued under the Plan, the maximum number of shares of Common Stock that may be
issued under the Plan through incentive stock options and the terms of
outstanding Awards granted under the Plan shall be adjusted as the Board
determines is equitably required in the event that (a) the Company (i) effects
one (1) or more nonreciprocal transactions between the Company and its
stockholders such as a stock dividend, extra-ordinary cash dividend, stock
split, subdivision or consolidation of shares of Common Stock that affects the
number or kind of shares of Common Stock (or other securities of the Company)
or the Fair Market Value (or the value of other Company securities) and causes
a change in the Fair Market Value of the shares of Common Stock subject to
outstanding Awards or (ii) engages in a transaction to which Section 424 of the
Code applies or (b) there occurs any other event which, in the judgment of the
Board necessitates such action.  Any determination made under this Article
XV by the Board shall be nondiscretionary, final and conclusive.


The issuance by the Company of any class of Common Stock,
or securities convertible into any class of Common Stock, for cash or property,
or for labor or services, either upon direct sale or upon the exercise of
rights or warrants to subscribe therefor, or upon conversion of Common Stock or
obligations of the Company convertible into such Common Stock or other
securities, shall not affect, and no adjustment by reason thereof shall be made
with respect to, the Aggregate Limit, the maximum number of shares of Common
Stock that may be issued under the Plan through incentive stock options or the
terms of outstanding Awards under the Plan.


The Committee may make Awards under the Plan in
substitution for performance shares, phantom shares, share awards, stock
options, stock appreciation rights, or similar awards held by an individual who
becomes an employee of the Company or an Affiliate of the Company in connection
with a transaction described in the first paragraph of this Article XV. 
Notwithstanding any provision of the Plan, the terms of such substituted Awards
granted under the Plan shall be as the Committee, in its discretion, determines
is appropriate.


Article XVI

COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES


No Option or SAR shall be exercisable, no shares of Common
Stock shall be issued, no certificates for shares of Common Stock shall be
delivered, and no payment shall be made under the Plan except in compliance
with all applicable federal, state and foreign laws and regulations (including,
without limitation, withholding tax requirements), any listing agreement to
which the Company is a party, and the rules of all stock exchanges on which the
Common Stock may be listed.  The Company shall have the right to rely on an
opinion of its counsel as to such compliance.  Any certificate issued to
represent shares of Common Stock when an Award is granted, settled or exercised
may bear such legends and statements as the Committee may deem advisable to
assure compliance with federal, state and foreign laws and regulations.  No
Award shall be granted, settled or exercised until the Company has obtained
such consent or approval as the Committee may deem advisable from regulatory
bodies having jurisdiction over such matters. 






Article XVII

GENERAL
PROVISIONS


17.01.   
General 


Awards
granted under the Plan may, in the discretion of the Committee, be granted
either alone, in addition to, or in tandem with any other Award.  In addition,
the Committee may impose on any Award or the exercise thereof, at the date of
grant or thereafter (subject to Article XIX), such additional terms and
conditions, not inconsistent with the provisions of the Plan, as the Committee
shall determine.  Without limiting the scope of the preceding sentence, the
Committee may use such business criteria and other measures of performance as
it may deem appropriate in establishing any performance goals applicable to an
Award, and any such performance goals may differ among Awards granted to any
one (1) Participant or to different Participants.  Except as otherwise
provided in an Agreement, the Committee may exercise its discretion to reduce
or increase the amounts payable under any Award.


17.02.    Effect on
Employment and Service; Employee Status


Neither the adoption of the
Plan, its operation, the grant of any Award, nor any documents describing or
referring to the Plan (or any part thereof), shall confer upon any individual
or entity any right to continue in the employ or service of the Company or an
Affiliate of the Company or in any way affect any right and power of the
Company or an Affiliate of the Company to terminate the employment or service
of any individual or entity at any time with or without assigning a reason
therefor.  If the terms of any Award provide that (a) it may be earned or
exercised, (b) shares may become transferable and non-forfeitable thereunder,
or (c) payment will be made thereunder, in each case, only after completion of
a specified period of employment or continuous service only during employment
or continued service or within a specified period of time after termination of
employment or continued service, the Committee may decide to what extent leaves
of absence for governmental or military service, illness, temporary disability
or other reasons shall not be deemed interruptions of continuous employment or
service.


17.03.   
Unfunded Plan


The Plan, insofar as it provides for grants, shall be
unfunded, and the Company shall not be required to segregate any assets that
may at any time be represented by grants under the Plan.  Any liability of the
Company to any person with respect to any grant under the Plan shall be based
solely upon any contractual obligations that may be created pursuant to the
Plan.  No such obligation of the Company shall be deemed to be secured by any
pledge of, or other encumbrance on, any property of the Company.


17.04.   
Rules of Construction


(a)              
Headings are given to the articles and sections of the Plan solely as a
convenience to facilitate reference.  The reference to any statute, regulation,
or other provision of law shall be construed to refer to any amendment to or
successor of such provision of law.


(b)              
All Awards are intended to comply with, or otherwise be exempt from,
Section 409A.  The Plan and all Agreements shall be administered, interpreted
and construed in a manner consistent with that intent.  Nevertheless, the tax
treatment of the benefits provided under the Plan or any Agreement is not
warranted or guaranteed.  Neither the Company, its Affiliates nor their
respective directors or trustees, officers, employees or advisors (other than
in his or her individual capacity as a Participant with respect to his or her
individual liability for taxes, interest, penalties or other monetary amounts)
shall be held liable for any taxes, interest, penalties or other monetary
amounts owed by any Participant or any other taxpayer 







Exhibit 10.1





as
a result of the Plan or any Agreement.  If any provision of the Plan or any
Agreement is found not to comply with, or otherwise not be exempt from, the
provisions of Section 409A, it may be modified and given effect, in the sole
discretion of the Committee and without requiring the Participant’s consent, in
such manner as the Committee determines to be necessary or appropriate to
comply with, or effectuate an exemption from, Section 409A.  Each payment under
an Award granted under the Plan shall be treated as a separate identified
payment for purposes of Section 409A.


(c)              
If a payment obligation under an Award or an Agreement arises on account
of the Participant’s termination of employment and such payment obligation
constitutes “deferred compensation” (as defined under Section 409A), it shall
be payable only after the Participant’s “separation from service” (as defined
under Section 409A); provided, however, that if the Participant is a
“specified employee” (as defined under Section 409A) then, subject to any
permissible acceleration of payment by the Committee under Section 409A, any
such payment that is scheduled to be paid within six months after such
separation from service shall accrue without interest and shall be paid on the
first day of the seventh month beginning after the date of the Participant’s
separation from service or, if earlier, within fifteen days after the
appointment of the personal representative or executor of the Participant’s
estate following the Participant’s death.  


17.05.   
Withholding Taxes


Each Participant shall be responsible for satisfying any
income, employment and other tax withholding obligations attributable to
participation in the Plan.  Unless otherwise provided by the Agreement, any
such withholding tax obligations may be satisfied in cash (including from any
cash payable in settlement of an Award) or a cash equivalent acceptable to the
Committee.  Except to the extent prohibited by Section 409A, any statutory
federal, state, district, city or foreign withholding tax obligations also may
be satisfied (a) by surrendering to the Company shares of Common Stock
previously acquired by the Participant; (b) by authorizing the Company to
withhold or reduce the number of shares of Common Stock otherwise issuable to
the Participant upon the grant, vesting, settlement and/or exercise of an
Award; or (c) by any other method as may be approved by the Committee.  If
shares of Common Stock are used to pay all or part of such tax withholding
obligation, the Fair Market Value of the shares of Common Stock surrendered,
withheld or reduced shall be determined as of the date of surrender,
withholding or reduction and the maximum number of shares of Common Stock which
may be withheld, surrendered or reduced shall be the number of shares of Common
Stock which have a Fair Market Value on the date of surrender, withholding or
reduction equal to the aggregate amount of such tax liabilities determined
based on the greatest withholding rates for federal, state, foreign and/or
local tax purposes, including payroll taxes, that may be utilized (and which
may be limited to flat rate withholding) without creating adverse accounting,
tax or other consequences to the Company or any of its Affiliates, as
determined by the Committee in its sole discretion.


17.06.   
Fractional Shares


No fractional share of Common
Stock shall be issued or delivered pursuant to the Plan or any Award, but
instead, the Committee shall issue a cash payment in lieu of any fractional
share of Common Stock. 


17.07.   
REIT Status


The Plan shall be interpreted and construed in a manner
consistent with the Company’s intended status as a REIT.  No Award shall be
granted or awarded, and with respect to any Award granted under the Plan, such
Award shall not vest, be exercisable or be settled (a) to the extent that the
grant, vesting, 




 








exercise or settlement could cause the
Participant or any other person to be in violation of the share ownership limit
or any other limitation on ownership or transfer prescribed by the Company’s
charter, or (b) if, in the discretion of the Committee, the grant, vesting,
exercise or settlement of the Award could impair the Company’s status as a
REIT.


17.08.   
Governing Law


All questions arising with respect to the provisions of
the Plan and Awards shall be determined by application of the laws of the State
of Maryland, without giving effect to any conflict
of law provisions thereof, except to the extent Maryland law is preempted by
federal law.  The obligation of the Company to sell and deliver shares of
Common Stock hereunder is subject to applicable federal and state laws and to
the approval of any governmental authority required in connection with the
authorization, issuance, sale, or delivery of such shares of Common Stock.


17.09.   
Clawback 


The
Plan is subject to any written clawback policies that the Company, with the
approval of the Board, may adopt.  Any such policy may subject a Participant’s
Awards and amounts paid or realized with respect to Awards under the Plan to
reduction, cancelation, forfeiture or recoupment if certain specified events or
wrongful conduct occur, including but not limited to an accounting restatement
due to the Company’s material noncompliance with financial reporting
regulations or other events or wrongful conduct specified in any such clawback
policy adopted to conform to the Dodd-Frank Wall Street Reform and Consumer
Protection Act of 2010 and rules promulgated thereunder by the Securities and
Exchange Commission and that the Company determines should apply to the Plan.


17.10.   
Nontransferability   


(a)              
Except as provided in Sections 17.10(c) and (d), each
Option and SAR shall be exercisable only by the Participant during the
Participant’s lifetime, or by the person to whom the Participant’s rights shall
pass by will or the laws of descent and distribution. Notwithstanding anything
to the contrary in this Section 17.10, an incentive stock option shall
not be transferable other than by will or the laws of descent and distribution.


(b)              
Except as provided in Sections 17.10(a), (c)  and (d),
no Award, other than a Stock Award (in the form of unrestricted Common Stock),
and no right under any such Award, may be assigned, alienated, pledged,
attached, sold or otherwise transferred or encumbered by a Participant and any
such purported assignment, alienation, pledge, attachment, sale, transfer or
encumbrance shall be void and unenforceable against the Company or any
Affiliate.


(c)              
To the extent specifically provided by the Committee, an Award may be
transferred by a Participant without consideration to immediate family members
or related family trusts, limited partnerships or similar entities or on such
terms and conditions as the Committee may from time to time establish. 


(d)              
An Award may be transferred pursuant to a domestic relations order
entered or approved by a court of competent jurisdiction upon delivery to the
Company of a written request for such transfer and a certified copy of such
order.






Article XVIII

CHANGE
IN CONTROL


18.01.   
Impact of Change in Control


In the event of
a Change in Control, the Committee is authorized, in its discretion, to cause
(a) all outstanding Options and SARs to become fully vested and exercisable
immediately prior to such Change in Control and (b) all other outstanding
Awards to become earned and non-forfeitable in their entirety upon such Change
in Control.


18.02.   
Assumption Upon Change in Control


In the event of a Change in Control, the
Committee, in its discretion and without the need for a Participant’s consent,
may provide that an outstanding Award shall be assumed by, or a substitute
award shall be granted by, the surviving entity resulting from a transaction
described in Section 1.07 (including, if applicable, the ultimate parent
entity that directly or indirectly has beneficial ownership of sufficient
voting securities to elect a majority of the members of the board of directors
(or analogous governing body) of such entity).  The assumed or substituted
award shall be of the same type of award as the original Award being assumed or
substituted and shall have a value, as of the Control Change Date, that is
substantially equal to the value of the original Award as of such date as the
Committee determines is equitably required, and the assumed or substituted
award shall have such other terms and conditions as may be prescribed by the
Committee.


18.03.   
Cash-Out Upon Change in Control


If an Award is not assumed or replaced with a
substitute award in accordance with Section 18.02, upon a Change in
Control, the Committee, in its discretion and without the need of a
Participant’s consent, may provide that each Award shall be cancelled in
exchange for a payment.  The payment may be in cash, shares of Common Stock or
other securities or consideration received by stockholders in the Change in
Control transaction.  The amount of the payment shall be an amount that is
substantially equal to (a) if the Award is denominated or to be settled in cash,
the entire amount that can be paid under the Award (which,
with respect to a Performance Unit or other performance-based Award, unless
otherwise provided by the Committee or an Award Agreement, shall be based upon
the number of Performance Units or other performance-based Awards granted, without any performance-related adjustments as provided for
in the applicable Award Agreement) or (b) (i) the amount by which the price
per share received by stockholders in the Change in Control for each share of
Common Stock exceeds the Option price or Initial Value in the case of an Option
and SAR, or (ii) for each share of Common Stock subject to an Award denominated
in Common Stock or valued in reference to Common Stock (which, with respect to
a Performance Unit or other performance-based Award, unless otherwise provided
by the Committee or an Award Agreement, shall be the number of Performance
Units or other performance-based Awards granted, without any
performance-related adjustments as provided for in the applicable Award
Agreement), the price per share received by stockholders or (iii) for each
other Award denominated in other securities or property, the value of such
other securities or property, in each case as determined by the Committee.  If
the Option price or Initial Value exceeds the price per share received by
stockholders in the Change in Control transaction, the Option or SAR may be
cancelled under this Section 18.03 without any payment to the
Participant.







 








18.04.   
Limitation of Benefits


(a)              
The benefits that a Participant may be entitled to receive under the
Plan and other benefits that a Participant is entitled to receive under other
plans, agreements and arrangements (which, together with the benefits provided
under the Plan, are referred to as “Payments”), may constitute Parachute
Payments that are subject to Sections 280G and 4999 of the Code.  As provided
in this Section 18.04, the Parachute Payments will be reduced pursuant
to this Section 18.04 if, and only to the extent that, a reduction will
allow a Participant to receive a greater Net After Tax Amount than a
Participant would receive absent a reduction.


(b)              
The Accounting Firm will first determine the amount of any Parachute
Payments that are payable to a Participant.  The Accounting Firm also will
determine the Net After Tax Amount attributable to the Participant’s total
Parachute Payments.


(c)              
The Accounting Firm will next determine the largest amount of Payments
that may be made to the Participant without subjecting the Participant to tax
under Section 4999 of the Code (the “Capped Payments”).  Thereafter, the
Accounting Firm will determine the Net After Tax Amount attributable to the
Capped Payments.


(d)              
The Participant will receive the total Parachute Payments or the Capped
Payments, whichever provides the Participant with the higher Net After Tax
Amount.  If the Participant will receive the Capped Payments, the total
Parachute Payments will be adjusted by first reducing the amount of any
benefits under the Plan or any other plan, agreement or arrangement that are
not subject to Section 409A (with the source of the reduction to be directed by
the Participant) and then by reducing the amount of any benefits under the Plan
or any other plan, agreement or arrangement that are subject to Section 409A
(with the source of the reduction to be directed by the Participant) in a
manner that results in the best economic benefit to the Participant (or, to the
extent economically equivalent, in a pro rata manner).  The Accounting Firm
will notify the Participant and the Company if it determines that the Parachute
Payments must be reduced to the Capped Payments and will send the Participant
and the Company a copy of its detailed calculations supporting that
determination.


(e)              
As a result of the uncertainty in the application of Sections 280G and
4999 of the Code at the time that the Accounting Firm makes its determinations
under this Section 18.04, it is possible that amounts will have been
paid or distributed to the Participant that should not have been paid or
distributed under this Section 18.04 (“Overpayments”), or that
additional amounts should be paid or distributed to the Participant under this Section
18.04 (“Underpayments”).  If the Accounting Firm determines, based
on either the assertion of a deficiency by the Internal Revenue Service against
the Company or the Participant, which assertion the Accounting Firm believes
has a high probability of success or controlling precedent or substantial
authority, that an Overpayment has been made, the Participant must repay the
Overpayment to the Company, without interest; provided, however, that no
amount will be payable by the Participant to the Company unless, and then only
to the extent that, the repayment would either reduce the amount on which the
Participant is subject to tax under Section 4999 of the Code or generate a
refund of tax imposed under Section 4999 of the Code.  If the Accounting Firm
determines, based upon controlling precedent or substantial authority, that an
Underpayment has occurred, the Accounting Firm will notify the Participant and
the Company of that determination and the amount of that Underpayment will be
paid, without interest, to the Participant promptly by the Company.


(f)               
This Section 18.04 shall not limit or otherwise supersede the
provisions of any other agreement between, on the one hand, the Company, the
Manager or any of their respective Affiliates, and, on the other hand, a
Participant, which specifically provides for the different treatment of
Payments that 



are subject to Sections 280G and 4999 of
the Code, including any such agreement which provides that the Participant
cannot receive Payments in excess of the Capped Payments.


Article XIX

AMENDMENT


The Board may amend or terminate
the Plan at any time; provided, however, that no amendment may adversely
impair the rights of Participants with respect to outstanding Awards; provided,
however, any adjustments made pursuant to Article XIV, XV  or XVIII 
will not be deemed to adversely impair the rights of Participants with respect
to outstanding Awards.  In addition, an amendment will be contingent on
approval of the Company’s stockholders if such approval is required by law or
the rules of any exchange on which the shares of Common Stock are listed or if
the amendment would materially increase the benefits accruing to Participants
under the Plan, materially increase the aggregate number of shares of Common
Stock that may be issued under the Plan (except as provided in Article XV)
or materially modify the requirements as to eligibility for participation in
the Plan.  For the avoidance of doubt, the Board may not (except pursuant to Article
XIV, XV  or XVIII) without the approval of stockholders, (a)
reduce the Option price per share of an outstanding Option or the Initial Value
of an outstanding SAR, (b) make a payment to cancel an outstanding Option or
SAR when the Option price or Initial Value, as applicable, exceeds the Fair
Market Value or (c) take any other action with respect to an outstanding Option
or SAR that may be treated as a repricing of the Award under the rules and
regulations of the principal securities exchange on which the shares of Common
Stock are listed for trading.


Article XX

effectiveness and DURATION OF PLAN


Awards may be granted under the
Plan on and after the Effective Date.  No Award may
be granted under the Plan on and after the tenth (10th) anniversary of the
Effective Date.  Awards granted before such date shall remain valid in
accordance with their terms.