Exhibit 10.7


NEWKIRK REALTY TRUST, INC.


2005 STOCK
INCENTIVE PLAN


1.             Establishment
and Purpose.


The purposes of this 2005 Stock Incentive
Plan (the “Plan”) are to induce certain individuals to remain in the employ of,
to continue to serve as officers or directors of or to continue to provide
services to, Newkirk Realty Trust, Inc. (the “Company”), its present and future
subsidiary corporations (each a “Subsidiary”), as defined in section 424(f) of
the Internal Revenue Code of 1986, as amended (the “Code”), and any other
corporation or entity controlled by the Company and designated by the
Administrator as an affiliate (“Affiliate”); and to attract new individuals to
enter into such employment and service. 
The Board of Directors of the Company (the “Board”) believes that the
granting of awards (the “Awards”) under the Plan will  aid in securing the Company’s continued growth
and financial success by attracting and retaining individuals who will assist
the Company in identifying future acquisitions, dispositions and financing
opportunities.


The Plan is adopted and effective as of October 31,
2005, subject to approval by the Company’s shareholders within 12 months of the
adoption date.


2.             Shares Subject to
Plan.


Subject to adjustment as provided in Section
13 hereof, the maximum number of shares of the common stock, par value of $.01
per share (the “Common Stock”), of the Company with respect to which Options or
SARs may be granted or that may be delivered as Stock Awards, Performance Share
Awards or Performance-Based Awards to participants (“Participants”) and their
beneficiaries under the Plan shall be 4,000,000.  If any Awards expire or terminate for any
reason without having been exercised in full, new Awards may thereafter be
granted with respect to the unexercised  shares subject to such expired or terminated
Awards.


To the extent any shares of Common Stock
covered by an Award are not delivered to a Participant or his or her
beneficiary under the Plan because the Award is settled in cash or used to
satisfy applicable tax withholding obligation, such shares shall not be deemed
to have been delivered for purposes of determining the maximum number of shares
of Common Stock available for delivery under the Plan.


3.             Administration.


(a)           The
Plan shall be administered by the Compensation Committee (the “Committee”)
which shall consist of two or more members of the Board each of whom is an “outside
director,” within the meaning of section 162(m) of the Code and a “non-employee


 


 





















 


director,”
within the meaning of Rule 16b-3 promulgated under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”). 
The Committee shall be appointed annually by the Board, which may at any
time and from time to time remove any members of the Committee, with or without
cause, appoint additional members to the Committee and fill vacancies, however
caused, in the Committee.  In the event
that no Committee shall have been appointed, the Plan shall be administered by
the Board.  A majority of the members of
the Committee shall constitute a quorum.


All determinations of the Committee shall be
made by a majority of its members present at a meeting duly called and
held.  Any decision or determination of
the Committee reduced to writing and signed by all of the members of the
Committee (or by a member of the Committee to whom authority has been
delegated) shall be fully as effective as if it had been made at a meeting duly
called and held.


Except to the extent prohibited by applicable
law, the Committee or the Board may delegate all or a portion of its
responsibilities and powers under the Plan (other than responsibilities and
powers relating to Awards granted or to be granted to persons who are “covered
employees” within the meaning of section 162(m) of the Code (“Covered Employees”))
to one or more officers of the Company, provided that no such officer or
officers are subject to Section 16 of the Exchange Act.  Any such delegation may be revoked by the
Committee or Board at any time.


No director or officer shall vote on matters
relating directly to his or her own Plan benefit or participation.


As used in the Plan, the term “Administrator”
shall mean the Committee, or the Board or, except with respect to Awards
granted or to be granted to persons who are Covered Employees, such delegate of
the Committee or Board, as shall be administering the Plan.


(b)           The
Administrator’s powers and authority shall include, but not be limited to, (i) subject
to Section 5 hereof, selecting individuals for participation; (ii) subject to
Section 5 hereof, determining the types of Awards granted; (iii) determining
the terms and conditions, consistent with the terms of the Plan, of all Awards
granted, including performance and other earnout and/or vesting contingencies;
(iv) interpreting the Plan’s provisions; and (v) administering the Plan in a
manner that is consistent with its purpose. 
The Administrator’s determination on the matters referred to in this
Section 3(b) shall be conclusive.  Any
dispute or disagreement which may arise under, or as a result of or with
respect to, any Award shall be determined by the Administrator, in its sole
discretion, and any interpretations by the Administrator of the terms of any
Award shall be final, binding and conclusive.


 


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4.             Types of Awards.


                                The types of Awards
that may be granted under the Plan are:


(a)           A stock option, which represents a right to purchase a
specified number of shares of Common Stock during a specified period at a price
per share which is no less than that required by Section 6 hereof.  Options shall be designated as either (i) “incentive
stock options” (which term, when used herein, shall have the meaning ascribed
thereto by the provisions of section 422(b) of the Code) or (ii) options which
are not incentive stock options (“non-incentive stock options”) (together, “Options”),
as determined at the time of the grant thereof by the Administrator.


(b)           A stock Award (“Stock Award”), which
is a grant of shares of Common Stock.  Except
as otherwise provided in Section 10, each Stock Award shall be subject to such
conditions, restrictions and contingencies as the Administrator shall determine
and which shall create a “substantial risk of forfeiture” within the meaning of
section 409A of the Code (a “Substantial Risk of Forfeiture”).  In making a determination regarding the
allocation of such shares, the Administrator may take into account the nature
of the services rendered by the respective individuals, their present and
potential contributions to the success of the Company and its Subsidiaries and
Affiliates and such other factors as the Administrator in its discretion shall
deem relevant.


                                (c)           A
stock appreciation right (“SAR”), which is a grant of the right to receive cash,
shares of Common Stock of an aggregate Fair Market Value (as defined in Section
6 hereof) equal to the Value (as defined in Section 7 hereof) of the SAR, or a
combination of cash and shares of Common Stock.


                                (d)           A
performance share Award (“Performance Share Award”), which is a grant of the right
to receive, upon a specified date, and upon the attainment of performance
conditions or the satisfaction of such other conditions or contingencies
established by the Administrator at the time of grant, a payment that is based
on, or determined by reference to, the Fair Market Value of Common Stock.


                                (e)           A
performance-based Award (“Performance-Based Award”), which is a grant of the
right to receive, upon a specified date, and upon the attainment of performance
conditions established by the Committee, a payment that is based on, or
determined by reference to, the Fair Market Value of Common Stock and that is
deductible by the Company under section 162(m) of the Code.  The right to exercise or receive a grant or
settlement of any Performance-Based Award shall be based on the attainment of
written performance goals approved by the Committee for a performance period
established by the Committee (i) while the outcome for that performance period
is substantially uncertain and (ii) no more than 90 days after the commencement
of the performance period to which the performance goal relates or, if less,
the


 


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number of days which is
equal to 25% of the relevant performance period.  The performance goals must be objective and
shall be based on one or more of the following criteria: (i) funds from
operations; (ii) funds from operations per share; (iii) return on equity; (iv)
total earnings; (v) earnings per share; (vi) earnings growth; (vii) return on
capital; (viii) Fair Market Value of the Common Stock; (ix) appreciation in
value of the Common Stock; (x) shareholder returns; and (xi) such other
financial or operational measures designated by the Committee.  The foregoing criteria may relate to the
Company or one or more of its Subsidiaries or Affiliates.


5.             Eligibility.


An Award may be granted only to (a) employees
of the Company or its Subsidiaries or Affiliates, (b) officers of the Company
or its Subsidiaries or Affiliates, (c) directors of the Company and (d) such other
persons that render services to the Company as determined by the Administrator.  Notwithstanding the foregoing, (i) the grant
of an incentive stock option shall be limited to employees of the Company and
its Subsidiaries, (ii) the grant of a SAR or a non-incentive stock option shall
be limited to employees of the Company and its Subsidiaries and officers and
directors of the Company, and (iii) the grant of a Performance-Based Award
shall be limited to such eligible persons who are Covered Employees.  Participation shall be limited to such
eligible persons as are selected by the Administrator.


6.             Stock
Option Prices and Fair Market Value.


(a)           Subject
to Section 13 hereof, the per share option price of any Option which is an
incentive stock option shall never be less than the Fair Market Value of a
share of Common Stock on the date of grant; provided, however, that, in the
case of a Participant who owns (within the meaning of section 424(d) of the
Code) more than 10% of the total combined voting power of the Common Stock at
the time an Option which is an incentive stock option is granted to him or her,
the per share option price shall never be less than 110% of the Fair Market Value
of a share of Common Stock on the date of grant.


(b)           Subject
to Section 13 hereof, the per share option price of any Option which is a
non-incentive stock option shall not and may never be less than the Fair Market
Value of a share of Common Stock on the date of grant.


(c)           For
all purposes of this Plan, the Fair Market Value of a share of Common Stock on
any date, if the Common Stock is then listed on a national securities exchange
or traded on the NASDAQ National Market System, shall be equal to the closing
sale price of a share of Common Stock or, if there is no sale of the Common
Stock on such date, shall be equal to the closing sale price of a share of
Common Stock on the last date such Stock was traded or, if the shares of Common
Stock are not then listed on a national securities exchange or such system on
such date, the Fair Market Value of a share of Common Stock on such date as
shall be determined in good faith by the Administrator and in accordance with
Section 409A of the Code.


 


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7.             Value of a SAR.


For purposes of this Plan,
the “Value” of a SAR with respect to one share of Common Stock on any date is
the excess of the Fair Market Value of a share on such date, over the “Base
Value” of such SAR.  The “Base Value” of
any SAR with respect to one share of Common Stock shall never be less than the Fair
Market Value of a share of Common Stock as of the date the SAR is granted.


8.             Awards Term.


(a)           Options
shall be granted for such term as the Administrator shall determine, not in
excess of ten years from the date of the granting thereof; provided, however,
that, in the case of a Participant who owns (within the meaning of section
424(d) of the Code) more than 10% of the total combined voting power of the
Common Stock at the time an Option which is an incentive stock option is granted
to him or her, the term with respect to such Option shall not be in excess of
five years from the date of the granting thereof.


(b)           SARs
shall be granted for such term as the Administrator shall determine, not in
excess of ten years from the date of the granting thereof.


9.             Limitation
on Amount of Awards Granted.


(a)           The
aggregate Fair Market Value of the shares of Common Stock for which any
Participant may be granted incentive stock options which are exercisable for
the first time in any calendar year (whether under the terms of the Plan or any
other stock option plan of the Company or its Subsidiaries) shall not exceed
$100,000.


(b)           No
participant may be granted stock options or SARs during any calendar year with
respect to more than 400,000 shares of Common Stock.


(c)           The maximum amount of a Performance-Based Award that shall
be paid during any calendar year to any Participant shall be $1,000,000.


(d)           Subject to the overall limitation on the number of shares
of Common Stock that may be delivered under the Plan, the Administrator may use
available shares of Common Stock as the form of payment for compensation,
grants or rights earned or due under any other compensation plans or
arrangements of the Company, including the plan of any entity acquired by the
Company.


 


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10.           Exercise
of Awards.


(a)           Options


(i)            Except as otherwise determined by
the Administrator at the time of grant or as provided in Section 12 hereof, a
Participant may not exercise an Option during the period commencing on the date
of the grant of such Option to him or her and ending on the day immediately
preceding the first anniversary of such date. 
Except as otherwise determined by the Administrator at the time of
grant, a Participant may (A) during the period commencing on the first
anniversary of the date of the grant of an Option to him or her and ending on
the day immediately preceding the second anniversary of such date, exercise
such Option with respect to one-quarter of the shares granted thereby,
(B) during the period commencing on the second anniversary of the date of
such grant and ending on the day immediately preceding the third anniversary of
the date of such grant, exercise such Option with respect to one-half of the
shares granted thereby, (C) during the period commencing on the third
anniversary of the date of such grant and ending on the day immediately
preceding the fourth anniversary of such date, exercise such Option with
respect to three-quarters of the shares granted thereby and (D) during the
period commencing on the fourth anniversary of the date of such grant and
ending at the time the Option expires pursuant to the terms hereof, exercise
such Option with respect to all of the shares granted thereby.


(ii)           Except as hereinbefore otherwise set
forth and as otherwise determined by the Administrator at the time of grant, an
Option may be exercised either in whole or in part.


(iii)          An Option may be exercised only by a
written notice of intent to exercise such Option with respect to a specific
number of shares of the Common Stock and payment to the Company of the amount
of the option price for the number of shares of the Common Stock so specified.


(iv)          The option price shall be paid in (A)
cash, (B) shares of Common Stock having an aggregate Fair Market Value on the
date the Option is exercised equal to the option price for the number of shares
of Common Stock being purchased, or (C) partly in cash and partly in shares of
Common Stock, as determined by the Administrator.


(v)           The Administrator may, in its
discretion, permit any Option to be exercised, in whole or in part, prior to
the time when it would otherwise be exercisable.


(b)           SARs


(i)            Except as otherwise determined by
the Administrator at the time of grant, a Participant may not exercise a SAR
during the period commencing on the date of the grant of such SAR to him or her
and ending on the day immediately preceding the first anniversary of such
date.  Except as otherwise determined by
the Administrator at the time of grant, a Participant may (A) during the period
commencing on the first anniversary of the date of the


 


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grant and ending on the day immediately preceding the second
anniversary of such date, exercise one-quarter of the SARs granted,
(B) during the period commencing on the second anniversary of the date of
such grant and ending on the day immediately preceding the third anniversary of
the date of such grant, exercise one-half of the SARs granted, (C) during the
period commencing on the third anniversary of the date of such grant and ending
on the day immediately preceding the fourth anniversary of such date, exercise
three-quarters of the SARs granted and (D) during the period commencing on the
fourth anniversary of the date of such grant and ending at the time the SARs
expire pursuant to the terms hereof, exercise all of the SARs granted.


(ii)           Except as hereinbefore otherwise set
forth and as otherwise determined by the Administrator at the time of grant, a
SAR may be exercised either in whole or in part.


(iii)          A SAR may be exercised only by a
written notice of intent to exercise such SAR with respect to the appreciation
of a specific number of shares of the Common Stock.


(iv)          Upon the exercise of a SAR, a
Participant shall be entitled to receive cash equal to the Value of such SAR on
the date of exercise, shares of Common Stock, rounded down to the nearest whole
share, the Fair Market Value of which, in the aggregate, equals the Value of
such SAR on the date of exercise, or a combination of cash or Common Stock.


(v)           The Administrator may, in its
discretion, permit any SAR to be exercised prior to the time when it would
otherwise be exercisable.


(c)           Stock Awards


(i)            Except as otherwise provided in this Section and Section
3, the shares allocated to a Participant may not be sold, assigned, transferred
or otherwise disposed of, and may not be pledged or hypothecated until the
restrictions thereon have lapsed.


(ii)           Except as otherwise determined by the Administrator at the
time of grant, the restrictions on any Stock Award shall terminate upon the
attainment of any performance goal or the satisfaction of any condition
established by the Administrator that constitutes a Substantial Risk of
Forfeiture.


(iii)          Shares representing a Stock Award shall be evidenced in
such manner as the Administrator may deem appropriate, including book-entry
registration or issuance of one or more certificates (which may bear
appropriate legends referring to the terms, conditions and restrictions applicable
to such Award).  The Administrator may
require that any such certificates be held in custody by the Company until the
restrictions thereon shall have lapsed and that the Participant deliver a stock
power, endorsed in blank, relating to the Stock covered by such Award.


(iv)          Each Participant receiving shares
subject to a Stock Award shall (A) agree that such shares shall be subject to,
and shall be held by him or her in accordance with all of the


 


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applicable terms and provisions of, the Plan, (B) represent and warrant to the
Company that he or she is acquiring such shares for investment for his or her
own account (unless there is then current a prospectus relating to the shares
under Section 10(a) of the Securities Act of 1933, as amended) and, in any
event, that he or she will not sell or otherwise dispose of said shares except
in compliance with the Securities Act of 1933, as amended, and (C) at his or
her option, be entitled to make the election permitted under section 83(b) of
the Code, to include in gross income in the taxable year in which the shares
are transferred to him or her, the Fair Market Value of such shares at the time
of transfer, notwithstanding that such shares are subject to a Substantial Risk
of Forfeiture.  The foregoing agreement,
representation and warranty shall be contained in an agreement in writing (“Restricted
Stock Agreement”) which shall be delivered by the Participant to the
Company.  The Administrator shall adopt,
from time to time, such rules with respect to the return of executed Restricted
Stock Agreements as it deems appropriate and failure by a Participant to comply
with such rules may result in the forfeiture of Restricted Shares allocated to
such Participant.


(d)           Performance
Share Awards.


(i)            The Administrator, in its sole
discretion, may grant Performance Share Awards in such form, and dependent on
such conditions, as the Committee shall determine, including, without
limitation, the right to receive one or more shares of Common Stock on as
specified date following the completion of a specified period of service,
and/or the attainment of performance objectives.


(ii)           Subject to the provisions of the
Plan, the Administrator shall determine the number of shares of Common Stock to
be awarded under (or otherwise related to) such Performance Share Awards; and
all other terms and conditions of such Performance Share Awards (including,
without limitation, the vesting provisions thereof).


(iii)          Performance Share Awards shall be settled
in (A) cash, (B) shares of Common Stock or (C) a combination of cash and shares
of Common Stock, as determined by the Administrator.


(e)           Performance-Based
Awards


(i)            The Committee shall determine
whether, with respect to a performance period, the applicable performance goals
have been met with respect to a Participant. 
If the performance goals have been met, the Committee shall so certify
and ascertain the amount of the applicable Performance-Based Award.


(ii)
The Award may provide that the amount of the Performance-Based Award actually
paid to a Participant may be less than the amount determined by the applicable
performance goal formula, at the discretion of the Committee.


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(iii)          The amount of the Performance-Based
Award determined by the Committee for a performance period shall be paid to the
Participant at such time after the end of the performance period as determined
by the Committee, provided that the Participant is an employee of the Company,
a Subsidiary or an Affiliate at the end of such performance period, but in no
event later than (A) 2-1/2 months after the end of the Company’s first taxable
year in which such performance period ends or (B) 2-1/2 months after the end of
the Participant’s first taxable year in which such performance period ends, if
later.


11.           Termination
of Employment or Service.


(a)           Except as otherwise provided in
Section 12 hereof, and except as otherwise determined by the Committee at the
time of grant, in the event a Participant’s employment with, or provision of services
with, the Company and its Subsidiaries and Affiliates terminates, whether
voluntarily or otherwise but other than by reason of his or her death, Retirement
or Disability, (i) each Option theretofore granted to him or her which shall
not have been exercisable prior to the date of the termination of his or her
employment or service shall terminate immediately and each other Option
theretofore granted to him or her which shall not have theretofore expired or
otherwise been cancelled shall, to the extent exercisable on the date of such
termination of employment or service and not theretofore exercised, terminate
upon the earlier to occur of the expiration of 90 days after the date of such
Participant’s termination of employment or cessation of service and the date of
termination specified in such Option; (ii) each share allocated to the
Participant under a Stock Award subject to restriction at such date shall be
redelivered to the Company immediately; and (iii) each SAR theretofore granted
to him or her which shall not have been exercisable prior to the date of the
termination of his or her employment or service shall terminate immediately and
each other SAR theretofore granted to him or her which shall not have theretofore
expired or otherwise been cancelled shall, to the extent exercisable on the
date of such termination of employment or service and not theretofore
exercised, terminate upon the earlier to occur of the expiration of 90 days
after the date of such Participant’s termination of employment or cessation of
service and the date of termination specified in such SAR.


(b)           Except as otherwise determined by the
Committee at the time of grant, and notwithstanding the foregoing, if a
Participant is terminated for Cause (as defined herein), (i) each Award
theretofore granted to him or her which shall not have theretofore expired or
otherwise been cancelled shall, to the extent not theretofore exercised,
terminate forthwith, and (ii) each share allocated to the Participant under a
Stock Award subject to restriction at such date shall be redelivered to the
Company immediately.


(c)           Except as otherwise provided in
Section 12 hereof, and except as otherwise determined by the Committee at the
time of grant, in the event a Participant’s employment with, or provisions of services
to, the Company and its Subsidiaries and Affiliates terminates by reason of his
or her Retirement (as defined herein), (i) each Option theretofore granted to
him or her which shall not have theretofore expired or otherwise been cancelled
shall


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become immediately exercisable in full and shall, to the extent not
theretofore exercised, terminate upon the earlier to occur of the expiration of
six months after the date of such Retirement and the date of termination
specified in such Option; (ii) each SAR theretofore granted to him or her which
shall not have theretofore expired or otherwise been cancelled shall become
immediately exercisable in full and shall, to the extent not theretofore
exercised, terminate upon the earlier to occur of the expiration of six months
after the date of such retirement and the date of termination specified in such
SAR; and (iii) any restrictions applicable to any shares allocated to such
Participant in a Stock Award shall forthwith terminate.


(d)           Except as otherwise
determined by the Committee at the time of grant, in the event a Participant’s
employment with, or provision of services to, the Company and its Subsidiaries
and Affiliates terminates by reason of his or her death, (i) each Option
theretofore granted to him or her which shall not have theretofore expired or
otherwise been cancelled shall become immediately exercisable in full and
shall, to the extent not theretofore exercised, terminate upon the earlier to
occur of the expiration of six months after the date of the qualification of a
representative of his or her estate and the date of termination specified in
such Option; (ii) each SAR theretofore granted to him or her which shall not
have theretofore expired or otherwise been cancelled shall become immediately
exercisable in full and shall, to the extent not theretofore exercised,
terminate upon the earlier to occur of the expiration of six months after the
date of the qualification of a representative of his or her estate and the date
of termination specified in such SAR; and (iii) any restrictions applicable to
any shares allocated to such Participant in a Stock Award shall forthwith
terminate.


(e)           Except as otherwise
provided in Section 12 hereof, and except as otherwise determined by the
Committee at the time of grant, in the event a Participant’s employment with,
or provision of services to, the Company and its Subsidiaries and Affiliates
terminates by reason of his or her Disability (as defined herein), (i) each
Option theretofore granted to him or her which shall not have theretofore
expired or otherwise been cancelled shall become immediately exercisable in
full and shall, to the extent not theretofore exercised, terminate upon the
earlier to occur of the expiration of six months after the date of such
retirement and the date of termination specified in such Option; (ii) each SAR
theretofore granted to him or her which shall not have theretofore expired or
otherwise been cancelled shall become immediately exercisable in full and
shall, to the extent not theretofore exercised, terminate upon the earlier to
occur of the expiration of six months after the date of such retirement and the
date of termination specified in such SAR; and (iii) any restrictions
applicable to any shares allocated to such Participant in a Stock Award shall
forthwith terminate.


(f)            The Administrator
shall specify at the time of grant the circumstances in which Performance Share
Awards shall be forfeited or paid in the event of termination of employment or
service with the Company and its Subsidiaries and Affiliates.


(g)           Notwithstanding any
provision in the Plan to the contrary, if a Participant’s employment by, or
provision of services to, the Company, a Subsidiary or an


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Affiliate ceases as a result of a transfer of such
Participant from one of the foregoing entities to another of the foregoing
entities, such transfer shall not be a termination of employment or provision
of services for purposes of this Plan, unless expressly determined otherwise by
the Administrator.  A termination of
employment or provisions of services shall occur for a Participant who is employed
by, or provides services to, a Subsidiary or Affiliate of the Company if the
Subsidiary or Affiliate shall cease to be such and the Participant shall not
immediately thereafter be employed by, or provide services to, the Company, a
Subsidiary or an Affiliate.


(h)           Definition of Cause.  For purposes of the foregoing, the term “Cause”
shall have the meaning set forth in the employment agreement by and between the
Company, its Subsidiary and/or its Affiliate and the Participant, or, if no
such agreement exists or such agreement does not define “Cause” or any term of
similar import, “Cause” shall mean: (i) the commission by the Participant of
any act or omission that would constitute a crime under federal, state or
equivalent foreign law, (ii) the commission by the Participant of any act of moral
turpitude, (iii) fraud, dishonesty or other acts or omissions that result in a
breach of any fiduciary or other material duty to the Company, the Subsidiaries
and/or the Affiliates, (iv) willful misconduct, misfeasance or malfeasance of
duty which is reasonably determined by the Company to be detrimental to the
Company and/or the Subsidiaries, (v) gross neglect of the Participant’s duty to
the Company, the Subsidiaries and/or the Affiliates, (vi) prolonged absence
from duty without the consent of the Company, the Subsidiaries and/or the
Affiliates, (vii) intentionally engaging in any activity that is in conflict
with or adverse to the business or other interests of the Company, the
Subsidiaries and/or the Affiliates, or (viii) continued substance abuse that
renders the Participant incapable of performing his or her material duties to the
satisfaction of the Company, the Subsidiaries and/or the Affiliates.


(i)            Definition of Retirement.  For purposes of the foregoing,  the term
“Retirement” shall mean (i) the termination of a Participant’s employment with
the Company, all of the Subsidiaries and all of the Affiliates (A) other
than for Cause or by reason of his or her death or Disability and (B) on
or after the earlier to occur of (I) the first day of the calendar month in
which his or her 65th birthday shall occur and (II) the date on which he
or she shall have both attained his or her 55th birthday and completed ten
years of employment with the Company, the Subsidiaries and/or the Affiliates or
(ii) the termination of a Participant’s service as a director or officer with
the Company, all of the Subsidiaries and all of the Affiliates (A) other than
for Cause or by reason of his or her death and (B) on or after the first day of
the calendar month in which his or her 65th birthday shall occur.


(j)            Definition of Disability.  For purposes of the foregoing,  the term
“Disability” shall mean a Participant’s inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months.


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12.           Change in Control.


(a)           Except as otherwise determined by the Administrator at the
time of grant, if a Participant’s employment with, or provision of services to,
the Company and its Subsidiaries and Affiliates is terminated without Cause or
the Participant terminates his or her employment or service the Company and its
Subsidiaries and Affiliates for Good Reason (as defined in Section 12(c)
hereof), whether voluntarily or otherwise, within one year after the effective
date of a Change in Control (as defined in Section 12(b) hereof), (i) each
Option theretofore granted to a Participant which shall not have theretofore
expired or otherwise been cancelled shall become immediately exercisable in
full upon the occurrence of such termination and shall, to the extent not
theretofore exercised, terminate upon the date of termination specified in such
Option; (ii) each SAR theretofore granted to a Participant which shall not have
theretofore expired or otherwise been cancelled shall become immediately
exercisable in full upon the occurrence of such termination and shall, to the extent
not theretofore exercised, terminate upon the date of termination specified in
such SAR; and (iii) any restrictions applicable to any shares allocated to a
Participant in a Stock Award shall forthwith terminate upon the occurrence of
such termination.


(b)                                 Definition
of Change in Control.


(i)            For purposes of the foregoing, a “Change in Control”
shall occur or shall be deemed to have occurred only if any of the following
events occurs:


(A)          A change in the ownership of the Company.  A change in ownership of the Company shall
occur on the date that any one person, or more than one person acting as a “Group”
(as defined under section 409A of the Code), acquires ownership of stock of the
Company that, together with stock held by such person or Group, constitutes
more than 50% of the total fair market value or total voting power of the stock
of the Company; provided, however, that, if any one person or more than one
person acting as a Group, is considered to own more than 50% of the total fair
market value or total voting power of the stock of the Company, the acquisition
of additional stock by the same person or persons is not considered to cause a
change in the ownership of the Company.


(B)           A change in the effective control of the Company.  A change in the effective control of the
Company occurs on the date that:


(I)            any one person, or more than one
person acting as a Group, acquires (or has acquired during the 12-month period
ending on the date of the most recent acquisition by such person or persons)
ownership of stock of the Company possessing 35% or more of the total voting
power of the stock of the Company; or


(II)           a majority of the members of the
Company’s board of directors is replaced during any 12-month period by
directors whose appointment or election is not endorsed by a majority of the
members of the Company’s board of directors prior to the date of the
appointment or election; provided, however, that, if one


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person, or more than one
acting as a Group, is considered to effectively control the Company, the
acquisition of additional control of the Company by the same person or persons
is not considered a change in the effective control of the Company.


(C)           A change in the ownership of a substantial portion of the
Company’s assets.  A change in the
ownership of a substantial portion of the Company’s assets occurs on the date
that any one person, or more than one person acting as a Group, acquires (or
has acquired during the 12-month period ending on the date of the most recent
acquisition by such person or persons) assets from the Company that have a
total Gross Fair Market Value (as defined in Section 12(b)(ii) hereof) equal to
or more than 40% of the total Gross Fair Market Value of all of the assets of the
Company immediately prior to such acquisition or acquisitions; provided,
however, that, a transfer of assets by the Company is not treated as a change
in the ownership of such assets if the assets are transferred to:


(I)            a shareholder of the Company (immediately
before the asset transfer) in exchange for or with respect to its stock;


(II)           an entity, 50% or more of the total
value or voting power of which is owned, directly or indirectly, by the
Company;


(III)         a person, or more than one person
acting as a Group, that owns, directly or indirectly, 50% or more of the total
value or voting power of all the outstanding stock of the Company; or


(IV)         an entity, at least 50% of the total
value or voting power of which is owned, directly or indirectly, by a person described
in Section 12(b)(i)(C)(III) hereof).


(ii)         For purposes of Section 12(b)(i)(C),
Gross Fair Market Value means the value of the assets of the Company, or the
value of the assets being disposed of, determined without regard to any
liabilities associated with such assets.


(iii)        For purposes of Section 12(b) hereof,
stock ownership is determined under section 409A of the Code.


(c)           Definition of Good
Reason.   For purposes of the foregoing, the term “Good
Reason” shall have the meaning set forth in the employment agreement by and
between the Company, the Subsidiaries and/or the Affiliates and the
Participant, or, if no such agreement exists or such agreement does not define “Good
Reason” or any term of similar import, “Good Reason” shall mean any of the following
acts by the Company, the Subsidiaries and/or the Affiliates, without the
consent of the Participant (in each case, other than an isolated, insubstantial
and inadvertent action not taken in bad faith and which is remedied by the
Company, the Subsidiaries and/or the Affiliates promptly after receipt of
notice thereof given by


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the Participant): (i) a
material diminution in the Participant’s position, authority, duties or
responsibilities as in effect immediately prior to the Change in Control, (ii)
a reduction in the Participant’s base salary from his or her highest base
salary in effect at any time within 12 months preceding the Change in Control,
(iii) failure to continue the Participant’s participation in any compensation
plan in which he or she participated immediately prior to the Change in Control
(or in a substitute or alternative plan) on a basis not materially less
favorable, both in terms of the amount of benefits provided and the level of the
Participant’s participation relative to similarly situated employees, or (iv)
requiring the Participant to be based at any office or location more than 50
miles from the location at which the Participant was stationed immediately
prior to the Change in Control.


13.           Adjustment of Number of
Shares.


(a)           In the event that a dividend shall be
declared upon the Common Stock payable in shares of Common Stock, the number of
shares of Common Stock then subject to any Award and the number of shares of
Common Stock available for purchase or delivery under the Plan but not yet
covered by an Award shall be adjusted by adding to each share the number of
shares which would be distributable thereon if such shares had been outstanding
on the date fixed for determining the stockholders entitled to receive such
stock dividend.  In the event that the
outstanding shares of Common Stock shall be changed into or exchanged for a
different number or kind of shares of stock or other securities of the Company
or of another corporation, whether through reorganization, recapitalization,
stock split-up, combination of shares, sale of assets, merger or consolidation
in which the Company is the surviving corporation, then, there shall be
substituted for each share of Common Stock then subject to any Award, for each
share of Common Stock which may be issued under the Plan but not yet covered by
an Award and for each share of Common Stock which may be purchased upon the
exercise of Options granted under the Plan but not yet covered by an Option,
the number and kind of shares of stock or other securities into which each
outstanding share of Common Stock shall be so changed or for which each such
share shall be exchanged.


(b)           In
the event that there shall be any change, other than as specified in Section
13(a) hereof, in the number or kind of outstanding shares of Common Stock, or
of any stock or other securities into which the Common Stock shall have been
changed, or for which it shall have been exchanged, then, if the Committee
shall, in its sole discretion, determine that such change equitably requires an
adjustment in the number or kind of shares then subject to any Award and the
number or kind of shares available for issuance in accordance with the
provisions of the Plan but not yet covered by an Award, such adjustment shall
be made by the Administrator and shall be effective and binding for all
purposes of the Plan and of each Award.


(c)           In
the case of any substitution or adjustment in accordance with the provisions of
this Section 13 and subject to section 409A of the Code, the option price in
each Option for each share covered thereby prior to such substitution or
adjustment shall be the option price for all shares of stock or other
securities which shall have been substituted for such share or


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to which such share shall
have been adjusted in accordance with the provisions of this Section 13.


(d)           Notwithstanding
the foregoing, no substitution or adjustment shall be made pursuant to this
Section 13 to the extent such substitution or adjustment would violate section
409A of the Code.


(e)           No
adjustment or substitution provided for in this Section 13 shall require the
Company to issue a fractional share under any Award or to sell a fractional
share under any Option.


(f)            In
the event of the dissolution or liquidation of the Company, a merger,
reorganization or consolidation in which the Company is not the surviving
corporation or where the Company is the surviving corporation but the current
shareholders of the Company retain ownership of less than 50% of the stock
(directly or indirectly) of the surviving corporation, the Board in its
discretion, may accelerate the payment of any Award, the exercisability of each
Award and/or terminate the same within a reasonable time thereafter.  Notwithstanding the foregoing, the payment or
exercisability of any Award shall not be accelerated pursuant to this Section
13(f) to the extent such acceleration would violate section 409A of the Code.


14.                                 Withholding
and Waivers.


(a)           The
Company shall have the right to deduct and withhold from Awards under the Plan
any federal, state or local taxes of any kind required by law to be so deducted
and withheld with respect to any shares of Common Stock issued under the Plan
or any other amounts paid with respect to the settlement of Awards under the
Plan.  Subject to the prior approval of
the Company, which may be withheld by the Company in its sole discretion, the
Participant may elect to satisfy such obligations, in whole or in part by: (i)
causing the Company to withhold shares of Common Stock otherwise issuable
pursuant to the exercise or settlement of an Option, a SAR, a Stock Award, a
Performance Share Award or a Performance-Based Award  or (ii) delivering to the Company cash or a
check to the order of the Company in an amount equal to the amount required to
be so deducted and withheld.  The shares
of Common Stock withheld in accordance with method (i) above shall have a Fair Market
Value equal to such withholding obligation as of the date that the amount of
tax to be withheld is to be determined.


(b)           In
the event of the death of a Participant, an additional condition of exercising
any Award shall be the delivery to the Company of such tax waivers and other
documents as the Administrator shall determine.


(c)           An
additional condition of exercising any non-incentive stock option shall be the
entry by the Participant into such arrangements with the Company with respect
to withholding as the Administrator shall determine.


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15.                                 No
Stockholder Status; No Restrictions on Corporate Acts; No Employment Right.


(a)           Neither
any Participant nor his or her legal representatives, legatees or distributees
shall be or be deemed to be the holder of any share of Common Stock covered by
an Award unless and until a certificate for such share has been issued.  Upon payment of the purchase price therefor,
a share issued upon exercise of an Award shall be fully paid and
non-assessable.


(b)           Neither
the existence of the Plan nor any Award shall in any way affect the right or
power of the Company or its stockholders to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes in the Company’s
capital structure or its business, or any merger or consolidation of the
Company, or any issue of bonds, debentures, preferred or prior preference stock
ahead of or affecting the Common Stock or the rights thereof, or dissolution or
liquidation of the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding whether of a
similar character or otherwise.


(c)           Neither
the existence of the Plan nor the grant of any Award shall require the Company,
any Subsidiary, any Affiliate or any other entity to continue any Participant
in the employ or service of the Company, such Subsidiary, such Affiliate or
such other entitiy.


16.           Nontransferability
of Awards.


No Option, SAR, Performance Share Award or
Perfromance-Based Award granted under this Plan shall be assignable or
otherwise transferable by a Participant, except by will or by the laws of
descent and distribution.  No Stock Award
granted under this Plan shall be assignable or otherwise transferable by a
Participant prior to the date on which all restrictions with respect to such
Stock Award terminate.


17.           Termination and
Amendment of the Plan.


(a)           The
Board may at any time terminate the Plan or make such modifications of the Plan
as it shall deem advisable; provided,
however, that the Board may not, without further approval of the
holders of the shares of Common Stock, increase the number of shares of Common
Stock as to which Awards may be granted under the Plan (as adjusted in
accordance with the provisions of Section 12 hereof), or change the class of
persons eligible to participate in the Plan, change the manner of determining
stock option prices, or change the manner of determining the Value of a
SAR.  Notwithstanding the foregoing, the
Board shall have the right, to terminate or modify the Plan; provided, however,
that to the extent required by applicable law or the rules of the NASDAQ
National Market System or such other exchange on which the Company’s securities
shall be listed or traded, no such termination or modification shall be effective
without the further approval of the holders of the shares of Common Stock.


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(b)           Except
as otherwise provided in Sections 13(e) and 18 hereof, no termination or
amendment of the Plan may, without the consent of the Participant to whom any
Award shall theretofore have been granted, adversely affect the rights of such
Participant under such Award. Notwithstanding the foregoing, the Board shall
have the right, without the consent of the Participant affected, to amend or
modify the Plan and any outstanding Award to the extent the Board determines
necessary to comply with applicable law.


18.           Expiration
and Termination of the Plan.


The Plan shall terminate on October 31,
2015 or at such earlier time as the Board may determine; provided, however, that the Plan shall
terminate as of its effective date in the event that it shall not be approved
by the stockholders of the Company at its 2005 Annual Meeting of
Stockholders.  Awards may be granted
under the Plan at any time and from time to time prior to its termination.  Any Award outstanding under the Plan at the
time of the termination of the Plan shall remain in effect until such Award
shall have been exercised or shall have expired in accordance with its terms.


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