Exhibit 10.7


 


 


NEW PLAN EXCEL REALTY TRUST, INC.


 


2003 STOCK INCENTIVE PLAN


 


As amended and restated effective July 14,
2005


 





















 


TABLE OF CONTENTS


 


	
  1.

  	
  PURPOSE

  	
   

  
	
  2.

  	
  DEFINITIONS

  	
   

  
	
  3.

  	
  ADMINISTRATION OF THE PLAN

  	
   

  
	
   

  	
  3.1.

  	
  Board

  	
   

  
	
   

  	
  3.2.

  	
  Committee

  	
   

  
	
   

  	
  3.3.

  	
  Terms
  of Awards

  	
   

  
	
   

  	
  3.4.

  	
  Deferral
  Arrangement

  	
   

  
	
   

  	
  3.5.

  	
  No
  Liability

  	
   

  
	
  4.

  	
  STOCK SUBJECT TO THE PLAN

  	
   

  
	
  5.

  	
  EFFECTIVE DATE,
  DURATION AND AMENDMENTS

  	
   

  
	
   

  	
  5.1.

  	
  Effective
  Date

  	
   

  
	
   

  	
  5.2.

  	
  Term

  	
   

  
	
   

  	
  5.3.

  	
  Amendment and
  Termination of the Plan

  	
   

  
	
  6.

  	
  AWARD ELIGIBILITY AND
  LIMITATIONS

  	
   

  
	
   

  	
  6.1.

  	
  Company
  or Subsidiary Employees; Service Providers;

  	
   

  
	
   

  	
  6.2.

  	
  Successive
  Awards

  	
   

  
	
   

  	
  6.3.

  	
  Limitation
  on Shares of Stock Subject to Awards

  	
   

  
	
   

  	
  6.4.

  	
  Limitations on
  Incentive Stock Options

  	
   

  
	
   

  	
  6.5.

  	
  Stand-Alone,
  Additional, Tandem, and Substitute Awards

  	
   

  
	
  7.

  	
  AWARD AGREEMENT

  	
   

  
	
  8.

  	
  TERMS AND CONDITIONS OF
  OPTIONS

  	
   

  
	
   

  	
  8.1.

  	
  Option
  Price

  	
   

  
	
   

  	
  8.2.

  	
  Vesting

  	
   

  
	
   

  	
  8.3.

  	
  Term

  	
   

  
	
   

  	
  8.4.

  	
  Termination of Service

  	
   

  
	
   

  	
  8.5.

  	
  Limitations on
  Exercise of Option

  	
   

  
	
   

  	
  8.6.

  	
  Method
  of Exercise

  	
   

  
	
   

  	
  8.7.

  	
  Rights of Holders of
  Options

  	
   

  
	
   

  	
  8.8.

  	
  Delivery of Stock
  Certificates

  	
   

  
	
   

  	
  8.9.

  	
  Book
  Entry

  	
   

  
	
  9.

  	
  TRANSFERABILITY OF OPTIONS

  	
   

  
	
   

  	
  9.1.

  	
  Transferability of Options

  	
   

  
	
   

  	
  9.2.

  	
  Family
  Transfers

  	
   

  
	
  10.

  	
  STOCK APPRECIATION RIGHTS

  	
   

  
	
   

  	
  10.1.

  	
  Right
  to Payment

  	
   

  
	
   

  	
  10.2.

  	
  Other
  Terms

  	
   

  
	
  11.

  	
  RESTRICTED STOCK AND
  STOCK UNITS

  	
   

  
	
   

  	
  11.1.

  	
  Grant of
  Restricted Stock or Stock Units

  	
   

  
	
   

  	
  11.2.

  	
  Restrictions

  	
   

  
	
   

  	
  11.3.

  	
  Restricted Stock
  Certificates

  	
   

  
	
   

  	
  11.4.

  	
  Rights of
  Holders of Restricted Stock

  	
   

  
	
   

  	
  11.5.

  	
  Rights of Holders of
  Stock Units

  	
   

  



 


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  11.5.1.

  	
  Voting
  and Dividend Rights

  	
   

  
	
   

  	
   

  	
  11.5.2.

  	
  Creditor’s
  Rights

  	
   

  
	
   

  	
  11.6.

  	
  Termination of Service

  	
   

  
	
   

  	
  11.7.

  	
  Purchase of Restricted Stock

  	
   

  
	
   

  	
  11.8.

  	
  Delivery
  of Stock

  	
   

  
	
  12.

  	
  UNRESTRICTED STOCK AWARDS

  	
   

  
	
  13.

  	
  FORM OF
  PAYMENT FOR OPTIONS AND RESTRICTED STOCK

  	
   

  
	
   

  	
  13.1.

  	
  General
  Rule

  	
   

  
	
   

  	
  13.2.

  	
  Surrender
  of Stock

  	
   

  
	
   

  	
  13.3.

  	
  Cashless
  Exercise

  	
   

  
	
   

  	
  13.4.

  	
  Other Forms of Payment

  	
   

  
	
  14.

  	
  DIVIDEND EQUIVALENT RIGHTS

  	
   

  
	
   

  	
  14.1.

  	
  Dividend Equivalent Rights

  	
   

  
	
   

  	
  14.2.

  	
  Termination of Service

  	
   

  
	
  15.

  	
  PERFORMANCE AND
  ANNUAL INCENTIVE AWARDS

  	
   

  
	
   

  	
  15.1.

  	
  Performance Conditions

  	
   

  
	
   

  	
  15.2.

  	
  Performance
  or Annual Incentive Awards Granted to Designated Covered Employees

  	
   

  
	
   

  	
   

  	
  15.2.1.

  	
  Performance
  Goals Generally

  	
   

  
	
   

  	
   

  	
  15.2.2.

  	
  Business
  Criteria

  	
   

  
	
   

  	
   

  	
  15.2.3.

  	
  Timing
  For Establishing Performance Goals

  	
   

  
	
   

  	
   

  	
  15.2.4.

  	
  Settlement
  of Performance or Annual Incentive Awards; Other Terms

  	
   

  
	
   

  	
  15.3.

  	
  Written Determinations

  	
   

  
	
   

  	
  15.4.

  	
  Status
  of Section 15.2 Awards Under Code Section 162(m)

  	
   

  
	
  16.

  	
  PARACHUTE LIMITATIONS

  	
   

  
	
  17.

  	
  REQUIREMENTS OF LAW

  	
   

  
	
   

  	
  17.1.

  	
  General

  	
   

  
	
   

  	
  17.2.

  	
  Rule 16b-3

  	
   

  
	
  18.

  	
  EFFECT OF CHANGES
  IN CAPITALIZATION

  	
   

  
	
   

  	
  18.1.

  	
  Changes
  in Stock

  	
   

  
	
   

  	
  18.2.

  	
  Reorganization
  in Which the Company Is the Surviving Entity Which does not Constitute a
  Corporate Transaction

  	
   

  
	
   

  	
  18.3.

  	
  Corporate Transaction

  	
   

  
	
   

  	
  18.4.

  	
  Adjustments

  	
   

  
	
   

  	
  18.5.

  	
  No Limitations on Company

  	
   

  
	
  19.

  	
  GENERAL PROVISIONS

  	
   

  
	
   

  	
  19.1.

  	
  Disclaimer
  of Rights

  	
   

  
	
   

  	
  19.2.

  	
  Nonexclusivity of the Plan

  	
   

  
	
   

  	
  19.3.

  	
  Withholding
  Taxes

  	
   

  
	
   

  	
  19.4.

  	
  Captions

  	
   

  
	
   

  	
  19.5.

  	
  Other
  Provisions

  	
   

  
	
   

  	
  19.6.

  	
  Number
  And Gender

  	
   

  
	
   

  	
  19.7.

  	
  Severability

  	
   

  
	
   

  	
  19.8.

  	
  Governing
  Law

  	
   

  



 


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NEW PLAN EXCEL REALTY TRUST, INC.


 


2003 STOCK INCENTIVE PLAN


As amended and restated effective July 14,
2005


 


New Plan Excel Realty Trust, Inc., a Maryland
corporation (the “Company”), sets forth herein the terms of its 2003 Stock
Incentive Plan, as amended and restated effective July 14, 2005 (the “Plan”),
as follows:


 


1.                                      PURPOSE


 


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


 


Furthermore, this Plan is an amendment and restatement of the New Plan
Excel Realty Trust, Inc. 2003 Stock Incentive Plan (the “2003 Plan”),
reflecting a consolidation of the Prior Plans (defined below) with and into the
2003 Plan.  Prior to this amendment and
restatement, the Company also had options outstanding under the New Plan Excel
Realty Trust, Inc. Directors’ 1994 Stock Option Plan, as amended (the “1994
Plan”), the 1993 Stock Option Plan of New Plan Excel Realty Trust, Inc.,
as amended (the “1993 Plan”), the New Plan Realty Trust 1991 Stock Option Plan,
as amended (the “1991 Plan”), and two option agreements dated February 23,
2003 granting options to Glenn J. Rufrano (the “Rufrano Agreements” and,
together with the 1994 Plan, the 1993 Plan, and the 1991 Plan, the “Prior Plans”).  This Plan document therefore is intended to
preserve material rights and features of awards that remain outstanding under the
Prior Plans on July 14, 2005, and should any material provision of this
Plan be determined to impair the rights of a Grantee under an Award granted
prior to the Effective Date of this amended and restated Plan, the terms of the
Award Agreement covering the Award shall govern the issue.


 


2.                                      DEFINITIONS


 


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


 


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


 





















 


2.2                                 “Annual Incentive Award” means an Award made subject to
attainment of performance goals (as described in Section 15)
over a performance period of up to one year (the fiscal year, unless otherwise
specified by the Committee).


 


2.3                                 “Award” means a grant of an Option, Stock Appreciation
Right, Restricted Stock, Stock Unit, Dividend Equivalent Right or Unrestricted
Stock under the Plan.


 


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


 


2.5                                 “Benefit Arrangement” shall have the meaning set forth in Section 16 hereof.


 


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


 


2.7                                 “Cause” means, as
determined by the Board and unless otherwise provided in an applicable
agreement with the Company or an Affiliate, (i) gross negligence or
willful misconduct in connection with the performance of duties; (ii) conviction
of a criminal offense (other than minor traffic offenses); or (iii) material
breach of any term of any employment, consulting or other services,
confidentiality, intellectual property or non-competition agreements, if any,
between the Service Provider and the Company or an Affiliate.


 


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


 


2.9                                 “Committee” means a committee of, and designated from time
to time by resolution of, the Board, which shall be constituted as provided in Section 3.2.


 


2.10                           “Company” means New Plan Excel Realty Trust, Inc.


 


2.11                           “Corporate Transaction” means
(i) the dissolution or liquidation of the Company or a merger,
consolidation, or reorganization of the Company with one or more other entities
in which the Company is not the surviving entity, (ii) a sale of all or
substantially all of the assets of the Company to another person or entity, or (iii) any
transaction (including without limitation a merger, consolidation or
reorganization in which the Company is the surviving entity) which results in
any person or entity (other than persons who are shareholders or Affiliates
immediately prior to the transaction) owning 80% or more of the combined voting
power of all classes of stock of the Company.


 


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


 


2.13                           “Director”
means a member of the Board.


 


2.14                           “Disability”
means the Grantee is unable to perform each of the essential duties of such
Grantee’s position by reason of a medically determinable physical or mental


 


2





















 


impairment
which is potentially permanent in character or which can be expected to last
for a continuous period of not less than 12 months; provided, however, that,
with respect to rules regarding expiration of an Incentive Stock Option
following termination of the Grantee’s Service, Disability shall mean the
Grantee is unable to engage in any substantial gainful activity by reason of a
medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.


 


2.15                           “Dividend Equivalent Right”
means a right, granted to a Grantee under Section 14
hereof, to receive cash, Stock, other Awards or other property equal in value
to dividends paid with respect to a specified number of shares of Stock, or
other periodic payments.


 


2.16                           “Effective Date” means the date the Plan was originally approved
by the Company’s stockholders, provided that, the Effective Date of the amended
and restated Plan is July 14, 2005.


 


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


 


2.18                           “Executive Officer” means an executive
officer within the meaning of the Sarbanes-Oxley Act of 2002.  For this purpose, and without limiting the
foregoing, Executive Officer will include an “executive officer” of the Company
within the meaning of Rule 3b-7 under the Exchange Act.


 


2.19                           “Fair Market Value” means the value of a share of Stock,
determined as follows:  if on the Grant
Date or other determination date the Stock is listed on the New York Stock
Exchange or another established national or regional stock exchange, is
admitted to quotation on The Nasdaq Stock Market, Inc. or is publicly
traded on an established securities market, the Fair Market Value of a share of
Stock shall be the closing price of the Stock on the New York Stock Exchange
composite tape, or if not listed on the New York Stock Exchange, such other
exchange or in such market (if there is more than one such exchange or market
and the Stock is not listed on the New York Stock Exchange, the Board shall
determine the appropriate exchange or market) on the last trading day preceding
the Grant Date or such other determination date (or if there is no such
reported closing price, the Fair Market Value shall be the mean between the
highest bid and lowest asked prices or between the high and low sale prices on
such last preceding trading day) or, if no sale of Stock is reported for such
trading day, on the next preceding day on which any sale shall have been
reported.  If the Stock is not listed on
such an exchange, quoted on such system or traded on such a market, Fair Market
Value shall be the value of the Stock as determined by the Board in good faith.


 


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


 


3





















 


one or
more of these persons (or the Grantee) own more than fifty percent of the
voting interests.


 


2.21                           “Grant Date” means, as determined by the Board, the latest
to occur of (i) the date as of which the
Board approves an Award, (ii) the date on which the recipient of an Award
first becomes eligible to receive an Award under Section 6
hereof, or (iii) such other date as may be specified by the Board.


 


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


 


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


 


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


 


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


 


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


 


2.27                           “Other Agreement” shall have the meaning set forth in Section 16 hereof.


 


2.28                           “Outside Director” means a member of the Board who is not an
officer or employee of the Company.


 


2.29                           “Performance Award” means an Award made subject to the
attainment of performance goals (as described in Section 15)
over a performance period of up to ten (10) years.


 


2.30                           “Plan” means this New Plan Excel Realty Trust, Inc.
2003 Stock Incentive Plan, as amended and restated effective July 14,
2005.


 


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


 


2.32                           “Reporting Person” means a person who is required to file
reports under Section 16(a) of the Exchange Act.


 


2.33                           “Restricted Stock” means shares of Stock awarded to a
Grantee pursuant to Section 11
hereof.


 


2.34                           “SAR Exercise Price” means the per share exercise price of
an SAR granted to a Grantee under Section 10
hereof.


 


4





















 


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


 


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


 


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


 


2.38                           “Stock” means the common stock, par value $.01 per share, of
the Company.


 


2.39                           “Stock Appreciation Right” or “SAR”
means a right granted to a Grantee under Section 10
hereof.


 


2.40                           “Stock Unit” means a bookkeeping entry representing the
equivalent of shares of Stock, awarded to a Grantee pursuant to Section 11 hereof.


 


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


 


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


 


2.43                           “Unrestricted Stock” means shares of Stock awarded to a
Grantee pursuant to Section 12 hereof.


 


3.                                      ADMINISTRATION OF THE PLAN


 


3.1.                            Board


 


The Board shall have such powers and authorities
related to the administration of the Plan as are consistent with the Company’s
articles of incorporation and by-laws and applicable law.  The Board shall have full power and authority
to take all actions and to make all determinations required or provided for
under the Plan, any Award or any Award Agreement, and shall have full power and
authority to take all such other actions and make all such other determinations
not inconsistent with the specific terms and provisions of the Plan that the
Board deems to be necessary or appropriate to the administration of the Plan,
any Award or any Award Agreement.  All
such actions and determinations shall be by the affirmative vote of a majority
of the members of the Board present at a meeting or by unanimous consent of the
Board executed in writing in accordance with the Company’s articles of
incorporation and by-laws and applicable law. 
The interpretation and construction


 


5





















 


by the
Board of any provision of the Plan, any Award or any Award Agreement shall be
final, binding and conclusive.


 


3.2.                            Committee.


 


The Board from time to time may delegate to the
Committee such powers and authorities related to the administration and
implementation of the Plan, as set forth in Section 3.1
above and other applicable provisions, as the Board shall determine, consistent
with the articles of incorporation and by-laws of the Company and applicable
law.


 


(i)                                     Except
as provided in Subsection (ii) and except as the Board may otherwise
determine, the Committee, if any, appointed by the Board to administer the Plan
shall consist of two or more Outside Directors of the Company who: (a) qualify
as “outside directors” within the meaning of Section 162(m) of the Code
and (b) meet such other requirements as may be established from time to
time by the Securities and Exchange Commission for plans intended to qualify
for exemption under Rule 16b-3 (or its successor) under the Exchange Act.


 


(ii)                                  The
Board or the Committee may also appoint one or more separate committees of the
Board, each composed of one or more directors of the Company who need not be
Outside Directors, who may administer the Plan with respect to employees or
other Service Providers who are not officers or directors of the Company, may
grant Awards under the Plan to such employees or other Service Providers, and
may determine all terms of such Awards.


 


In the
event that the Plan, any Award or any Award Agreement entered into hereunder
provides for any action to be taken by or determination to be made by the
Board, such action may be taken or such determination may be made by the
Committee if the power and authority to do so has been delegated to the
Committee by the Board as provided for in this Section.  All such actions and determinations shall be
by the affirmative vote of a majority of the members of the Committee present
at a meeting or by unanimous consent of the Committee executed in writing in
accordance with the Company’s articles of incorporation and by-laws and
applicable law.  Unless otherwise
expressly determined by the Board, any such action or determination by the
Committee shall be final, binding and conclusive.


 


3.3.                            Terms of Awards.


 


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


 


(i)                                     designate
Grantees,


 


(ii)                                  determine
the type or types of Awards to be made to a Grantee,


 


(iii)                               determine the number of
shares of Stock to be subject to an Award,


 


6





















 


(iv)                              establish
the terms and conditions of each Award (including, but not limited to, the
exercise price of any Option, the nature and duration of any restriction or
condition (or provision for lapse thereof) relating to the vesting, exercise,
transfer, or forfeiture of an Award or the shares of Stock subject thereto, and
any terms or conditions that may be necessary to qualify Options as Incentive
Stock Options),


 


(v)                                 prescribe
the form of each Award Agreement evidencing an Award, and


 


(vi)                              amend,
modify, or supplement the terms of any outstanding Award.  Such authority specifically includes the
authority, in order to effectuate the purposes of the Plan but without amending
the Plan, to modify Awards to eligible individuals who are foreign nationals or
are individuals who are employed outside the United States to recognize
differences in local law, tax policy, or custom; provided, however, such
authority does not include the authority to decrease the Option Price of any
Option after the date of grant except for adjustments pursuant to Section 18.


 


Subject to the terms and conditions of the Plan, any
such new Award shall be upon such terms and conditions as are specified by the
Board at the time the new Award is made. 
The Board shall have the right, in its discretion, to make Awards in
substitution or exchange for any other award under another plan of the Company,
any Affiliate, or any business entity to be acquired by the Company or an
Affiliate.  The Company may retain the
right in an Award Agreement to cause a forfeiture of the gain realized by a
Grantee on account of actions taken by the Grantee in violation or breach of or
in conflict with any employment agreement, non-competition agreement, any
agreement prohibiting solicitation of employees or clients of the Company or
any Affiliate thereof or any confidentiality
obligation with respect to the Company or any Affiliate thereof
or otherwise acting in competition with the Company or any Affiliate thereof,
to the extent specified in such Award Agreement applicable to the Grantee.  Furthermore, except to the extent otherwise
provided in an agreement or contract with a Grantee, the Company may annul an
Award if the Grantee is an employee of the Company or an Affiliate thereof and
is terminated for Cause as defined in the applicable Award Agreement or the
Plan, as applicable. The grant of any Award may be contingent upon the Grantee
executing the appropriate Award Agreement.


 


3.4.                            Deferral Arrangement.


 


The Board may permit the deferral of any award payment
into a deferred compensation arrangement, subject to such rules and
procedures as it may establish, which may include provisions for the payment or
crediting of interest or dividend equivalents, including converting such
credits into deferred Stock equivalents and restricting deferrals to comply
with hardship distribution rules affecting 401(k) plans.


 


3.5.                            No Liability.


 


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


 


7





















 


4.                                      STOCK SUBJECT TO THE PLAN


 


Subject to adjustment as provided in Section 18 hereof, the number of shares of Stock
available for issuance under the Plan shall be four million seven hundred fifty
thousand (4,750,000) shares, plus the number of shares that remain outstanding
on July 14, 2005 under options originally granted under a Prior Plan (“Prior
Plan Options”).  The number of additional
shares relating to the Prior Plan Options shall be referred to as the “Prior
Plan Shares,” and, in determining the number of shares added to those otherwise
available for issuance under the Plan, the number of Prior Plan Shares shall be
determined without regard to any adjustment made pursuant to the final sentence
of Section 18.1 to Prior Plan Options
on or after July 14, 2005.


 


Notwithstanding the preceding paragraph, the aggregate
number of shares of Stock which cumulatively may be available for issuance
pursuant to Awards other than Awards of Options shall not exceed one million
(1,000,000) shares.


 


Stock issued or to be issued under the Plan shall be
authorized but unissued shares.  If any Award
shares other than Prior Plan Shares are not purchased or are forfeited, or if
an Award otherwise terminates without delivery of any Stock subject thereto
that is not a Prior Plan Share, then the number of shares of Stock counted
against the aggregate number of shares available under the Plan with respect to
such Award shall, to the extent of any such forfeiture or termination, again be
available for making Awards under the Plan. 
If any Prior Plan Option or portion thereof is forfeited, is not
purchased or otherwise terminates without delivery of Stock subject thereto, the
Prior Plan Shares relating to such forfeited or expired option or portion
thereof shall cease to be available for issuance under the Plan.


 


If the Option Price of any Option granted under the
Plan, or if pursuant to Section 19.3 the
withholding obligation of any Grantee with respect to an Option, is satisfied
by tendering shares of Stock to the Company (by either actual delivery or by
attestation) or by withholding shares of Stock, only the number of shares of
Stock issued net of the shares of Stock tendered or withheld shall be deemed
issued for purposes of determining the maximum number of shares of Stock
available for issuance under the Plan. 
Notwithstanding the preceding sentence, in no event shall any Prior Plan
Share again be made available for making Awards under the Plan in connection
with or following exercise of the Prior Plan Option or portion thereof to which
the share relates.


 


5.                                      EFFECTIVE DATE, DURATION AND
AMENDMENTS


 


5.1.                            Effective Date.


 


The Plan shall be effective as of the Effective Date.


 


5.2.                            Term.


 


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


 


8





















 


5.3.                            Amendment and Termination of the
Plan


 


The Board may, at any time and from time to time,
amend, suspend, or terminate the Plan as to any shares of Stock as to which
Awards have not been made.  An amendment
shall be contingent on approval of the Company’s stockholders to the extent
stated by the Board, required by applicable law or required by applicable stock
exchange listing requirements.  No Awards
shall be made after termination of the Plan. 
No amendment, suspension, or termination of the Plan shall, without the
consent of the Grantee, impair rights or obligations under any Award
theretofore awarded under the Plan.


 


6.                                      AWARD ELIGIBILITY AND LIMITATIONS


 


6.1.                            Company or Subsidiary Employees;
Service Providers;


 


Subject to this Section 6,
Awards may be made under the Plan to: (i)  any Service Provider to the
Company or of any Affiliate, including any such Service Provider who is an
officer or director of the Company, or of any Affiliate, as the Board shall
determine and designate from time to time, (ii) any Outside Director, and (iii) any
other individual whose participation in the Plan is determined to be in the
best interests of the Company by the Board.


 


6.2.                            Successive Awards.


 


An eligible person as described in Section 6.1 may receive more than one
Award, subject to such restrictions as are provided herein.


 


6.3.                            Limitation on Shares of Stock
Subject to Awards.


 


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


 


(i)                                     the
maximum number of shares of Stock subject to Options that can be awarded under
the Plan to any person eligible for an Award under Section 6
hereof is four million seven hundred fifty thousand (4,750,000); and


 


(ii)                                  the
maximum number of shares that can be awarded under the Plan, other than
pursuant to an Option to any person eligible for an Award under Section 6 hereof is one million (1,000,000).


 


The preceding limitations in this Section 6.3(i) and
(ii) are subject to adjustment as provided in Section 18 hereof.


 


6.4.                            Limitations on Incentive Stock
Options.


 


An Option shall constitute an Incentive Stock Option
only (i) if the Grantee of such Option is an employee of the Company or
any Subsidiary of the Company; (ii) to the extent specifically provided in
the related Award Agreement; and (iii) to the extent that the aggregate
Fair Market Value (determined at the time the Option is granted) of the shares
of Stock with respect to which all Incentive Stock Options held by such Grantee
become


 


9





















 


exercisable
for the first time during any calendar year (under the Plan and all other plans
of the Grantee’s employer and its Affiliates) does not exceed $100,000.  This limitation shall be applied by taking
Options into account in the order in which they were granted.


 


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


 


Awards
granted under the Plan may, in the discretion of the Board, be granted either alone
or in addition to, in tandem with, or in substitution or exchange for, any
other Award or any award granted under another plan of the Company, any
Affiliate, or any business entity to be acquired by the Company or an
Affiliate, or any other right of a Grantee to receive payment from the Company
or any Affiliate.  Such additional,
tandem, and substitute or exchange Awards may be granted at any time.  If an Award is granted in substitution or
exchange for another Award, the Board shall require the surrender of such other
Award in consideration for the grant of the new Award.  Notwithstanding the foregoing, an
outstanding Option granted under the Plan may not be surrendered to the Company
as consideration for the grant of a new Option with a lower exercise
price.  In addition, Awards may be
granted in lieu of cash compensation, including in lieu of cash amounts payable
under other plans of the Company or any Affiliate, in which the value of Stock
subject to the Award is equivalent in value to the cash compensation (for
example, Stock Units or Restricted Stock), or in which the Option Price, grant
price or purchase price of the Award in the nature of a right that may be
exercised is equal to the Fair Market Value of the underlying Stock minus the
value of the cash compensation surrendered (for example, Options granted with
an Option Price “discounted” by the amount of the cash compensation
surrendered).


 


7.                                      AWARD AGREEMENT


 


Each
Award granted pursuant to the Plan shall be evidenced by an Award Agreement, in
such form or forms as the Board shall from time to time determine.  Award Agreements granted from time to time or
at the same time need not be uniform among all Awards issued pursuant to the
Plan, and may reflect distinctions among Awards but shall not be inconsistent
with the terms of the Plan.  Each Award
Agreement evidencing an Award of Options shall specify whether such Options are
intended to be Non-qualified Stock Options or Incentive Stock Options, and in
the absence of such specification such options shall be deemed Non-qualified
Stock Options.


 


8.                                      TERMS AND CONDITIONS OF OPTIONS


 


8.1.                            Option Price


 


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


 


10





















 


8.2.                            Vesting.


 


Subject to Sections 8.3 and 18.3
hereof, each Option granted under the Plan shall become exercisable at such
times and under such conditions as shall be determined by the Board and stated
in the Award Agreement.  For purposes of
this Section 8.2, fractional numbers of
shares of Stock subject to an Option shall be rounded down to the next nearest
whole number. The Board may provide, for example, in the Award Agreement for (i) accelerated
exercisability of some or all of the Option in the event the Grantee’s Service
terminates on account of death, Disability or another event, (ii) expiration
of the Option prior to its term in the event of the termination of the Grantee’s
Service, or (iii) immediate forfeiture of the Option in the event the
Grantee’s Service is terminated for Cause subject to the terms of any
employment agreement.  No Option shall be
exercisable in whole or in part prior to the date the Plan is approved by the
Stockholders of the Company as provided in Section 5.1
hereof.


 


8.3.                            Term.


 


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


 


8.4.                            Termination of Service.


 


Each Award Agreement shall set forth the extent to
which the Grantee shall have the right to exercise the Option following
termination of the Grantee’s Service. 
Such provisions shall be determined in the sole discretion of the Board.


 


8.5.                            Limitations on Exercise of Option.


 


Notwithstanding any other provision of the Plan, in no
event may any Option be exercised, in whole or in part, prior to the date the
Plan is approved by the stockholders of the Company as provided herein, or
after ten years following the Grant Date, or after the occurrence of an event
referred to in Section 18 hereof which results
in termination of the Option.


 


8.6.                            Method of Exercise.


 


An Option that is exercisable shall be exercised by
the Grantee’s delivery to the Company of written notice of exercise on any
business day, at the Company’s principal office, on the form specified by the
Company or as otherwise permitted by the Company.  Such notice shall specify the number of
shares of Stock with respect to which the Option is being exercised and shall
be accompanied by payment in full of the Option Price of the shares for which
the Option is being exercised.  The
minimum number of shares of Stock with respect to which an Option may be
exercised, in whole or in part, at any time shall be the lesser of (i)


 


11





















 


100
shares or such lesser number set forth in the applicable Award Agreement and (ii) the
maximum number of shares available for purchase under the Option at the time of
exercise.


 


8.7.                            Rights of Holders of Options


 


Unless otherwise stated in the applicable Award
Agreement, an individual holding or exercising an Option shall have none of the
rights of a stockholder (for example, the right to receive cash or dividend
payments or distributions attributable to the subject shares of Stock or to
direct the voting of the subject shares of Stock) until the shares of Stock
covered thereby are fully paid and issued to him.  Except as provided in Section 18
hereof, no adjustment shall be made for dividends, distributions or other
rights for which the record date is prior to the date of such issuance.


 


8.8.                            Delivery of Stock Certificates.


 


Promptly after the exercise of an Option by a Grantee
and the payment in full of the Option Price, such Grantee shall be entitled to
the issuance of a stock certificate or certificates evidencing his or her
ownership of the shares of Stock subject to the Option.


 


8.9.                                        Book Entry


 


Notwithstanding any other
provision of this Plan to the contrary, the Company may, in its discretion, use
the book entry method for recording Stock issuances in lieu of issuing stock
certificates.


 


9.                                      TRANSFERABILITY OF OPTIONS


 


9.1.                            Transferability of Options


 


Except as provided in Section 9.2,
during the lifetime of a Grantee, only the Grantee (or, in the event of legal
incapacity or incompetency, the Grantee’s guardian or legal representative) may
exercise an Option.  Except as provided
in Section 9.2, no Option shall be
assignable or transferable by the Grantee to whom it is granted, other than by
will or the laws of descent and distribution.


 


9.2.                            Family Transfers.


 


Unless otherwise provided in the applicable Award
Agreement, a Grantee may transfer, not for value, all or part of an Option
which is not an Incentive Stock Option to any Family Member.  For the purpose of this Section 9.2,
a “not for value” transfer is a transfer which is (i) a gift, (ii) a
transfer under a domestic relations order in settlement of marital property
rights; or (iii) a transfer to an entity in which more than fifty percent
of the voting interests are owned by Family Members (or the Grantee) in
exchange for an interest in that entity. 
Following a transfer under this Section 9.2,
any such Option shall continue to be subject to the same terms and conditions
as were applicable immediately prior to transfer.  Subsequent transfers of transferred Options
are prohibited except to Family Members of the original Grantee in accordance
with this Section 9.2 or by will or the laws
of descent and distribution.  The events
of termination of Service of Section 8.4
hereof shall continue to be applied with respect to the original Grantee,
following which the


 


12





















 


Option
shall be exercisable by the transferee only to the extent, and for the periods
specified, in Section 8.4.


 


10.                               STOCK APPRECIATION RIGHTS


 


10.1.                     Right to Payment.


 


A SAR shall confer on the Grantee to whom it is
granted a right to receive, upon exercise thereof, the excess of (A) the
Fair Market Value of one share of Stock on the date of exercise over (B) the
grant price of the SAR as determined by the Board.  The Award Agreement for an SAR shall specify
the grant price of the SAR, which may be fixed at the Fair Market Value of a
share of Stock on the date of grant or may vary in accordance with a
predetermined formula while the SAR is outstanding.


 


10.2.                     Other Terms.


 


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


 


11.                               RESTRICTED STOCK AND STOCK UNITS


 


11.1.                     Grant of Restricted Stock or Stock
Units.


 


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


 


11.2.                     Restrictions.


 


At the time a grant of Restricted Stock or Stock Units
is made, the Board may, in its sole discretion, establish a period of time (a “restricted
period”) applicable to such Restricted Stock or Stock Units.  Each Award of Restricted Stock or Stock Units
may be subject to a different restricted period.  The Board may, in its sole discretion, at the
time a grant of Restricted Stock or Stock Units is made, prescribe restrictions
in addition to or other than the expiration of the restricted period, including
the satisfaction of corporate or individual performance objectives, which may
be applicable to all or any portion of the Restricted Stock or Stock Units in
accordance with Section 15.1 and 15.2.  Neither
Restricted Stock nor Stock Units may be sold, transferred, assigned, pledged or
otherwise encumbered or disposed of during the restricted period or prior to
the satisfaction of any other restrictions prescribed by the Board with respect
to such Restricted Stock or Stock Units.


 


13





















 


11.3.                     Restricted Stock Certificates.


 


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


 


11.4.                     Rights of Holders of Restricted
Stock.


 


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


 


11.5.                     Rights of Holders of Stock Units.


 


11.5.1.           Voting and Dividend Rights.


 


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


 


11.5.2.           Creditor’s Rights.


 


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


 


11.6.                     Termination of Service.


 


Unless the Board otherwise provides in an Award
Agreement or in writing after the Award Agreement is issued, upon the
termination of a Grantee’s Service, any Restricted Stock or Stock Units held by
such Grantee that have not vested, or with respect to which all applicable
restrictions and conditions have not lapsed, shall immediately be deemed
forfeited.


 


14





















 


Upon
forfeiture of Restricted Stock or Stock Units, the Grantee shall have no
further rights with respect to such Award, including but not limited to any
right to vote Restricted Stock or any right to receive dividends or other
distributions with respect to shares of Restricted Stock or Stock Units.


 


11.7.                     Purchase of Restricted Stock.


 


The Grantee shall be required, to the extent required
by applicable law, to purchase the Restricted Stock from the Company at a
Purchase Price equal to the greater of (i) the aggregate par value of the
shares of Stock represented by such Restricted Stock or (ii) the Purchase
Price, if any, specified in the Award Agreement relating to such Restricted
Stock.  The Purchase Price shall be
payable in a form described in Section 13 or,
in the discretion of the Board, in consideration for past Services rendered to
the Company or an Affiliate.


 


11.8.                     Delivery of Stock.


 


Upon the expiration or termination of any restricted
period and the satisfaction of any other conditions prescribed by the Board,
the restrictions applicable to shares of Restricted Stock or Stock Units shall
lapse, and, unless otherwise provided in the Award Agreement, a stock
certificate for such shares shall be delivered, free of all such restrictions,
to the Grantee or the Grantee’s beneficiary or estate, as the case may be.  If the restricted period has not expired or
terminated as to all of the shares of Restricted Stock covered by a
certificates for the Restricted Stock that has previously been delivered to the
Grantee, as provided in Section 11.3,
a new certificate for the remaining shares of Restricted Stock shall be
delivered to the Grantee which certificate shall bear a legend or legends that
comply with the applicable securities laws and regulations and makes
appropriate reference to the restrictions imposed under the Plan and the Award
Agreement.


 


12.                               UNRESTRICTED STOCK AWARDS


 


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


 


13.                               FORM OF PAYMENT FOR OPTIONS
AND RESTRICTED STOCK


 


13.1.                     General Rule.


 


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


 


13.2.                     Surrender of Stock.


 


To the extent the Award Agreement so provides, payment
of the Option Price for shares purchased pursuant to the exercise of an Option
or the Purchase Price for


 


15





















 


Restricted
Stock may be made all or in part through the tender to the Company of shares of
Stock (by either actual delivery or by attestation), which shares, if acquired
from the Company, shall have been held for at least six months at the time of
tender and which shall be valued, for purposes of determining the extent to
which the Option Price or Purchase Price has been paid thereby, at their Fair
Market Value.


 


13.3.                     Cashless Exercise.


 


With respect to an Option only (and not with respect
to Restricted Stock), to the extent the Award Agreement so provides, and
subject to other restrictions the Company may impose on the sale of Stock,
payment of the Option Price for shares purchased pursuant to the exercise of an
Option may be made all or in part by delivery (on a form acceptable to the
Board) of an irrevocable direction to a licensed securities broker acceptable
to the Company to sell shares of Stock and to deliver all or part of the sales
proceeds to the Company in payment of the Option Price and any withholding
taxes described in Section 19.3.  Executive Officers and Directors will not be
permitted to use the cashless method of exercise described in this paragraph
without the express prior consent of the Company and only to the extent
permitted by law.


 


13.4.                     Other Forms of Payment.


 


To the extent the Award Agreement so provides or as
otherwise agreed by the Board, payment of the Option Price for shares purchased
pursuant to exercise of an Option or the Purchase Price for Restricted Stock
may be made in any other form that is consistent with applicable laws,
regulations and rules.


 


14.                               DIVIDEND EQUIVALENT RIGHTS


 


14.1.                     Dividend Equivalent Rights.


 


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


 


16





















 


14.2.                     Termination of Service.


 


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


 


15.                               PERFORMANCE AND ANNUAL INCENTIVE
AWARDS


 


15.1.                     Performance Conditions


 


The
right of a Grantee to exercise or receive a grant or settlement of any Award,
and the timing thereof, may be subject to such performance conditions as may be
specified by the Board.  The Board may
use such business criteria and other measures of performance as it may deem
appropriate in establishing any performance conditions, and may exercise its
discretion to reduce the amounts payable under any Award subject to performance
conditions, except as limited under Sections 15.2 hereof
in the case of a Performance Award or Annual Incentive Award intended to
qualify under Code Section 162(m). 
If and to the extent required under Code Section 162(m), any power
or authority relating to a Performance Award or Annual Incentive Award intended
to qualify under Code Section 162(m), shall be exercised by the Committee
and not the Board.


 


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


 


If
and to the extent that the Committee determines that a Performance or Annual
Incentive Award to be granted to a Grantee who is designated by the Committee
as likely to be a Covered Employee should qualify as “performance-based
compensation” for purposes of Code Section 162(m), the grant, exercise
and/or settlement of such Performance or Annual Incentive Award shall be
contingent upon achievement of pre-established performance goals and other
terms set forth in this Section 15.2.


 


15.2.1.           Performance Goals Generally.


 


The performance goals for such Performance or Annual
Incentive Awards shall consist of one or more business criteria and a targeted
level or levels of performance with respect to each of such criteria, as
specified by the Committee consistent with this Section 15.2.  Performance goals shall be objective and
shall otherwise meet the requirements of Code Section 162(m) and
regulations thereunder including the requirement that the level or levels of
performance targeted by the Committee result in the achievement of performance
goals being “substantially uncertain.” 
The Committee may determine that such Performance or Annual Incentive
Awards shall be granted, exercised and/or settled upon achievement of any one
performance goal or that two or more of the performance goals must be achieved
as a condition to grant, exercise and/or settlement of such Performance or
Annual Incentive Awards.  Performance
goals may differ for Performance or Annual Incentive Awards granted to any one
Grantee or to different Grantees.


 


17





















 


15.2.2.           Business Criteria.


 


One or more of the following business criteria for the
Company, on a consolidated basis, and/or specified subsidiaries or business
units of the Company (except with respect to the total stockholder return and
earnings per share criteria), shall be used exclusively by the Committee in
establishing performance goals for such Performance or Annual Incentive Awards:
(1) total stockholder return; (2) such total stockholder return as
compared to total return (on a comparable basis) of a publicly available index
such as, but not limited to, the Standard & Poor’s 500 Stock Index; (3) net
income; (4) pretax earnings; (5) earnings before interest expense,
taxes, depreciation and amortization; (6) pretax operating earnings after
interest expense and before bonuses, service fees, and extraordinary or special
items; (7) operating margin; (8) earnings per share; (9) return
on equity; (10) return on capital; (11) return on investment; (12)
operating earnings; (13) working capital; (14) ratio of debt to stockholders’
equity; (15) revenue and (16) funds from operations.


 


15.2.3.                       Timing For Establishing Performance
Goals.


 


Performance goals shall be established not later than
90 days after the beginning of any performance period applicable to such
Performance or Annual Incentive Awards, or at such other date as may be
required or permitted for “performance-based compensation” under Code Section 162(m).


 


15.2.4.                       Settlement of Performance or Annual
Incentive Awards; Other Terms.


 


Settlement of such Performance or Annual Incentive
Awards shall be in Stock, other Awards or other property, in the discretion of
the Committee.  The Committee may, in its
discretion, reduce the amount of a settlement otherwise to be made in
connection with such Performance or Annual Incentive Awards.  The Committee shall specify the circumstances
in which such Performance or Annual Incentive Awards shall be paid or forfeited
in the event of termination of Service by the Grantee prior to the end of a
performance period or settlement of Performance Awards.


 


15.3.                     Written Determinations.


 


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


 


15.4.                     Status of Section 15.2 Awards
Under Code Section 162(m)


 


It
is the intent of the Company that Performance Awards and Annual Incentive
Awards under Section 15.2 hereof granted
to persons who are designated by the


 


18





















 


Committee
as likely to be Covered Employees within the meaning of Code Section 162(m)
and regulations thereunder shall, if so designated by the Committee, constitute
“qualified performance-based compensation” within the meaning of Code Section 162(m)
and regulations thereunder.  Accordingly,
the terms of Section 15.2, including the
definitions of Covered Employee and other terms used therein, shall be
interpreted in a manner consistent with Code Section 162(m) and regulations
thereunder.  The foregoing
notwithstanding, because the Committee cannot determine with certainty whether
a given Grantee will be a Covered Employee with respect to a fiscal year that
has not yet been completed, the term Covered Employee as used herein shall mean
only a person designated by the Committee, at the time of grant of Performance
Awards or an Annual Incentive Award, as likely to be a Covered Employee with
respect to that fiscal year.  If any
provision of the Plan or any agreement relating to such Performance Awards or
Annual Incentive Awards does not comply or is inconsistent with the
requirements of Code Section 162(m) or regulations thereunder, such
provision shall be construed or deemed amended to the extent necessary to
conform to such requirements.


 


16.                               PARACHUTE LIMITATIONS


 


Notwithstanding any other provision of this Plan or of
any other agreement, contract, or understanding heretofore or hereafter entered
into by a Grantee with the Company or any Affiliate, except an agreement,
contract, or understanding hereafter entered into that expressly modifies or
excludes application of this paragraph (an “Other Agreement”), and
notwithstanding any formal or informal plan or other arrangement for the direct
or indirect provision of compensation to the Grantee (including groups or
classes of Grantees or beneficiaries of which the Grantee is a member), whether
or not such compensation is deferred, is in cash, or is in the form of a
benefit to or for the Grantee (a “Benefit Arrangement”), if the Grantee is a “disqualified
individual,” as defined in Section 280G(c) of the Code, any Option,
Restricted Stock or Stock Unit held by that Grantee and any right to receive
any payment or other benefit under this Plan shall not become exercisable or
vested (i) to the extent that such right to exercise, vesting, payment, or
benefit, taking into account all other rights, payments, or benefits to or for
the Grantee under this Plan, all Other Agreements, and all Benefit
Arrangements, would cause any payment or benefit to the Grantee under this Plan
to be considered a “parachute payment” within the meaning of Section 280G(b)(2) of
the Code as then in effect (a “Parachute Payment”) and (ii) if, as
a result of receiving a Parachute Payment, the aggregate after-tax amounts
received by the Grantee from the Company under this Plan, all Other Agreements,
and all Benefit Arrangements would be less than the maximum after-tax amount
that could be received by the Grantee without causing any such payment or
benefit to be considered a Parachute Payment. 
In the event that the receipt of any such right to exercise, vesting,
payment, or benefit under this Plan, in conjunction with all other rights,
payments, or benefits to or for the Grantee under any Other Agreement or any
Benefit Arrangement would cause the Grantee to be considered to have received a
Parachute Payment under this Plan that would have the effect of decreasing the
after-tax amount received by the Grantee as described in clause (ii) of
the preceding sentence, then the Grantee shall have the right, in the Grantee’s
sole discretion, to designate those rights, payments, or benefits under this
Plan, any Other Agreements, and any Benefit Arrangements that should be reduced
or eliminated so as to avoid having the payment or benefit to the Grantee under
this Plan be deemed to be a Parachute Payment.


 


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17.                               REQUIREMENTS OF LAW


 


17.1.                     General.


 


The Company shall not be required to sell or issue any
shares of Stock under any Award if the sale or issuance of such shares would
constitute a violation by the Grantee, any other individual exercising an
Option, or the Company of any provision of any law or regulation of any
governmental authority, including without limitation any federal or state
securities laws or regulations.  If at
any time the Company shall determine, in its discretion, that the listing,
registration or qualification of any shares 
subject to an Award upon any securities exchange or under any
governmental regulatory body is necessary or desirable as a condition of, or in
connection with, the issuance or purchase of shares hereunder, no shares of
Stock may be issued or sold to the Grantee or any other individual exercising
an Option pursuant to such Award unless such listing, registration,
qualification, consent or approval shall have been effected or obtained free of
any conditions not acceptable to the Company, and any delay caused thereby
shall in no way affect the date of termination of the Award.  Specifically, in connection with the
Securities Act, upon the exercise of any Option or the delivery of any shares
of Stock underlying an Award, unless a registration statement under such Act is
in effect with respect to the shares of Stock covered by such Award, the
Company shall not be required to sell or issue such shares unless the Board has
received evidence satisfactory to it that the Grantee or any other individual
exercising an Option may acquire such shares 
pursuant to an exemption from registration under the Securities
Act.  Any determination in this
connection by the Board shall be final, binding, and conclusive.  The Company may, but shall in no event be
obligated to, register any securities covered hereby pursuant to the Securities
Act.  The Company shall not be obligated
to take any affirmative action in order to cause the exercise of an Option or
the issuance of shares of Stock pursuant to the Plan to comply with any law or
regulation of any governmental authority. 
As to any jurisdiction that expressly imposes the requirement that an
Option shall not be exercisable until the shares of Stock covered by such
Option are registered or are exempt from registration, the exercise of such
Option (under circumstances in which the laws of such jurisdiction apply) shall
be deemed conditioned upon the effectiveness of such registration or the
availability of such an exemption.


 


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17.2.                     Rule 16b-3.


 


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


 


18.                               EFFECT OF CHANGES IN CAPITALIZATION


 


18.1.                     Changes in Stock.


 


If the number of outstanding shares of Stock is increased or decreased
or the shares of Stock are changed into or exchanged for a different number or
kind of shares or other securities of the Company on account of any
recapitalization, reclassification, stock split, reverse split, combination of
shares, exchange of shares, stock dividend or other distribution payable in
capital stock, or other increase or decrease in such shares, effected in all
such cases, without receipt of consideration by the Company occurring after the
Effective Date, the number and kinds of shares for which grants of Options and
other Awards may be made under the Plan shall be adjusted proportionately and
accordingly by the Company.  In addition,
the number and kind of shares for which Awards are outstanding shall be
adjusted proportionately and accordingly so that the proportionate interest of
the Grantee immediately following such event shall, to the extent practicable,
be the same as immediately before such event. 
Any such adjustment in outstanding Options or SARs shall not change the
aggregate Option Price or SAR Exercise Price payable with respect to shares
that are subject to the unexercised portion of an outstanding Option or SAR, as
applicable, but shall include a corresponding proportionate adjustment in the
Option Price or SAR Exercise Price per share. 
The conversion of any convertible securities of the Company shall not be
treated as an increase in shares effected without receipt of consideration.   Furthermore, in the event of any
distribution to the Company’s stockholders of securities of any other entity or
other assets (other than regular
quarterly dividends payable in cash or stock of the Company) without receipt of
consideration by the Company, the Company may, in such manner as the Company
deems appropriate, adjust (i) the number and kind of shares subject to
outstanding Options and/or (ii) the exercise price of outstanding Options to
reflect such distribution.


 


18.2.                     Reorganization in Which the Company
Is the Surviving Entity Which does not Constitute a Corporate Transaction.


 


Subject to Section 18.3
hereof, if the Company shall be the surviving entity in any reorganization,
merger, or consolidation of the Company with one or more other entities which
does not constitute a Corporate Transaction, any Option or SAR theretofore
granted pursuant to the Plan shall pertain to and apply to the securities to
which a holder of the number of shares of Stock subject to such Option or SAR
would have been entitled immediately following such reorganization, merger, or
consolidation, with a corresponding


 


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proportionate
adjustment of the Option Price or SAR Exercise Price per share so that the
aggregate Option Price or SAR Exercise Price thereafter shall be the same as
the aggregate Option Price or SAR Exercise Price of the shares remaining
subject to the Option or SAR immediately prior to such reorganization, merger,
or consolidation.  Subject to any
contrary language in an Award Agreement evidencing an Award, any restrictions
applicable to such Award shall apply as well to any replacement shares received
by the Grantee as a result of the reorganization, merger or consolidation.


 


18.3.                     Corporate Transaction.


 


Subject to the exceptions set forth in the last
sentence of this Section 18.3 and the last
sentence of Section 18.4:


 


(i)                                     upon
the occurrence of a Corporate Transaction, all outstanding shares of Restricted
Stock shall be deemed to have vested, and all restrictions and conditions
applicable to such shares of Restricted Stock shall be deemed to have lapsed,
immediately prior to the occurrence of such Corporate Transaction, and


 


(ii)                                  either
of the following two actions shall be taken:


 


(A)                              prior
to the scheduled consummation of a Corporate Transaction, all Options and SARs
outstanding hereunder shall become immediately exercisable and shall remain
exercisable for such reasonable period of time as the Board determines, or


 


(B)                                the
Board may elect, in its sole discretion, to cancel any outstanding Awards of
Options, Restricted Stock, and/or SARs and pay or deliver, or cause to be paid
or delivered, to the holder thereof an amount in cash or securities having a
value (as determined by the Board acting in good faith), in the case of
Restricted Stock, equal to the formula or fixed price per share paid to holders
of shares of Stock and, in the case of Options or SARs, equal to the product of
the number of shares of Stock subject to the Option or SAR (the “Award Shares”)
multiplied by the amount, if any, by which (I) the formula or fixed price per
share paid to holders of shares of Stock pursuant to such transaction exceeds
(II) the Option Price or SAR Exercise Price applicable to such Award Shares.


 


With respect to the Company’s establishment of an
exercise window, (i) any exercise of an Option or SAR during such period
shall be conditioned upon the consummation of the event and shall be effective
only immediately before the consummation of the event, and (ii) upon
consummation of any Corporate Transaction the Plan, and all outstanding but
unexercised Options and SARs shall terminate. 
The Board shall send written notice of an event that will result in such
a termination to all individuals who hold Options and SARs not later than the
time at which the Company gives notice thereof to its stockholders.  This Section 18.3
shall not apply to any Corporate Transaction to the extent that provision is
made in writing in connection with such Corporate Transaction for the
assumption or continuation of the Options, SARs and Restricted Stock
theretofore granted, or for the substitution for such Options, SARs and
Restricted Stock for new common stock options and stock appreciation rights and
new common stock restricted stock relating to the stock of a successor entity,
or a parent or subsidiary thereof, with appropriate adjustments as to the


 


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number
of shares and option and stock appreciation right exercise prices, in which event
the Plan, Options, SARs and Restricted Stock theretofore granted shall continue
in the manner and under the terms so provided.


 


18.4.                     Adjustments.


 


Adjustments under this Section 18
related to shares of Stock or securities of the Company shall be made by the
Board, whose determination in that respect shall be final, binding and
conclusive.  No fractional shares or
other securities shall be issued pursuant to any such adjustment, and any
fractions resulting from any such adjustment shall be eliminated in each case
by rounding downward to the nearest whole share. The Board shall determine the
effect of a Corporate Transaction upon Awards other than Options, SARs, and
Restricted Stock, and such effect shall be set forth in the appropriate Award
Agreement.  The Board may provide in the
Award Agreements at the time of grant, or any time thereafter with the consent
of the Grantee, for different provisions to apply to an Award in place of those
described in Sections 18.1, 18.2 and 18.3.


 


18.5.                     No Limitations on Company.


 


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


 


19.                               GENERAL PROVISIONS


 


19.1.                     Disclaimer of Rights


 


No provision in the Plan or in any Award or Award
Agreement shall be construed to confer upon any individual the right to remain
in the employ or service of the Company or any Affiliate, or to interfere in
any way with any contractual or other right or authority of the Company either
to increase or decrease the compensation or other payments to any individual at
any time, or to terminate any employment or other relationship between any
individual and the Company.  In addition,
notwithstanding anything contained in the Plan to the contrary, unless
otherwise stated in the applicable Award Agreement, no Award granted under the
Plan shall be affected by any change of duties or position of the Grantee, so
long as such Grantee continues to be a director, officer, consultant or
employee of the Company or an Affiliate. 
The obligation of the Company to pay any benefits pursuant to this Plan
shall be interpreted as a contractual obligation to pay only those amounts
described herein, in the manner and under the conditions prescribed
herein.  The Plan shall in no way be
interpreted to require the Company to transfer any amounts to a third party
trustee or otherwise hold any amounts in trust or escrow for payment to any
Grantee or beneficiary under the terms of the Plan.


 


19.2.                     Nonexclusivity of the Plan


 


Neither the adoption of the Plan nor the submission of
the Plan to the stockholders of the Company for approval shall be construed as
creating any limitations upon the right and authority of the Board to adopt
such other incentive compensation arrangements (which


 


23





















 


arrangements
may be applicable either generally to a class or classes of individuals or
specifically to a particular individual or particular individuals) as the Board
in its discretion determines desirable, including, without limitation, the
granting of stock options otherwise than under the Plan.


 


19.3.                     Withholding Taxes


 


The Company or an Affiliate, as the case may be, shall
have the right to deduct from payments of any kind otherwise due to a Grantee
any Federal, state, or local taxes of any kind required by law to be withheld
with respect to the vesting of or other lapse of restrictions applicable to an
Award or upon the issuance of any shares of Stock upon the exercise of an
Option or pursuant to an Award.  At the
time of such vesting, lapse, or exercise, the Grantee shall pay to the Company
or the Affiliate, as the case may be, any amount that the Company or the
Affiliate may reasonably determine to be necessary to satisfy such withholding
obligation.  Subject to the prior approval
of the Company or the Affiliate, which may be withheld by the Company or the
Affiliate, as the case may be, in its sole discretion, the Grantee may elect to
satisfy such obligations, in whole or in part, (i) by causing the Company
or the Affiliate to withhold shares of Stock otherwise issuable to the Grantee
or (ii) by delivering to the Company or the Affiliate shares of Stock
already owned by the Grantee.  The shares
of Stock so delivered or withheld shall have an aggregate Fair Market Value
equal to such withholding obligations. 
The Fair Market Value of the shares of Stock used to satisfy such
withholding obligation shall be determined by the Company or the Affiliate as
of the date that the amount of tax to be withheld is to be determined.  A Grantee who has made an election pursuant
to this Section 19.3 may satisfy his or
her withholding obligation only with shares of Stock that are not subject to
any repurchase, forfeiture, unfulfilled vesting, or other similar requirements.


 


19.4.                     Captions


 


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


 


19.5.                     Other Provisions


 


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


 


19.6.                     Number And Gender


 


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


 


19.7.                     Severability


 


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


 


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19.8.                     Governing Law


 


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


 


*    *    *


 


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The Plan originally was adopted by the Board as of  February 11, 2003, and approved by the stockholders
on May 14, 2003.


 


To reflect the amendment and restatement of the Plan by the Board
effective as of July 14, 2005, the Company has caused its authorized
officer to execute the Plan.


 


 


	
   

  	
  NEW
  PLAN EXCEL REALTY TRUST, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven F. Siegel

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Executive
  Vice President,

  General Counsel and Secretary

  	
   

  
					



 


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