Amended and Restated Glimcher Realty Trust 1997 Incentive Plan


     

    Exhibit
      4.5

     

     

    GLIMCHER
      REALTY TRUST

     

    AMENDED
      & RESTATED 1997 INCENTIVE PLAN

     

    GLIMCHER
      REALTY TRUST, a Maryland real estate investment trust (the “Company”), hereby
      establishes and adopts the following Amended & Restated 1997 Incentive Plan
      (the “Plan”).

     

    RECITALS

     

    WHEREAS,
      the Company desires to encourage high levels of performance by all employees
      and
      trustees of the Company and its affiliates, to attract new individuals who
      are
      highly motivated and who will contribute to the success of the Company and
      to
      encourage such individuals to remain as trustees and/or employees of the Company
      and its affiliates by increasing their proprietary interest in the Company’s
      growth and success;

     

    WHEREAS,
      to attain these ends, the Company has formulated the Plan embodied herein to
      authorize the granting of incentive awards through grants of share options
      (“Options”), grants of share appreciation rights, grants of Share Purchase
      Awards (hereafter defined), and grants of Restricted Share Awards (hereafter
      defined) to those individuals whose judgment, initiative and efforts are
      responsible for the success of the Company; and

     

    WHEREAS,
      the Plan has been amended on three occasions since its inception and
      adoption.

     

    NOW,
      THEREFORE, the Company hereby constitutes, establishes and adopts the following
      Plan and agrees to the following provisions:

     

    ARTICLE
      1.

     

    PURPOSE
      OF THE PLAN

     

    1.1. Purpose.
      The
      purpose of the Plan is to assist the Company in attracting and retaining
      selected individuals to serve as employees, trustees and officers of the Company
      and its affiliates who will contribute to the Company’s success and to achieve
      long-term objectives which will inure to the benefit of all shareholders of
      the
      Company through the additional incentive inherent in the ownership of the
      Company’s Common Shares of Beneficial Interest (the “Shares”). Options granted
      under the Plan will be either “incentive share options,” intended to qualify as
      such under the provisions of section 422 of the Internal Revenue Code of 1986,
      as from time to time amended (the “Code”), or “nonqualified share options.” For
      purposes of the Plan, the term “subsidiary” shall mean “subsidiary corporation,”
as such term is defined in section 424(f) of the Code, and “affiliate” shall
      mean any entity in which the Company directly or indirectly has an interest,
      as
      determined in the sole discretion of the Committee (hereafter defined). For
      purposes of the Plan, the term “Award” shall mean a grant of an Option, a Share
      Purchase Award, a Restricted Share Award, or any other award made under the
      terms of the Plan.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    ARTICLE
      2.

     

    SHARES
      SUBJECT TO AWARDS

     

    2.1. Number
      of Shares.
      Subject
      to the adjustment provisions of Section 9.9 hereof, the aggregate number of
      Shares which may be issued under Awards under the Plan, whether pursuant to
      Options, Share Purchase Awards or Restricted Share Awards shall not exceed
      3,000,000. No Options to purchase fractional Shares shall be granted or issued
      under the Plan. For purposes of this Section 2.1, the Shares that shall be
      counted toward such limitation shall include all Shares:

     

    (1)
      issued or issuable pursuant to Options that have been or may be
      exercised;

     

    (2)
      issued or issuable pursuant to Share Purchase Awards; and

     

    (3)
      issued as, or subject to issuance as a Restricted Share Award.

     

    2.2. Shares
      Subject to Terminated Awards.
      The
      Shares covered by any unexercised portions of terminated Options granted under
      Articles 4 and 6, Shares forfeited as provided in Section 8.2(a) and Shares
      subject to any Awards which are otherwise surrendered by the Participant without
      receiving any payment or other benefit with respect thereto may again be subject
      to new Awards under the Plan. In the event the purchase price of an Option
      is
      paid in whole or in part through the delivery of Shares, the number of Shares
      issuable in connection with the exercise of the Option shall not again be
      available for the grant of Awards under the Plan. Shares subject to Options,
      or
      portions thereof, which have been surrendered in connection with the exercise
      of
      share appreciation rights shall not again be available for the grant of Awards
      under the Plan.

     

    2.3. Character
      of Shares.
      Shares
      delivered under the Plan may be authorized and unissued Shares or Shares
      acquired by the Company, or both.

     

    2.4. Limitations
      on Grants to Individual Participants.
      

     

    (a)
      Subject to adjustments pursuant to the provisions of Section 9.9 hereof, the
      maximum number of Shares with respect to which Options or share appreciation
      rights may be granted hereunder to any employee during any fiscal year shall
      be
      300,000 Shares (the “Limitation”). If an Option is cancelled, the cancelled
      Option shall continue to be counted toward the Limitation for the year granted.
      An Option (or a share appreciation right) that is repriced during any fiscal
      year is treated as the cancellation of the Option (or share appreciation right)
      and a grant of a new Option (or share appreciation right) for purposes of the
      Limitation for that fiscal year.

     

    (b)
      Subject to the adjustment provisions of Section 9.9 hereof, the aggregate number
      of Shares which may be (i) issued under Options and Restricted Share Awards
      at
      less than the Fair Market Value (as hereinafter defined) of such Shares at
      the
      time such Options or Restricted Share Awards are granted, shall not exceed
      750,000 Shares, and (ii) issued under Options which are exercisable for a term
      longer than 10 years, shall not exceed 2,250,000 Shares.

     

    
      
        
        

      

      
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    ARTICLE
      3.

     

    ELIGIBILITY
      AND ADMINISTRATION

     

    3.1. Awards
      to Employees and Trustees. 

     

    (a)
      Participants who receive Options under Articles 4 and 6 hereof (including share
      appreciation rights under Article 5) (“Optionees”), Share Purchase Awards under
      Article 7 or Restricted Share Awards under Article 8 (in either case, a
“Participant”) shall consist of such employees and Trustees (hereinafter
      defined) of the Company or any of its subsidiaries or affiliates as the
      Committee shall select from time to time. The Committee’s designation of an
      Optionee or Participant in any year shall not require the Committee to designate
      such person to receive Awards or grants in any other year. The designation
      of an
      Optionee or Participant to receive Awards or grants under one portion of the
      Plan shall not require the Committee to include such Optionee or Participant
      under other portions of the Plan.

     

    (b) No
      Option
      which is intended to qualify as an “incentive share option” may be granted to
      any employee or Trustee who, at the time of such grant, owns, directly or
      indirectly (within the meaning of sections 422(b)(6) and 424(d) of the Code),
      shares possessing more than ten percent (10%) of the total combined voting
      power
      of all classes of shares of the Company or any of its subsidiaries, unless
      at
      the time of such grant, (i) the option price is fixed at not less than 110%
      of
      the Fair Market Value (as defined below) of the Shares subject to such Option,
      determined on the date of the grant, and (ii) the exercise of such Option is
      prohibited by its terms after the expiration of five (5) years from the date
      such Option is granted. 

     

    3.2. Administration. 

     

    (a)
      The Plan
      shall be administered by a committee (the “Committee”) consisting of not fewer
      than two trustees of the Company (the trustees of the Company being hereinafter
      referred to as the “Trustees”), as designated by the Trustees. The Trustees may
      remove from, add members to, or fill vacancies in the Committee. Unless
      otherwise determined by the Trustees, each member of the Committee will be
      a
“Non-Employee Trustee” within the meaning of Rule 16b-3 of the Securities
      Exchange Act of 1934, as amended (the “Exchange Act”) and an “outside trustee”
within the meaning of Section 162(m)(4)(C)(i) of the Code. Any Award to a member
      of the Committee shall be on terms consistent with Awards made to other Trustees
      who are not members of the Committee, except where the Award is approved or
      ratified by the Compensation Committee (excluding persons who are also members
      of the Committee) of the Board of Trustees of the Company.

     

    (b) The
      Committee is authorized, subject to the provisions of the Plan, to establish
      such rules and regulations as it may deem appropriate for the conduct of
      meetings and proper administration of the Plan. All actions of the Committee
      shall be taken by majority vote of its members.

     

    (c) Subject
      to the provisions of the Plan, the Committee shall have authority, in its sole
      discretion, to interpret the provisions of the Plan and, subject to the
      requirements of applicable law, including Rule 16b-3 of the Exchange Act, to
      prescribe, amend, and rescind rules and regulations relating to it as it may
      deem necessary or advisable. All decisions made by the Committee pursuant to
      the
      provisions of the Plan shall be final, conclusive and binding on all persons,
      including the Company, its shareholders, Trustees and employees, and Plan
      participants.

     

     

    
      
        
        

      

      
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    ARTICLE
      4.

     

    OPTIONS

     

    4.1. Grant
      of Options.
      The
      Committee shall determine, within the limitations of the Plan, the Trustees
      and
      employees of the Company and its subsidiaries and affiliates to whom Options
      are
      to be granted under the Plan, the number of Shares that may be purchased under
      each such Option and the option price, and shall designate such Options at
      the
      time of the grant as either “incentive share options” or “nonqualified share
      options;” provided, however, that Options granted to an individual who is not an
      employee of either the Company or any “subsidiary” may only be “nonqualified
      share options.”

     

    All
      Options granted pursuant to this Article 4 and Article 6 herein shall be
      authorized by the Committee and shall be evidenced in writing by share option
      agreements (“Share Option Agreements”) in such form and containing such terms
      and conditions as the Committee shall determine which are not inconsistent
      with
      the provisions of the Plan, and, with respect to any Share Option Agreement
      granting Options which are intended to qualify as “incentive share options,” are
      not inconsistent with Section 422 of the Code. Granting of an Option pursuant
      to
      the Plan shall impose no obligation on the recipient to exercise such option.
      Any individual who is granted an Option pursuant to this Article 4 and Article
      6
      herein may hold more than one Option granted pursuant to such Articles at the
      same time and may hold both “incentive share options” and “nonqualified share
      options” at the same time. To the extent that any Option does not qualify as an
“incentive share option” (whether because of its provisions, the time or manner
      of its exercise or otherwise) such Option or the portion thereof which does
      not
      so qualify shall constitute a separate “nonqualified share option.”

     

    4.2. Option
      Price.
      

     

    (a)
      Subject to Section 3.1(b), the option price per each Share purchasable under
      any
“incentive share option” granted pursuant to this Article 4 and any
“nonqualified share option” granted pursuant to Article 6 herein shall not be
      less than 100% of the Fair Market Value (as hereinafter defined) of such Share
      on the date of the grant of such Option.

     

    (b)
      The
      option price per share of each Share purchasable under any “nonqualified share
      option” granted pursuant to this Article 4 shall be such amount as the Committee
      shall determine at the time of the grant of such Option.

     

    (c)
      Notwithstanding anything in this Plan to the contrary, the exercise price of
      any
      Option shall not be changed after the date of grant.

     

    4.3. Other
      Provisions.
      Options
      granted pursuant to this Article 4 shall be made in accordance with the terms
      and provision of Article 9 hereof and any other applicable terms and provisions
      of the Plan.

     

    ARTICLE
      5.

     

    SHARE
      APPRECIATION RIGHTS

     

    5.1. Grant
      and Exercise.
      Share
      appreciation rights may be granted in conjunction with all or part of any Option
      granted under the Plan provided such rights are granted at the time of the
      grant
      of such Option. A “share appreciation right” is a right to receive cash or
      Shares, as provided in this Article 5, in lieu of the purchase of a Share
      under a related Option. A share appreciation right or applicable portion thereof
      shall terminate and no longer be exercisable upon the termination or exercise
      of
      the related Option, and a share appreciation right granted with respect to
      less
      than the full number of Shares covered by a related Option shall not be reduced
      until, and then only to the extent that, the exercise or termination of the
      related Option exceeds the number of Shares not covered by the share
      appreciation right. A share appreciation right may be exercised by the holder
      thereof (the “Holder”), in accordance with Section 5.2 of this Article 5, by
      giving written notice thereof to the Company and surrendering the applicable
      portion of the related Option. Upon giving such notice and surrender, the Holder
      shall be entitled to receive an amount determined in the manner prescribed
      in
      Section 5.2 of this Article 5. Options which have been so surrendered, in whole
      or in part, shall no longer be exercisable to the extent the related share
      appreciation rights have been exercised.

     

    
      
        
        

      

      
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    5.2. Terms
      and Conditions.
      Share
      appreciation rights shall be subject to such terms and conditions, not
      inconsistent with the provisions of the Plan, as shall be determined from time
      to time by the Committee, including the following:

     

    (a) share
      appreciation rights shall be exercisable only at such time or times and to
      the
      extent that the Options to which they relate shall be exercisable in accordance
      with the provisions of the Plan.

     

    (b) Upon
      the
      exercise of a share appreciation right, a Holder shall be entitled to receive
      up
      to, but no more than, an amount in cash or whole Shares equal to the excess
      of
      the then Fair Market Value of one Share over the option price per Share
      specified in the related Option multiplied by the number of Shares in respect
      of
      which the share appreciation right shall have been exercised. The Holder shall
      specify in his written notice of exercise, whether payment shall be made in
      cash
      or in whole Shares. Each share appreciation right may be exercised only at
      the
      time and so long as a related Option, if any, would be exercisable or as
      otherwise permitted by applicable law.

     

    (c) Upon
      the
      exercise of a share appreciation right, the Option or part thereof to which
      such
      share appreciation right is related shall be deemed to have been exercised
      for
      the purpose of the limitation of the number of Shares to be issued under the
      Plan, as set forth in Section 2.1 of the Plan.

     

    (d) With
      respect to share appreciation rights granted in connection with an Option that
      is intended to be an “incentive share option,” the following shall
      apply:

     

    (i)
      No
      share appreciation right shall be transferable by a Holder otherwise than by
      will or by the laws of descent and distribution, and share appreciation rights
      shall be exercisable, during the Holder’s lifetime, only by the
      Holder.

     

    (ii)
      Share appreciation rights granted in connection with an Option may be exercised
      only when the Fair Market Value of the Shares subject to the Option exceeds
      the
      option price at which Shares can be acquired pursuant to the
      Option.

     

    ARTICLE
      6.

     

    RELOAD
      OPTIONS

     

    6.1. Authorization
      of Reload Options.
      Concurrently with the award of any Option (such Option hereinafter referred
      to
      as the “Underlying Option”) to any participant in the Plan, the Committee may
      grant one or more reload options (each, a “Reload Option”) to such participant
      to purchase for cash or Shares a number of Shares as specified below. A Reload
      Option shall be exercisable for an amount of Shares equal to (i) the number
      of
      Shares delivered by the Optionee to the Company to exercise the Underlying
      Option, and (ii) to the extent authorized by the Committee, the number of Shares
      used to satisfy any tax withholding requirement incident to the exercise of
      the
      Underlying Option, subject to the availability of Shares under the Plan at
      the
      time of such exercise. Any Reload Option may provide for the grant, when
      exercised, of subsequent Reload Options to the extent and upon such terms and
      conditions consistent with this Article 6, as the Committee in its sole
      discretion shall specify at or after the time of grant of such Reload Option.
      The grant of a Reload Option will become effective upon the exercise of an
      Underlying Option or Reload Option by delivering to the Company Shares in
      payment of the exercise price and/or tax withholding obligations.
      Notwithstanding the fact that the Underlying Option may be an “incentive share
      option,” a Reload Option is not intended to qualify as an “incentive share
      option” under Section 422 of the Code.

     

    
      
        
        

      

      
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    6.2. Reload
      Option Amendment.
      Each
      Share Option Agreement shall state whether the Committee has authorized Reload
      Options with respect to the Underlying Option. Upon the exercise of an
      Underlying Option or other Reload Option, the Reload Option will be evidenced
      by
      an amendment to the underlying Share Option Agreement.

     

    6.3. Reload
      Option Price.
      The
      option price per Share deliverable upon the exercise of a Reload Option shall
      be
      the Fair Market Value of a Share on the date the grant of the Reload Option
      becomes effective.

     

    6.4. Term
      and Exercise.
      Each
      Reload Option is fully exercisable immediately upon its grant. The term of
      each
      Reload Option shall be equal to the remaining option term of the Underlying
      Option.

     

    6.5. Termination
      of Employment.
      No
      additional Reload Options shall be granted to Optionees when Options and/or
      Reload Options are exercised pursuant to the terms of this Plan following
      termination of the Optionee’s employment unless the Committee, in its sole
      discretion, shall determine otherwise.

     

    6.6. Applicability
      of Other Sections.
      Except
      as otherwise provided in this Article 6, the provisions of Article 9
      applicable to Options shall apply equally to Reload Options.

     

    ARTICLE
      7.

     

    SHARE
      PURCHASE AWARDS

     

    7.1. Grant
      of Share Purchase Award.
      The
      term “Share Purchase Award” means the right to purchase Shares of the Company
      and to pay for such Shares through a loan made by the Company to the Participant
      (a “Purchase Loan”) as set forth in this Article 7.

     

    7.2.
      Terms of
      Purchase Loans.

     

    (a) Purchase
      Loan.
      Each
      Purchase Loan shall be evidenced by a promissory note. The term of the Purchase
      Loan shall be for a period of years, as determined by the Committee, and the
      proceeds of the Purchase Loan shall be used exclusively by the Participant
      for
      purchase of Shares from the Company at a purchase price equal to the Fair Market
      Value on the date of the Share Purchase Award.

     

    (b) Interest
      on Purchase Loan.
      A
      Purchase Loan shall be non-interest bearing or shall bear interest at whatever
      rate the Committee shall determine (but not in excess of the maximum rate
      permissible under applicable law), payable in a manner and at such times as
      the
      Committee shall determine. Those terms and provisions as the Committee shall
      determine shall be incorporated into the promissory note evidencing the Purchase
      Loan.

     

    
      
        
        

      

      
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    (c) Forgiveness
      of Purchase Loan.
      Subject
      to Section 7.4 hereof, the Company may forgive the repayment of up to 100%
      of
      the principal amount of the Purchase Loan, subject to such terms and conditions
      as the Committee shall determine and set forth in the promissory note evidencing
      the Purchase Loan. A Participant’s Purchase Loan can be prepaid at any time, and
      from time to time, without penalty.

     

    7.3.
      Security
      for Loans.

     

    (a) Share
      Power and Pledge.
      Purchase Loans granted to Participants shall be secured by a pledge of the
      Shares acquired pursuant to the Share Purchase Award. Such pledge shall be
      evidenced by a pledge agreement (the “Pledge Agreement”) containing such terms
      and conditions as the Committee shall determine. The share certificates for
      the
      Shares purchased by a Participant pursuant to a Share Purchase Award shall
      be
      issued in the Participant’s name, but shall be held by the Company as security
      for repayment of the Participant’s Purchase Loan together with a share power
      executed in blank by the Participant (the execution and delivery of which by
      the
      Participant shall be a condition to the issuance of the Share Purchase Award).
      The Participant shall be entitled to exercise all rights applicable to such
      Shares, including, but not limited to, the right to vote such Shares and the
      right to receive dividends and other distributions made with respect to such
      Shares. When the Purchase Loan and any accrued but unpaid interest thereon
      has
      been repaid or otherwise satisfied in full, the Company shall deliver to the
      Participant the share certificates for the Shares purchased by a Participant
      under the Share Purchase Award. Purchase Loans shall be recourse or non-recourse
      with respect to a Participant, as determined by the Committee.

     

    (b) Release
      and Delivery of Share Certificates During the Term of the Purchase
      Loan.
      The
      Company shall release and deliver to each Participant certificates for Shares
      purchased by a Participant pursuant to a Share Purchase Award, in such amounts
      and on such terms and conditions as the Committee shall determine, which shall
      be set forth in the Pledge Agreement.

     

    (c) Release
      and Delivery of Share Certificates Upon Repayment of the Purchase
      Loan.
      The
      Company shall release and deliver to each Participant certificates for the
      Shares purchased by the Participant under the Share Purchase Award and then
      held
      by the Company, provided the Participant has paid or otherwise satisfied in
      full
      the balance of the Purchase Loan and any accrued but unpaid interest thereon.
      In
      the event the balance of the Purchase Loan is not repaid, forgiven or otherwise
      satisfied within ninety (90) days after (i) the date repayment of the Purchase
      Loan is due (whether in accordance with its term, by reason of acceleration
      or
      otherwise), or (ii) such longer time as the Committee, in its discretion, shall
      provide for repayment or satisfaction, the Company shall retain those Shares
      then held by the Company in accordance with the Pledge Agreement.

     

    (d) Recourse
      Purchase Loans.
      Notwithstanding Sections 7.3(a), (b) and (c) above, in the case of a recourse
      Purchase Loan, the Committee may make such Purchase Loan on such terms as it
      determines, including without limitation, not requiring a pledge of the acquired
      Shares.

     

    7.4.
      Termination of Employment.

     

    (a) Termination
      of Employment by Death, Disability or by the Company Without Cause; Change
      of
      Control.
      In the
      event of a Participant’s termination of employment by reason of death,
“disability” or by the Company without “cause”, or in the event of a “change of
      control”, the Committee shall have the right (but shall not be required) to
      forgive the remaining unpaid amount (principal and interest) of the Purchase
      Loan in whole or in part as of the date of such occurrence. “Change of Control”,
“disability” and “cause” shall have the respective meanings as set forth in the
      promissory note evidencing the Purchase Loan.

     

    
      
        
        

      

      
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    (b) Other
      Termination of Employment.
      Subject
      to Section 7.4(a) above, in the event of a Participant’s termination of
      employment for any reason, the Participant shall repay to the Company the entire
      balance of the Purchase Loan and any accrued but unpaid interest thereon, which
      amounts shall become immediately due and payable, provided, however, that if
      the
      Participant voluntarily resigns as an employee in good standing, such amounts
      will become due and payable on the ninetieth (90th) day after the effective
      date
      of such resignation.

     

    7.5. Restrictions
      on Transfer.
      No
      Share Purchase Award or Shares purchased through such an Award and pledged
      to
      the Company as collateral security for the Participant’s Purchase Loan (and
      accrued by unpaid interest thereon) may be otherwise pledged, sold, assigned
      or
      transferred (other than by will or by the laws of descent and
      distribution).

     

    ARTICLE
      8.

     

    RESTRICTED
      SHARE AWARDS

     

    8.1. Restricted
      Share Awards.
      (a)
      A grant
      of Shares made pursuant to this Article 8 is referred to as a “Restricted Share
      Award.” The Committee may grant to any Participant an amount of Shares in such
      manner, and subject to such terms and conditions relating to vesting,
      forfeitability and restrictions on delivery and transfer (whether based on
      performance standards, periods of service or otherwise) as the Committee shall
      establish (such Shares, “Restricted Share”). The terms of any Restricted Share
      Award granted under this Plan shall be set forth in a written agreement (a
      “Restricted Share Agreement”) which shall contain provisions determined by the
      Committee and not inconsistent with this Plan. The provisions of Restricted
      Share Awards need not be the same for each Participant receiving such
      Awards.

     

    (b) Issuance
      of Restricted Shares.
      As soon
      as practicable after the date of grant of a Restricted Share Award by the
      Committee, the Company shall cause to be transferred on the books of the
      Company, Shares registered in the name of the Company, as nominee for the
      Participant, evidencing the Restricted Shares covered by the Award, but subject
      to forfeiture to the Company retroactive to the date of grant, if a Restricted
      Share Agreement delivered to the Participant by the Company with respect to
      the
      Restricted Shares covered by the Award is not duly executed by the Participant
      and timely returned to the Company. All Restricted Shares covered by Awards
      under this Article 8 shall be subject to the restrictions, terms and conditions
      contained in the Plan and the Restricted Share Agreement entered into by and
      between the Company and the Participant. Until the lapse or release of all
      restrictions applicable to an Award of Restricted Shares, the share certificates
      representing such Restricted Shares shall be held in custody by the Company
      or
      its designee.

     

    (c) Shareholder
      Rights.
      Beginning on the date of grant of the Restricted Share Award and subject to
      execution of the Restricted Share Agreement as provided in Sections 8.1(a)
      and
      (b), the Participant shall become a shareholder of the Company with respect
      to
      all Shares subject to the Restricted Share Agreement and shall have all of
      the
      rights of a shareholder, including, but not limited to, the right to vote such
      Shares and the right to receive distributions made with respect to such Shares;
      provided, however, that any Shares distributed as a dividend or otherwise with
      respect to any Restricted Shares as to which the restrictions have not yet
      lapsed shall be subject to the same restrictions as such Restricted Shares
      and
      shall be represented by book entry and held as prescribed in Section
      8.1(b).

     

    (d) Restriction
      on Transferability.
      None of
      the Restricted Shares may be assigned or transferred (other than by will or
      the
      laws of descent and distribution), pledged or sold prior to lapse or release
      of
      the restrictions applicable thereto.

     

    
      
        
        

      

      
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    (e) Delivery
      of Shares Upon Release of Restrictions.
      Upon
      expiration or earlier termination of the forfeiture period without a forfeiture
      and the satisfaction of or release from any other conditions prescribed by
      the
      Committee, the restrictions applicable to the Restricted Shares shall lapse.
      As
      promptly as administratively feasible thereafter, subject to the requirements
      of
      Section 10.1, the Company shall deliver to the Participant or, in case of the
      Participant’s death, to the Participant’s beneficiary, one or more share
      certificates for the appropriate number of Shares, free of all such
      restrictions, except for any restrictions that may be imposed by
      law.

     

    8.2.
      Terms of
      Restricted Shares.

     

    (a) Forfeiture
      of Restricted Shares.
      Subject
      to Section 8.2(b), all Restricted Shares shall be forfeited and returned to
      the
      Company and all rights of the Participant with respect to such Restricted Shares
      shall terminate unless the Participant continues in the service of the Company
      as an employee until the expiration of the forfeiture period for such Restricted
      Shares and satisfies any and all other conditions set forth in the Restricted
      Share Agreement. The Committee in its sole discretion, shall determine the
      forfeiture period (which may, but need not, lapse in installments) and any
      other
      terms and conditions applicable with respect to any Restricted Share
      Award.

     

    (b) Waiver
      of Forfeiture Period.
      Notwithstanding anything contained in this Article 8 to the contrary, the
      Committee may, in its sole discretion, waive the forfeiture period and any
      other
      conditions set forth in any Restricted Share Agreement under appropriate
      circumstances (including the death, disability or retirement of the Participant
      or a material change in circumstances arising after the date of an Award) and
      subject to such terms and conditions (including forfeiture of a proportionate
      number of the Restricted Shares) as the Committee shall deem
      appropriate.

     

    ARTICLE
      9.

     

    GENERALLY
      APPLICABLE PROVISIONS

     

    9.1. Option
      Period.
      Subject
      to Section 3.1(b), the period for which an Option is exercisable shall not
      exceed ten (10) years from the date such Option is granted, provided, however,
      in the case of an Option that is not intended to be an “incentive share option”,
      the Committee may prescribe a period in excess of ten years. After the Option
      is
      granted, the option period may not be reduced.

     

    9.2. Fair
      Market Value.
      If the
      Shares are listed or admitted to trading on a securities exchange registered
      under the Exchange Act, the “Fair Market Value” of a Share as of a specified
      date shall mean the average of the high and low price of the shares for the
      day
      immediately preceding the date as of which Fair Market Value is being determined
      (or if there was no reported sale on such date, on the last preceding date
      on
      which any reported sale occurred) reported on the principal securities exchange
      on which the Shares are listed or admitted to trading. If the Shares are not
      listed or admitted to trading on any such exchange but are listed as a national
      market security on the National Association of Securities Dealers, Inc.
      Automated Quotations System (“NASDAQ”), traded in the over-the-counter market or
      listed or traded on any similar system then in use, the Fair Market Value of
      a
      Share shall be the average of the high and low sales price for the day
      immediately preceding the date as of which the Fair Market Value is being
      determined (or if there was no reported sale on such date, on the last preceding
      date on which any reported sale occurred) reported on such system. If the Shares
      are not listed or admitted to trading on any such exchange, are not listed
      as a
      national market security on NASDAQ and are not traded in the over-the-counter
      market or listed or traded on any similar system then in use, but are quoted
      on
      NASDAQ or any similar system then in use, the Fair Market Value of a Share
      shall
      be the average of the closing high bid and low asked quotations on such system
      for the Shares on the date in question. If the Shares are not publicly traded,
      Fair Market Value shall be determined by the Committee in its sole discretion
      using appropriate criteria. An Option shall be considered granted on the date
      the Committee acts to grant the Option or such later date as the Committee
      shall
      specify.

     

    
      
        
        

      

      
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    9.3. Exercise
      of Options.
      Options
      granted under the Plan shall be exercised by the Optionee thereof (or by his
      or
      her executors, administrators, guardian or legal representative, or by a
      Permitted Assignee, as provided in Sections 9.6 and 9.7 hereof) as to all or
      part of the Shares covered thereby, by the giving of written notice of exercise
      to the Company, specifying the number of Shares to be purchased, accompanied
      by
      payment of the full purchase price for the Shares being purchased. Full payment
      of such purchase price shall be made within five (5) business days following
      the
      date of exercise and shall be made (i) in cash or by certified check or bank
      check, (ii) with the consent of the Committee, by delivery of a promissory
      note
      in favor of the Company upon such terms and conditions as determined by the
      Committee, (iii) with the consent of Committee, by tendering previously acquired
      Shares (valued at its Fair Market Value, as determined by the Committee as
      of
      the date of tender), or (iv) with the consent of the Committee, any combination
      of (i), (ii) and (iii). In connection with a tender of previously acquired
      Shares pursuant to clause (iii) above, the Committee, in its sole discretion,
      may permit the Optionee to constructively exchange Shares already owned by
      the
      Optionee in lieu of actually tendering such Shares to the Company, provided
      that
      adequate documentation concerning the ownership of the Shares to be
      constructively tendered is furnished in form satisfactory to the Committee.
      The
      notice of exercise, accompanied by such payment, shall be delivered to the
      Company at its principal business office or such other office as the Committee
      may from time to time direct, and shall be in such form, containing such further
      provisions consistent with the provisions of the Plan, as the Committee may
      from
      time to time prescribe. In no event may any Option granted hereunder be
      exercised for a fraction of a Share. The Company shall effect the transfer
      of
      Shares purchased pursuant to an Option as soon as practicable, and, within
      a
      reasonable time thereafter, such transfer shall be evidenced on the books of
      the
      Company. No person exercising an Option shall have any of the rights of a holder
      of Shares subject to an Option until certificates for such Shares shall have
      been issued following the exercise of such Option. No adjustment shall be made
      for cash dividends or other rights for which the record date is prior to the
      date of such issuance.

     

    9.4. Transferability.
      No
      Option that is intended to qualify as an “incentive share option” under Section
      422 of the Code shall be assignable or transferable by the Optionee, other
      than
      by will or the laws of descent and distribution, and such Option may be
      exercised during the life of the Optionee only by the Optionee or his guardian
      or legal representative. With the prior written consent of the Committee,
“nonqualified share options” and any share appreciation rights granted in tandem
      therewith may be transferred (together and not separately) by the Optionee
      or
      Holder, as the case may be, to any one or more of the following persons (each,
      a
“Permitted Assignee”): (i) the spouse, parent, issue, spouse of issue, or issue
      of spouse (“issue” shall include all descendants whether natural or adopted) of
      such Optionee or Holder, as the case may be; (ii) a trust for the benefit of
      one
      or more of those persons described in clause (i) above or for the benefit of
      such Optionee or Holder, as the case may be, or for the benefit of any such
      persons and such Optionee or Holder, as the case may be; or (iii) an entity
      in which the Optionee or Holder or any Permitted Assignee thereof is a
      beneficial owner; provided, however, that such Permitted Assignee shall be
      bound
      by all of the terms and conditions of this Plan and shall execute an agreement
      satisfactory to the Company evidencing such obligation; and provided further,
      however, that such Optionee or Holder shall remain bound by the terms and
      conditions of this Plan. The Company shall cooperate with an Optionee’s
      Permitted Assignee and the Company’s transfer agent in effectuating any transfer
      permitted pursuant to this Section 9.4.

     

    9.5. Termination
      of Employment.
      In the
      event of the termination of employment of an Optionee or the separation from
      service of a Trustee (who is an Optionee) for any reason (other than death
      or
      disability as provided below), any Option(s) granted
      to
      such
      Optionee (or its Permitted Assignee) under this Plan and not previously
      exercised or expired shall be deemed cancelled and terminated on the day of
      such
      termination or separation, unless the Committee decides, in its sole discretion,
      to extend the term of the Option; provided, however, that in no instance may
      the
      term of the Option, as so extended, exceed the maximum term set forth in Section
      3.1(b)(ii) or 9.1 above.

     

    
      
        
        

      

      
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    9.6. Death.
      In the
      event an Optionee (other than a non-employee Trustee) dies while employed by
      the
      Company or any of its subsidiaries or affiliates any Option(s) held by such
      Optionee (or its Permitted Assignee) and not previously expired or exercised
      shall, to the extent exercisable on the date of death, be exercisable by the
      estate of such Optionee or by any person who acquired such Option by bequest
      or
      inheritance, or by the Permitted Assignee at any time within one year after
      the
      death of the Optionee, unless earlier terminated pursuant to its terms,
      provided, however, that if the term of such Option would expire by its terms
      within six months after the Optionee’s death, the term of such Option shall be
      extended until six months after the Optionee’s death, provided further, however,
      that in no instance may the term of the Option, as so extended, exceed the
      maximum term set forth in Section 3.1(b)(ii) or 9.1 above.

     

    9.7. Disability.
      In the
      event of the termination of employment of an Optionee (other than a non-employee
      Trustee) due to total disability, the Optionee, or his guardian or legal
      representative, or a Permitted Assignee shall have the unqualified right to
      exercise any Option(s) which have not been previously exercised or expired
      and
      which the Optionee was eligible to exercise as of the first date of total
      disability (as determined by the Committee), at any time within one (1) year
      after such termination, unless earlier terminated pursuant to its terms,
      provided, however, that if the term of such Option would expire by its terms
      within six months after such termination, the term of such Option shall be
      extended until six months after such termination, provided further, however,
      that in no instance may the term of the Option, as so extended, exceed the
      maximum term set forth in Section 3.1(b)(ii) or 9.1 above. The term “total
      disability” shall, for purposes of this Plan, be defined in the same manner as
      such term is defined in Section 22(e)(3) of the Code.

     

    9.8. Amendment
      and Modification of the Plan.
      The
      Compensation Committee of the Board of Trustees of the Company may, from time
      to
      time, alter, amend, suspend or terminate the Plan as it shall deem advisable,
      subject to any requirement for shareholder approval imposed by applicable law
      or
      any rule of any share exchange or quotation system on which Shares are listed
      or
      quoted. Notwithstanding the foregoing, no amendments to, or termination of,
      the
      Plan shall in any way impair the rights of an Optionee or a Participant (or
      a
      Permitted Assignee thereof) under any Award previously granted without such
      Optionee’s or Participant’s consent.

     

    9.9. Adjustments.
      In the
      event that the Committee shall determine that any dividend or other distribution
      (whether in the form of cash, Shares, other securities, or other property),
      recapitalization, share split, reverse share split, reorganization, merger,
      consolidation, split-up, spin-off, combination, repurchase, or exchange of
      Shares or other securities, the issuance of warrants or other rights to purchase
      Shares or other securities, or other similar corporate transaction or event
      affects the Shares with respect to which Options have been or may be issued
      under the Plan, such that an adjustment is determined by the Committee to be
      appropriate in order to prevent dilution or enlargement of the benefits or
      potential benefits intended to be made available under the Plan, then the
      Committee shall, in such manner as the Committee may deem equitable, adjust
      any
      or all of (i) the number and type of Shares that thereafter may be made the
      subject of Options, (ii) the number and type of Shares subject to outstanding
      Options and share appreciation rights, and (iii) the grant or exercise price
      with respect to any Option, or, if deemed appropriate, make provision for a
      cash
      payment to the holder of any outstanding Option; provided, in each case, that
      with respect to “incentive share options,” no such adjustment shall be
      authorized to the extent that such adjustment would cause such options to
      violate Section 422(b) of the Code or any successor provision; and provided
      further, that the number of Shares subject to any Option denominated in Shares
      shall always be a whole number. In the event of any reorganization, merger,
      consolidation, split-up, spin-off, or other business combination involving
      the
      Company (collectively, a “Reorganization”), the Compensation Committee of the
      Board of Trustees or the Board of Trustees may cause any Award outstanding
      as of
      the effective date of the Reorganization to be cancelled in consideration of
      a
      cash payment or alternate Award made to the holder of such cancelled Award
      equal
      in value to the fair market value of such cancelled Award. The determination
      of
      fair market value shall be made by the Compensation Committee of the Board
      of
      Trustees or the Board of Trustees, as the case may be, in their sole
      discretion.

     

    
      
        
        

      

      
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    9.10. Change
      of Control.
      The
      terms of any Award may provide in the Share Option Agreement, Restricted Share
      Agreement, Purchase Loan or other document evidencing the Award, that upon
      a
“Change of Control” of the Company (as that term may be defined therein), (i)
      Options (and share appreciation rights) accelerate and become fully exercisable,
      (ii) restrictions on Restricted Shares lapse and the shares become fully vested,
      (iii) Purchase Loans are forgiven in whole or in part, and (iv) such other
      additional benefits as the Committee deems appropriate shall apply.

     

    ARTICLE
      10.

     

    MISCELLANEOUS

     

    10.1. Tax
      Withholding.
      The
      Company shall notify an Optionee or Participant (or a Permitted Assignee
      thereof) of any income tax withholding requirements arising as a result of
      the
      grant of any Award, exercise of an Option or share appreciation rights or any
      other event occurring pursuant to this Plan. The Company shall have the right
      to
      withhold from such Optionee or Participant (or a Permitted Assignee thereof)
      such withholding taxes as may be required by law, or to otherwise require the
      Optionee or Participant (or a Permitted Assignee thereof) to pay such
      withholding taxes. If the Optionee or Participant (or a Permitted Assignee
      thereof) shall fail to make such tax payments as are required, the Company
      or
      its subsidiaries or affiliates shall, to the extent permitted by law, have
      the
      right to deduct any such taxes from any payment of any kind otherwise due to
      such Optionee or Participant or to take such other action as may be necessary
      to
      satisfy such withholding obligations. In satisfaction of the requirement to
      pay
      withholding taxes, the Optionee (or Permitted Assignee) make a written election
      which may be accepted or rejected in the discretion of the Committee, (i) to
      have withheld a portion of the Shares then issuable to the Optionee (or
      Permitted Assignee) pursuant to the Option, or (ii) to timely deliver other
      Shares to the Company, in either case having an aggregate Fair Market Value
      equal to the withholding taxes.

     

    10.2. Right
      of Discharge Reserved.
      Nothing
      in the Plan nor the grant of an Award hereunder shall confer upon any employee,
      Trustee or other individual the right to continue in the employment or service
      of the Company or any subsidiary or affiliate of the Company or affect any
      right
      that the Company or any subsidiary or affiliate of the Company may have to
      terminate the employment or service of (or to demote or to exclude from future
      Options under the Plan) any such employee, Trustee or other individual at any
      time for any reason. Except as specifically provided by the Committee, the
      Company shall not be liable for the loss of existing or potential profit from
      an
      Award granted in the event of termination of an employment or other relationship
      even if the termination is in violation of an obligation of the Company or
      any
      subsidiary or affiliate of the Company to the employee or Trustee.

     

    10.3. Nature
      of Payments.
      All
      Awards made pursuant to the Plan are in consideration of services performed
      for
      the Company or any subsidiary or affiliate of the Company. Any income or gain
      realized pursuant to Awards under the Plan and any share appreciation rights
      constitutes a special incentive payment to the Optionee, Participant or Holder
      and shall not be taken into account, to the extent permissible under applicable
      law, as compensation for purposes of any of the employee benefit plans of the
      Company or any subsidiary or affiliate of the Company except as may be
      determined by the Committee or by the Trustees or trustees of the applicable
      subsidiary or affiliate of the Company.

     

    
      
        
        

      

      
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    10.4. Severability.
      If any
      provision of the Plan shall be held unlawful or otherwise invalid or
      unenforceable in whole or in part, such unlawfulness, invalidity or
      unenforceability shall not affect any other provision of the Plan or part
      thereof, each of which remain in full force and effect. If the making of any
      payment or the provision of any other benefit required under the Plan shall
      be
      held unlawful or otherwise invalid or unenforceable, such unlawfulness,
      invalidity or unenforceability shall not prevent any other payment or benefit
      from being made or provided under the Plan, and if the making of any payment
      in
      full or the provision of any other benefit required under the Plan in full
      would
      be unlawful or otherwise invalid or unenforceable, then such unlawfulness,
      invalidity or unenforceability shall not prevent such payment or benefit from
      being made or provided in part, to the extent that it would not be unlawful,
      invalid or unenforceable, and the maximum payment or benefit that would not
      be
      unlawful, invalid or unenforceable shall be made or provided under the
      Plan.

     

    10.5. Gender
      and Number.
      In
      order to shorten and to improve the understandability of the Plan document
      by
      eliminating the repeated usage of such phrases as “his or her” and any masculine
      terminology herein shall also include the feminine, and the definition of any
      term herein in the singular shall also include the plural except when otherwise
      indicated by the context.

     

    10.6. Governing
      Law.
      The
      Plan and all determinations made and actions taken thereunder, to the extent
      not
      otherwise governed by the Code or the laws of the United States, shall be
      governed by the laws of the State of New York and construed
      accordingly.

     

    10.7. Termination
      of Plan.
      The
      Plan shall be effective on the date of the approval of the Plan by the Board
      of
      Trustees. No Option intended to qualify as an incentive share option shall
      be
      granted hereunder until the Plan shall be approved by the holders of a majority
      of the shares entitled to vote thereon, provided such approval is obtained
      within 12 months after the date of adoption of the Plan by the Board of
      Trustees. Awards may be granted under the Plan at any time and from time to
      time
      on or prior to December 11, 2007, on which date the Plan will expire except
      as
      to Awards and related share appreciation rights then outstanding under the
      Plan.
      Such outstanding Awards and share appreciation rights shall remain in effect
      until they have been exercised or terminated, or have expired.

     

    10.8. Captions.
      The
      captions in this Plan are for convenience of reference only, and are not
      intended to narrow, limit or affect the substance or interpretation of the
      provisions contained herein.

     

    


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