EX-10.28



 





Exhibit 10.28




U-STORE-IT TRUST




2004 EQUITY INCENTIVE PLAN



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page

	1. PURPOSE 
	 	 	1	 
	2. DEFINITIONS 
	 	 	1	 
	3. ADMINISTRATION OF THE PLAN 
	 	 	6	 
	3.1. Board 
	 	 	6	 
	3.2. Committee 
	 	 	6	 
	3.3. Terms of Awards 
	 	 	7	 
	3.4. Book-Entry 
	 	 	8	 
	3.5. Deferral Arrangement 
	 	 	8	 
	3.6. No Liability 
	 	 	8	 
	3.7. Form of Payment For Options And Restricted Share 
	 	 	8	 
	4. SHARES SUBJECT TO THE PLAN 
	 	 	9	 
	5. EFFECTIVE DATE, DURATION AND AMENDMENTS 
	 	 	10	 
	5.1. Effective Date 
	 	 	10	 
	5.2. Term 
	 	 	10	 
	5.3. Amendment and Termination of the Plan 
	 	 	10	 
	6. AWARD ELIGIBILITY AND LIMITATIONS 
	 	 	10	 
	6.1. Service Providers and Other Persons 
	 	 	10	 
	6.2. Successive Awards 
	 	 	10	 
	6.3. Limitation on Shares Subject to Awards and Cash Awards 
	 	 	10	 
	6.4. Limitations on Incentive Stock Options 
	 	 	11	 
	6.5. Stand-Alone, Additional, Tandem, and Substitute Awards 
	 	 	11	 
	7. AWARD AGREEMENT 
	 	 	11	 
	8. OPTIONS 
	 	 	12	 
	8.1. Option Price 
	 	 	12	 
	8.2. Vesting 
	 	 	12	 
	8.3. Term 
	 	 	12	 
	8.4. Termination of Service 
	 	 	12	 
	8.5. Limitations on Exercise of Option 
	 	 	12	 
	8.6. Method of Exercise 
	 	 	13	 
	8.7. Rights of Holders of Options 
	 	 	13	 
	8.8. Delivery of Share Certificates 
	 	 	13	 
	8.9. Transferability of Options 
	 	 	13	 
	8.10. Family Transfers 
	 	 	13	 
	9. SHARE APPRECIATION RIGHTS 
	 	 	14	 
	9.1. Right to Payment 
	 	 	14	 
	9.2. Other Terms 
	 	 	14	 
	10. RESTRICTED SHARES AND SHARE UNITS 
	 	 	14	 
	10.1. Grant of Restricted Shares or Share Units 
	 	 	14	 
	10.2. Restrictions 
	 	 	14	 
	10.3. Restricted Share Certificates 
	 	 	15	 
	10.4. Rights of Holders of Restricted Shares 
	 	 	15	 
	10.5. Rights of Holders of Share Units 
	 	 	15	 







- i -









 






	 	 	 	 	 
	 	 	Page

	10.5.1.Voting and Dividend Rights 
	 	 	15	 
	10.5.2.Creditor’s Rights 
	 	 	15	 
	10.6. Termination of Service 
	 	 	16	 
	10.7. Purchase of Restricted Shares 
	 	 	16	 
	10.8. Delivery of Share Certificates 
	 	 	16	 
	11. UNRESTRICTED SHARE AWARDS 
	 	 	16	 
	12. DIVIDEND EQUIVALENT RIGHTS 
	 	 	16	 
	12.1. Dividend Equivalent Rights 
	 	 	16	 
	12.2. Termination of Service 
	 	 	17	 
	13. PERFORMANCE AND ANNUAL INCENTIVE AWARDS 
	 	 	17	 
	13.1. Performance Conditions 
	 	 	17	 
	13.2. Performance or Annual Incentive Awards Granted to
Designated Covered Employees
	 	 	17	 
	13.2.1. Performance Goals Generally 
	 	 	18	 
	13.2.2. Business Criteria 
	 	 	18	 
	13.2.3. Timing For Establishing Performance Goals 
	 	 	18	 
	13.2.4. Performance or Annual Incentive Award Pool 
	 	 	18	 
	13.2.5. Settlement of Performance or Annual Incentive
Awards; Other Terms
	 	 	19	 
	13.3. Written Determinations 
	 	 	19	 
	13.4. Status of Section 13.2 Awards Under Code Section 162(m) 
	 	 	19	 
	14. PARACHUTE LIMITATIONS 
	 	 	19	 
	15. REQUIREMENTS OF LAW 
	 	 	20	 
	15.1. General 
	 	 	20	 
	15.2. Rule 16b-3 
	 	 	21	 
	16. EFFECT OF CHANGES IN CAPITALIZATION 
	 	 	21	 
	16.1. Changes in Shares 
	 	 	21	 
	16.2. Certain Reorganizations That are Not Corporate Transactions 
	 	 	22	 
	16.3. Corporate Transaction 
	 	 	22	 
	16.4. Adjustments 
	 	 	23	 
	16.5. No Limitations on Company 
	 	 	23	 
	17. GENERAL PROVISIONS 
	 	 	23	 
	17.1. Disclaimer of Rights 
	 	 	23	 
	17.2. Nonexclusivity of the Plan 
	 	 	24	 
	17.3. Withholding Taxes 
	 	 	24	 
	17.4. Captions 
	 	 	24	 
	17.5. Other Provisions 
	 	 	24	 
	17.6. Number and Gender 
	 	 	25	 
	17.7. Severability 
	 	 	25	 
	17.8. Governing Law 
	 	 	25	 







 - ii -









 





U-STORE-IT TRUST




2004 EQUITY INCENTIVE PLAN




     U-Store-It Trust (the “Company”) sets forth herein the terms of its 2004
Equity Incentive Plan (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, trustees, key employees, and other persons, and to motivate such
officers, directors, trustees, key employees and other persons 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 persons 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 share options, share appreciation rights, restricted shares,
share units, unrestricted shares, dividend equivalent rights and cash awards.
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. Share options granted under the Plan may be non-qualified
share options or incentive stock options, as provided herein.



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 13) 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, Share Appreciation Right,
Restricted Share, Unrestricted Share, Share Unit, Dividend Equivalent Right or
cash award 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 14
hereof.



     2.6 “Board” means the Board of Trustees 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 the Board, designated from time to
time by resolution of the Board, in accordance with Section 3.2.



     2.10 “Company” means U-Store-It Trust, a Maryland real estate investment
trust.



     2.11 “Conversion Factor” shall have the meaning set forth in Article I of
the Limited Partnership Agreement.



     2.12 “Corporate Transaction” means (a) 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,
(b) a sale of all or substantially all of the assets of the Company to another
person or entity, (c) any transaction (including without limitation a merger or
reorganization in which the Company is the surviving entity) that results in
any person or entity (other than persons who are shareholders or Affiliates
immediately prior to the transaction) owning thirty percent (30%) or more of
the combined voting power of all classes of shares of the Company or (d)
individuals who, as of the date hereof, constitute the Board (the “Incumbent
Board”) cease for any reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a trustee subsequent to the
date hereof whose election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least a majority of the trustees
then comprising the Incumbent Board (either by a specific vote or by approval
of the proxy statement of the Company in which such person is named as a
nominee for trustee, without written objection to such nomination) shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of trustees or other actual or threatened
solicitation of proxies or contests by or on behalf of a person other than the
Board. Notwithstanding anything to the contrary contained herein, none of the
following transactions shall be a “Corporate Transaction”: (x) the transactions
contemplated by the Agreement and Plan of Merger and Reorganization, dated as
of July 30, 2004, by and between the Company and High Tide LLC, (y) the
transactions contemplated by the Agreement and Plan of Merger, dated as of July
30, 2004, by and between the Company and Amsdell Partners, Inc., and (z) any of
the other transactions related to the initial public offering of the Company,
as described in the Company’s Form S-11 registration statement (as amended from
time to time).



2









 





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



     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 impairment that is potentially permanent in
character or that 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 that 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 12 hereof, to receive cash, Shares, other Awards or other property
equal in value to dividends paid with respect to a specified number of Shares,
or other periodic payments.



     2.16 “Effective Date” means                                       , 2004, the date the Plan is
approved by the Board.



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



     2.18 “Fair Market Value” means the value of a Share, determined as
follows: if on the Grant Date or other determination date the Shares are
listed on an established national or regional stock exchange, are admitted to
quotation on The Nasdaq Stock Market, Inc. or are publicly traded on an
established securities market, the Fair Market Value of a Share shall be the
closing price of the Shares on such exchange or in such market (if there is
more than one such exchange or market the Board shall determine the appropriate
exchange or market) on 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 trading day) or, if no sale of Shares is reported for
such trading day, on the next preceding day on which any sale shall have been
reported. If the Shares are 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
Shares as determined by the Board in good faith.



     2.19 “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 one or more of these persons (or the Grantee) own more
than fifty percent (50%) of the voting interests.



     2.20 “Grant Date” means, as determined by the Board, the latest to occur
of (a) the date as of which the Board approves an Award, (b) the date on which
the recipient of an Award first



3









 




becomes eligible to receive an Award under Section 6 hereof, or (c) such
other date as may be specified by the Board.




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



     2.22 “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.



     2.23 “Limited Partnership” means U-Store-It, L.P., a Delaware limited
partnership.



     2.24 “Limited Partnership Agreement” means the Limited Partnership’s
Second Amended and Restated Agreement of Limited Partnership, as amended and/or
restated from time to time.



     2.25 “Limited Partnership Employee” means any person determined by the
Board to be an employee of the Limited Partnership or any Limited Partnership
Subsidiary.



     2.26 “Limited Partnership Subsidiary” means an entity at least fifty
percent (50%) of the total equity or ownership interests of which are owned by
the Limited Partnership either directly or through one or more Limited
Partnership Subsidiaries.



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



     2.28 “Option” means an option to purchase one or more Shares pursuant to
the Plan.



     2.29 “Option Price” means the exercise price for each Share subject to an
Option.



     2.30 “Other Agreement” shall have the meaning set forth in Section 14
hereof.



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



     2.32 “Partnership Unit” means a “Partnership Unit” as that term is defined
in the Limited Partnership Agreement.



     2.33 “Performance Award” means an Award made subject to the attainment of
performance goals (as described in Section 13) over a performance period of up
to ten (10) years.



     2.34 “Plan” means this U-Store-It Trust 2004 Equity Incentive Plan.



     2.35 “Purchase Price” means the purchase price for each Share pursuant to
a grant of Restricted Shares or Unrestricted Shares.



4









 





     2.36 “REIT Employee” means any person determined by the Board to be an
employee of the Company or any REIT Subsidiary.



     2.37 “REIT Subsidiary” means a corporation (or other entity) at least
fifty percent (50%) of whose total combined voting power of all classes of
shares (or other equity) is owned by the Company either directly or through one
or more REIT Subsidiaries.



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



     2.39 “Restricted Share” means Shares awarded to a Grantee pursuant to
Section 10 hereof.



     2.40 “SAR Exercise Price” means the per Share exercise price of an SAR
granted to a Grantee under Section 9 hereof.



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



     2.42 “Service” means service as a Service Provider to 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 a Service Provider
to 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.



     2.43 “Service Provider” means an employee, officer, director or trustee of
the Company or an Affiliate, or a consultant or adviser currently providing
services to the Company or an Affiliate.



     2.44 “Share” means the common shares of beneficial interest, par value
$0.01 per share, of the Company.



     2.45 “Share Appreciation Right” or “SAR” means a right granted to a
Grantee under Section 9 hereof.



     2.46 “Share Unit” means a bookkeeping entry representing the equivalent of
a Share awarded to a Grantee pursuant to Section 10 hereof.



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



     2.48 “Termination Date” means the date upon which an Option shall
terminate or expire, as set forth in Section 8.3 hereof.



5









 





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



     2.50 “Unrestricted Share” means an Award of Shares to a Grantee pursuant
to Section 11 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 governing
documents 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 governing documents and applicable law. The interpretation
and construction by the Board of any provision of the Plan, any Award or any
Award Agreement shall be final, binding and conclusive. Notwithstanding any
other provision of the Plan, the Board shall not take any action or make any
Awards hereunder that could cause the Company to fail to qualify as a real
estate investment trust for Federal income tax purposes.



     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 Company’s governing documents and
applicable law.




     (a) Except as provided in Subsection (b) and except as the Board may
otherwise determine, the Committee shall be the Compensation Committee of
the Board.




     (b) The Board may also appoint one or more separate committees of
the Board, each composed of one or more trustees of the Company, 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




6









 







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. Unless otherwise expressly determined by the Board, any such
action or determination by the Committee shall be final, binding and
conclusive. To the extent permitted by law, the Committee may delegate its
authority under the Plan to a member of the Board.




     3.3. Terms of Awards



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




          (a) designate Grantees;




          (b) determine the type or types of Awards to be made to a Grantee;




          (c) determine the number of Shares to be subject to an Award;




          (d) 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 subject thereto, and any terms or conditions that may be necessary
to qualify Options as Incentive Stock Options);




          (e) prescribe the form of each Award Agreement evidencing an Award;
and




          (f) amend, modify, or supplement the terms of any outstanding Award.
Such authority specifically includes the authority, 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. No amendment, modification or supplement to the
terms of an outstanding Award shall, without the consent of the Grantee,
materially impair rights or obligations under the Award theretofore
awarded under the Plan.



     As a condition to any subsequent Award, the Board shall have the right, at
its discretion, to require Grantees to return to the Company Awards previously
made under the Plan. 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 in competition with the Company
or any Affiliate thereof, to the extent specified in such Award Agreement
applicable to the Grantee. Furthermore, the Company may retain the right in an



7









 




Award Agreement to 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
shall be contingent upon the Grantee executing the appropriate Award Agreement.




     The Board may not make an amendment or modification to an outstanding
Option or SAR that reduces the Option Price or SAR Exercise Price, either by
lowering the Option Price or SAR Exercise Price or by canceling the outstanding
Option or SAR and granting a replacement Option or SAR with a lower exercise
price without shareholder approval; provided, that, appropriate adjustments may
be made to outstanding Options and SARs pursuant to Section 16.



     3.4. Book-Entry



     Notwithstanding any other provision of the Plan to the contrary, the
Company may elect to satisfy any requirement under the Plan for the delivery of
share certificates through the use of book-entry.



     3.5. Deferral Arrangement



     The Board may permit or require 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 Share equivalents and restricting deferrals to comply with hardship
distribution rules affecting 401(k) plans. The Company may, but is not
obligated to, contribute the Shares that would otherwise be issuable pursuant
to an Award to a rabbi trust. Shares issued to a rabbi trust pursuant to this
Section 3.5 may ultimately be issued to the Grantee in accordance with the
terms of the deferred compensation plan or the Award Agreement.



     3.6. 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.



     3.7. Form of Payment For Options And Restricted Share



          (a) General Rule. Payment of the Option Price for the Shares purchased
pursuant to the exercise of an Option or the Purchase Price for Restricted
Shares shall be made in cash or in cash equivalents acceptable to the Company.



          (b) Surrender of Shares. 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 Restricted Shares may be made all or in part
through the tender to the Company of Shares, 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



8









 




extent to which the Option Price or Purchase Price has been paid thereby,
at their Fair Market Value on the date of exercise or surrender.




          (c) Cashless Exercise. With respect to an Option only (and not with
respect to Restricted Shares), to the extent the Award Agreement so provides
and to the extent permitted by law, 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 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 17.3.



          (d) Other Forms of Payment. To the extent the Award Agreement so
provides, payment of the Option Price for Shares purchased pursuant to exercise
of an Option or the Purchase Price for Restricted Shares may be made in any
other form that is consistent with applicable laws, regulations and rules.



4. SHARES SUBJECT TO THE PLAN




     Subject to adjustment as provided in Section 16 hereof, the number of
Shares available for issuance under the Plan shall be 3,000,000. All of such
Shares available for issuance under the Plan shall be available for issuance
pursuant to Incentive Stock Options. Shares issued or to be issued under the
Plan shall be authorized but unissued Shares. If any Shares covered by an
Award are not purchased or are forfeited, or if an Award otherwise terminates
without delivery of any Share subject thereto, then the number of Shares
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; provided,
however, that such Shares, to the extent of any such forfeiture or termination,
will continue to count towards the individual limits set forth in Section 6.3.



     If the Option Price of any Option granted under the Plan, or if pursuant
to Section 17.3 the withholding obligation of any Grantee with respect to an
Option or other Award, is satisfied by tendering shares of Stock to the Company
(by either actual delivery or by attestation) or by withholding shares of
Stock, the number of shares of Stock issued net of the shares of Stock tendered
or withheld shall be deemed delivered for purposes of determining the maximum
number of shares of Stock available for delivery under the Plan.



     The Board shall have the right to substitute or assume Awards in
connection with mergers, reorganizations, separations, or other transactions to
which Section 424(a) of the Code applies, provided such substitutions and
assumptions are permitted by Section 424 of the Code and the regulations
promulgated thereunder. The number of Shares reserved pursuant to Section 4
may be increased by the corresponding number of Awards assumed and, in the case
of a substitution, by the net increase in the number of Shares subject to
Awards before and after the substitution.



9









 





5. EFFECTIVE DATE, DURATION AND AMENDMENTS




     5.1. Effective Date




     The Plan shall be effective as of the Effective Date, subject to approval
of the Plan by the Company’s shareholders within one year of the Effective
Date. Upon approval of the Plan by the shareholders of the Company as set
forth above, all Awards made under the Plan on or after the Effective Date
shall be fully effective as if the shareholders of the Company had approved the
Plan on the Effective Date. If the shareholders fail to approve the Plan
within one year after the Effective Date, any Awards made hereunder shall be
null and void and of no effect.



     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.



     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 as to which Awards have not been made. An
amendment shall be contingent on approval of the Company’s shareholders 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, materially impair rights or
obligations under any Award theretofore awarded under the Plan.



6. AWARD ELIGIBILITY AND LIMITATIONS




     6.1. Service Providers and Other Persons



     Subject to this Section 6, Awards may be made under the Plan to: (a) any
Service Provider to the Company or of any Affiliate, including any Service
Provider who is an officer, director or trustee of the Company or of any
Affiliate, as the Board shall determine and designate from time to time, (b)
any Outside Trustee, and (c) 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 may receive more than one Award, subject to such
restrictions as are provided herein.



     6.3. Limitation on Shares Subject to Awards and Cash Awards



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



10









 






          (a) the maximum number of Shares subject to Options, SARs or
time-vested Restricted Shares that can be awarded under the Plan to any
person eligible for an Award under Section 6 hereof is 500,000 per
calendar year;




          (b) the maximum number of Shares that can be awarded under the Plan,
other than pursuant to an Option, SARs or time-vested Restricted Shares
to any person eligible for an Award under Section 6 hereof is 250,000 per
calendar year;




          (c) the maximum amount that may be earned as an Annual Incentive
Award or other cash Award in any fiscal year by any one Grantee shall be
$2,000,000 and the maximum amount that may be earned as a Performance
Award or other cash Award in respect of a performance period by any one
Grantee shall be $5,000,000.



     The preceding limitations in this Section 6.3 are subject to adjustment as
provided in Section 16 hereof.



     6.4. Limitations on Incentive Stock Options



     An Option shall constitute an Incentive Stock Option only (a) if the
Grantee of such Option is an employee of the Company or any Subsidiary of the
Company; (b) to the extent specifically provided in the related Award
Agreement; and (c) to the extent that the aggregate Fair Market Value
(determined at the time the Option is granted) of the Shares with respect to
which all Incentive Stock Options held by such Grantee become 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. 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 Shares subject to the Award is equivalent in value to the cash compensation
(for example, Share Units or Restricted Shares), 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 Share 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




11









 








     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 entered into from time to time or at the same time
need not contain similar provisions but shall be consistent with the terms of
the Plan.



8. OPTIONS




     The Board is authorized to grant Options on the following terms and conditions:



     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; provided,
however, that in the event that a Grantee is a Ten Percent Shareholder, the
Option Price of an Option granted to such Grantee that is intended to be an
Incentive Stock Option shall be not less than one hundred ten percent (110%) of
the Fair Market Value of a Share on the Grant Date. In no case shall the
Option Price of any Option be less than the par value of a Share.



     8.2. Vesting



     Subject to Sections 8.3 and 16.3 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 subject to an Option shall be
rounded down to the next nearest whole number.



     8.3. Term



     Each Option granted under the Plan shall terminate, and all rights to
purchase Shares 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
Shareholder, 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, need not be uniform among all Options issued pursuant to the Plan, and
may reflect distinctions based on the reasons for termination of Service.



     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 shareholders of the Company as




12










 




provided herein or after the occurrence of an event referred to in Section 16
hereof that results in termination of the Option.




     8.6. Method of Exercise



     An Option that is exercisable may 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. Such notice
shall specify the number of Shares 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 plus if applicable, any
withholding taxes described in Section 17.3.



     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 shareholder
(for example, the right to receive cash or dividend payments or distributions
attributable to the subject Shares or to direct the voting of the subject
Shares) until the Shares covered thereby are fully paid and issued to him.
Except as provided in Section 16 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 Share 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
share certificate or certificates evidencing his or her ownership of the Shares
subject to the Option.



     8.9. Transferability of Options



     Except as provided in Section 8.10, 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 8.10, 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.



     8.10. Family Transfers



     If authorized in the applicable Award Agreement, a Grantee may transfer,
not for value, all or part of an Option that is not an Incentive Stock Option
to any Family Member. For the purpose of this Section 8.10, a “not for value”
transfer is a transfer that is (a) a gift, (b) a transfer under a domestic
relations order in settlement of marital property rights; or (c) a transfer to
an entity in which more than fifty percent (50%) 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 8.10, 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



13









 







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



9. SHARE APPRECIATION RIGHTS




     The Board is authorized to grant Share Appreciation Rights (“SARs”) on the
following terms and conditions:



     9.1. 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 on the date of exercise over (b) the grant price of the SAR as determined
by the Board. The Award Agreement for a SAR shall specify the grant price of
the SAR, which may be fixed at no less than the Fair Market Value of a Share on
the date of grant or may vary in accordance with a predetermined formula while
the SAR is outstanding. A SAR granted in tandem with an outstanding Option
following the Grant Date of such Option may have a grant price that is equal to
the Option Price, even if such grant price is less than the Fair Market Value
of a Share on the grant date of the SAR.



     9.2. 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 Share 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.



10. RESTRICTED SHARES AND SHARE UNITS




     10.1. Grant of Restricted Shares or Share Units



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



     10.2. Restrictions



     At the time a grant of Restricted Shares or Share Units is made, the Board
may, in its sole discretion, establish a period of time (a “restricted period”)
applicable to such Restricted Shares or



14









 







Share Units. Each Award of Restricted Shares or Share Units may be subject to
a different restricted period. The Board may, in its sole discretion, at the
time a grant of Restricted Shares or Share 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
Shares or Share Units in accordance with Section 13.1 and 13.2. Neither
Restricted Shares nor Share 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 Shares or Share Units.



     10.3. Restricted Share Certificates



     The Company shall issue, in the name of each Grantee to whom Restricted
Shares have been granted, share certificates representing the total number of
Restricted Shares granted to the Grantee, as soon as reasonably practicable
after the Grant Date. The Board may provide in an Award Agreement that either
(a) the Secretary of the Company shall hold such certificates for the Grantee’s
benefit until such time as the Restricted Shares are forfeited to the Company
or the restrictions lapse or (b) 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
make appropriate reference to the restrictions imposed under the Plan and the
Award Agreement.



     10.4. Rights of Holders of Restricted Shares



     Holders of Restricted Shares shall have the right to vote such Shares and
the right to receive any dividends declared or paid with respect to such
Shares. All distributions, if any, received by a Grantee with respect to
Restricted Shares as a result of any share split, share dividend, combination
of Shares, or other similar transaction shall be subject to the restrictions
applicable to the original Grant.



     10.5. Rights of Holders of Share Units




10.5.1. Voting and Dividend Rights



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



10.5.2. Creditor’s Rights



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



15









 





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



     10.7. Purchase of Restricted Shares



     The Grantee shall be required, to the extent required by applicable law,
to purchase the Restricted Shares from the Company at a Purchase Price equal to
the greater of (a) the aggregate par value of the Shares represented by such
Restricted Shares or (b) the Purchase Price, if any, specified in the Award
Agreement relating to such Restricted Shares. The Purchase Price shall be
payable in a form described in Section 3.7 or, in the discretion of the Board,
in consideration for past Services rendered to the Company or an Affiliate.



     10.8. Delivery of Share Certificates



     Upon the expiration or termination of any restricted period and the
satisfaction of any other conditions prescribed by the Board, the restrictions
applicable to Restricted Shares or Share Units settled in Shares shall lapse,
and, unless otherwise provided in the Award Agreement, a share 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.



11. UNRESTRICTED SHARE AWARDS




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



12. DIVIDEND EQUIVALENT RIGHTS




     12.1. Dividend Equivalent Rights



     The Board may from time to time grant Dividend Equivalent Rights, subject
to such restrictions, conditions and other terms, if any, as the Board may
determine. 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 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



16









 







be specified in the Award Agreement. 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, 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 Shares
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.



     12.2. 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.



13. PERFORMANCE AND ANNUAL INCENTIVE AWARDS




     13.1. 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 Section 13.2 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.



     13.2. 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 13.2.



17









 





          13.2.1. 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 13.2. 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.



          13.2.2. 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 shareholder return and earnings per
share criteria), shall be used exclusively by the Committee in establishing
performance goals for such Performance or Annual Incentive Awards: (a) total
shareholder return; (b) such total shareholder 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; (c) net income; (d) pretax
earnings; (e) earnings calculated before any or all of the following: interest
expense, interest, taxes, depreciation and amortization; (f) pretax operating
earnings after interest expense and before bonuses, service fees, and
extraordinary or special items; (g) operating margin; (h) earnings per share;
(i) return on equity; (j) return on capital; (k) return on investment; (l)
operating earnings; (m) working capital; (n) ratio of debt to shareholders’
equity; (o) revenue; (p) funds from operations; (q) net operating income; and
(r) return on assets.



          13.2.3. 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).



          13.2.4. Performance or Annual Incentive Award Pool



          The Committee may establish a Performance or Annual Incentive Award pool,
which shall be an unfunded pool, for purposes of measuring Company performance
in connection with Performance or Annual Incentive Awards.



18









 





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



          Settlement of such Performance or Annual Incentive Awards shall be in
cash, Shares, 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.



     13.3. 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.



     13.4. Status of Section 13.2 Awards Under Code Section 162(m)



     It is the intent of the Company that Performance Awards and Annual
Incentive Awards under Section 13.2 hereof granted to persons who are
designated by the 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 13.2, 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.



14. PARACHUTE LIMITATIONS




     Notwithstanding any other provision of the Plan or of any other agreement,
contract, or understanding heretofore entered into by a Grantee with the
Company or any Affiliate, except to the



19









 







extent otherwise provided for by an agreement, contract, or understanding
hereafter entered into that 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 Award held by that Grantee and any right to receive any payment
or other benefit under the Plan shall not become exercisable or vested (a) 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 the Plan, all Other Agreements, and all Benefit Arrangements, would cause
any payment or benefit to the Grantee under the 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 (b) if, as a result of receiving a
Parachute Payment, the aggregate after-tax amounts received by the Grantee from
the Company under the 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 the 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 the Plan that would have the effect
of decreasing the after-tax amount received by the Grantee as described in
clause (b) 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 the 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.



15. REQUIREMENTS OF LAW




     15.1. General



     The Company shall not be required to sell or issue any Shares 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,
appropriate or desirable as a condition of, or in connection with, the issuance
or purchase of Shares hereunder, no Shares 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 underlying an Award, unless a
registration statement under such Act is in effect with respect to the Shares
covered by such Award, the Company shall not be



20









 







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 to
cause the exercise of an Option or the issuance of Shares 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 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.



     15.2. 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 the Plan in any
respect necessary, appropriate or desirable to satisfy the requirements of, or
to take advantage of any features of, the revised exemption or its replacement.



16. EFFECT OF CHANGES IN CAPITALIZATION




     16.1. Changes in Shares



     If the number of outstanding Shares is increased or decreased or the
Shares 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, share split, reverse split, combination of shares, exchange
of shares, share dividend or other distribution payable in capital shares, or
other increase or decrease in such shares effected 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 affected without receipt
of consideration. Notwithstanding the foregoing, in the event of any
distribution to the Company’s shareholders of securities of any other entity or
other assets without receipt of consideration by the



21









 







Company, the Company may, in such manner as the Company deems necessary,
appropriate or desirable, adjust (a) the number and kind of Shares subject to
outstanding Awards and/or (b) the exercise price of outstanding Options and
Share Appreciation Rights to reflect such distribution.



     16.2. Certain Reorganizations That are Not Corporate Transactions



     Subject to Section 16.3 hereof, if the Company is the surviving entity in
any reorganization, merger, or consolidation of the Company with one or more
other entities and such transaction 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 subject to such Option or SAR would have been entitled immediately
following such reorganization, merger, or consolidation, with a corresponding
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. In the event of a
transaction described in this Section 16.2, Share Units shall be adjusted so as
to apply to the securities that a holder of the number of Shares subject to the
Share Units would have been entitled to receive immediately following such
transaction.



     16.3. Corporate Transaction



     Subject to the exceptions set forth in the last sentence of this Section
16.3 and the last sentence of Section 16.4, upon the occurrence of a Corporate
Transaction:



     (a) all outstanding Restricted Shares and Share Units shall be deemed to
have vested, and all restrictions and conditions applicable to such Restricted
Shares and Share Units shall be deemed to have lapsed and the Share Units shall
be delivered, immediately prior to the occurrence of such Corporate
Transaction, and



     (b) fifteen days prior to the scheduled consummation of a Corporate
Transaction, all Options and SARs outstanding hereunder shall become
immediately exercisable and shall remain exercisable for a period of fifteen
days.



     With respect to the Company’s establishment of an exercise window, (a) any
exercise of an Option or SAR during such fifteen-day period shall be
conditioned upon the consummation of the event and shall be effective only
immediately before the consummation of the event, and (b) 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
shareholders. This Section 16.3 shall not apply to any Corporate Transaction
to the extent that (i) provision is made in writing in connection with such
Corporate Transaction for the assumption or continuation of the Options, SARs,
Share Units, Restricted Shares theretofore granted, or for the substitution for
such Options, SARs, Restricted Shares, and Share Units for new common share
options and share appreciation rights and new



22









 







common restricted shares and share units relating to the shares of a successor
entity, or a parent or subsidiary thereof, with appropriate adjustments as to
the number of Shares (disregarding any consideration that is not common shares)
of the successor and option and share appreciation right exercise prices, in
which event the Plan, Options, SARs, Restricted Shares, and Share Units
theretofore granted shall continue in the manner and under the terms so
provided or (ii) the Board may elect, in its sole discretion, to cancel any
outstanding Awards of Options, Restricted Shares, Share Units 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 Shares, or Share Units, equal to the
formula or fixed price per share paid to holders of Shares and, in the case of
Options or SARs, equal to the product of the number of Shares subject to the
Option or SAR (the “Award Shares”) multiplied by the amount, if any, by which
(A) the formula or fixed price per share paid to holders of Shares pursuant to
such transaction exceeds (B) the Option Price or SAR Exercise Price applicable
to such Award Shares.



     16.4. Adjustments



     Adjustments under this Section 16 related to Shares 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, Restricted Shares, and Share
Units 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 16.1, 16.2 and 16.3.



     16.5. 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.



17. GENERAL PROVISIONS




     17.1. 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 trustee,
director,



23









 







officer, consultant or employee of the Company or an Affiliate. The obligation
of the Company to pay any benefits pursuant to the 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.



     17.2. Nonexclusivity of the Plan



     Neither the adoption of the Plan nor the submission of the Plan to the
shareholders 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 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 share
options otherwise than under the Plan.



     17.3. 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 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, (a) by causing the Company or the Affiliate
to withhold Shares otherwise issuable to the Grantee or (b) by delivering to
the Company or the Affiliate Shares already owned by the Grantee. The Shares
so delivered or withheld shall have an aggregate Fair Market Value equal to
such withholding obligations. The Fair Market Value of the Shares 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 17.3
may satisfy his or her withholding obligation only with Shares that are not
subject to any repurchase, forfeiture, unfulfilled vesting, or other similar
requirements.



     17.4. Captions



     The use of captions in the 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.



     17.5. 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.



24









 





     17.6. Number and Gender



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



     17.7. 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.



     17.8. 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.



* * *




     To record adoption of the Plan by the Board as of               , 2004,
and approval of the Plan by the shareholders on               , 2004, the
Company has caused its authorized officer to execute the Plan.



	 	 	 	 	 
	 	 	U-STORE-IT TRUST
	 
	 	 	 	 
	

	 	By:
	 	

	

	 	Name:
	 	

	

	 	Title:
	 	









25