EXHIBIT 4.2
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AMENDMENT TO BANYAN STRATEGIC REALTY TRUST
1997 OMNIBUS STOCK AND INCENTIVE PLAN
This Amendment to the Banyan Strategic Realty Trust 1997 Omnibus
Stock and Incentive Plan (the "Amendment") is made and entered into as of
this 17th day of July, 1997.
WHEREAS, management of the Trust has recommended, and the
Board of Trustees is desirous of, adopting the recommendations and amending
certain aspects of the Plan.
NOW THEREFORE, the Plan is hereby amended in the following:
1. Section IV(a)(i) shall be amended by deleting the first paragraph
thereof in its entirety and substituting in its entirety the following:
(a)(i) GRANT/EXERCISE. The Board may grant Options to
Participants in number and on terms determined by the Board; provided,
however, that each Person serving as an "Independent Trustee" on the tenth
business day after final adjournment of the Company's annual meeting
convened on July 8, 1997 shall receive an Option to acquire 2,000 Shares,
and provided further that each Person serving as an Independent Trustee ten
business days after the final adjournment of each succeeding annual meeting
will be granted an Option to purchase 2,000 Shares. Notwithstanding
anything to the contrary contained in this Plan, the Board may not increase
the number of Shares underlying options which may be granted to Independent
Trustees hereunder without the Approval of the Trust's holders of
beneficial interest.
2. Section V shall be amended by deleting Clause (a) in its entirety and
substituting in its entirety the following:
(a) NUMBER OF SHARES
The stock subject to the Awards granted under this Plan will be
the Company's shares of beneficial interest, no par value, and any other
stock or security resulting from the adjustment thereof or substitution
therefore. There shall be one million (1,000,000) Shares reserved and
available for Awards granted hereunder. The Shares issued upon exercise of
an Award may be authorized and unissued Shares, or Shares issued and
reacquired by the Company. In no event may the number of Shares reserved
and available for issuance hereunder be increased except with the Approval
of the Trust's holders of beneficial interest.
3. Section VI shall be amended by deleting Clause (b) in its entirety
and substituting in its entirety the following:
(b) EXERCISE OF AWARDS
Except for Stock Options awarded to the Independent Trustees,
Awards granted hereunder will generally vest and be exercisable in
installments as follows: (i) to the extent of 33.3% of the number of
Shares commencing on the first anniversary of the date of grant; (ii) to
the extent of an additional 33.3% of Shares commencing on the second
anniversary of the date of grant; and (iii) to the extent of an additional
33.4% of Shares commencing on the third anniversary of the date of grant;
provided that the Board may accelerate vesting in
the event of a Participant's death, permanent disability or
retirement in accordance with the Company's retirement policy or where
acceleration of vesting is, in the Board's judgment, in the Company's best
interest provided further that no Award will vest if, to do so, would
create a situation which would result in an "excess parachute payment"
within the meaning of Section 280G of the Code. Stock Options granted to
the Independent Trustees hereunder will vest and be exercisable in
installments as follows: (i) to the extent of 50.0% of the number of Shares
commencing on the first anniversary of the date of grant; and (ii) to the
extent of 50.0% of the number of Shares commencing on the second
anniversary of the date of grant. If the Participant does not, in any
given period, purchase all of the Shares subject to the Award, the
Participant's right to purchase any Shares not purchased in the period will
continue until the expiration or sooner termination of the Award, except to
the extent provided otherwise in the Plan Agreement. Except as otherwise
provided herein or in a Plan Agreement, as a condition to the grant of an
award to any Employee, the Participant must remain in the continuous employ
of the Company or its subsidiaries for the period of time specified by the
Board and the Plan Agreement. To exercise an Award, the Participant must
give written notice to the Company's Vice President General Counsel at the
Company's office at Suite 2900, 150 South Wacker Drive, Chicago, Illinois
60606 (or the office which is the successor main office or which is
otherwise designated as the office to which notice is to be given) of the
number of Shares to be acquired and make any arrangements with the Vice
President General Counsel as are acceptable to the Vice President General
Counsel to satisfy the Participant's federal, state and local tax
withholding obligations and satisfy the Participant's obligation under the
Plan and the Plan Agreement. Nothing herein shall prevent the Board from
imposing vesting requirements in connection with any specific Award which
are more restrictive than those generally set forth herein; provided,
however, that the Board may not make changes to the vesting requirements
described herein which are generally more favorable than those set forth
herein without the Approval of the Trust's holders of beneficial interest.
4. Section VII(b) shall be amended by adding the following:
(viii) Repricing. Notwithstanding anything to the contrary
contained herein in this Section VII, the Board may not reprice or
otherwise exchange any of the Awards outstanding under the Plan unless the
repricing or exchange is: (a) authorized by a committee composed entirely
of Independent Trustees to fulfill a legitimate Trust purpose; (b) utilized
only to maintain option value due to extreme circumstances beyond
management's control; and (c) limited to no more than 10% of the Shares
authorized for grant under the Plan.
Further, except as provided in this Section VII, the Board shall not
have the power to waive any conditions precedent to the exercise of Awards
except with the Approval of the Trust's holders of beneficial interest.
5. Section VII shall be amended by deleting Clause (i) in its entirety
and substituting in its entirety the following:
(i) AMENDMENT, MODIFICATION AND TERMINATION
Subject to the terms of the Plan, and except as specifically
provided herein, the Board may alter, amend, suspend or terminate the Plan
in whole or in part provided that the Board may not amend the definition of
"Participant" as set forth in Section VIII(w) hereof or this Section VII(i)
without Approval of the Trust's holders of beneficial interest. Except as
set forth in Section VII(b), the Board may make adjustments in the terms
and conditions of, and the criteria included in, Awards in recognition of
unusual or non-recurring events affecting the Company or the financial
statements of
the Company or of changes in applicable laws, regulations or
accounting principles, whenever the Board determines that such adjustments
are appropriate in order to prevent dilution or enlargement of the benefits
or potential benefits intended to be made available under the Plan;
provided that no such adjustment may be authorized to the extent that an
adjustment would be inconsistent with the requirements of Section 162(m) of
the Code, as from time to time amended. No termination, amendment or
modification of the Plan shall adversely affect in any material way any
Award previously granted under the Plan, without the written consent of the
Participant holding the Award. For purposes of this Plan, "Approval" shall
mean the affirmative vote of a majority of the Trust's holders of shares of
beneficial interest present in person or by proxy and eligible to vote at
any annual or special meeting of the Trust's holders of beneficial interest
called for the purpose of, among other things, seeking Approval.
IN WITNESS HEREOF, this Amendment is adopted and executed on the day
and year first written above.
Board of Trustees
BANYAN STRATEGIC REALTY TRUST
/s/ Walter E. Auch, Sr.
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Walter E. Auch, Sr.
/s/ Norman M. Gold
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Norman M. Gold
/s/ Marvin A. Sotoloff
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Marvin A. Sotoloff