Exhibit 99.1
The Newhall Land and Farming Company 1995 Option/Award Plan.
THE NEWHALL LAND AND FARMING COMPANY
1995 OPTION/AWARD PLAN
EFFECTIVE JANUARY 18, 1995
ARTICLE ONE
GENERAL PROVISIONS
1.1 PURPOSE OF THE PLAN
The Newhall Land and Farming Company 1995 Option/Award Plan
("Plan") is implemented as of January 18, 1995, to enable The
Newhall Land and Farming Company (a California Limited
Partnership) ("Partnership") to offer options, appreciation
rights, restricted units and unit rights ("Awards") to key
employees of the Partnership and any affiliates thereof as an
incentive for them to remain in the service of the Partnership
(or its affiliated entities). In addition, this Plan provides
for automatic grants to non-employee members of the Board of
Directors of the managing general partner or its managing general
partner ("Board").
The Plan will become effective and will supersede The
Newhall Land and Farming Company Option, Appreciation Rights and
Restricted Units Plan as amended and restated ("Prior Plan") on
January 18, 1995. Awards granted under the Prior Plan will
continue in accordance with the terms of the agreements
evidencing such Awards and the Prior Plan. No further Awards
will be granted under the Prior Plan.
1.2 ADMINISTRATION OF THE PLAN
The Plan will be administered by a committee or committees
(which term includes subcommittees) appointed by, and consisting
of three or more members of, the Board. The composition of any
committee responsible for administration of the Plan for persons
who are subject to the restrictions of Section 16(b) of the
Securities Exchange Act of 1934 ("1934 Act") shall comply with
the applicable requirements of Rule 16b-3 of the 1934 Act (or a
successor provision) with respect to securities of the
Partnership. The Board may delegate the responsibility for
administration of the Plan with respect to designated classes of
grantees to different committees, subject to such limitations as
the Board deems appropriate. The members of a committee will
serve for such term as the Board may determine, and are subject
to removal by the Board at any time. Any committee appointed by
the Board shall have full authority to administer the Plan within
the scope of its delegated responsibilities, including authority
to interpret and construe any relevant provision of the Plan and
to adopt such rules and regulations as it may
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deem necessary. Decisions of a committee made within the
discretionary authority delegated to it by the Board are final
and binding on all persons who have an interest in the Plan.
With respect to any matter, the term "Committee" refers to the
committee that has been delegated authority with respect to such
matter, or the Board if no Committee has been appointed.
1.3 DEPOSITARY UNITS
A. Number of Depositary Units. The equity securities to
be subject to Awards under the Plan shall be limited partnership
interests in the Partnership represented by transferable
depositary units. The aggregate number of depositary units that
may be issued under the Plan will not exceed 600,000, subject to
adjustment in accordance with the terms of the Plan.
B. Expired Grants and Awards. If any outstanding Award
under the Plan or the Prior Plan expires, is terminated, is
cancelled or is forfeited for any reason before the full number
of depositary units governed by the Award are issued, those
remaining depositary units will not be charged against the limit
in Paragraph A above and will become available for subsequent
Awards under the Plan. Notwithstanding the foregoing, depositary
units for which a cash payment is made in lieu of payment in
depositary units as provided under this Plan and restricted units
forfeited to or repurchased by the Partnership pursuant to its
forfeiture and repurchase rights under this Plan will not be
available for subsequent Awards under this Plan.
C. Adjustments. If any change is made to the depositary
units issuable under the Plan (whether by reason of merger,
consolidation, reorganization, recapitalization, depositary unit
distribution, depositary unit split, combination of depositary
units, exchange of depositary units, or other change in
partnership or capital structure of the Partnership), or if the
Partnership makes a distribution to holders of depositary units
which results from the sale or disposition of a major asset or
separate operating division of the Partnership, which would
materially dilute the rights of Award holders', then, the
Committee shall make appropriate adjustments to (i) the maximum
number and/or class of securities issuable under the Plan, (ii)
the number and/or class of securities and price per depositary
unit in effect under each outstanding Award under the Plan and
(iii) the maximum number of depositary units issuable to one
individual pursuant to Paragraph 1.3.D. The purpose of these
adjustments will be to preclude the enlargement or dilution of
rights and benefits under the Awards.
D. Individual Limit. No individual may be granted
options, appreciation rights, restricted units, unit rights or
any combination thereof under the Plan covering or related to
more than twenty-five percent (25%) of the number of depositary
units initially authorized for issuance under the plan, plus
twenty-five percent (25%) of any additional depositary units
subsequently authorized for issuance under the Plan (subject, in
each case, to adjustment as provided in Paragraph 1.3.C.).
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E. Restrictions. Depositary units issued under the Plan
may be subject to such restrictions on transfer, repurchase
rights, or other restrictions as shall be determined by the
Committee.
ARTICLE TWO
DISCRETIONARY AWARDS
2.1 ELIGIBILITY
Awards may be granted under this Article Two to those
employees (including officers, whether or not they are directors)
who provide services to the Partnership and its affiliated
entities as the Committee from time to time selects. However, in
no event shall an Award be made under this Article Two to an
individual who is a non-employee Board member ("Independent
Director").
2.2 OPTIONS
A. Type and Term. Options granted pursuant to the Plan
shall be authorized by the Committee and shall be either options
intended to meet the requirements of Section 422 of the Internal
Revenue Code of 1986, as amended ("Code"), if and to the extent
permissible under Code Section 422 ("Incentive Options"), or,
nonstatutory options. The Committee has full authority to
determine the time or times at which options become exercisable,
and the maximum term for which options remain outstanding.
However, no options shall have a maximum term in excess of ten
(10) years. Options will be evidenced by instruments in such
form as the Committee may from time to time approve.
B. Price. The option price per depositary unit will be
not less than one hundred percent (100%) of the Fair Market Value
of a depositary unit on the date of grant.
C. Exercise and Payment. After any option which has been
granted under the Plan becomes exercisable, it may be exercised
by a written notice to the Partnership at any time before
termination of the option. The option price will be immediately
due upon exercise and shall be payable in the Committee's
discretion, and subject to such restrictions as the Committee
shall determine, in one or more of the following alternative
forms:
(1) in cash or cash equivalents made payable to the
Partnership;
(2) in depositary units valued as of the Exercise Date
(as defined below) and held for the requisite period in order to
avoid a charge to earnings;
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(3) through a sale and remittance procedure under
which the optionee delivers a properly executed exercise notice
together with irrevocable instructions to a broker to promptly
deliver to the Partnership the amount of sale proceeds to pay the
option price; or
(4) such other lawful consideration as the Committee
shall determine.
For purposes of Subparagraph (2) immediately above, the
"Exercise Date" is the date on which written notice of the
exercise of the option is delivered to the Partnership. In all
other cases, the Exercise Date is the date on which written
notice and actual payment is received by the Partnership.
D. Depositary Unit Holder Rights. An optionee will have
no depositary unit holder rights with respect to any depositary
units covered by an option before the optionee exercises the
option and is issued depositary units for those exercised
options.
E. Separation from Service. The Committee will determine
and set forth in each option whether the option will continue to
be exercisable, and the terms of such exercise, on and after the
date that an optionee ceases to be employed by or to provide
services to the Partnership or an affiliate. The date of
termination of an optionee's employment or services will be
determined by the Committee, which determination will be final.
F. Incentive Options. Options granted under the Plan
which are intended to be Incentive Options are subject to the
following additional terms and conditions:
(1) Dollar Limitation. To the extent that the
aggregate Fair Market Value of depositary units (determined as of
the date or dates of grant) covered by options under the Plan (or
any other plan of the Partnership or any parent or subsidiary or
predecessor thereof) which were granted as Incentive Options, are
exercisable for the first time by the optionee during any
calendar year, exceeds the sum of $100,000 (or such greater
amount as may be permitted under the Code), whether by reason of
acceleration or otherwise, such options shall lose their
Incentive Option designation and shall be "nonstatutory" options.
Such options shall be taken into account in the order in which
they were granted.
(2) 10% Unitholder. If any employee to whom an
Incentive Option is to be granted pursuant to the provisions of
the Plan is on the date of grant the owner of depositary units
(determined by application of the ownership attribution rules of
Section 425(d) of the Code) possessing more than 10% of the total
combined voting power of all classes of securities of his or her
employer or of its parent or subsidiary then the following
special provisions will apply to the option:
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(i) The option price per depositary units subject
to such Incentive Option may not be less than 110% of the Fair
Market Value of one depositary unit on the date of grant; and
(ii) The option may not have a term in excess of
five (5) years from the date of grant.
(3) Eligible Employees. Individuals who are not
employees of the Partnership or one of its parents or
subsidiaries, or who are otherwise ineligible to receive an
Incentive Option under Section 422 of the Code, may not be
granted Incentive Options.
(4) Parent and Subsidiary. For purposes of this
Paragraph F., "parent" and "subsidiary" will have the meaning
attributed to those terms as they are used in Section 422 of the
Code (or a successor provision).
2.3 APPRECIATION RIGHTS
Upon such terms, conditions and restrictions as the
Committee shall determine in its discretion, an appreciation
right shall consist of the right to receive an appreciation
distribution in an amount equal to the difference between (i) the
Fair Market Value of one depositary unit on the date of the
exercise of the right and (ii) an amount not less than the Fair
Market Value of one depositary unit on the date that the right is
granted (or, in the case of an appreciation right granted in
tandem with or in substitution for a previously granted option,
an amount not less than the Fair Market Value of a depositary
unit on the date that the option was granted). The appreciation
distribution may be made in the form of depositary units, cash or
a combination thereof. An appreciation right may provide for the
payment, either currently or at the time of exercise, of
distribution equivalents for the period the right is held before
exercise, subject to such requirements and limits as the
Committee may specify. Appreciation rights will be evidenced by
instruments in such form as the Committee may from time to time
approve. No appreciation right shall have a maximum term in
excess of ten (10) years.
2.4 RESTRICTED UNITS
Restricted units granted under the Plan consist of
depositary units (together with cash distributions if so
determined by the Committee), the retention and transfer of which
is subject to such terms, conditions and restrictions (whether
based on performance standards or periods of service or otherwise
and including repurchase and/or forfeiture rights in favor of the
Partnership) as the Committee shall determine in its discretion.
The terms, conditions and restrictions to which restricted units
are subject will be evidenced by such instruments as the
Committee may from time to time approve and may vary from grant
to grant. The Committee has the absolute discretion to determine
whether any consideration (other than the services of the
potential grantee) is
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to be received by the Partnership or its affiliates as a
condition precedent to the issuance of restricted units.
The Committee may require a grantee to receive a portion of
the total value, or the total value of the depositary units
subject to restricted units in the form of a cash payment,
subject to such terms, conditions and restrictions as the
Committee may specify.
2.5 UNIT RIGHTS
Unit rights granted under the Plan consist of the right,
subject to such terms, conditions and restrictions as the
Committee may determine (including, but not limited to
performance standards), to receive a depositary unit. Unit
rights will be evidenced by such instruments as the Committee may
from time to time approve. The Committee has the absolute
discretion to determine whether any consideration (other than the
services of the potential grantee) is to be received by the
Partnership as a condition precedent to the issuance of
depositary units pursuant to unit rights. The terms, conditions
and restrictions to which unit rights are subject may vary from
grant to grant.
The Committee may require a grantee to receive a portion of
the total value, or the total value of the depositary units
subject to unit rights in the form of a cash payment, subject to
such terms, conditions and restrictions as the Committee may
specify.
2.6 REPURCHASE RIGHTS
The Committee may in its discretion determine that it shall
be a term and condition of one or more Awards exercised under the
Plan that the Partnership or its assigns will have the right,
exercisable upon the grantee's separation from service with the
Partnership and/or its affiliates, to repurchase any or all of
the depositary units previously acquired by the grantee upon the
exercise of that Award. Any such repurchase right will be
exercisable on such terms and conditions (including the
establishment of the appropriate vesting schedule and other
provisions for the expiration of the repurchase right in one or
more installments) as the Committee may specify in the instrument
evidencing the right. The Committee will also have full power
and authority to provide for the automatic termination of
repurchase rights, in whole or in part, thereby accelerating the
vesting of any or all of the purchased depositary units.
2.7 ADJUSTMENTS UPON CHANGES IN PARTNERSHIP STRUCTURE OR CONTROL
A. Acceleration of Awards. In the event of a "Structural
Transaction" or "Change in Control" (as defined below), the
vesting of each Award will be automatically accelerated so that
(1) each option or appreciation right at the time outstanding
under the Plan and not then otherwise fully vested shall become
fully vested for up to the total number of depositary units
purchasable or issuable thereunder and each option may be
exercised for all or any portion of the depositary units for
which the option is so
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accelerated (or surrendered for such payment in depositary units
and/or cash as the appreciation right or unit right may provide)
and (2) all depositary units and cash payments to which the
grantee of a restricted unit is entitled under any restricted
unit granted under this Plan shall be delivered to the grantee
and all of the Partnership's rights to the return or repurchase
of depositary units awarded pursuant to any restricted unit shall
terminate.
B. No Acceleration of Awards. In no event shall any such
acceleration or termination of repurchase rights in connection
with a Structural Transaction occur if and to the extent (i) such
Award is, in connection with the Structural Transaction, either
to be assumed by the successor entity or affiliate thereof or to
be replaced with a comparable option, appreciation right,
restricted unit or unit right to purchase or receive securities
of the successor entity or affiliate thereof, (ii) such Award is
to be replaced with a cash incentive program of the successor
entity which preserves the depositary unit spread existing at the
time of the Structural Transaction and provides for subsequent
payout in accordance with the same vesting schedule applicable to
such Award or (iii) the acceleration of such Award is subject to
other limitations imposed by the Committee at the time of the
Award grant. The determination of Award comparability under
clause (i) above shall be made by the Committee and its
determination shall be final, binding and conclusive. Upon
consummation of a Structural Transaction, all outstanding
options, appreciation rights, restricted units and unit rights
under the Plan shall, to the extent not previously exercised or
paid in full or assumed by the successor entity or an affiliate,
terminate.
C. Cancellation of Awards. Notwithstanding the above, in
the event of any Structural Transaction, the Committee shall have
the discretion to cancel vested and outstanding options, vested
restricted units, or vested unit rights for which depositary
units have not been issued, in whole or in part, subject to such
conditions as the Committee may determine, upon payment to (1)
optionees with respect to each cancelled option, an amount in
cash not less than the difference between (i) the fair market
value (at the effective date of such Structural Transaction) of
the consideration the optionee would have received if the option
had been exercised immediately prior to the effective date of
such Structural Transaction and (ii) the exercise price of such
option, (2) holders of restricted units and unit rights, with
respect to all cancelled restricted units and unit rights, an
amount in cash equal to the fair market value of the depositary
units (at the effective date of the Structural Transaction)
subject to the restricted unit or unit right.
D. Adjustment. If any change is made to the depositary
units issuable under the Plan by reason of a Structural
Transaction or a Change in Control that does not result in the
termination of all outstanding options, appreciation rights and
unit rights and all outstanding rights of the Partnership to the
return or repurchase of depositary units awarded pursuant to
restricted units pursuant to the provisions of this Paragraph
2.7.D., the Committee may adjust the maximum number of depositary
units issuable
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under the Plan, the number of depositary units subject to Awards,
and the option price, as provided in Paragraph 1.3.C.
E. Structural Transaction. A "Structural Transaction" is
any of the following transactions to which the Partnership is a
party:
(1) a merger or consolidation in which the Partnership
is not the surviving entity,
(2) any other merger or consolidation of the
Partnership with any other entity, approved by the holders of the
voting securities of the Partnership, other than a merger or
consolidation which would result in the voting securities of the
Partnership outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least 75% of
the total voting power represented by the voting securities of
the Partnership or such surviving entity outstanding immediately
after such merger or consolidation;
(3) a sale, transfer or other disposition of all or
substantially all of the Partnership's assets (in one transaction
or a series of transactions); or
(4) the complete liquidation or dissolution of the
Partnership.
F. Change in Control. A "Change in Control" occurs when:
(1) Any "person" (as defined below), other than a
trustee or other fiduciary holding securities under an employee
benefit plan of the Partnership or an entity owned directly or
indirectly by the holders of depositary units of the Partnership
in substantially the same proportions as their ownership of
depositary units of the Partnership, becomes the "beneficial
owner" (as defined below), directly or indirectly, of securities
representing 25% or more of the total voting power represented by
the Partnership's then outstanding voting securities, which has
not been approved by the "continuing managing general partner"
(as defined below);
(2) the "continuing managing general partner" (as
defined below) is removed.
For purposes of this subparagraph, "continuing managing
general partner" means (i) the managing general partner that was
serving as managing general partner prior to the Change in
Control, or (ii) any successor of the managing general partner
that is recommended to succeed the managing general partner by
the managing general partner in clause (i).
For purposes of this subparagraph, "person" shall mean
any individual, firm, company or other entity and shall include
any group comprised of any person and any other person with whom
such person or an Affiliate or Associate of such person has any
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agreement, arrangement or understanding, directly or indirectly,
for the purposes of acquiring, holding, voting or disposing of
Partnership interests.
For purposes of this subparagraph, a person shall be a
beneficial owner of any Partnership interest (i) which such
person or any of its Affiliates or Associates (as defined in Rule
12b-2 under the Securities Act of 1933, reading the term
"registrant" to mean the Partnership, and except that "Associate"
as used herein shall not include any relative or spouse of such
person, or any relative of such spouse, who is also a director or
officer of the managing general partner or its managing general
partner, merely because of such directorship or officership)
beneficially owns, directly or indirectly; (ii) with regard to
which such person or any of its Affiliates or Associates has,
directly or indirectly, (A) the right to acquire (whether such
right is exercisable immediately or subject only to the passage
of time) pursuant to any agreement, arrangement or understanding
or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (B) the right to vote
pursuant to any agreement, arrangement or understanding; or (iii)
which is beneficially owned, directly or indirectly, by any other
person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for
the purpose of acquiring, holding, voting or disposing of any
Partnership interest.
G. Partnership Structure. The grant of Awards under the
Plan shall in no way affect the Partnership's right to adjust,
reclassify, reorganize, or otherwise change its capital or
business structure or to merge, consolidate, dissolve, liquidate,
or sell or transfer any part of its business or assets.
2.8 ELECTIVE AND TANDEM AWARDS
The Committee may grant Awards independently of other
compensation or in lieu of other compensation whether at the
election of the potential grantee or otherwise. The number of
depositary units subject to options, appreciation rights,
restricted units or unit rights to be awarded in lieu of other
compensation will be determined by the Committee in its sole
discretion and need not be equal to the foregone compensation's
Fair Market Value. In addition, Awards may be granted in tandem,
so that a portion of the Award becomes payable or becomes free of
restrictions only if and to the extent that the tandem Award is
not exercised or is forfeited, subject to such terms and
conditions as the Committee may specify.
2.9 WITHHOLDING
The Committee may require or permit, in its discretion and
upon such terms and conditions as it may deem appropriate
(including the applicable safe-harbor provisions of Rule 16b-3)
any or all grantees under the Plan to elect to have the
Partnership withhold, from the depositary units otherwise
issuable pursuant to such Award, one or more of such depositary
units with an aggregate Fair Market Value equal to the Federal,
state and local employment and income taxes ("Taxes") incurred in
connection with the
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acquisition of such depositary units. Grantees under the Plan
may also be granted the right to deliver previously acquired
depositary units held for the requisite period to avoid a charge
to earnings in satisfaction of such Taxes. The withheld or
delivered depositary units will be valued at Fair Market Value on
the applicable determination date for such Taxes.
2.10 VALUATION
For purposes of this Article Two, the "Fair Market Value" of
a depositary unit will be determined as follows:
A. Stock Exchange. If the depositary units are at the
time listed or admitted to trading on any Stock Exchange, the
"Fair Market Value" of the depositary unit will be its closing
selling price, as quoted on the New York Stock Exchange Composite
Tape, on the date in question. If there is no quotation
available for such day, then the Fair Market Value shall be the
closing selling price on the next preceding day for which such
quotation exists.
B. NASDAQ National Market System. If the depositary units
are not at the time listed or admitted to trading on any Stock
Exchange but are traded on the NASDAQ National Market System, the
Fair Market Value shall be the closing selling price per
depositary unit on the date in question, as such price is
reported by the National Association of Securities Dealers
through the NASDAQ National Market System or any successor
system. If there is no closing selling price for the depositary
units on the date in question, then the Fair Market Value shall
be the closing selling price on the next preceding day for which
such quotation exists.
C. Neither Stock Exchange nor NASDAQ. If the depositary
units are at the time neither listed nor admitted to trading on
any Stock Exchange nor traded on the NASDAQ National Market
System, then the Fair Market Value will be determined by the
Committee after taking into account such factors as the Committee
deems appropriate.
D. Committee Discretion. If the Committee determines that
the above methods of calculation do not accurately reflect the
Fair Market Value of a depositary unit on a relevant day, it may
determine the Fair Market Value on any relevant day in accordance
with such method of valuation as it determines to be reasonable
and appropriate.
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2.11 CANCELLATION AND NEW GRANT OF AWARDS
The Committee shall have the authority to effect, at any
time and from time to time, with the consent of the affected
grantees, the cancellation of any or all outstanding Awards under
this Article Two and to grant in substitution therefor new Awards
under the Plan covering the same or different number and class of
depositary units but (if the Award is an option) having a price
per depositary unit not less than the Fair Market Value on the
new grant date.
ARTICLE THREE
GRANTS TO INDEPENDENT DIRECTORS
3.1 AUTOMATIC OPTION GRANTS
Independent Directors who are serving on the Board will
automatically be granted a nonstatutory option ("Automatic
Option") for the number of depositary units set forth below
(subject to adjustment under Paragraph 1.3.C. of this Plan) on
the dates and terms set forth below.
A. Initial Grant. Each Independent Director serving on
the Board on January 18, 1995, will, on that date, be granted an
Automatic Option to purchase 1500 depositary units.
B. New Independent Directors. Each person who becomes a
newly appointed or elected Independent Director shall, on the
date such person becomes an Independent Director (or, if later,
the next trading day), automatically receive an Automatic Option
to purchase 1500 depositary units.
C. Annual Grants. On the third Wednesday of July of each
fiscal year of the Partnership that occurs after the Plan
effective date, each continuing Independent Director will
automatically receive an Automatic Option to purchase 500
depositary units.
D. Terms and Conditions. The terms and conditions
applicable to each Automatic Option will be as follows:
(1) Price. The option price per depositary unit will
be equal to one hundred percent (100%) of the Fair Market Value
of one depositary unit on the date of grant.
(2) Term. Each Automatic Option will terminate and
cease to be outstanding on the date ten (10) years from the date
of grant ("Expiration Date"). Each Automatic Option will be
immediately exercisable.
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(3) Payment. Upon exercise of the option, the option
price for the purchased depositary units will become payable
immediately in cash or in depositary units that the optionee has
held for the requisite period to avoid a charge to earnings.
Payment may also be made by delivery of a properly executed
exercise notice together with irrevocable instructions to a
broker to promptly deliver to the Partnership the amount of sale
proceeds to pay the option price.
(4) Cessation. In the event the optionee ceases to
serve as an Independent Director for any reason other than death
or retirement (as defined below), any outstanding Automatic
Options may be exercised within a period of three (3) months
after the date of such cessation. In no event, however, shall
this Automatic Option be exercisable after the Expiration Date of
the option.
(i) In the case of death either during the
Independent Director's period of service or within three (3)
months following cessation of service as an Independent Director,
any outstanding Automatic Options may be exercised within twelve
(12) months of the date of death by the designated beneficiary,
or, if no beneficiary is designated, the estate or heirs of the
optionee. In no event, however, shall this Automatic Option be
exercisable after the Expiration Date of the option.
(ii) In the case of "retirement" while this
Automatic Option is outstanding, any outstanding Automatic
Options may be exercised within thirty-six (36) months of the
date of "retirement," but in no event shall this option be
exercisable after the Expiration Date of the Automatic Option.
For purposes of this Article Three, the Independent Director's
date of "retirement" will be the first day the Independent
Director ceases to serve as an Independent Director after serving
as an Independent Director for at least five (5) years.
E. Structural Transactions. Upon consummation of a
Structural Transaction, all outstanding Automatic Options granted
under the Plan shall, to the extent not previously exercised or
paid in full or assumed by the successor entity or an affiliate,
terminate.
3.2 UNIT FEE PROGRAM
A. Eligibility. Each Independent Director shall be
eligible to elect to apply all or any portion of the annual
retainer fee otherwise payable to such individual in cash to the
acquisition of depositary units upon the terms and conditions of
this Unit Fee Program.
B. Election. The election to apply all or any portion of
the Independent Director's annual retainer fee otherwise payable
to the Independent Director in cash to the acquisition of
depositary units under the Unit Fee Program must be made before
the start of the calendar year for which the election is to be
effective. The election must be made on the form provided by the
Committee and must specify the percentage or dollar
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amount of his or her annual retainer fee to be applied to the
acquisition of the depositary units. The election, once filed,
shall be irrevocable. The first calendar year for which any such
election may be filed shall be the 1996 calendar year. The
Independent Director may file a standing election to be in effect
for two (2) or more consecutive calendar years or to remain in
effect indefinitely until revoked by written notice filed with
the Committee at least six (6) months prior to the start of the
first calendar year for which such standing election is no longer
to remain in effect.
C. Unit Fee Issuance. On the first trading day of each
calendar quarter during the year for which the election is
effective, one quarter (1/4) of the portion of the annual
retainer fee subject to such election shall automatically be
applied to the acquisition of depositary units by dividing the
elected portion of the fee by the Fair Market Value per
depositary unit on that day (and rounding down to the next whole
depositary unit).
3.3 NO DISCRETION
No person will have any discretion to select which
Independent Directors will be granted depositary units or to
determine the number of depositary units to be granted to
Independent Directors under this Article Three; provided,
however, that nothing in this Plan will be construed to prevent
an Independent Director from declining to receive depositary
units under this Plan.
3.4 VALUATION
A. Stock Exchange. If the depositary units are at the
time listed or admitted to trading on any Stock Exchange, the
"Fair Market Value" of the depositary unit will be its closing
selling price, as quoted on the New York Stock Exchange Composite
Tape, on the date in question. If there is no quotation
available for such day, then the Fair Market Value shall be the
closing selling price on the next preceding day for which such
quotation exists.
B. NASDAQ National Market System. If the depositary units
are not at the time listed or admitted to trading on any Stock
Exchange but are traded on the NASDAQ National Market System, the
Fair Market Value shall be the closing selling price per
depositary unit on the date in question, as such price is
reported by the National Association of Securities Dealers
through the NASDAQ National Market System or any successor
system. If there is no closing selling price for the Common
Stock on the date in question, then the Fair Market Value shall
be the closing selling price on the next preceding day for which
such quotation exists.
C. Neither Stock Exchange nor NASDAQ. If the depositary
units are at the time neither listed nor admitted to trading on
any Stock Exchange nor traded on the NASDAQ National Market
System, then the Fair Market Value will be determined by an
independent third party.
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ARTICLE FOUR
MISCELLANEOUS
4.1 AMENDMENT AND TERMINATION
A. Amendment and Termination of the Plan. The managing
general partner or its managing general partner may amend,
suspend or discontinue the Plan in whole or in part at any time;
provided, however, that (1) such action shall not adversely
affect a grantee's rights and obligations with respect to Awards
at the time outstanding under the Plan and (2) the substantive
provisions of Article Three may not be amended at intervals more
frequently than once every six (6) months, other than to the
extent necessary to comply with applicable Federal income tax
laws and regulations.
B. Modification of Awards. The Committee has full power
and authority to modify or waive any or all of the terms,
conditions or restrictions applicable to any outstanding Award
under the Plan (other than an Award pursuant to Article Three),
to the extent not inconsistent with the Plan; provided, however,
that no such modification or waiver shall, without the consent of
the grantee, adversely affect the grantee's rights thereunder.
4.2 EFFECTIVE DATE AND TERM
A. Effective Date. This Plan will become effective on
January 18, 1995.
B. Term of Plan. Unless the Plan is sooner terminated in
accordance with Paragraph 2.7, or by the managing general partner
or its managing general partner, the Plan will terminate upon the
earlier of (i) January 17, 2005, or (ii) the date on which all
depositary units available for issuance under the Plan have been
issued or their availability cancelled by the exercise of Awards
granted hereunder.
C. Term of Awards. No Award shall have a term exceeding
ten years from the date of grant.
4.3 TAX WITHHOLDING
The Partnership's obligation to deliver depositary units or
cash upon the exercise of Awards under the Plan is subject to the
satisfaction of all applicable Federal, state and local income
and employment tax withholding requirements.
4.4 TRANSFERABILITY
During the lifetime of the grantee, Awards will be
exercisable only by the grantee and will not be assignable or
transferable by the grantee otherwise than by will or by the laws
of descent and distribution following the grantee's death.
However, an Award may
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permit the grantee to designate a beneficiary or beneficiaries,
who may exercise the Award and/or receive compensation under the
Award after the grantee's death.
4.5 USE OF PROCEEDS
Any cash proceeds received by the Partnership from the sale
of depositary units pursuant to Awards under the Plan will be
used for general Partnership purposes.
4.6 REGULATORY APPROVALS
The implementation of the Plan, any Awards under the Plan,
and the issuance of depositary units pursuant to any Award is
subject to the procurement by the Partnership of all approvals
and permits required by regulatory authorities having
jurisdiction over the Plan, Awards made under the Plan, and
depositary units issued pursuant to the Plan.
4.7 NO EMPLOYMENT/SERVICE RIGHTS
Neither the establishment of this Plan, nor any action taken
under the terms of this Plan, nor any provision of this Plan will
be construed to grant any individual the right to remain in the
employ or service of the Partnership (or any parent, subsidiary
or affiliated entity) for any period of specific duration, and
the Partnership (or any parent, subsidiary or affiliated entity
retaining the services of such individual) may terminate such
individual's employment or service at any time and for any
reason, with or without cause. Nothing contained in this Plan or
in any Award under this Plan will affect any contractual rights
of an employee pursuant to a written employment agreement.
4.8 GOVERNING LAW
To the extent not otherwise governed by federal law, the
Plan and its implementation shall be governed by and construed in
accordance with the laws of the State of California.
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