Exhibit 4.4
GREAT LAKES REIT
AMENDED AND RESTATED
1997 EQUITY AND PERFORMANCE INCENTIVE PLAN
As of this date, July 27, 1998, Great Lakes REIT, a Maryland real
estate investment trust (the "Company"), as successor issuer to Great Lakes
REIT, Inc., hereby amends and restates Great Lakes REIT, Inc.'s 1997 Equity
and Performance Incentive Plan (the "Plan"), originally adopted in June 1997.
1. PURPOSE. The purpose of the Plan is to attract and retain officers and
other key employees for Great Lakes REIT, a Maryland real estate investment
trust (the "Company"), and to provide to such persons incentives and rewards
for superior performance.
2. DEFINITIONS. As used in this Plan,
"Appreciation Right" means a right granted pursuant to Section 5 of this
Plan, and shall include both Tandem Appreciation Rights and Free-Standing
Appreciation Rights.
"Board" means the Board of Trustees of the Company and, to the extent of
any delegation by the Board to a committee (or subcommittee thereof) pursuant
to Section 14 of this Plan, such committee (or subcommittee).
"Change in Control" shall have the meaning provided in Section 11 of
this Plan.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Common Shares" means common shares of beneficial interest, par value
$.01 per share, in the Company or any security into which such shares of
beneficial interest may be changed by reason of any transaction or event of
the type referred to in Section 10 of this Plan.
"Covered Employee" means a Participant who is, or is determined by the
Board to be likely to become, a "covered employee" within the meaning of
Section 162(m) of the Code (or any successor provision).
"Date of Grant" means the date specified by the Board on which a grant
of Option Rights, Appreciation Rights, Performance Shares or Performance
Units or a grant or sale of Restricted Shares or Deferred Shares shall become
effective (which date shall not be earlier than the date on which the Board
takes action with respect thereto).
"Deferral Period" means the period of time during which Deferred Shares
are subject to deferral limitations under Section 7 of this Plan.
"Deferred Shares" means an award made pursuant to Section 7 of this Plan
of the right to receive Common Shares at the end of a specified Deferral
Period.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder, as such law, rules and regulations
may be amended from time to time.
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"Exercise Price" means the price payable upon exercise of a
Free-Standing Appreciation Right.
"Free-Standing Appreciation Right" means an Appreciation Right not
granted in tandem with an Option Right.
"Incentive Stock Options" means Option Rights that are intended to
qualify as "incentive stock options" under Section 422 of the Code or any
successor provision.
"Management Objectives" means the measurable performance objective or
objectives established pursuant to this Plan for Participants who have
received grants of Performance Shares or Performance Units or, when so
determined by the Board, Option Rights, Appreciation Rights, Restricted
Shares and dividend credits pursuant to this Plan. Management Objectives may
be described in terms of Company-wide objectives or objectives that are
related to the performance of the individual Participant or of the
subsidiary, division, department, region or function within the Company or
any subsidiary of the Company in which the Participant is employed. The
Management Objectives may be made relative to the performance of other trusts
or corporations. The Management Objectives applicable to any award to a
Covered Employee shall be based on specified levels of or growth in one or
more of the following criteria:
i. cash flow/net assets ratio;
ii. debt/capital ratio;
iii. return on total capital;
iv. return on equity;
v. funds from operations;
vi. funds from operations per share growth;
vii. revenue growth; and
viii. total return to shareholders.
Except where a modification would result in an award no longer qualifying as
performance based compensation within the meaning of Section 162(m) of the
Code, the Board may in its discretion modify such Management Objectives or
the related minimum acceptable level of achievement, in whole or in part, as
the Board deems appropriate and equitable.
"Market Value per Share" means, as of any particular date, the fair
market value of the Common Shares as listed on the NYSE as of the close of
business on such date or the latest such date on which there is a listing.
"Non-Employee Trustee" means a Trustee of the Company who is not an
employee of the Company or any subsidiary of the Company.
"NYSE" means the New York Stock Exchange, Inc.
"Optionee" means the optionee named in an agreement evidencing an
outstanding Option Right.
"Option Price" means the purchase price payable on exercise of an Option
Right.
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"Option Right" means the right to purchase Common Shares upon exercise of
an option granted pursuant to Section 4 of this Plan.
"Participant" means a person who is selected by the Board to receive
benefits under this Plan and who is at the time an officer, or other key
employee of the Company or any one or more of its Subsidiaries, or who has
agreed to commence serving in any of such capacities within 90 days of the
Date of Grant.
"Performance Period" means, with respect to a Performance Share or
Performance Unit, a period of time established pursuant to Section 8 of this
Plan within which the Management Objectives relating to such Performance
Share or Performance Unit are to be achieved.
"Performance Share" means a bookkeeping entry that records the
equivalent of one Common Share awarded pursuant to Section 8 of this Plan.
"Performance Unit" means a bookkeeping entry that records a unit
equivalent to $1.00 awarded pursuant to Section 8 of this Plan.
"Reload Option Rights" means additional Option Rights granted
automatically to an Optionee upon the exercise of Option Rights pursuant to
Section 4(g) of this Plan.
"Restricted Shares" means Common Shares granted or sold pursuant to
Section 6 of this Plan as to which neither the substantial risk of forfeiture
nor the prohibition on transfers referred to in such Section 6 has expired.
"Rule 16b-3" means Rule 16b-3 of the Securities and Exchange Commission
(or any successor rule to the same effect) as in effect from time to time.
"Spread" means the excess of the Market Value per Share on the date when
an Appreciation Right is exercised, or on the date when Option Rights are
surrendered in payment of the Option Price of other Option Rights, over the
Option Price or Exercise Price provided for in the related Option Right or
Free-Standing Appreciation Right, respectively.
"Tandem Appreciation Right" means an Appreciation Right granted in
tandem with an Option Right.
"Voting Power" means at any time, the total votes relating to the
then-outstanding securities entitled to vote generally in the election of
trustees of the Company.
3. SHARES AVAILABLE UNDER THE PLAN. (a) Subject to adjustment as
provided in paragraph (b) below and Section 10 of this Plan, the number of
Common Shares that may be issued or transferred (i) upon the exercise of
Option Rights or Appreciation Rights, (ii) as Restricted Shares and released
from substantial risks of forfeiture thereof, (iii) as Deferred Shares, (iv)
in payment of Performance Shares or Performance Units that have been earned,
or (v) in payment of dividend equivalents paid with respect to awards made
under the Plan, shall not exceed in the aggregate 2,250,000 Common Shares
plus any shares described in paragraph (b) below. Such shares may be shares
of original issuance or treasury shares or a combination of the foregoing.
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(b) The number of shares available in paragraph (a) above shall be
adjusted to account for shares relating to awards that expire, are forfeited,
or are transferred, surrendered, or relinquished upon the payment of any
Option Price by the transfer to the Company of Common Shares or upon
satisfaction of any withholding amount.
(c) Notwithstanding anything in this Section 3, or elsewhere in this
Plan, to the contrary, the aggregate number of Common Shares actually issued
or transferred by the Company upon the exercise of Incentive Stock Options
shall not exceed 2,250,000 Common Shares, subject to adjustments as provided
in Section 10 of this Plan. Further, no Participant shall be granted Option
Rights for more than 750,000 Common Shares during any period of 5 years,
subject to adjustments as provided in Section 10 of this Plan.
(d) Upon payment in cash of the benefit provided by any award granted
under this Plan, any shares that were covered by that award shall again be
available for issue or transfer hereunder.
(e) Notwithstanding any other provision of this Plan to the contrary,
in no event shall any Participant in any period of 5 years receive more than
500,000 Appreciation Rights, subject to adjustments as provided in Section 10
of this Plan.
(f) Notwithstanding any other provision of this Plan to the contrary,
the number of shares issued as Restricted Shares shall not in the aggregate
exceed 500,000 Common Shares, subject to adjustments as provided in Section
10 of this Plan; and, in no event shall any Participant in any period of 5
years receive more than 500,000 Restricted Shares or 500,000 Deferred Shares,
subject to adjustments as provided in Section 10 of this Plan.
(g) Notwithstanding any other provision of this Plan to the contrary,
in no event shall any Participant in any calendar year receive an award of
Performance Shares or Performance Units having an aggregate maximum value as
of their respective Dates of Grant in excess of $3,000,000.
4. OPTION RIGHTS. The Board may, from time to time and upon such
terms and conditions as it may determine, authorize the granting to
Participants of options to purchase Common Shares. Each such grant may
utilize any or all of the authorizations, and shall be subject to all of the
requirements contained in the following provisions:
(a) Each grant shall specify the number of Common Shares to which it
pertains subject to the limitations set forth in Section 3 of this Plan.
(b) Each grant shall specify an Option Price per share, which may not
be less than the Market Value per Share on the Date of Grant.
(c) Each grant shall specify whether the Option Price shall be
payable (i) in cash or by check acceptable to the Company, or (ii) by the
actual or constructive transfer to the Company of nonforfeitable,
unrestricted Common Shares owned by the Optionee (or other consideration
authorized pursuant to subsection (d) below) having a value at the time of
exercise equal to the total Option Price, or (iii) by a combination of such
methods of payment.
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(d) The Board may determine, at or after the Date of Grant, that
payment of the Option Price of any option (other than an Incentive Stock
Option) may also be made in whole or in part in the form of Restricted Shares
or other Common Shares that are forfeitable or subject to restrictions on
transfer, Deferred Shares, Performance Shares (based, in each case, on the
Market Value per Share on the date of exercise), other Option Rights (based
on the Spread on the date of exercise) or Performance Units. Unless
otherwise determined by the Board at or after the Date of Grant, whenever any
Option Price is paid in whole or in part by means of any of the forms of
consideration specified in this paragraph, the Common Shares received upon
the exercise of the Option Rights shall be subject to such risks of
forfeiture or restrictions on transfer as may correspond to any that apply to
the consideration surrendered, but only to the extent of (i) the number of
shares or Performance Shares, (ii) the Spread of any unexercisable portion of
Option Rights, or (iii) the stated value of Performance Units surrendered.
(e) Any grant may provide for deferred payment of the Option Price
from the proceeds of sale through a bank or broker on a date satisfactory to
the Company of some or all of the shares to which such exercise relates.
(f) Any grant may provide for payment of the Option Price, at the
election of the Optionee, in installments, with or without interest, upon
terms determined by the Board.
(g) Any grant may, at or after the Date of Grant, provide for the
automatic grant of Reload Option Rights to an Optionee upon the exercise of
Option Rights (including Reload Option Rights) using Common Shares or other
consideration specified in paragraph (d) above. Reload Option Rights shall
cover up to the number of Common Shares, Deferred Shares, Option Rights or
Performance Shares (or the number of Common Shares having a value equal to
the value of any Performance Units) surrendered to the Company upon any such
exercise in payment of the Option Price or to meet any withholding
obligations. Reload Options may have an Option Price that is no less than the
applicable Market Value per Share at the time of exercise and shall be on
such other terms as may be specified by the Trustees, which may be the same
as or different from those of the original Option Rights.
(h) Successive grants may be made to the same Participant whether or
not any Option Rights previously granted to such Participant remain
unexercised.
(i) Each grant shall specify the period or periods (if any) of
continuous service by the Optionee with the Company or any subsidiary of the
Company following the grant that is necessary before the Option Rights or
installments thereof will become exercisable and may provide for the earlier
exercise of such Option Rights in the event of a Change in Control or other
similar transaction or event.
(j) Any grant of Option Rights may specify Management Objectives that
must be achieved as a condition to the exercise of such rights.
(k) Option Rights granted under this Plan may be (i) options,
including, without limitation, Incentive Stock Options, that are intended to
qualify under particular provisions of the Code, (ii) options that are not
intended so to qualify, or (iii) combinations of the foregoing.
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(l) The Board may, at or after the Date of Grant of any Option Rights
(other than Incentive Stock Options), provide for the payment of dividend
equivalents to the Optionee on either a current or deferred or contingent
basis or may provide that such equivalents shall be credited against the
Option Price.
(m) The exercise of an Option Right shall result in the cancellation
on a share-for-share basis of any Tandem Appreciation Right authorized under
Section 5 of this Plan.
(n) No Option Right shall be exercisable more than 10 years from the
Date of Grant.
(o) Each grant of Option Rights shall be evidenced by an agreement
executed on behalf of the Company by an officer and delivered to the Optionee
and containing such terms and provisions, consistent with this Plan, as the
Board may approve.
5. APPRECIATION RIGHTS. (a) The Board may also authorize the
granting to any Optionee of Tandem Appreciation Rights with respect to Option
Rights granted hereunder at any time prior to the exercise or termination of
such related Option Rights; provided, however, that a Tandem Appreciation
Right awarded in relation to an Incentive Stock Option must be granted
concurrently with such Incentive Stock Option. A Tandem Appreciation Right
shall be a right of the Optionee, exercisable by surrender of the related
Option Right, to receive from the Company an amount determined by the Board,
which shall be expressed as a percentage of the Spread (not exceeding 100
percent) at the time of exercise.
(b) The Board may also authorize the granting to any Participant of
Free-Standing Appreciation Rights. A Free-Standing Appreciation Right shall
be a right of the Participant to receive from the Company an amount
determined by the Board, which shall be expressed as a percentage of the
Spread (not exceeding 100 percent) at the time of exercise.
(c) Each grant of Appreciation Rights may utilize any or all of the
authorizations, and shall be subject to all of the requirements, contained in
the following provisions:
(i) Any grant may specify that the amount payable on exercise of
an Appreciation Right may be paid by the Company in cash, in Common Shares or
in any combination thereof and may either grant to the Participant or retain
in the Board the right to elect among those alternatives.
(ii) Any grant may specify that the amount payable on exercise of
an Appreciation Right may not exceed a maximum specified by the Board at the
Date of Grant.
(iii) Any grant may specify waiting periods before exercise and
permissible exercise dates or periods and shall provide that no Appreciation
Right may be exercised except at a time when the related Option Right (if
applicable) also is exercisable and at a time when the Spread is positive.
(iv) Any grant may specify that such Appreciation Right may be
exercised only in the event of a Change in Control or other similar
transaction or event.
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(v) Each grant of Appreciation Rights shall be evidenced by an
agreement executed on behalf of the Company by an officer and delivered to
and accepted by the Participant, which agreement shall describe such
Appreciation Rights, identify the related Option Rights (if applicable),
state that such Appreciation Rights are subject to all the terms and
conditions of this Plan, and contain such other terms and provisions,
consistent with this Plan, as the Board may approve.
(vi) Any grant of Appreciation Rights may specify Management
Objectives that must be achieved as a condition of the exercise of such
rights.
6. RESTRICTED SHARES. The Board may also authorize the grant or sale
of Restricted Shares to Participants. Each such grant or sale may utilize
any or all of the authorizations, and shall be subject to all of the
requirements, contained in the following provisions:
(a) Each such grant or sale shall constitute an immediate transfer of
the ownership of Common Shares to the Participant in consideration of the
performance of services, entitling such Participant to voting, dividend and
other ownership rights, but subject to the substantial risk of forfeiture and
restrictions on transfer hereinafter referred to.
(b) Each such grant or sale may be made without additional
consideration or in consideration of a payment by such Participant that is
less than Market Value per Share at the Date of Grant.
(c) Each such grant or sale shall provide that the Restricted Shares
covered by such grant or sale shall be subject to a "substantial risk of
forfeiture" within the meaning of Section 83 of the Code, for a period of not
less than one year to be determined by the Board at the Date of Grant, except
in the event of a Change in Control or other similar transaction or event.
(d) Each such grant or sale shall provide that during the period for
which such substantial risk of forfeiture is to continue, the transferability
of the Restricted Shares shall be prohibited or restricted in the manner and
to the extent prescribed by the Board at the Date of Grant (which
restrictions may include, without limitation, rights of repurchase or first
refusal in the Company or provisions subjecting the Restricted Shares to a
continuing substantial risk of forfeiture in the hands of any transferee).
(e) Any grant of Restricted Shares may specify Management Objectives
that, if achieved, will result in termination or early termination of the
restrictions applicable to such shares and each grant may specify with
respect to such specified Management Objectives, a minimum acceptable level
of achievement and shall set forth a formula for determining the number of
Restricted Shares on which restrictions will terminate if performance is at
or above the minimum level, but falls short of full achievement of the
specified Management Objectives.
(f) Any such grant or sale of Restricted Shares may require that any or
all dividends or other distributions paid thereon during the period of such
restrictions be automatically deferred and reinvested in additional
Restricted Shares, which may be subject to the same restrictions as the
underlying award.
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(g) Each grant or sale of Restricted Shares shall be evidenced by an
agreement executed on behalf of the Company by an authorized officer and
delivered to and accepted by the Participant and shall contain such terms and
provisions, consistent with this Plan, as the Board may approve. Unless
otherwise directed by the Board, all certificates representing Restricted
Shares shall be held in custody by the Company until all restrictions thereon
shall have lapsed, together with a stock power or powers executed by the
Participant in whose name such certificates are registered, endorsed in blank
and covering such Shares.
7. DEFERRED SHARES. The Board may also authorize the granting or sale
of Deferred Shares to Participants. Each such grant or sale may utilize any
or all of the authorizations, and shall be subject to all of the requirements
contained in the following provisions:
(a) Each such grant or sale shall constitute the agreement by the
Company to deliver Common Shares to the Participant in the future in
consideration of the performance of services, but subject to the fulfillment
of such conditions during the Deferral Period as the Board may specify.
(b) Each such grant or sale may be made without additional
consideration or in consideration of a payment by such Participant that is
less than the Market Value per Share at the Date of Grant.
(c) Each such grant or sale shall be subject to a Deferral Period of
not less than one year, as determined by the Board at the Date of Grant
except (if the Board shall so determine) in the event of a Change in Control
or other similar transaction or event.
(d) During the Deferral Period, the Participant shall have no right to
transfer any rights under his or her award and shall have no rights of
ownership in the Deferred Shares and shall have no right to vote them, but
the Board may, at or after the Date of Grant, authorize the payment of
dividend equivalents on such Shares on either a current or deferred or
contingent basis, either in cash or in additional Common Shares.
(e) Each grant or sale of Deferred Shares shall be evidenced by an
agreement executed on behalf of the Company by an authorized officer and
delivered to and accepted by the Participant and shall contain such terms and
provisions, consistent with this Plan, as the Board may approve.
8. PERFORMANCE SHARES AND PERFORMANCE UNITS. The Board may also
authorize the granting of Performance Shares and Performance Units that will
become payable to a Participant upon achievement of specified Management
Objectives. Each such grant may utilize any or all of the authorizations,
and shall be subject to all of the requirements, contained in the following
provisions:
(a) Each grant shall specify the number of Performance Shares or
Performance Units to which it pertains, which number may be subject to
adjustment reflect changes in compensation or other factors; provided,
however, that no such adjustment shall be made in the case of a Covered
Employee.
(b) The Performance Period with respect to each Performance Share or
Performance Unit shall be such period of time (not less than one year, except
in the event of a Change in Control or
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other similar transaction or event, if the Board shall so determine)
commencing with the Date of Grant (as shall be determined by the Board at the
time of grant).
(c) Any grant of Performance Shares or Performance Units shall specify
Management Objectives that, if achieved, will result in payment or early
payment of the award, and each grant may specify with respect to such
specified Management Objectives a minimum acceptable level of achievement and
shall set forth a formula for determining the number of Performance Shares or
Performance Units that will be earned if performance is at or above the
minimum level, but falls short of full achievement of the specified
Management Objectives. The grant of Performance Shares or Performance Units
shall specify that, before the Performance Shares or Performance Units shall
be earned and paid, the Board must certify that the Management Objectives
have been satisfied.
(d) Each grant shall specify a minimum acceptable level of achievement
with respect to the specified Management Objectives below which no payment
will be made and shall set forth a formula for determining the amount of
payment to be made if performance is at or above such minimum but short of
full achievement of the Management Objectives.
(e) Each grant shall specify the time and manner of payment of
Performance Shares or Performance Units that have been earned. Any grant may
specify that the amount payable with respect thereto may be paid by the
Company in cash, in Common Shares or in any combination thereof and may
either grant to the Participant or retain in the Board the right to elect
among those alternatives.
(f) Any grant of Performance Shares may specify that the amount payable
with respect thereto may not exceed a maximum specified by the Board at the
Date of Grant. Any grant of Performance Units may specify that the amount
payable or the number of Common Shares issued with respect thereto may not
exceed maximums specified by the Board at the Date of Grant.
(g) The Board may, at or after the Date of Grant of Performance Shares,
provide for the payment of dividend equivalents to the holder thereof on
either a current or deferred or contingent basis, either in cash or in
additional Common Shares.
(h) Each grant of Performance Shares or Performance Units shall be
evidenced by an agreement executed on behalf of the Company by an authorized
officer and delivered to and accepted by the Participant, which agreement
shall state that such Performance Shares or Performance Units are subject to
all the terms and conditions of this Plan, and contain such other terms and
provisions, consistent with this Plan, as the Board may approve.
9. TRANSFERABILITY. (a) Except as otherwise determined by the Board
on a case-by-case basis, no Option Right, Appreciation Right or other
derivative security granted under the Plan shall be transferable by an
Optionee other than by will or the laws of descent and distribution. Except
as otherwise determined by the Board on a case-by-case basis, Option Rights
and Appreciation Rights shall be exercisable during the Optionee's lifetime
only by him or her or by his or her guardian or legal representative.
(b) The Board may specify at the Date of Grant that part or all of the
Common Shares that are (i) to be issued or transferred by the Company upon
the exercise of Option Rights or
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Appreciation Rights, upon the termination of the Deferral Period applicable
to Deferred Shares or upon payment under any grant of Performance Shares or
Performance Units or (ii) no longer subject to the substantial risk of
forfeiture and restrictions on transfer referred to in Section 6 of this
Plan, shall be subject to further restrictions on transfer.
10. ADJUSTMENTS. The Board may make or provide for such adjustments in
the numbers of Common Shares covered by outstanding Option Rights,
Appreciation Rights, Deferred Shares, and Performance Shares granted
hereunder, in the prices per share applicable to such Option Rights and
Appreciation Rights and in the kind of shares covered thereby, as the Board,
in its sole discretion, exercised in good faith, may determine is equitably
required to prevent dilution or enlargement of the rights of Participants or
Optionees that otherwise would result from (a) any share dividend, share
split, combination of shares, recapitalization or other change in the capital
structure of the Company, or (b) any merger, consolidation, spin-off,
split-off, spin-out, split-up, reorganization, partial or complete
liquidation or other distribution of assets, issuance of rights or warrants
to purchase securities, or (c) any other corporate transaction or event
having an effect similar to any of the foregoing. Moreover, in the event of
any such transaction or event, the Board, in its discretion, may provide in
substitution for any or all outstanding awards under this Plan such
alternative consideration as it, in good faith, may determine to be equitable
in the circumstances and may require in connection therewith the surrender of
all awards so replaced. The Board also may make or provide for such
adjustments in the numbers of shares specified in Section 3 of this Plan as
the Board in its sole discretion, exercised in good faith, may determine is
appropriate to reflect any transaction or event described in this Section 10.
11. CHANGE IN CONTROL. For purposes of this Plan, a "Change in
Control" shall mean if at any time any of the following events shall have
occurred:
(a) The Company is merged or consolidated or reorganized into or with
another trust, corporation or other legal person, and as a result of such
merger, consolidation or reorganization less than a majority of the combined
voting power of the then-outstanding securities of such trust, corporation or
person immediately after such transaction are held in the aggregate by the
holders of Common Shares immediately prior to such transaction;
(b) The Company sells or otherwise transfers all or substantially all
of its assets to any other trust, corporation or other legal person, and less
than a majority of the combined voting power of the then-outstanding
securities of such trust, corporation or person immediately after such sale
or transfer is held in the aggregate by the holders of Common Shares
immediately prior to such sale or transfer;
(c) There is a report filed on Schedule 13D or Schedule 14D-1 (or any
successor schedule, form or report), each as promulgated pursuant to the
Exchange Act, disclosing that any person (as the term "person" is used in
Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the
beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3
or any successor rule or regulation promulgated under the Exchange Act) of
securities representing 20% or more of the Voting Power;
(d) The Company files a report or proxy statement with the Securities
and Exchange Commission pursuant to the Exchange Act disclosing in response
to Form 8-K or Schedule 14A (or
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any successor schedule, form or report or item therein) that a change in
control of the Company has or may have occurred or will or may occur in the
future pursuant to any then-existing contract or transaction; or
(e) If during any period of two consecutive years, individuals who at
the beginning of any such period constitute the trustees of the Company cease
for any reason to constitute at least a majority thereof, unless the
election, or the nomination for election by the Company's shareholders, of
each trustee of the Company first elected during such period was approved by
a vote of at least two-thirds of the trustees of the Company then still in
office who were trustees of the Company at the beginning of any such period.
Notwithstanding the foregoing provisions of Section 11(c) and (d) above,
a "Change in Control" shall not be deemed to have occurred for purposes of
this Plan (i) solely because (A) the Company; (B) a subsidiary of the
Company; or (C) any Company-sponsored employee stock ownership plan or other
employee benefit plan of the Company either files or becomes obligated to
file a report or proxy statement under or in response to Schedule 13D,
Schedule 14D-l, Form 8-K or Schedule 14A (or any successor schedule, form or
report or item therein) under the Exchange Act, disclosing beneficial
ownership by it of shares, whether in excess of 20% of the Voting Power or
otherwise, or because the Company reports that a change of control of the
Company has or may have occurred or will or may occur in the future by reason
of such beneficial ownership or (ii) solely because of a change in control of
any subsidiary of the Company.
12. FRACTIONAL SHARES. The Company shall not be required to issue any
fractional Common Shares pursuant to this Plan. The Board may provide for
the elimination of fractions or for the settlement of fractions in cash.
13. WITHHOLDING TAXES. To the extent that the Company is required to
withhold federal, state, local or foreign taxes in connection with any
payment made or benefit realized by a Participant or other person under this
Plan, and the amounts available to the Company for such withholding are
insufficient, it shall be a condition to the receipt of such payment or the
realization of such benefit that the Participant or such other person make
arrangements satisfactory to the Company for payment of the balance of such
taxes required to be withheld, which arrangements (in the discretion of the
Board) may include relinquishment of a portion of such benefit. The Company
and a Participant or such other person may also make similar arrangements
with respect to the payment of any taxes with respect to which withholding is
not required.
14. ADMINISTRATION OF THE PLAN. (a) This Plan shall be administered by
the Board, which may from time to time delegate all or any part of its
authority under this Plan to a committee of the Board (or subcommittee
thereof) consisting of not less than three Non-Employee Trustees appointed by
the Board. A majority of the committee (or subcommittee) shall constitute a
quorum, and the action of the members of the committee (or subcommittee)
present at any meeting at which a quorum is present, or acts unanimously
approved in writing, shall be the acts of the committee (or subcommittee).
To the extent of any such delegation, references in this Plan to the Board
shall be deemed to be references to any such committee or subcommittee.
(b) The interpretation and construction by the Board of any provision
of this Plan or of any agreement, notification or document evidencing the
grant of Option Rights, Appreciation Rights,
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Restricted Shares, Deferred Shares, Performance Shares or Performance Units
and any determination by the Board pursuant to any provision of this Plan or
of any such agreement, notification or document shall be final and
conclusive. No member of the Board shall be liable for any such action or
determination made in good faith.
15. AMENDMENTS, ETC. (a) The Board may at any time and from time to
time amend the Plan in whole or in part; PROVIDED, HOWEVER, that any
amendment that must be approved by the shareholders of the Company in order
to comply with applicable law or the rules of the NYSE or, if the Common
Shares are not traded on the NYSE, the principal national securities exchange
upon which the Common Shares are traded or quoted, shall not be effective
unless and until such approval has been obtained. Presentation of this Plan
or any amendment hereof for shareholder approval shall not be construed to
limit the Company's authority to offer similar or dissimilar benefits under
other plans without shareholder approval.
(b) The Board also may permit Participants to elect to defer the
issuance of Common Shares or the settlement of awards in cash under the Plan
pursuant to such rules, procedures or programs as it may establish for
purposes of this Plan. The Board also may provide that deferred issuances
and settlements include the payment or crediting of dividend equivalents or
interest on the deferral amounts.
(c) The Board may condition the grant of any award or combination of
awards authorized under this Plan on the surrender or deferral by the
Participant of his or her right to receive a cash bonus or other compensation
otherwise payable by the Company or a subsidiary of the Company to the
Participant.
(d) In case of termination of employment by reason of death, disability
or normal or early retirement, or in the case of hardship or other special
circumstances, of a Participant who holds an Option Right or Appreciation
Right not immediately exercisable in full, or any Restricted Shares as to
which the substantial risk of forfeiture or the prohibition or restriction on
transfer has not lapsed, or any Deferred Shares as to which the Deferral
Period has not been completed, or any Performance Shares or Performance Units
that have not been fully earned, or who holds Common Shares subject to any
transfer restriction imposed pursuant to Section 9(b) of this Plan, the Board
may, in its sole discretion, accelerate the time at which such Option Right
or Appreciation Right may be exercised or the time at which such substantial
risk of forfeiture or prohibition or restriction on transfer will lapse or
the time when such Deferral Period will end or the time at which such
Performance Shares or Performance Units will be deemed to have been fully
earned or the time when such transfer restriction will terminate or may waive
any other limitation or requirement under any such award.
(e) This Plan shall not confer upon any Participant any right with
respect to continuance of employment or other service with the Company or any
subsidiary of the Company, nor shall it interfere in any way with any right
the Company or any subsidiary of the Company would otherwise have to
terminate such Participant's employment or other service at any time.
(f) To the extent that any provision of this Plan would prevent any
Option Right that was intended to qualify as an Incentive Stock Option from
qualifying as such, that provision shall be null and void with respect to
such Option Right. Such provision, however, shall remain in effect for other
Option Rights and there shall be no further effect on any provision of this
Plan.
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16. TERMINATION. No grant shall be made under this Plan more than 10
years after the date on which this Plan is first approved by the shareholders
of the Company, but all grants made on or prior to such date shall continue
in effect thereafter subject to the terms thereof and of this Plan.
As adopted July 27, 1998.
/s/ Richard L. Rasley
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Richard L. Rasley, Secretary
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