INNSUITES HOSPITALITY TRUST
1997 STOCK INCENTIVE AND OPTION PLAN
PREAMBLE
The purpose of this Plan is to reward performance and to build each
Participant's equity interest in the capital stock of InnSuites Hospitality
Trust (formerly known as Realty ReFund Trust) by providing long term incentives
and rewards to directors and officers and other key employees of the Company and
its subsidiaries who contribute to its continuing success by their innovation,
ability, industry, loyalty and exceptional service.
SECTION I
DEFINITIONS
BENEFICIARY
1.01 "Beneficiary" means a person or entity (including a trust or estate),
designated in writing by a Holder on such forms and in accordance with
such terms and conditions as the Committee may prescribe, to whom the
Holder's Stock Incentives and related rights and privileges under the
Plan shall pass in the event of the death of the Holder.
BOARD OR BOARD OF TRUSTEES
1.02 "Board" or "Board of Trustees" means the Board of Trustees of the
Company, as constituted from time to time.
CHANGE IN CONTROL
1.03 "Change in Control" means the occurrence of any of the following
events:
(i) The Company is merged, consolidated or reorganized into or
with another corporation or other legal person, and as a
result of such merger, consolidation or reorganization less
than two-thirds of the combined voting power of the
then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate
by the holders of the combined voting power of the
then-outstanding securities entitled to vote generally in the
election of Trustees ("Voting Stock") of the Company
immediately prior to such transaction;
(ii) The Company sells or otherwise transfers all or substantially
all of its assets to another corporation or other legal
entity, and as a result of such sale or transfer less than
two-thirds of the combined voting power of the
then-outstanding securities of such corporation or entity
immediately after such sale or transfer is held in the
aggregate by the holders of Voting Stock of the Company
immediately prior to such sale or transfer;
(iii) 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
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term "beneficial owner" is defined under Rule 13d-3 or
any successor rule or regulation promulgated under the
Exchange Act) of securities representing 15% or more of the
Voting Stock of the Company;
(iv) 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 any
successor schedule, form or report or item therein) that a
Change in Control of the Company has occurred or will occur in
the future pursuant to any then-existing contract or
transaction; or
(v) 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; PROVIDED, HOWEVER, that for purposes
of this clause (v) each Director who is first elected, or
first nominated for election by the holders of the Voting
Stock, by a vote of at least two-thirds of the Trustees of the
Company (or a committee thereof) then still in office who were
Trustees of the Company at the beginning of any such period
will be deemed to have been a Director of the Company at the
beginning of such period.
Notwithstanding the foregoing provisions of Sections 1.03(iii) or
1.03(iv), unless otherwise determined in a specific case by majority vote of the
Board, a Change in Control shall not be deemed to have occurred for purposes of
Sections 1.03(iii) or 1.03(iv) solely because (1) the Company, (2) a Subsidiary,
or (3) any employee stock ownership plan or any other employee benefit plan of
the Company or any Subsidiary either files or becomes obligated to file a report
or a proxy statement under or in response to Schedule 13D, Schedule 14D-1, 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 of Voting
Stock, whether in excess of 15% or otherwise, or because the Company reports
that a change in control of the Company has occurred or will occur in the future
by reason of such beneficial ownership.
CODE
1.04 "Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time. References to a particular Section of the
Code shall include references to any related Treasury Regulations and
to successor Sections of the Code.
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COMMITTEE
1.05 "Committee" means the Compensation and Management Development Committee
of the Board of Trustees or such other committee or subcommittee
designated by the Board of Trustees to administer the Plan.
COMMON SHARES
1.06 "Common Shares" means common shares of beneficial interest of the
Company, without par value.
COMPANY
1.07 "Company" means InnSuites Hospitality Trust, an unincorporated Ohio
business trust, its successors and assigns.
DIRECTOR
1.08 "Director" means a director of the Company.
EMPLOYEE
1.09 "Employee" means a key employee of the Company or a Subsidiary,
regularly employed on a full-time basis, including an officer or
Director if he is such an employee.
EXCHANGE ACT
1.10 "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
FAIR MARKET VALUE
1.11 "Fair Market Value" on a particular date means the mean between the
high and low sales price of a Common Share on the exchange on which the
Common Shares are then listed on such date as reported in the principal
consolidated transaction reporting system with respect to securities
listed or admitted to trading on the exchange on which the Common
Shares are then listed. If there were no sales on such date reported as
provided above, the respective prices on the most recent prior day on
which a sale was so reported.
HOLDER
1.12 "Holder" means the Participant or eligible transferee (as such
eligibility may be determined from time to time by the Committee) who
holds a Stock Incentive.
OPTION
1.13 "Option" means a non-qualified option granted under this Plan to
purchase Common Shares.
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PARTICIPANT
1.14 "Participant" means a Director, officer or other Employee selected by
the Committee to participate in this Plan.
PERFORMANCE AWARD
1.15 "Performance Award" means an award of Performance Shares to a
Participant, which is contingent upon the attainment of performance
objectives determined in the discretion of the Committee as more fully
set forth in Section VI hereof.
PERFORMANCE GOALS
1.16 "Performance Goals" shall have the meaning ascribed to it at Section
6.02.
PLAN
1.17 "Plan" means the InnSuites Hospitality Trust 1997 Stock Incentive and
Option Plan set forth in these pages, as amended from time to time.
RESTRICTED STOCK AWARD
1.18 "Restricted Stock Award" means an award of Common Shares to a
Participant with restrictions as to disposition and subject to a risk
of forfeiture until certain conditions have been met.
SEC RULE 16B-3
1.19 "SEC Rule 16b-3" means Rule 16b-3 of the Securities and Exchange
Commission promulgated under the Exchange Act, as such rule or any
successor rule may be in effect with respect to Section 16 Persons from
time to time.
SECTION 16 PERSON
1.20 "Section 16 Person" means a person subject to potential liability under
Section 16(b) of the Exchange Act with respect to transactions
involving equity securities of the Company.
STOCK APPRECIATION RIGHT
1.21 "Stock Appreciation Right" means a right granted under Section VIII
below.
STOCK INCENTIVE
1.22 "Stock Incentive" means a Performance Award, Restricted Stock Award,
Option or Stock Appreciation Right.
SUBSIDIARY
1.23 "Subsidiary" means a corporation or other form of business association
of which shares (or other ownership interests) having more than 50% of
the voting power are owned or controlled, directly or indirectly, by
the Company.
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TRUSTEE
1.24 "Trustee" means a trustee of the Company.
SECTION II
PLAN ADMINISTRATION
ADMINISTRATOR
2.01 The Plan shall be administered by the Committee, which shall consist of
three or more Trustees appointed from time to time by the Board. The
Committee shall be constituted in a manner that satisfies the
"non-employee" director standard in SEC Rule 16b-3. Notwithstanding the
requirements contained in the immediately preceding sentence, the Board
may, in its discretion, delegate to a committee or subcommittee of the
Board that does not meet the foregoing requirement any or all of the
authority and responsibility of the Committee with respect to awards of
Stock Incentives to employees who are not Section 16 Persons at the
time any such delegated authority or responsibility is exercised. Such
other committee or subcommittee may consist of three or more Trustees
who may, but need not, be officers or employees of the Company or of
any of its Subsidiaries. To the extent that the Board has delegated to
such other committee or subcommittee the authority and responsibility
of the Committee pursuant to the foregoing, all references to the
Committee in the Plan shall be to such other committee or subcommittee.
ADMINISTRATIVE POWERS
2.02 The Committee shall have full power to interpret and administer the
Plan and full authority to act in selecting the Participants to whom
Stock Incentives will be granted, in determining the type and amount of
Stock Incentives to be granted to each such Participant, the terms and
conditions of Stock Incentives granted under the Plan, including any
applicable Performance Goals, and the terms of agreements which will be
entered into with Participants. The Committee shall have the power to
make regulations for carrying out the Plan and to make changes in such
regulations as it from time to time deems proper. Any interpretation by
the Committee of the terms and provisions of the Plan and any
instrument issued thereunder and its administration thereof, and all
action taken by the Committee, shall be final, binding and conclusive
on the Company, its shareholders, Subsidiaries, affiliates, all
Holders, their respective legal representatives, successors and assigns
and upon all other persons claiming under or through any of them.
LIMITATION ON LIABILITY
2.03 Members of the Board of Trustees and members of the Committee acting
under the Plan shall be fully protected in relying in good faith upon
information supplied by the management of the Company and the advice of
counsel and shall incur no liability except for acts or omissions
undertaken with deliberate intent to cause injury or undertaken with
reckless disregard.
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SECTION III
PLAN SHARES
SHARES SUBJECT TO THE PLAN; MAXIMUM NUMBER - AGGREGATE
3.01 Subject to adjustments as provided in Section X and the provisions of
Sections 3.03 and 8.07 hereof, the total number of Common Shares as to
which Stock Incentives may be granted under the Plan in each calendar
year during any part of which the Plan is effective shall be ten
percent (10%) of the sum of (i) total number of outstanding Common
Shares, plus (ii) the total number of Common Shares that may be issued
upon the exchange of Class A and Class B limited partnership units
("Units") in RRF Limited Partnership, a Delaware limited partnership,
to the extent that such Units first became outstanding after January
28, 1998 (without reduction for subsequent repurchases, redemptions or
similar events involving the Units), as of the first day of such year.
In addition, any Common Shares issued by the Company through the
assumption or substitution of outstanding grants from an acquired
company shall not reduce the number of Common Shares available for
grants under the Plan. Any Common Shares issued hereunder may consist,
in whole or in part, of authorized and unissued Common Shares, treasury
Common Shares, or Common Shares to be purchased, as the Committee may
from time to time determine.
SHARES SUBJECT TO THE PLAN; MAXIMUM NUMBER - PER PARTICIPANT
3.02 Subject to Sections 3.03, 8.07 and 10.01 hereof, the maximum number of
Stock Incentives that may be granted to each Participant in each
calendar year during any part of which the Plan is in effect shall be
as follows:
(a) With respect to Common Shares subject to Options, 500,000
Common Shares;
(b) With respect to Common Shares subject to Stock Appreciation
Rights, 500,000 Common Shares;
(c) With respect to Restricted Stock (not issued in payment of
Performance Awards), that number of Common Shares whose value
equals the lesser of (i) 500% of such Participant's base
salary for such year or (ii) $2,000,000 (based on the Fair
Market Value of Common Shares on the date the award is
granted, not the date the award vests or is paid);
(d) With respect to Performance Awards, that number of Common
Shares whose value equals the lesser of (i) 500% of such
Participant's base salary for such year or (ii) $2,000,000
(based on the Fair Market Value of Common Shares on the date
the award is granted, not the date the award is earned or is
paid).
CHARGING OF SHARES
3.03 Subject to the provisions of Section 8.07, Common Shares subject to a
Stock Incentive that are forfeited, terminated, or canceled without
having been exercised (other than Common Shares subject to an Option
that is canceled upon the exercise of a related Stock Appreciation
Right) will again be available for grant under this Plan, without
reducing the number of Common Shares available in any calendar year for
grant of Stock Incentives. If a Holder pays all or part of the exercise
price associated with a Stock Incentive by the transfer of Common
Shares or the surrender (including by attestation) of
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all or part of a Stock Incentive (including the Stock Incentive being
exercised) such transferred or surrendered Common Shares will also be
available for grant under this Plan, without reducing the number of
Common Shares available in any calendar year for grant of Stock
Incentives.
SECTION IV
GRANTS OF STOCK INCENTIVES
TYPE OF AWARDS
4.01 Subject to the provisions of the Plan, the Committee may at any time,
or from time to time, grant Performance Awards, Restricted Stock
Awards, Options, or Stock Appreciation Rights, or any combination
thereof, to any Participant.
TANDEM AWARDS
4.02 The Committee may (but need not) grant any Stock Incentive in tandem
with another Stock Incentive. Tandem Stock Incentives may be granted as
either alternatives or supplements to one another. The terms and
conditions of any such Tandem Stock Incentives shall be determined by
the Committee subject to the provisions of the Plan.
SECTION V
RESTRICTED STOCK AWARDS
RESTRICTED STOCK AGREEMENTS
5.01 Restricted Stock Awards shall be evidenced by Restricted Stock Award
agreements. Such agreements shall conform to the requirements of the
Plan and may contain such other provisions (including provisions for
the protection of Restricted Stock Awards in the event of a Change in
Control) as the Committee shall deem advisable.
RIGHTS OF PARTICIPANTS
5.02 Subject to the restrictions on transfer and the risk of forfeiture, and
except to the extent the Committee provides otherwise at the time of
grant of a Restricted Stock Award, a Participant who has been granted a
Restricted Stock Award will thereafter have all the rights of a
shareholder, including the right to receive dividends paid on such
Common Shares and to vote such Common Shares unless and until any such
Common Shares are forfeited. Certificates or other evidence of
Restricted Stock Awards will be held by the Company or other designee
of the Committee.
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DELIVERY OF SHARES
5.03 The Restricted Stock Award agreement shall specify the duration of the
restricted period and the employment conditions under which the
Restricted Stock Award may be forfeited to the Company. If, at the end
of the restricted period, the restrictions imposed hereunder lapse as
provided in the Restricted Stock Award agreement, a certificate
representing the number of Common Shares on which restrictions have
lapsed as well as any other form of compensation provided for in the
agreement, will be delivered to the Participant or his Beneficiary upon
compliance by the Participant with any requirements provided for in the
Restricted Stock Award agreement. The Committee may, in its sole
discretion, modify or accelerate the vesting of Common Shares under a
Restricted Stock Award.
FORFEITURE
5.04 In addition to any specific provisions on forfeiture provided for in
any Restricted Stock Award agreement, Restricted Stock Awards will be
forfeited if the Participant terminates employment with the Company, a
Subsidiary or an affiliate for any reason (other than death, disability
or retirement), except that the Committee shall have the authority to
provide for the continuation of the Restricted Stock Award in whole or
in part whenever in its judgment it shall determine that such
continuation is in the best interests of the Company.
NONASSIGNABILITY
5.05 Restricted Stock Awards may not be pledged, assigned or transferred for
any reason during the Participant's lifetime, and any attempt to do so
shall be void and the relevant Restricted Stock Award shall be
forfeited.
CHANGES IN CONTROL
5.06 In the event of a Change in Control, each outstanding Restricted Stock
Award will become fully vested in each Participant as of the day before
such event occurs. This will result in the lapse of all restrictions on
such Restricted Stock Awards.
SECTION VI
PERFORMANCE AWARDS
PERFORMANCE AWARD AGREEMENTS
6.01 Performance Awards shall be evidenced by Performance Award agreements.
Such agreements shall conform to the requirements of the Plan and may
contain such other provisions (including Performance Goals (as defined
below) and provisions for the protection of Performance Awards in the
event of a Change in Control) as the Committee shall deem advisable.
AWARD PERIOD AND PERFORMANCE GOALS
6.02 The Committee shall determine and include in a Performance Award the
period of time during which a Performance Award may be earned ("Award
Period"). The Committee shall also establish performance objectives
("Performance Goals") to be met by the Company, Subsidiary or affiliate
during the Award Period as a condition to payment of, and/or the lapse
of any applicable restrictions relating to, the Performance Award. The
Performance Goals may include minimum and optimum objectives or a
single set of objectives.
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The Committee shall establish in writing the Performance Goals for each
Award Period which shall be based on any of the following performance
criteria, either alone or in any combination, on either a consolidated
or business unit or divisional level, and which shall include or
exclude discontinued operations and acquisition expenses (e.g., pooling
of interests), as the Committee may determine: return on net assets,
return on capital employed, economic value added, level of sales,
earnings per share, income before income taxes and cumulative effect of
accounting changes, net income, return on equity, total shareholder
return, market valuation, cash flow and completion of acquisitions. The
foregoing criteria shall have any reasonable definitions that the
Committee may specify at the time the Performance Goal is established,
which may include or exclude any or all of the following items, as the
Committee may specify: extraordinary, unusual, or non-recurring items;
effects of accounting changes; effects of currency fluctuations;
effects of financing activities (e.g., effect on earnings per share of
issuing convertible debt securities); expenses for restructuring or
productivity initiatives; non-operating items; acquisition expenses
(e.g., pooling of interests); and effects of divestitures. Any such
performance criterion or combination of such criteria may apply to the
Participant's award opportunity in its entirety or to any designated
portion or portions of the opportunity, as the Committee may specify.
PERFORMANCE AWARD EARNED
6.03 The Performance Awards shall be expressed in terms of Common Shares and
referred to as "Performance Shares." With respect to each Performance
Award, the Committee shall fix the number of allocable Performance
Shares. The level of Performance Goals attained will determine the
percentage of Performance Shares earned for an Award Period. After
completion of the Award Period, the Committee shall certify in writing
the extent to which the Performance Goals and other material terms
applicable to such award are attained. Unless and until the Committee
so certifies, the Performance Award shall not be paid.
FORFEITURE
6.04 In addition to any specific provisions on forfeiture provided for in
any Performance Award agreement, Performance Awards will be forfeited
if the Participant terminates employment (other than upon death or
disability) with the Company, a Subsidiary or an affiliate prior to the
completion of the Award Period; provided that the Committee shall have
the authority to provide for a partial or full payment of the
Performance Award that would have been payable if the Participant had
continued employment for the entire Award Period, which shall be paid
at 25 if no such termination of employment occurred.
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PERFORMANCE AWARD PAYMENT
6.05 The Committee, in its discretion, may elect to make the payment of
Performance Awards in Restricted Shares, Common Shares, cash or any
combination of the foregoing. If the Performance Award is paid in
Restricted Shares or Common Shares, the Company shall issue one
Restricted Share or Common Share for each Performance Share earned. If
the Performance Award is paid in cash, the cash payable shall be equal
to the Fair Market Value of the Performance Shares earned as of the
last day of the Award Period.
RIGHTS OF PARTICIPANTS
6.06 Subject to the restrictions on transfer and the risk of forfeiture, and
except to the extent the Committee provides otherwise at the time of
grant of a Performance Award, a Participant who has been granted a
Performance Award payable in Common Shares or Restricted Shares will
thereafter have all the rights of a shareholder, including the right to
receive dividends paid on such shares and to vote such shares unless
and until any such shares are forfeited. Certificates or other evidence
of Performance Awards will be held by the Company or other designee of
the Committee.
NONASSIGNABILITY
6.07 Performance Awards may not be pledged, assigned or transferred for any
reason during the Participant's lifetime, and any attempt to do so
shall be void and the relevant Award shall be forfeited.
CHANGE IN CONTROL
6.08 In the event of a Change in Control each outstanding Performance Award
will become fully vested in each Participant as of the day before such
event occurs. This will result in the lapse of all restrictions on such
Performance Awards, regardless of any unachieved Performance Goal.
SECTION VII
OPTIONS
TERMS AND CONDITIONS OF OPTIONS
7.01 Except as otherwise provided in Section 12.07, Options shall be
subject to the provisions set forth in this Section.
PURCHASE PRICE
7.02 Subject to the provisions of Section X, the price at which each Common
Share may be purchased under an Option shall be not less than 100% of
the Fair Market Value of a Common Share on the date the Option is
granted.
PAYMENT OF PURCHASE PRICE
7.03 The purchase price of shares subject to an Option may be paid in whole
or in part (a) in cash, (b) by bank, certified, cashier's or personal
check subject to collection, (c) if so provided in the Option and
subject to such terms and conditions as the Committee may impose, by
delivering to the Company a properly executed exercise notice and
instructions to deliver the resulting stock to a stockbroker that are
intended to satisfy the provisions of Section 220.3(e)(4) of Regulation
T issued by the Board of Governors of the Federal Reserve System as in
effect from time to time, and (d) if so provided in the
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Option and subject to such terms and conditions as are specified in the
Option, (i) in Common Shares (including through an attestation
procedure) or other property surrendered to the Company or (ii) by the
surrender of all or part of the Option being exercised, or by a
combination of the foregoing methods, as and to the extent permitted by
the Committee. Property for purposes of this paragraph shall include an
obligation of the Company unless prohibited by applicable law. Common
Shares thus surrendered shall be valued at their Fair Market Value on
the date of exercise. Any such other property thus surrendered shall be
valued at its fair market value on any reasonable basis established or
approved by the Committee. Any Common Shares surrendered to the Company
in payment of an Option's purchase price pursuant to Section 7.03(d)
(including by attestation) will again be available for grant under this
Plan, without reducing the number of Common Shares available in any
calendar year for grant of Stock Incentives.
CONSIDERATION FOR GRANT OF OPTIONS
7.04 Options may be granted for such lawful consideration, including money
or other property, tangible or intangible, or labor or services
received or to be received by the Company, as the Committee may
determine when the Option is granted. Property for purposes of the
preceding sentence shall include an obligation of the Company unless
prohibited by applicable law.
Subject to the foregoing and the other provisions of this Section VII,
each Option may be exercisable in full at the time of grant or may
become exercisable in one or more installments, and at such time or
times, as the Committee may determine. The Committee may at any time
accelerate the date on which an Option becomes exercisable, and no
additional consideration need be received by the Company in exchange
for such acceleration. Unless otherwise provided in the Option, to the
extent it becomes exercisable, an Option may be exercised at any time
in whole or in part until its expiration or termination.
CERTAIN LIMITATIONS ON EXERCISE
7.05 Unless otherwise determined by the Committee, each Option may be
exercised, during the Holder's lifetime, only by the Holder or the
Holder's guardian or legal representative, and after death only by the
Holder's Beneficiary or, absent a Beneficiary, by his estate or by a
person who acquired the right to exercise the Option by will or the
laws of descent and distribution. Notwithstanding any other provision
of this Plan, no Option shall be exercisable after the tenth
anniversary of the date the Option was granted. The Company may but
need not provide for an Option to be exercisable after termination of
employment or cessation of service as a Director, as the case may be,
until its fixed expiration date (or until an earlier date or specified
event occurs).
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OPTION INSTRUMENTS
7.06 Each Option shall be evidenced by a written instrument, signed by an
officer of the Company duly authorized to do so, which shall contain
such terms and conditions, and shall be in such form, as the Committee
shall determine, provided the instrument is consistent with this Plan
and incorporates it by reference. An Option, if so approved by the
Committee, may include terms, conditions, restrictions and limitations
in addition to those provided for in this Plan including, without
limitation, terms and conditions providing for the transfer or issuance
of shares, on exercise of an Option, which may be non-transferable and
forfeitable to the Company in designated circumstances.
PROVISION APPLICABLE TO CERTAIN HARDSHIP DISTRIBUTIONS
7.07 No Participant shall make any elective contribution or employee
contribution (within the meaning of Treasury Regulation Section
1.401(k)-l(d)(2)(iv)(B)(4)) (i.e., exercise an Option with cash or
check) to the Plan during the twelve-month period after the
Participant's receipt of a deemed hardship distribution (within the
meaning of Treasury Regulation Section 1.401(k)-1(d)(2)(iv)) from a
plan of the Company (or a related party within the provisions of Code
Section 414(b), (c), (m) or (o)) containing a cash or deferred
arrangement under Section 401(k) of the Code. The preceding sentence
shall not apply if and to the extent that the Committee determines it
is not necessary to qualify any such plan as a cash or deferred
arrangement under Section 401(k) of the Code.
CERTAIN CONDITIONS TO EXERCISE
7.08 No Option shall be exercisable unless and until the Company (a) obtains
the approval of all regulatory bodies whose approval the Committee may
deem necessary or desirable, and (b) complies with all legal
requirements deemed applicable by the Committee.
DATE OF EXERCISE
7.09 An Option shall be considered exercised if and when written notice,
signed by the person exercising the Option and stating the number of
shares with respect to which the Option is being exercised, is received
by the Company on a properly completed form approved for this purpose
by the Committee, accompanied by full payment of the Option purchase
price in one or more of the forms authorized by the Committee and
described in Section 7.03 above for the number of shares to be
purchased. No Option may at any time be exercised with respect to a
fractional share.
SECTION VIII
STOCK APPRECIATION RIGHTS
TERMS AND CONDITIONS OF STOCK APPRECIATION RIGHTS
8.01 Stock Appreciation Rights shall be subject to such terms and
conditions, not inconsistent with the Plan, as shall from time to time
be determined by the Committee and to the terms and conditions set
forth in this Section VIII.
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TANDEM AND FREE-STANDING RIGHTS
8.02 Stock Appreciation Rights may be granted in connection with all or any
part of an Option, either at the time of the grant of such Option or at
any time thereafter during the term of the Option (in either case,
"Tandem Stock Appreciation Rights"), or may be granted without
reference to an Option ("Free-Standing Stock Appreciation Rights").
TANDEM RIGHTS
8.03 Tandem Stock Appreciation Rights may be granted either as an
alternative or a supplement to a specified Option (the "related"
Option). Each Tandem Stock Appreciation Right that is granted as an
alternative to an Option shall entitle the Holder to receive the amount
determined pursuant to Section 8.06 below if and when the Holder
surrenders a related Option to purchase one Common Share that is then
exercisable. Each Tandem Stock Appreciation Right that is granted as a
supplement to an Option shall entitle the Holder to receive the amount
determined pursuant to Section 8.06 below if and when the Holder
purchases a share under the related Option.
CONSIDERATION FOR GRANT OF RIGHTS
8.04 Stock Appreciation Rights may be granted for such lawful consideration,
including money or other property, tangible or intangible, or labor or
services received or to be received by the Company, as the Committee
may determine when the Stock Appreciation Rights are granted. Property
for purposes of the preceding sentence shall include an obligation of
the Company unless prohibited by applicable law. Subject to the
foregoing and the other provisions of this Section VIII, Stock
Appreciation Rights may be exercisable in full at the time of grant or
may become exercisable in one or more installments, and at such time or
times, as the Committee may determine. The Committee may at any time
accelerate the date on which Stock Appreciation Rights become
exercisable, and no additional consideration need be received by the
Company in exchange for such acceleration. Unless otherwise provided in
the Stock Appreciation Rights, to the extent they become exercisable,
Stock Appreciation Rights may be exercised at any time in whole or in
part until its expiration or termination.
TERM OF RIGHTS
8.05 No Free-Standing Stock Appreciation Right shall be exercisable after
the tenth anniversary of the date it was granted, and no Tandem Stock
Appreciation Right shall be exercisable after the related Option ceases
to be exercisable. The Committee may but need not provide for Stock
Appreciation Rights to be exercisable after termination of employment
or cessation of service as a Director, as the case may be, until they
expire pursuant to the first sentence of this Section 8.05 (or until an
earlier date or specified event occurs).
PAYMENT UPON EXERCISE
8.06 Upon exercise of Stock Appreciation Rights, the Holder thereof shall be
entitled to receive cash or Common Shares or a combination of each, as
the Committee in its sole discretion may determine, equal to the amount
by which the Fair Market Value of a Common Share on the date of such
exercise exceeds the Base Price of the Stock Appreciation Rights (as
defined below), multiplied by the number of Stock Appreciation Rights
exercised provided that in no event shall a fractional share be issued.
In the case of Tandem Stock Appreciation Rights, the "Base Price" shall
be the price at which shares may be purchased under the related Option.
In the case of Free-Standing Stock
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Appreciation Rights, the "Base Price" shall be the Fair Market Value of
a Common Share on the date the Stock Appreciation Rights were granted.
The Committee may provide that, notwithstanding the foregoing, upon
exercise of Stock Appreciation Rights at any time during the thirty-day
period following a Change in Control (a "Change in Control Period"),
including, without limitation, upon exercise of Stock Appreciation
Rights which expire before the end of the Change in Control Period in
which they are exercised, the amount of cash or shares which a Holder
is entitled to receive shall equal the amount by which the highest Fair
Market Value of a Common Share during such Change in Control Period
exceeds the Base Price of the Stock Appreciation Rights, multiplied by
the number of Stock Appreciation Rights exercised.
CHARGING OF SHARES FOR RIGHTS
8.07 The maximum number of shares available for use under the Plan shall be
charged only for the number of shares which are actually issued or
transferred in settlement of Stock Appreciation Rights and for that
number of Common Shares having a Fair Market Value on the date of
exercise equal to the cash payable in settlement of such Rights. In the
case of an exercise of a Tandem Stock Appreciation Right that is
alternative to an Option, if the number of Common Shares previously
charged against the maximum number of shares available for use under
the Plan on account of the surrendered portion of the Option exceeds
the number of shares (if any) actually issued or transferred pursuant
to such surrender and that number of Common Shares having a Fair Market
Value on the date of exercise equal to any cash payable pursuant to
such surrender, the excess Common Shares may be added back to the
number of shares available for use under the Plan.
CERTAIN LIMITATIONS ON EXERCISE OF RIGHTS
8.08 Unless otherwise determined by the Committee, each Stock Appreciation
Right may be exercised, during the Holder's lifetime, only by the
Holder or the Holder's guardian or legal representative, and after
death only by the Holder's Beneficiary or, absent a Beneficiary, by his
estate or by a person who acquired the right to exercise the Stock
Appreciation Right by will or the laws of descent and distribution.
STOCK APPRECIATION RIGHT INSTRUMENTS
8.09 Each Stock Appreciation Right shall be evidenced by a written
instrument, which shall contain such terms and conditions, and shall be
in such form, as the Committee shall determine, provided the instrument
is consistent with the Plan and incorporates it by reference.
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SECTION IX
CERTAIN CHANGE IN CONTROL, TERMINATION OF EMPLOYMENT
AND DISABILITY PROVISIONS
9.01 Notwithstanding any provision of the Plan to the contrary, any Option
or Stock Appreciation Right which is outstanding but unexercisable at
the time of a Change in Control shall become exercisable at that time.
Any Option affected by the preceding sentence shall remain exercisable
until it expires or terminates pursuant to its terms and conditions.
The Committee may at any time, and subject to such terms and conditions
as it may impose:
(a) authorize the Holder of an Option or Stock Appreciation Right
to exercise the Option or Stock Appreciation Right following
the termination of the Participant's employment with, or
service as a Director of, the Company and its Subsidiaries, or
following the Participant's disability, whether or not the
Option or Stock Appreciation Right would otherwise be
exercisable following such event, provided that in no event
may an Option or Stock Appreciation Right be exercised after
the expiration of its term;
(b) grant Options and Stock Appreciation Rights which become
exercisable only in the event of a Change in Control;
(c) provide for Stock Appreciation Rights to be exercised
automatically and only for cash in the event of a Change in
Control; and
(d) provide in advance or at the time of a Change in Control for
cash to be paid in settlement of any Option, Stock
Appreciation Right, Performance Award or Restricted Stock
Award in the event of a Change in Control, either at the
election of the Participant or at the election of the
Committee.
SECTION X
ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
ADJUSTMENTS TO BE MADE
10.01 In the event of a reorganization, recapitalization, stock split, stock
dividend, combination of shares, merger, consolidation or any other
change in the corporate structure of the Company affecting Common
Shares, or a sale by the Company of all or part of its assets other
than in the normal course of business, or any distribution to
shareholders other than a normal cash dividend, the Committee shall
make appropriate adjustments in the number and kind of shares
authorized by the Plan and any adjustments to outstanding Restricted
Stock Awards, Performance Awards, Options and Stock Appreciation Rights
(including adjustments in the purchase price or Base Price thereof and
in the number and kind of shares issuable thereunder) as it determines
appropriate.
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SECTION XI
PLAN EXISTENCE; PLAN AMENDMENTS
EFFECTIVE DATE AND TERMINATION
11.01 The Plan shall become effective on January 28, 1998, subject to
shareholder approval that meets the applicable requirements of the
exchange on which the Common Shares are then listed. If not so
approved, the Plan and any Stock Incentive granted thereunder and
contingent upon such approval, shall be null and void. If so approved,
the Plan shall remain in full force and effect until all shares
authorized to be issued or transferred hereunder have been exhausted or
until the Plan is sooner terminated by the Board of Trustees, and shall
continue in effect thereafter with respect to any Stock Incentives
outstanding at the time of such termination.
AMENDMENT AND TERMINATION
11.02 Subject to any applicable shareholder approval requirements of
applicable law or the rules of the exchange on which the Common Shares
are then listed, the Plan may be amended by the Board of Trustees at
any time and in any respect. The Plan may also be terminated at any
time by the Board of Trustees. No amendment or termination of this Plan
shall adversely affect any Stock Incentive granted prior to the date of
such amendment or termination, without the written consent of the
affected Holder(s).
SECTION XII
GENERAL
GENERAL PROVISIONS
12.01 Unless otherwise determined by the Committee, no Stock Incentive
granted under this Plan may be transferred or assigned by the Holder
other than to a Beneficiary, as provided hereunder, or, if none, by
will, pursuant to the laws of descent and distribution, or pursuant to
a qualified domestic relations order; except that no Incentive Stock
Option may be transferred or assigned pursuant to a qualified domestic
relations order.
12.02 Nothing contained in the Plan, nor in any instrument issued pursuant to
the Plan, shall confer upon any Participant any right with respect to
continuance of employment by, or service as a Director of, as the case
may be, the Company, a Subsidiary or affiliate, nor interfere in any
way with the right of the Company, a Subsidiary or affiliate, to
terminate the employment of, or service as a Director of, any
Participant at any time or without assigning any reason therefor.
12.03 For purposes of this Plan, a transfer of employment between the Company
and its Subsidiaries and affiliates shall not be deemed termination of
employment subject, in the case of Incentive Stock Options and any
Rights tandem thereto, to any applicable provisions of Sections 422 and
424 of the Code.
12.04 The Company and its Subsidiaries may make such provisions as they may
deem appropriate for the withholding of any taxes which they determine
are required to be withheld in connection with any Stock Incentive
granted under this Plan. Without limiting the foregoing, the Committee
may, subject to such terms and conditions as it may impose, permit or
require any withholding tax obligation arising in connection with the
grant, exercise, vesting, distribution or payment of any Stock
Incentive to be satisfied
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in whole or in part, with or without the consent of the Holder, by
having the Company withhold all or any part of the Common Shares that
vest or would otherwise be distributed at such time. Any shares so
withheld shall be valued at their Fair Market Value on the date of such
withholding.
12.05 No person (individually or as a member of a group), and no Beneficiary
or other person claiming under or through him, shall have any right,
title or interest in or to any Common Shares allocated or reserved for
the purposes of this Plan, or subject to any Stock Incentive, except as
to such Common Shares, if any, as shall have been issued or transferred
to him.
12.06 If any day on which action under the Plan must be taken falls on a
Saturday, Sunday or legal holiday, such action may be taken on the next
succeeding day not a Saturday, Sunday or legal holiday.
12.07 Without amending the Plan, Stock Incentives may be granted to
Participants who are foreign nationals or employed outside the United
States or both, on such terms and conditions different from those
specified in the Plan as may, in the judgment of the Committee, be
necessary or desirable to further the purpose of the Plan.
12.08 Except as provided in Section 6.03, the Committee may amend any
outstanding Stock Incentive to the extent it deems appropriate. Such
amendment may be unilateral by the Company, except in the case of
amendments adverse to the affected Holder, in which case the affected
Holder's consent is required to any such amendment.
12.09 The validity, construction, interpretation and administration of the
Plan and of any determinations or decisions made thereunder, and the
rights of all persons having or claiming to have any interest therein
or thereunder, shall be governed by, and determined exclusively in
accordance with, the laws of the State of Ohio, but without giving
effect to the principles of conflicts of laws thereof. Without limiting
the generality of the foregoing, the period within which any action
arising under or in connection with the Plan must be commenced, shall
be governed by the laws of the State of Ohio, without giving effect to
the principles of conflicts of laws thereof, irrespective of the place
where the act or omission complained of took place and of the residence
of any party to such action and irrespective of the place where the
action may be brought.
12.10 The use of the masculine gender shall also include within its meaning
the feminine. The use of the singular shall include within its meaning
the plural and vice versa.
