Exhibit 4.6
FORM OF
PRIME REALTY INCOME TRUST,
INC.
2009 EQUITY INCENTIVE
PLAN
|
Article 1.
|
Establishment, Objectives, and
Duration
|
1.1
Establishment of the Plan. Prime Realty Income Trust, Inc.,
a Maryland corporation, has established this Prime Realty Income
Trust, Inc. 2009 Equity Incentive Plan (the “Plan”).
Capitalized terms will have the meanings given to them in Article
2. The Plan permits the grants of nonqualified stock options,
incentive stock options, restricted shares, restricted stock unit,
share appreciation rights, dividend equivalent rights, and other
equity-based awards.
1.2
Objectives of the Plan. The Plan’s purpose is to
furnish Participants with the incentive to improve the
Company’s operations and to increase the Company’s
profits, encourage Participants to accept or continue employment
with any Company Party, and increase the interest of the
Company’s officers and independent directors in the
Company’s welfare through their participation in the growth
in the value of the Company’s shares.
1.3
Effective Date and Term of the Plan. The Plan will be
effective _________, 2009. Subject to the right of the Board to
amend or terminate the Plan at any time pursuant to Article 12, the
Plan will terminate upon the date on which all shares of Stock
available for issuance under the Plan have been issued or
transferred according to the Plan’s provisions or, if
earlier, the tenth anniversary of the Effective Date. Upon such
Plan termination, all Awards outstanding under the Plan will
continue to have full force and effect in accordance with the terms
of the Award Agreement evidencing such Award.
The following capitalized terms will
have the meanings indicated below for purposes of the Plan and any
Award.
“Advisor”
means The Prime Group, Inc. or any
successor advisor that is appointed by the Company in accordance
with that certain Advisory Agreement dated as of ______, 2009 by
and between the Company, Prime Realty Income Operating Partnership,
LP and the Prime Group, Inc. or any successor or replacement
agreement thereto.
“Affiliate” means (a) for purposes of Incentive Stock
Options, any corporation that is a parent or subsidiary of the
Company (as defined in Code Section 424(e) and (f)), and (b) for
all other purposes, with respect to any Person, any other Person
controlling, controlled by or under common control with such
Person, any partner of such other Person if such Person is a
partnership, and any member of such other Person if such Person is
a limited liability company.
“Award”
means a grant under, and pursuant
to the terms of, the Plan of an Option, Stock Appreciation Right,
Restricted Stock, Restricted Stock Unit, or Other Equity-Based
Award.
“Award
Agreement” means
any written agreement, contract, or other instrument or document
that evidences an Award granted to a Participant and that sets
forth the terms and conditions of the Award.
“Award
Date” means, with
respect to an Award, the grant date specified by the Board or
Committee in a resolution or other writing, duly adopted, and as
set forth in the Award Agreement, provided that such Award Date
will not be earlier than the date of such Board or Committee
action.
“Board”
means the Board of Directors of the
Company.
“Cause”
will have the meaning set forth in
any employment, consulting, or other agreement between any of the
Company Parties and the Participant. If there is no employment,
consulting, or other agreement between any of the Company Parties
and the Participant, or if such agreement does not define
“Cause,” then “Cause” will mean: (i) theft
or embezzlement, or attempted theft or embezzlement, of money or
property of any of the Company Parties, perpetration or attempted
perpetration of fraud, or participation in a fraud or attempted
fraud, on any of the Company Parties, or unauthorized appropriation
of, or attempt to misappropriate, any tangible or intangible assets
or property of any of the Company Parties, (ii) act or acts of
disloyalty, moral turpitude, or material misconduct that is
injurious to the interest, property, value, operations, business or
reputation of any of the Company Parties, or conviction of a crime
that results in injury to any of the Company Parties; or (iii)
repeated refusal (other than by reason of Disability) to carry out
reasonable instructions from his or her superiors or the Board. A
Participant’s service will be deemed to have terminated for
Cause if, after the Participant’s service has terminated (for
a reason other than Cause), facts and circumstances are discovered
that would have justified a termination for Cause.
“Change in
Control” means the
occurrence of any of the following events in which any one person,
or more than one person acting as a group (as defined in Treas.
Reg. §1.409A-3(i)(5)(v)(B)):
|
|
(a)
|
acquires ownership of the
Company’s Stock that, together with the Stock held by such
person or group, constitutes more than fifty percent (50%) of the
total fair market value or total voting power of the Stock of the
Company; or
|
|
|
(b)
|
acquires (or has acquired during the
twelve (12) month period ending on the date of the most recent
acquisition by such person or group) assets from the Company that
have a total gross fair market value (which, for this purpose,
means the value of the assets of the Company, or the value of the
assets being disposed of, determined without regard to any
liabilities associated with such assets) equal to or more than
fifty percent (50%) of the total gross fair market value of all of
the assets of the Company immediately before such acquisition or
acquisitions.
|
“Code”
means the Internal Revenue Code of
1986, as amended from time to time, and the rules and regulations
promulgated thereunder.
2
“Committee” means the Compensation Committee of the Board,
or such other committee of the Board as the Board may from time to
time designate to administer the Plan.
“Company”
means Prime Realty Income Trust,
Inc., a Maryland corporation.
“Company
Parties” means,
collectively and without duplication, the Company and any of its
Subsidiaries.
“Consultant” means a consultant or other independent service
provider engaged by a Company Party to render services to such
Company Party and who is not a Director or an Employee.
“Director”
means an individual who is a member
of the Board or the board of directors (or similar governing body)
of any other Company Party.
“Disability” will have the meaning set forth in any
employment, consulting, or other agreement between any of the
Company Parties and the Participant. If there is no employment,
consulting, or other agreement between any of the Company Parties
and the Participant, or if such agreement does not define
“Disability,” then “Disability” will mean:
(i) the Participant’s inability to engage in substantial
gainful activity by reason of any medically determinable physical
or mental impairment that can be expected to result in death or can
be expected to last for a continuous period of not less than twelve
months or (ii) the Participant’s receipt of income
replacement benefits for a period of not less than three months
under an accident and health plan of any of the Company Parties
that covers the Participant.
“Dividend Equivalent
Right” means a
right to receive on the payment date for any dividends on any share
of Stock underlying an Award, cash compensation from the Company
equal to the dividends that would have been paid on each such share
of Stock (or the Fair Market Value of such dividends, if such
dividends would not have been paid in cash), if such share of Stock
had been issued and outstanding, fully vested and held by the
Participant on the record date for payment of such dividends.
Notwithstanding the foregoing, if such dividends would not have
been paid in cash, the Dividend Equivalent Right with respect
thereto will not be paid unless and until a certificate evidencing
the share of Stock with respect to which it is paid is issued to
the Participant. Dividend Equivalents Right may be provided, in the
Committee’s discretion, in connection with any Award under
the Plan.
“Effective
Date” means
__________, 2009.
“Employee”
means a common law employee of any
of the Company Parties.
“Exchange
Act” means the
Securities Exchange Act of 1934, as amended from time to time, and
the rules and regulations promulgated thereunder.
“Exercise
Price” means the
price at which a Participant may purchase shares of Stock pursuant
to an Option or Stock Appreciation Right.
“Fair Market
Value” means, on
any date: (a) if the Stock is readily tradeable on a national
securities exchange or other market system, the closing sales price
of the Stock on such date (or on the last preceding trading date if
the Stock was not traded on such date), or (b) if the
3
Stock is not readily tradeable on a
national securities exchange or other market system, the fair
market value as determined in good faith by the Committee, by a
reasonable application of a reasonable valuation method consistent
with the Code, or Treasury Regulations thereunder, as the Committee
in its discretion selects and applies as of such date.
“Incentive Stock
Option” or
“ISO” means an Option that is intended to
qualify as an “incentive stock option” within the
meaning of Code Section 422 and that is so designated in the
applicable Award Agreement.
“Non-Qualified Stock
Option” means an
Option that is not an Incentive Stock Option, including an Option
designated as an Incentive Stock Option but which, for any reason,
fails to qualify as an Incentive Stock Option.
“Option”
means an option, granted to a
Participant pursuant to Article 6, to purchase a share of Stock and
which may be an Incentive Stock Option or a Non-Qualified Stock
Option.
“Other Equity-Based
Awards” means a
right or other interest, granted to a Participant pursuant to
Article 9, that may be denominated or payable in, valued in whole
or in part by reference to, or otherwise based on or related to
Stock, including, but not limited to, unrestricted shares of Stock
or Dividend Equivalent Rights.
“Participant”
means any eligible Person who is
selected by the Committee to receive an Award under the
Plan.
“Person”
means any natural person,
corporation, partnership, association, limited liability company,
estate, trust, joint venture, any federal, state, or municipal
government or any bureau, department or agency thereof or any other
legal entity and any fiduciary acting in such capacity on behalf of
the foregoing.
“Plan”
means the Prime Realty Income
Trust, Inc. 2009 Equity Incentive Plan, as set forth in this
document and as amended from time to time.
“Restricted
Stock” means shares
of Stock, granted to a Participant pursuant to Article 7, that are
subject to such restrictions as the Committee deems appropriate or
desirable, including restrictions on transferability, risks of
forfeiture, and certain other items and conditions under the Plan
or specified by the Committee.
“Restricted Stock
Unit” or
“RSU” means a fixed or variable Stock
denominated unit, granted to a Participant pursuant to Article 7,
that is (a) subject to such restrictions as the Committee deems
appropriate or desirable and (b) payable in Stock or in cash equal
to the Fair Market Value of the Stock.
“Restriction
Period” means a
period of time during which an Award is subject to forfeiture
and/or restrictions on transfer, commencing on the Award Date and
ending on such date on which such Award is no longer restricted or
subject to forfeiture.
4
“Securities
Act” means the
Securities Act of 1933, as amended from time to time, and the rules
and regulations promulgated thereunder.
“Stock”
means shares of the common stock of
the Company, $0.01 par value per share.
“Stock Appreciation
Right” or
“SAR” means a right, granted to a Participant
pursuant to Article 8, to receive upon exercise of the right an
amount measured by the excess of the Fair Market Value of a share
of Stock on the date of exercise over the Exercise
Price.
“Subsidiary” means, with respect to any Person, (i) a
corporation more than 50% of the combined voting power of the
outstanding stock of which is owned, directly or indirectly, by
such Person or by one or more other Subsidiaries of such Person or
by such Person and one or more Subsidiaries thereof, or (ii) any
other Person (other than a corporation) in which such Person, or
one or more other Subsidiaries of such Person or such Person and
one or more other Subsidiaries thereof, directly or indirectly, has
the power to direct the policies, management and affairs
thereof.
|
Article 3.
|
Administration
|
3.1
Plan Administration. Except as otherwise determined by the
Board, the Plan will be administered by the Committee.
3.2
Authority of the Committee. Except as limited by law and
subject to the provisions of the Plan, the Committee will have full
power to: (i) select eligible Persons to participate in the Plan;
(ii) grant Awards; (iii) determine the sizes and types of Awards;
(iv) determine the terms and conditions of Awards in a manner
consistent with the Plan; (v) construe and interpret the Plan and
any Award Agreement or other instrument entered into under the
Plan; (vi) establish, amend or waive rules and regulations for the
Plan’s administration; and (vii) subject to the provisions of
Article 12, amend the terms and conditions of any outstanding Award
to the extent the terms are within the Board’s discretion
under the Plan. Further, the Committee will make all other
determinations that may be necessary or advisable to administer the
Plan. As permitted by law, the Committee may delegate some or all
of its authority under the Plan.
3.3
Decisions Binding. All determinations and decisions made by
the Committee pursuant to the provisions of the Plan will be final,
conclusive and binding on all Persons, including, without
limitation, the Company, the Board, the Company’s
stockholders, all Affiliates, Employees and Participants, and their
estates and beneficiaries.
|
Article 4.
|
Shares Subject to the Plan and Maximum
Awards
|
4.1
Number of Shares Available for Grants. Subject to adjustment
as provided in Section 4.3, the total number of common shares of
Stock available for Awards and reserved for issuance under the Plan
is equal to 5.0% of the Company’s outstanding shares of Stock
on a fully diluted basis at any time, but in no event more than
2,000,000 shares of Stock. Shares of Stock subject to the Plan may
be authorized but unissued shares, treasury shares or shares
acquired through purchases in the open market, private transactions
of otherwise. Notwithstanding anything in the Plan to the contrary,
(i) in no event will more than 2,000,000 shares of Stock
be
5
issued pursuant to Incentive Stock
Options under the Plan, and (ii) in no event will more than
2,400,000 shares of Stock be cumulatively available for Awards
other than Options or Stock Appreciation Rights. Subject to
adjustment as set forth in Section 4.3, the maximum number of
shares of Stock with respect to which Awards may be granted in any
calendar year to any single Participant under the Plan will be
500,000 shares.
4.2
Lapsed Awards. If any Award granted under this Plan is
canceled, terminates, expires, or lapses for any reason, any shares
of Stock subject to such Award will again be available for an Award
under the Plan.
4.3
Adjustments in Authorized Shares. If the shares of Stock, as
currently constituted, are changed into or exchanged for a
different number or kind of shares or other securities of the
Company or of another entity (whether because of merger,
consolidation, recapitalization, reclassification, split, reverse
split, combination of shares, or otherwise, but not including a
sale of the Company’s Stock or other equity pursuant to an
effective registration statement under the Securities Act, filed
with the Securities and Exchange Commission, or other capital
infusion from any source) or if the number of shares of Stock is
increased through the payment of a dividend or other distribution,
then the Committee will substitute for or add to each share of
Stock previously appropriated, later subject to, or which may
become subject to, an Award, the number and kind of shares or other
securities into which each outstanding share of Stock was changed,
for which each such share was exchanged, or to which each such
share is entitled, as the case may be. The Committee also will
amend outstanding Awards as to price and other terms, to the extent
necessary to reflect the events described above. If there is any
other change in the number or kind of the outstanding shares into
which the outstanding shares of Stock have been changed, or for
which they have been exchanged, the Committee will adjust any Award
already granted or that may be afterward granted.
Fractional shares resulting from any
adjustments in Awards, or in the number of shares of Stock subject
to an Award, pursuant to this Section 4.3 may be settled in cash or
otherwise as the Committee determines. The Company will give notice
of any adjustment to each Participant who holds an Award that has
been adjusted, and the adjustment (whether or not such notice is
given) will be eff
