1997 SHARE INCENTIVE
PLAN
(Amended through June 11,
2009)
The name of the plan is the W. P. Carey &
Co. LLC 1997 Share Incentive Plan (the “Plan”). The
purpose of the Plan is to encourage and enable the officers,
employees and Eligible Directors of W. P. Carey & Co. LLC (the
“Company”) and its Affiliates upon whose judgment,
initiative and efforts the Company largely depends for the
successful conduct of its business to acquire a proprietary
interest in the Company. It is anticipated that providing such
persons with a direct stake in the Company’s welfare will
assure a closer identification of their interests with those of the
Company, thereby stimulating their efforts on the Company’s
behalf and strengthening their desire to remain with the
Company.
The following
terms shall be defined as set forth below:
“Act” means the Securities Exchange
Act of 1934, as amended.
“Affiliate” means any entity other
than the Company and its Subsidiaries that is designated by the
Board or the Committee as a participating employer under the
Plan.
“Award” or “Awards”,
except where referring to a particular category of grant under the
Plan, shall include Incentive Listed Share Options, Non-Qualified
Listed Share Options, Restricted Listed Shares Awards, Restricted
Share Units, Performance Share Awards, Performance Share Units and
Dividend Equivalent Rights.
“Board” means the Board of Directors
of the Company.
“Cause” means and shall be limited
to a vote of the Board to the effect that the participant should be
dismissed as a result of (i) any material breach by the
participant of any agreement to which the participant and the
Company or an Affiliate are parties, (ii) any act (other than
retirement) or omission to act by the participant, including
without limitation, the commission of any crime (other than
ordinary traffic violations) that may have a material and adverse
effect on the business of the Company or any Affiliate or on the
participant’s ability to perform services for the Company or
any Affiliate, or (iii) any material misconduct or neglect of
duties by the participant in connection with the business or
affairs of the Company or any Affiliate.
“Change of Control” is defined in
Section 13.
“Code” means the Internal Revenue
Code of 1986, as amended, and any successor Code, and related
rules, regulations and interpretations.
“Committee” means any Committee of
the Board referred to in Section 2.
“Disability” means disability as set
forth in Section 22(e)(3) of the Code.
“Dividend Equivalent Right” means a
right, granted under Section 8, to receive cash, Listed Shares
or other property equal in value to dividends paid with respect to
a specified number of Listed Shares or the excess of dividends paid
over a specified rate of return. Dividend Equivalent Rights may be
awarded on a free-standing basis or in connection with another
Award, and may be paid currently or on a deferred basis.
“Effective Date” means the date on
which the Plan is approved by the Board as set forth in
Section 15.
“Eligible Director” means members of
the Board who are employees of the Company, its Subsidiaries or
their Affiliates and who are not Non-Employee Directors.
“ERISA” means the Employee
Retirement Income Security Act of 1974, as amended, and the related
rules, regulations and interpretations.
“Fair Market Value” on any given
date means the last reported sale price at which Listed Share is
traded on such date or, if no Listed Share is traded on such date,
the most recent date on which Listed Shares were traded, as
reflected on the New York Stock Exchange or, if applicable, any
other national stock exchange which is the principal trading market
for the Listed Shares.
“Incentive Listed Share Option”
means any Listed Share option designated and qualified as an
“Incentive Stock Option” as defined in Section 422
of the Code.
“Listed Shares” means the Listed
Shares of the Company, subject to adjustment pursuant to
Section 3.
“Non-Employee Director” means a
member of the Board who: (i) is not currently an officer of
the Company or any Affiliate; (ii) does not receive
compensation for services rendered to the Company or any Affiliate
in any capacity other than as a Director; (iii) does not
possess an interest in any transaction with the Company for which
disclosure would be required under the securities laws; or
(iv) is not engaged in a business relationship with the
Company for which disclosure would be required under the securities
laws.
“Non-Qualified Listed Share Option”
means any Listed Share Option that is not an Incentive Listed Share
Option.
“Option” or “Listed Share
Option” means any option to purchase Listed Shares granted
pursuant to Section 5.
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“Parent” means a “parent
corporation” as defined in Section 424(e) of the
Code.
“Performance Share Award” means
Awards granted pursuant to Section 7.
“Performance Share Unit” means
Awards granted pursuant to Section 7.
“Restricted Listed Share Award”
means Awards granted pursuant to Section 6.
“Restricted Share Unit” means Awards
granted pursuant to Section 6.
“Subsidiary” means any entity (other
than the Company) in an unbroken chain of entities, beginning with
the Company if each of the entities (other than the last entity in
the unbroken chain) owns equity possessing 50% or more of the total
combined voting power of all classes of equity in one of the other
entities in the chain.
SECTION 2
Administration of Plan; Committee Authority to Select
Participants
and Determine Awards
(a) Committee . The Plan shall be
administered by a committee of not less than two directors, as
appointed by the Board from time to time (the
“Committee”) who are “non-employee
directors” as then defined under Rule 16b-3 of the
Act.
(b) Powers of Committee . The
Committee shall have the power and authority to grant Awards
consistent with the terms of the Plan, including the power and
authority:
(i) to select the officers, employees and
Eligible Directors of the Company and Affiliates to whom Awards may
from time to time be granted;
(ii) to determine the time or times of
grant, and the extent, if any, of Incentive Listed Share Options,
Non-Qualified Listed Share Options, Restricted Listed Shares,
Restricted Share Units, Performance Shares, Performance Share Units
and Dividend Equivalent Rights, or any combination of the
foregoing, granted to any officer, employee or Eligible
Director;
(iii) to determine the number of Listed
Shares to be covered by any Award granted to an officer, employee,
Eligible Director or Affiliate;
(iv) to determine and modify the terms and
conditions, including restrictions, not inconsistent with the terms
of the Plan, of any Award granted to an officer, employee or
Director, which terms and conditions may differ among individual
Awards and participants, and to approve the form of written
instruments evidencing the Awards;
(v) to accelerate the exercisability or
vesting of all or any portion of any Award granted to a
participant;
(vi) subject to the provisions of
Section 5(ii), to extend the period in which Listed Share
Options granted may be exercised;
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(vii) to determine whether, to what extent
and under what circumstances Listed Shares and other amounts
payable with respect to an Award granted to a participant shall be
deferred either automatically or at the election of the participant
and whether and to what extent the Company will pay or credit
amounts equal to interest (at rates determined by the Committee) or
dividends or deemed dividends on such deferrals; and
(viii) to adopt, alter and repeal such
rules, guidelines administration of the Plan and for its own acts
and shall deem advisable; to interpret the terms and Plan and any
Award (including related written instruments) granted to a
participant; and to decide all disputes arising in connection with
and make all determinations it deems advisable for the
administration of the Plan.
All decisions and interpretations of the
Committee shall be binding on all persons, including the Company
and Plan participants.
SECTION 3
Shares Issuable under the Plan; Mergers;
Substitution
(a) Shares Issuable . The maximum
number of Listed Shares reserved and available for issuance under
the Plan shall be 6,200,000. For purposes of this limitation, the
Listed Shares underlying any Awards, including Dividend Equivalent
Rights, which are forfeited, canceled, reacquired by the Company,
satisfied without the issuance of Listed Shares or otherwise
terminated (other than by exercise) shall be added back to the
Listed Shares available for issuance under the Plan so long as the
participants to whom such Awards had been previously granted
received no benefits of ownership of the underlying Listed Shares
to which the Award related. Notwithstanding the foregoing, the
following Listed Shares shall not become available for purposes of
the Plan: (1) Listed Shares previously owned or acquired by an
awardee that are delivered to the Company, or withheld from an
Award, to pay the exercise price, or (2) Listed Shares that
are delivered or withheld for purposes of satisfying a tax
withholding obligation. Listed Shares issued under the Plan may be
unissued Listed Shares or Listed Shares reacquired by the
Company.
(b) Listed Shares, Dividends, Mergers,
etc. In the event of any recapitalization, reclassification,
split-up or consolidation of Listed Shares, separation (including a
spin-off), dividend on Listed Shares payable in securities of the
Company (including Listed Shares), or other similar change in
capitalization of the Company or a merger or consolidation of the
Company or sale by the Company of all or a portion of its assets or
other similar event, the Committee shall make such appropriate
adjustments in the exercise prices of Awards, including Awards then
outstanding, in the number and kind of securities, cash or other
property which may be issued pursuant to Awards under the Plan,
including Awards then outstanding, and in the number of Listed
Shares with respect to which Awards may be granted (in the
aggregate and to individual participants) as the Committee deems
equitable with a view toward maintaining the proportionate interest
of the participant and preserving the value of the
Awards.
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(c) Substitute Awards . The
Committee may grant Awards under the Plan in substitution for share
and share-based awards held by employees of another corporation who
concurrently become employees of the Company or an Affiliate as the
result of a merger or consolidation of the employing corporation
with the Company or an Affiliate or the acquisition by the Company
or an Affiliate of property or Listed Shares of the employing
corporation. The Committee may direct that the substitute awards be
granted on such terms and conditions as the Committee considers
appropriate in the circumstances.
Participants in the Plan will be Eligible
Directors and such full or part-time officers and other employees
of the Company and its Affiliates who are responsible for or
contribute to the management, growth or profitability of the
Company and its Affiliates and who are selected from time to time
by the Committee, in its sole discretion.
SECTION 5
Listed Share Options
Any Listed Share Option granted under the Plan
shall be in such form as the Committee may from time to time
approve. Listed Share Options granted under the Plan may be either
Incentive Listed Share Options, subject to any required approval of
the holders of Listed Shares, or Non-Qualified Listed Share
Options. To the extent that any option does not qualify as an
Incentive Listed Share Option, it shall constitute a Non-Qualified
Listed Share Option. No Incentive Listed Share Option may be
granted under the Plan after the tenth anniversary of the Effective
Date.
The Committee in its discretion may grant Listed
Share Options to employees of the Company or any Affiliate. Listed
Share Options granted to Eligible Directors and employees pursuant
to this Section 5 shall be subject to the following terms and
conditions and shall contain such additional terms and conditions,
not inconsistent with the terms of the Plan, as the Committee shall
deem desirable:
(i) Exercise Price . The per share
exercise price of a Listed Share Option granted pursuant to this
Section 5 shall be determined by the Committee at the time of
grant. The per share exercise price of a Listed Share Option shall
not be less than 100% of Fair Market Value on the date of grant. If
an employee owns or is deemed to own (by reason of the attribution
rules applicable under Section 424(d) of the Code) more than 10% of
the combined voting power of all classes of equity of the Company
or any Subsidiary or Parent corporation and an Incentive Listed
Share Option is granted to such employee, the option price shall be
not less than 110% of Fair Market Value on the grant
date.
(ii) Option Term . The term of each
Listed Share Option shall be fixed by the Committee, but no Listed
Share Option shall be exercisable more than ten years after the
date the option is granted. If an employee owns or is deemed to own
(by reason of the attribution rules of Section 424(d) of the Code)
more than 10% of the combined voting power of all classes of equity
of the Company or any Subsidiary or Parent and an Incentive Listed
Share Option is granted to such employee, the term of such option
shall be no more than five years from the date of grant.
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(iii) Exercisability; Rights of a
Shareholder . Listed Share Options shall become exercisable at
such time or times, whether or not in installments, as shall be
determined by the Committee at or after the grant date. The
Committee may at any time accelerate the exercisability of all or
any portion of any Listed Share Option. An optionee shall have the
rights of a shareholder only as to Listed Shares acquired upon the
exercise of a Listed Share Option and not as to unexercised Listed
Share Options.
(iv) Method of Exercise . Listed
Share Options may be exercised in whole or in part, by giving
written notice of exercise to the Company, specifying the number of
Listed Shares to be purchased. Payment of the purchase price may be
made by one or more of the following methods:
(A) In cash (by certified, bank check,
money order or other instrument acceptable to the
Committee);
(B) In the form of delivered Listed Shares
that are not then subject to restrictions, or Listed Shares
withheld from the exercise of the Award, in either case if
permitted by the Committee in its discretion. Such surrendered or
withheld shares shall be valued at Fair Market Value on the
exercise date;
(C) Any combination of cash and such Listed
Shares, if the use of Listed Shares is permitted by the Committee
in its discretion, in the amount of the full purchase price for the
number of Listed Shares as to which the Option is exercised;
provided, however, that any portion of the option price
representing a fraction of a share shall be paid by the Optionee in
cash; or
(D) By the optionee delivering to the
Company a properly executed exercise notice together with
irrevocable instructions to a broker to promptly deliver to the
Company cash or a check payable and acceptable to the Company to
pay the purchase price; provided that in the event the optionee
chooses to pay the purchase price as so provided, the optionee and
the broker shall comply with such procedures and enter into such
agreements of indemnity and other agreements as the Committee shall
prescribe as a condition of such payment procedure. Payment
instruments will be received subject to collection.
The delivery of certificates representing Listed
Shares to be purchased pursuant to the exercise of the Listed Share
Option will be contingent upon receipt from the Optionee (or a
purchaser acting in his stead in accordance with the provisions of
the Listed Share Option) by the Company of the full purchase price
for such shares and
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