FIRST AMENDMENT
TO JOHN D. OIL AND GAS COMPANY
1999 STOCK OPTION AND AWARD PLAN
JOHN D. OIL AND GAS COMPANY,
a Maryland corporation (the
“Company”), hereby amends the Original Plan (defined
below) in accordance with this First Amendment to John D. Oil and
Gas Company 1999 Stock Option and Award Plan, effective as of
December 31, 2008 (the “Amendment,” and together with
the Original Plan, the “Amended Plan”).
RECITALS:
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Liberty
Self-Stor, Inc., a Maryland Corporation (“Liberty”),
adopted the Liberty Self-Stor, Inc. 1999 Stock Option and Award
Plan effective as of December 28, 1999 (the “Original
Plan”).
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Liberty changed
its name to John D. Oil and Gas Company effective as of June 27,
2005.
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In order to
ensure compliance with Section 409A of the Internal Revenue Code of
1986, as amended, and the U.S. Department of Treasury regulations
and other interpretive guidance issued thereunder, the Company
desire to amend the Original Plan as set forth in this Amendment as
follows.
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ACCORDINGLY, the Company hereby amends the Original Plan as
follows:
1.
Change to Section 1 of the Original Plan . The
Company hereby deletes in its entirety Section 1 of the Original
Plan and replaces in its entirety the following as Section 1 of the
Amended Plan:
(a) The
purpose of this Plan is to advance the interests of JOHN D. OIL AND
GAS COMPANY, a Maryland corporation (the “Company”), by
providing additional incentive to attract and retain qualified and
competent persons who are key to the Company, including key
employees, Officers and Directors, and upon whose efforts and
judgment the success of the Company is largely dependent, by
encouraging such persons to own stock in the Company.
(b) Section
409A. This Plan and any Awards granted hereunder are
intended to be exempt from the requirements of Section 409A, and
shall be interpreted and administered in a manner consistent with
those intentions. Any provision of this Plan to the
contrary notwithstanding, Grandfathered Awards shall not be
governed by the provisions of this Plan but instead shall continue
to be governed by the provisions of the Liberty Self-Stor, Inc.
1999 Stock Option and Award Plan effective as of December 28, 1999
(the “Original Plan”) as in effect on December 31,
2004.
2.
Changes to Section 2 of the Original Plan . The
Company hereby amends Section 2 of the Original Plan as
follows:
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The following
is added in its entirety as Section 2(a) of the Amended
Plan:
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(a) “Award”
shall mean, individually or collectively, a grant under the Plan of
Non-Statutory Stock Options, Incentive Stock Options or Restricted
Shares.
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Sections 2(a),
2(b), 2(c), 2(d), 2(e), 2(g), 2(h), 2(j), 2(k), 2(l), 2(m), 2(n),
2(o), 2(p), 2(q), 2(s), 2(t), 2(u), and 2(v) of the Original Plan
are redesignated in their entirety as Sections 2(b), 2(c), 2(d),
2(e), 2(f), 2(h), 2(i), 2(m), 2(n), 2(o), 2(p), 2(q), 2(r), 2(t),
2(u), 2(w), 2(y), 2(z), and 2(aa), respectively, of the Amended
Plan.
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Section 2(f) of
the Original Plan is deleted in its entirety and the following is
added in its entirety as Section 2(g) of the Amended
Plan:
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(g) “Controlled
Entity” shall mean any trust, partnership, limited liability
company or other entity in which such person that receives Options
or Restricted Shares under this Plan acts as trustee, managing
partner, managing member or otherwise controls; provided that, to
the extent any such Options or Restricted Shares received under
this Plan is awarded to a spouse pursuant to any divorce
proceeding, such interest shall be deemed to be terminated and
forfeited notwithstanding any vesting provisions or other terms
herein or in the agreement evidencing such Options or Restricted
Shares.
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Section 2(i) of
the Original Plan is deleted in its entirety and the following is
added in its entirety as Section 2(j) of the Amended
Plan:
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(j)
“Fair Market Value” shall mean, as of any given date,
the value of a Share determined as follows (in order of
applicability): (i) if on the Grant Date or other
determination date the Share is listed on an established national
or regional stock exchange, is admitted to quotation on The NASDAQ
Stock Market, Inc. or is publicly traded on an established
securities market, the Fair Market Value of a Share shall be the
closing price of the Share on that exchange or in that market (if
there is more than one such exchange or market the Committee shall
determine the appropriate exchange or market) on the Grant Date or
such other determination date (or if there is no such reported
closing price, the Fair Market Value shall be the mean between the
highest bid and lowest asked prices or between the high and low
sale prices on that trading day) or, (ii) if no sale of Shares is
reported for that trading day, on the next preceding day on which
any sale has been reported. If the Share is not listed
on such an exchange, quoted on such system or traded on such a
market, Fair Market Value shall be the value of the Share as
determined by the determined by such methods or procedures as shall
be established from time to time by the Committee in good faith in
a manner consistent with Section 409A.
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Section 2(i) of
the Original Plan is deleted in its entirety and the following is
added in its entirety as Section 2(j) of the Amended
Plan:
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The following
is added in its entirety as Section 2(k) of the Amended
Plan:
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(k) “Grandfathered
Awards” means all Awards made under the Plan which were
earned and vested on or before December 31,
2004. Grandfathered Awards are subject to the provisions
of Section 1(b) above.
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The following
is added in its entirety as Section 2(l) of the Amended
Plan:
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(l) “Grant
Date” means, with respect to an Award, the date such Award is
granted to a Participant. The Grant Date of an Award
shall not be earlier than the date the Award is approved by the
Committee.
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The following
is added in its entirety as Section 2(s) of the Amended
Plan:
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(s) “Original
Plan” has the meaning set forth in Section 1(b).
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Section 2(r) of
the Original Plan is deleted in its entirety and the following is
added in its entirety as Section 2(v) of the Amended
Plan:
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(v) “Restricted
Shares” shall mean Shares granted or sold pursuant to Section
11 of this Plan as to which neither the substantial risk of
forfeiture nor the prohibition on transfers referred to in such
Section 11 has expired.
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The following
is added in its entirety as Section 2(x) of the Amended
Plan:
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