<PAGE>
As Filed with the Securities and Exchange Commission on May 11, 1999
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Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
CAPITAL AUTOMOTIVE REIT
(Exact name of issuer as specified in its Charter)
Maryland
(State or Other Jurisdiction of Incorporation or Organization)
54-1870224
(IRS Employer Identification Number)
1420 Spring Hill Road, Suite 525
McLean, Virginia 22102
(Address of Principal Executive Offices)
John M. Weaver, Vice President, General Counsel and Secretary
1420 Spring Hill Road, Suite 525
McLean, Virginia 22102
(Name and Address of Agent for Service)
CAPITAL AUTOMOTIVE GROUP
1998 Equity Incentive Plan, as Amended
(Full title of the Plan)
(703) 288-3075
(Registrant's telephone number, including area code)
___________________________
Copy to:
John B. Watkins, Esquire
R. Scott Kilgore, Esquire
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037-1420
(202) 663-6000
____________________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share Price Fee (2)
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<S> <C> <C> <C> <C>
Common Shares of 2,170,863 shares $15.000 $ 32,562,945 $ 9,052.50
Beneficial Interest, 65,000 shares $18.688 $ 1,214,720 $ 337.69
par value $.01 per share 11,000 shares $14.813 $ 162,943 $ 45.30
(3) 280,000 shares $14.000 $ 3,920,000 $ 1,089.76
178,250 shares $13.750 $ 2,450,938 $ 681.36
352,211 shares $12.9375 $ 4,556,730 $ 1,266.77
676,929 shares $12.9375 $ 8,757,769 $ 2,434.66
37,091 shares $ 0.010 $ 371 $ .10
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</TABLE>
(1) Also registered hereunder are such additional number of Common Shares of
Beneficial Interest, presently indeterminable, as may be necessary to satisfy
the antidilution provisions of the Plan to which this Registration Statement
relates.
(2) The registration fee has been calculated in accordance with Rule 457(h) with
respect to the 676,929 Common Shares of Beneficial Interest registered hereby on
the basis of the average of the high and low sale prices reported on the Nasdaq
National Market on May 7, 1999.
(3) Grants under the 1998 Equity Incentive Plan, as amended, may be in the form
of incentive share options, non-qualified share options, restricted shares or
phantom shares, in the discretion of the Administrator of the Plan.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information required by Item 1 of
Form S-8 and the statement of availability of registrant information and any
other information required by Item 2 of Form S-8 will be sent or given to
participants as specified by Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"). In accordance with Rule 428 and the requirements
of Part I of Form S-8, such documents are not being filed with the Securities
and Exchange Commission (the "SEC") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424
under the Securities Act. Capital Automotive REIT, a Maryland real estate
investment trust (the "Registrant" or the "Company") shall maintain a file of
such documents in accordance with the provisions of Rule 428. Upon request, the
Registrant shall furnish the SEC or its staff a copy or copies of all of the
documents included in such file.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The SEC allows the Company to "incorporate by reference" the information
the Company files with them, which means the Company can disclose important
information to you by referring you to those documents. The information that
the Company incorporates by reference is an important part of this Registration
Statement and the prospectus relating hereto, and all information that the
Company will later file with the SEC will automatically update and supersede
this information. The Company incorporates by reference the documents listed
below as well as any future filings made with the SEC under Sections 13(a),
13(c), 12, or 15(d) of the Securities Exchange Act of 1934 until the Company
sells all of the securities.
. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 (File No. 000-23733).
. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999 (File No. 000-23733).
. The description of the Common Shares contained in the Registration
Statement on Form 8-A filed with the SEC on February 5, 1998 (File No.
000-1049316).
. Current Reports on Form 8-K filed with the SEC on August 7, 1998,
December 3, 1998, December 7, 1998 and February 26, 1999 (File No.
000-23733).
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable
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<PAGE>
Item 6. Indemnification of Directors and Officers
1. Declaration of Trust Provisions.
The Company has provided for indemnification by the following
provision of ARTICLE X of its Declaration of Trust:
Limitation of Trustee and Officer Liability. To the maximum
--------------------------------------------
extent that Maryland law in effect from time to time permits
limitation of the liability of trustees and officers of a REIT, no
trustee or officer of the Company shall be liable to the Company or to
any shareholder for money damages. Neither the amendment nor repeal of
this Section of the Declaration of Trust, nor the adoption or
amendment of any other provision of the Declaration of Trust or Bylaws
of the Company inconsistent with this Section of the Declaration of
Trust, shall apply to or affect in any respect the applicability of
the preceding sentence with respect to any act or failure to act which
occurred prior to such amendment, repeal or adoption. In the absence
of any Maryland statute limiting the liability of trustees and
officers of a Maryland REIT for money damages in a suit by or on
behalf of the Company or by any shareholder, no trustee or officer of
the Company shall be liable to the Company or to any shareholder for
money damages except to the extent that (a) the trustee or officer
actually received an improper benefit or profit in money, property, or
services, for the amount of the benefit or profit in money, property,
or services actually received; or (b) a judgment or other final
adjudication adverse to the trustee or officer is entered in a
proceeding based on a finding in the proceeding that the trustee's or
officer's action or failure to act was the result of active and
deliberate dishonesty and was material to the cause of action
adjudicated in the proceeding.
Express Exculpatory Clauses in Instruments. Neither the
-------------------------------------------
shareholders nor the trustees, officers, employees or agents of the
Company shall be liable under any written instrument creating an
obligation of the Company, and all persons shall look solely to the
Property of the Company for the payment of any claim under or for the
performance of that instrument. The omission of the foregoing
exculpatory language from any instrument shall not affect the validity
or enforceability of such instrument and shall not render any
shareholder, trustee, officer, employee or agent liable thereunder to
any third party, nor shall the trustees or any officer, employee or
agent of the Company be liable to anyone for such omission.
Indemnification. The Company shall have the power, to the
---------------
maximum extent permitted by Maryland law in effect from time to time,
to obligate itself to indemnify, and to pay or reimburse reasonable
expenses in advance of final disposition of a proceeding to, (a) any
individual who is a present or former
-3-
<PAGE>
shareholder, trustee or officer of the Company or (b) any
individual who, while a trustee of the Company and at the request
of the Company, serves or has served as a director, officer,
partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise from and against any claim or liability to which such
person may become subject or which such person may incur by
reason of his status as a present or former shareholder, trustee
or officer of the Company. The Company shall have the power, with
the approval of its Board of Trustees, to provide such
indemnification and advancement of expenses to a person who
served as a predecessor of the Company in any of the capacities
described in (a) or (b) above, and to any employee or agent of
the Company or a predecessor of the Company.
3. By-laws Provisions.
The Company has provided for indemnification by the following provisions of
ARTICLE XI of its By-laws:
SECTION 1. Definitions. As used in this Article XI, any word or words
-----------
that are defined in Section 2-418 of the Corporations and Associations
Article of the Annotated Code of Maryland (the "Indemnification Section"),
as amended from time to time, shall have the same meaning as provided in
the Indemnification Section.
SECTION 2. Indemnification of Directors and Officers. The Company
-----------------------------------------
shall indemnify and advance expenses to a trustee or officer of the
Company in connection with a proceeding to the fullest extent permitted
by and in accordance with the Indemnification Section of the Bylaws.
SECTION 3. Indemnification of Other Agents and Employees. With respect
---------------------------------------------
to an employee or agent, other than a trustee or officer of the Company,
the Company may, as determined by and in the discretion of the Board of
Trustees of the Company, indemnify and advance expenses to such employees
or agents in connection with a proceeding to the extent permitted by and in
accordance with the Indemnification Section.
Item 7. Exemption from Registration Claimed
Not Applicable.
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<PAGE>
Item 8. Exhibits
NUMBER DESCRIPTION
3.1 Amended and Restated Declaration of Trust of Capital Automotive REIT
(previously filed as Exhibit 3.1 to the Company's Registration
Statement on Form S-11 filed with the SEC on November 26, 1997, as
subsequently amended (File No. 333-41183) (the "Registration Statement
on Form S-11") and incorporated herein by reference)
3.2 Amended and Restated Bylaws of Capital Automotive REIT (previously
filed as Exhibit 3.2 to the Company's Registration Statement on Form
S-3 filed with the SEC on March 2, 1999 (File No. 333-73183) (the
"Unit Redemption Registration Statement") and incorporated herein by
reference)
3.3 First Amendment to Bylaws (previously filed as Exhibit 3.2 to the
Company's Unit Redemption Registration Statement on Form S-3 and
incorporated herein by reference)
3.4* Second Amendment to Bylaws
4.1 Specimen of certificate representing common shares of beneficial
interest (previously filed as Exhibit 4.2 to the Registration
Statement on Form S-11 and incorporated herein by reference)
4.5 Form of Share Warrant (previously filed as Exhibit 3.2 to the
Company's Unit Redemption Registration Statement on Form S-3 and
incorporated herein by reference)
5.1* Opinion of Wilmer, Cutler & Pickering regarding the validity
of the Offered Securities being registered
10.3 Form of 1998 Equity Incentive Plan (previously filed as Exhibit 10.3
to the Company's Registration Statement on Form S-11 and incorporated
herein by reference)
10.43 Second Amended and Restated Partnership Agreement of Capital
Automotive L.P. (previously filed as Exhibit 3.2 to the Company's Unit
Redemption Registration Statement on Form S-3 and incorporated herein
by reference)
10.46* Form of 1998 Equity Incentive Plan, as Amended
23.1* Consent of Wilmer, Cutler & Pickering (included as part of Exhibit
5.1)
23.2* Consent of Arthur Andersen LLP
25 Power of Attorney (included on signature page)
_____________________
* Included with this filing.
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<PAGE>
Item 9. Undertakings
The undersigned Registrant hereby undertakes the following:
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1993;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of any employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
reflating to the securities offered
-6-
<PAGE>
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes, that, insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
-7-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the County of Fairfax, Commonwealth of Virginia, on May 7, 1999.
Capital Automotive REIT
By: /s/ Thomas D. Eckert
-------------------------------------
Thomas D. Eckert
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated. Each person whose signature appears below hereby
constitutes and appoints each of Thomas D. Eckert and David S. Kay as his
attorney-in-fact and agent, with full power of substitution and resubstitution
for him in any and all capacities, to sign any or all amendments or post-
effective amendments to this Registration Statement, or any Registration
Statement for the same offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, and to file the same, with
exhibits thereto and other documents in connection therewith or in connection
with the registration of the securities under the Securities Act of 1934, as
amended, with the Securities and Exchange Commission, granting unto such
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary in connection with such matters and
hereby ratifying and confirming all that such attorney-in-fact and agent or his
substitutes may do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE
/s/ Thomas D. Eckert President and Chief May 7, 1999
- ----------------------- Executive Officer and
Thomas D. Eckert Trustee (principal
executive officer)
-8-
<PAGE>
/s/ David S. Kay Vice President and Chief May 7, 1999
- -------------------------- Financial Officer (principal
David S. Kay financial and accounting officer)
/s/ Craig L. Fuller Trustee May 7, 1999
- --------------------------
Craig L. Fuller
/s/ William E. Hoglund Trustee May 7, 1999
- ---------------------------
William E. Hoglund
/s/ R. Michael McCullough Trustee May 7, 1999
- ---------------------------
R. Michael McCullough
/s/ Lee P. Munder Trustee May 7, 1999
- ---------------------------
Lee P. Munder
/s/ John J. Pohanka Trustee May 7, 1999
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John J. Pohanka
/s/ John E. Reilly Trustee May 7, 1999
- ---------------------------
John E. Reilly
/s/ Robert M. Rosenthal Trustee May 7, 1999
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Robert M. Rosenthal
/s/ Vincent A. Sheehy Trustee May 7, 1999
- ---------------------------
Vincent A. Sheehy
/s/ William R. Swanson Trustee May 7, 1999
- ---------------------------
William R. Swanson
-9-
<PAGE>
EXHIBIT 3.4
AMENDMENT NO. 2 TO BYLAWS
OF
CAPITAL AUTOMOTIVE REIT
ARTICLE III. MEETINGS OF SHAREHOLDERS. SECTION 3.4 Notice of Meetings.
------------------------ ------------------
Section 3.4 Notice of Meetings be and hereby is deleted in its entirety
------------------
and is replaced in its entirety with the following:
"Section 3.4 Notice of Meetings. Written notice of every meeting of
------------------
shareholders, stating the time and place thereof, shall be given as herein
provided by, or at the direction of, the person authorized to call the
meeting, to each shareholder of record entitled to vote at the meeting, not
less than ten (10) nor more than ninety (90) days prior to the day named for
the meeting, unless a greater period of notice is required by statute in a
particular case. In the case of a special meeting of shareholders, the
notice shall also set forth the purpose of the meeting. When a meeting is
adjourned, it shall not be necessary to give any notice of the adjourned
meeting or of the business to be transacted at any adjourned meeting, other
than by announcement at the meeting at which such adjournment is taken.
Except as set forth in Section 4.4, below, business to be conducted at any
annual, special in lieu of annual or special meeting of shareholders may be
proposed only by the Board of Trustees or by a shareholder who is entitled
to vote at the meeting and who has filed his proposed item of business with
the Secretary of the Trust within the time limits set forth in the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or, if the
Trust is not subject to the requirements of the Exchange Act or if no rule
has been established, for the 2000 Annual Meeting at least forty-five (45)
days and, beginning with the 2001 Annual Meeting and thereafter at least
one-hundred and twenty (120) days, prior to the meeting date. Only the
shareholder proposals specified in the notice of meeting may be brought
before the meeting."
The Secretary of Capital Automotive REIT be and hereby certifies that the
foregoing Amendment No. 2 to the ByLaws have been adopted and approved by the
Board of Trustees of Capital Automotive REIT on this 7th day of May 1999.
/s/ JOHN M. WEAVER
----------------------------------
John M. Weaver
Secretary
[Seal]
<PAGE>
EXHIBIT 5.1
WILMER, CUTLER & PICKERING
2445 M STREET, N.W. WASHINGTON
WASHINGTON, D.C. 20037-1420 BALTIMORE
_________ NEW YORK
LONDON
TELEPHONE (202) 663-6000 BRUSSELS
FACSIMILE (202) 663-6363 BERLIN
May 7, 1999
Capital Automotive REIT
1420 Spring Hill Road, Suite 525
McLean, Virginia 22102
Re: Capital Automotive REIT Registration Statement on Form S-8
----------------------------------------------------------
1998 Equity Incentive Plan, as Amended
----------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Capital Automotive REIT, a real estate
investment trust organized under the laws of Maryland (the "Company"), in
connection with the preparation by the Company of its Registration Statement on
Form S-8 (the "Registration Statement") filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, for the registration of
3,771,344 common shares of beneficial interest, $.01 par value per share (the
"Shares"), of the Company pursuant to the 1998 Equity Incentive Plan, as
amended, of the Company (the "Plan"). For the purposes of this opinion, we have
examined and relied upon such documents, records, certificates and other
instruments as we have deemed necessary.
Based solely upon the foregoing, and upon our examination of such
questions of law and statutes as we have considered necessary or appropriate,
and subject to the assumptions, qualifications, limitations and exceptions set
forth herein, we are of the opinion that (a) the Shares have been lawfully and
duly authorized; and (b) such Shares will be validly issued, fully paid and
nonassessable upon payment of the exercise price established pursuant to the
written agreements between the Company and the grantees.
We are members of the bar of the District of Columbia and the State of
Maryland and do not hold ourselves out as being experts in the law of any other
state. This opinion is limited to the laws of the United States and the general
corporation law of Maryland. Our opinion is rendered only with respect to the
laws and the rules, regulations and orders thereunder that are currently in
effect.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion. This opinion has been prepared for
your use in
<PAGE>
connection with the filing of the Registration Statement, and should not be
quoted in whole or in part or otherwise be referred to, nor otherwise be filed
with or furnished to any governmental agency or other person or entity, without
our express prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely,
WILMER, CUTLER & PICKERING
By: /s/ JOHN B.WATKINS
------------------------
John B. Watkins, a partner
<PAGE>
EXHIBIT 10.46
CAPITAL AUTOMOTIVE GROUP
AMENDED 1998 EQUITY INCENTIVE PLAN
PURPOSE
Capital Automotive REIT, a Maryland real estate investment trust (the "REIT"
or the "Company"), and Capital Automotive L.P. (the "Operating Partnership")
wish to recruit, reward, and retain employees and trustees. To further these
objectives, the Company and the Operating Partnership hereby set forth the
Capital Automotive Group Amended 1998 Equity Incentive Plan (the "Plan"),
originally effective as of the effective date (the "Effective Date") of the
Company's initial public offering ("IPO") and amended as of [insert date of
annual meeting], 1999 (the "1999 Amendment Date"), to provide options
("Options") or direct grants or sales ("Share Grants" and, together with the
Options, "Awards") to employees and trustees to purchase common shares of
beneficial interest of the Company (the "Shares").
PARTICIPANTS
All Employees of the REIT, its Eligible Subsidiaries, and the Operating
Partnership are eligible for Awards under this Plan, as are the Trustees of the
REIT and the directors of the Eligible Subsidiaries who are not employees
("Eligible Trustees"). Eligible employees and trustees become "optionees" when
the Administrator grants them an option under this Plan or "recipients" when
they receive a Share Grant. (Optionees and recipients are referred to
collectively as "participants." The term participant also includes, where
appropriate, a person authorized to exercise an Award in place of the original
participant.) The Administrator may also grant Awards to certain other service
providers.
Employee means any person employed as a common law employee of the Company,
its Eligible Subsidiaries, or the Operating Partnership.
ADMINISTRATOR
The Administrator will be the Executive Compensation Committee of the Board
of Trustees of the REIT (the "Compensation Committee"). The Board may also act
under the Plan as though it were the Compensation Committee.
The Administrator is responsible for the general operation and
administration of the Plan and for carrying out its provisions and has full
discretion in interpreting and administering the provisions of the Plan.
Subject to the express provisions of the Plan, the Administrator may exercise
such powers and authority of the Board as the Administrator may find necessary
or appropriate to carry out its functions. The Administrator may delegate its
functions (other than those described in the GRANTING OF AWARDS section) to
officers or employees of the REIT with respect to the REIT and to managers or
employees of the Operating Partnership with respect to the Operating
Partnership.
The Administrator's powers will include, but not be limited to, the power to
amend, waive, or extend any provision or limitation of any Award. The
Administrator may act through meetings of a majority of its members or by
unanimous consent.
GRANTING OF AWARDS
Subject to the terms of the Plan, the Administrator will, in its sole
discretion, determine:
. the participants who receive Awards;
. the terms of such Awards;
1
<PAGE>
. the schedule for exercisability or nonforfeitability (including any
requirements that the participant or the Company satisfy performance
criteria);
. the time and conditions for expiration of the Award; and
. the form of payment due upon exercise; if any.
The Administrator's determinations under the Plan need not be uniform and
need not consider whether possible participants are similarly situated.
Employees of the REIT or any Eligible Subsidiary may receive "incentive
stock options" ("ISOs") within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended, or the corresponding provision of any
subsequently enacted tax statute (the "Code"). In addition, effective as of the
1999 Amendment Date, the Administrator may grant nonqualified options ("NQSOs")
that cover Shares but are not intended to be ISOs to both Employees and
Eligible Trustees, and the Administrator will specify which type of option it
is granting. If the Administrator fails to specify the type, it will be an ISO,
to the extent the tax laws permit, for Employees and an NQSO for Eligible
Trustees.
The Administrator may grant or sell Shares (as Share Grants) to eligible
participants for payment sufficient to satisfy any state laws on adequate
consideration. The Administrator may impose such conditions on or charge such
price for the Share Grants as it deems appropriate. The Administrator may also
provide for discounted share purchases by some or all Employees through this
Plan, or for the grant, purchase, or deemed purchase of phantom shares
("Restricted Phantom Shares") that can later be paid out in Shares from this
Plan.
REPLACEMENT AWARDS
The Administrator may grant Awards in substitution for options or other
equity-based compensation held by individuals, including with respect to
individuals who do not become Employees, if the Company, the Operating
Partnership, or an Eligible Subsidiary acquires or merges with the individual's
employer or acquires substantially all of its assets. In addition, the
Administrator may provide for the Plan's assumption of options granted outside
the Plan to persons who would have been eligible under the terms of the Plan to
receive a grant. If necessary to conform the Awards to the interests for which
they are substitutes, the Administrator may grant substitute Awards under terms
and conditions that vary from those the Plan otherwise requires.
Effective as of the 1999 Amendment Date, the Plan will not grant further
options ("Unit Options") to acquire units of limited partnership interest in
the Operating Partnership (the "Units"). In addition, the Administrator is
authorized to replace outstanding Unit Options, whether or not granted under
this Plan, with comparable NQSOs, with the optionees' consent.
DATE OF GRANT
The Date of Grant will be the date as of which this Plan or the
Administrator grants an Award to a participant, as specified in the Plan or in
the Administrator's minutes. Awards made under the REPLACEMENT AWARDS section
will be treated as though their Date of Grant were the corresponding date under
the original grant, unless the Administrator specifies otherwise.
EXERCISE PRICE OR CONSIDERATION
The Exercise Price is the value of the consideration that an optionee must
provide in exchange for one Common Share. The Administrator will determine the
Exercise Price under each Option and may set the Exercise Price without regard
to the Exercise Price of any other Options granted at the same or any other
time.
2
<PAGE>
The Exercise Price per Share for NQSOs may not be less than 100% of the Fair
Market Value of a Share on the Date of Grant. If an Option is intended to be an
ISO, the Exercise Price may not be less than 100% of the Fair Market Value (on
the Date of Grant) of a Common Share covered by the Option; provided, however,
that if the Administrator decides to grant an ISO to someone covered by
Sections 422(b)(6) and 424(d) (as a more-than-10%-stock owner), the Exercise
Price of the Option must be at least 110% of the Fair Market Value (on the Date
of Grant).
The Administrator may satisfy any state law requirements regarding adequate
consideration for Share Grants by charging the recipients at least the par
value for the Shares covered by the Share Grant.
FAIR MARKET VALUE
The Administrator will determine Fair Market Value of Shares for purposes of
the Plan as follows:
. if the Shares trade on a national securities exchange, the closing sale
price on that date;
. if the Shares do not trade on any such exchange, the closing sale price
that the National Association of Securities Dealers, Inc. Automated
Quotation System ("Nasdaq") reports for such date;
. if no such closing sale price information is available, the average of
the closing bid and asked prices that Nasdaq reports for such date;
. if there are no such closing bid and asked prices, the average of the
closing bid and asked prices as reported by any other commercial service
for such date; or
. for any date that is not a trading day, the Fair Market Value of a
Common Share for such date shall be determined by using the closing sale
price or the average of the closing bid and asked prices, as
appropriate, for the immediately preceding trading day.
EXERCISABILITY AND LAPSE OF RESTRICTIONS
The Administrator will determine the times and conditions for exercise of
each Option but may not extend the period for exercise beyond the tenth
anniversary of its Date of Grant (or five years for ISOs granted to 10% owners
covered by Code Sections 422(b)(6) and 424(d)).
Awards will become exercisable or nonforfeitable at such times and in such
manner as the Administrator determines and the Award Agreement, if any,
indicates; provided, however, that the Administrator may, on such terms and
conditions as it determines appropriate, accelerate the time at which the
participant may exercise any portion of an Award or at which restrictions on
Share Grants lapse.
If the Administrator does not specify otherwise, Options will become
exercisable as to one-quarter of the covered Shares on each anniversary of the
Option's Date of Grant or, for initial grants to Employees, on each anniversary
of the Employee's date of hire.
In addition, the Administrator may delay or prohibit the exercise of an
Option or the release of restrictions on Share Grants if it would adversely
affect the Company's REIT status or would cause the Operating Partnership to be
treated as an association taxable as a corporation (other than a qualified REIT
subsidiary within the meaning of section 856(i) of the Code).
No portion of an Award that is unexercisable or forfeitable at a
participant's termination of employment will thereafter become exercisable or
nonforfeitable, unless the Award Agreement provides otherwise, either initially
or by amendment.
After the participant has satisfied any restrictions set forth in the terms
of a Share Grant or Restricted Phantom Share and has paid for the Shares, if
required, the Shares will no longer be subject to any provisions of this Plan.
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CHANGE OF CONTROL
Upon a Change of Control (as defined below), all Options will become fully
exercisable. Upon a Change of Control, all restrictions on Share Grants will
lapse, and the covered Shares will be nonforfeitable. A Change of Control for
this purpose means the occurrence of any one or more of the following events:
. a person, entity, or group (other than the Company, the Operating
Partnership, any subsidiary of either, any Company benefit plan, or any
underwriter temporarily holding securities for an offering of
such securities) acquires ownership of more than 40% of the undiluted
total voting power of the Company's then-outstanding securities eligible
to vote to elect members of the Board ("Company Voting Securities");
. consummation of a merger or consolidation of the Company into any other
entity--unless the holders of the Company Voting Securities outstanding
immediately before such consummation, together with any trustee or other
fiduciary holding securities under a Company benefit plan, hold
securities that represent immediately after such merger or consolidation
more than 60% of the combined voting power of the then outstanding
voting securities of either the Company or the other surviving entity or
its parent; or
. the stockholders of the Company approve (i) a plan of complete
liquidation or dissolution of the Company or (ii) an agreement for the
Company's sale or disposition of all or substantially all the Company's
assets, and such liquidation, dissolution, sale, or disposition is
consummated.
Even if other tests are met, a Change of Control has not occurred under any
circumstance in which the Company files for bankruptcy protection or is
reorganized following a bankruptcy filing.
The ADJUSTMENT UPON CHANGES IN SHARES provisions will also apply if the
Change of Control is a SUBSTANTIAL OPERATIONAL CHANGE (as defined in those
provisions).
LIMITATION ON ISOS
An Option granted to an employee will be an ISO only to the extent that the
aggregate Fair Market Value (determined at the Date of Grant) of the Shares
with respect to which ISOs are exercisable for the first time by the optionee
during any calendar year (under the Plan and all other plans of the Company and
its subsidiary corporations, within the meaning of Code Section 422(d)), does
not exceed $100,000. This limitation applies to Options in the order in which
such Options were granted. If, by design or operation, the Option exceeds this
limit, the excess will be treated as an NQSO.
TRUSTEE FORMULA GRANTS
As of each Eligible Trustee's initial election or appointment as an Eligible
Trustee, he will receive a Formula Option to purchase 15,000 Shares. An
Eligible Trustee can also receive other Awards under the Plan.
Exercise Price
The Exercise Price of each Option granted to an Eligible Trustee will be the
Fair Market Value on the Date of Grant.
Exercise Schedule
A Formula Option will become exercisable for one-third of the Shares it
covers six months after the Date of Grant, for another one-third on the first
anniversary of the Date of Grant, and for the remaining one-third on the second
anniversary of the Date of Grant. Formula Options will be forfeited to the
extent they are not then exercisable if a Trustee resigns or fails to be
reelected as a Trustee.
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METHOD OF EXERCISE
To exercise any exercisable portion of an Option, the optionee must:
. deliver a written notice of exercise to the Secretary of the Company (or
to whomever the Administrator designates), in a form complying with any
rules the Administrator may issue, signed by the participant, and
specifying the number of Shares underlying the portion of the Option the
participant is exercising;
. pay the full Exercise Price, if any, by cashier's or certified check for
the Shares with respect to which the Option is being exercised, unless
the Administrator consents to another form of payment (which could
include the use of Shares); and
. deliver to the Administrator such representations and documents as the
Administrator, in its sole discretion, may consider necessary or
advisable.
Payment in full of the Exercise Price need not accompany the written notice
of exercise with respect to Shares provided the notice directs that the
certificates for the Shares issued upon the exercise be delivered to a licensed
broker acceptable to the Company as the agent for the individual exercising the
option and at the time the certificates are delivered to the broker, the broker
will tender to the Company cash or cash equivalents acceptable to the Company
and equal to the Exercise Price and any required tax withholdings. The
Administrator can, in its discretion, provide other methods of cashless
exercise.
If the Administrator agrees to allow a participant to pay through tendering
Shares to the Company, the individual can only tender Shares he has held for at
least six months at the time of surrender. Shares offered as payment will be
valued, for purposes of determining the extent to which the participant has
paid the Exercise Price, at their Fair Market Value on the date of exercise.
The Administrator may also, in its discretion, accept attestation of ownership
of Shares and issue a net number of Shares upon Award exercise.
The Company or the Operating Partnership may use the consideration it
receives from the participant for general corporate or partnership purposes.
AWARD EXPIRATION
No one may exercise an Option or hold a Share Grant subject to unexpired
restrictions more than ten years after its Date of Grant (or five years, for an
ISO granted to a more-than-10% shareholder).
Unless the Option Agreement provides otherwise, either initially or by
amendment, no one may exercise an Option after the first to occur of:
Employment Termination
. the 90th day after the date of termination of employment (other than for
death or disability), where termination of employment means the time
when the employer-employee or other service-providing relationship
between the employee and the Company ends for any reason, including
retirement. Unless the Award Agreement provides otherwise, termination
of employment does not include instances in which the Company
immediately rehires a common law employee as an independent contractor
or in which the Company or the Operating Partnership hires someone
employed by the other. The Administrator, in its sole discretion, will
determine all questions of whether particular terminations or leaves of
absence are terminations of employment;
Disability
. for disability, the earlier of (i) the first anniversary of the
participant's termination of employment for disability and (ii) 30 days
after the participant no longer has a disability, where disability means
the
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inability to engage in any substantial gainful activity because of any
medically determinable physical or mental impairment that can be
expected to result in death or that has lasted or can be expected to
last for a continuous period of not less than 12 months; or
Death
. the date 12 months after the participant's death.
If exercise is permitted after termination of employment, the Option will
nevertheless expire as of the date that the former employee violates any
covenant not to compete in effect between the Company and the former employee.
In addition, an optionee who exercises an Option more than 90 days after
termination of employment with the Company and/or the Eligible Subsidiaries
will only receive ISO treatment to the extent permitted by law, and becoming
or remaining an employee of another related company (including the Operating
Partnership) or an independent contractor to the Company will not prevent loss
of ISO status as a result of the formal termination of covered employment.
Unless the Award Agreement provides otherwise, either initially or by
amendment, all unexercisable portions of an Option and all forfeitable
portions of a Share Grant will expire immediately upon termination of
employment for any reason, other than Share Grants held by a participant at
his termination of employment as a result of Disability or death, which Share
Grants will have the same expiration periods as set forth above for Options.
AWARD AGREEMENT
Option Agreements will set forth the terms of each Option and will include
such terms and conditions, consistent with the Plan, as the Administrator may
determine are necessary or advisable. To the extent the agreement is
inconsistent with the Plan, the Plan will govern. The Option Agreements may
contain special rules. The Administrator may, but is not required to, issue
agreements for Share Grants.
SHARES SUBJECT TO PLAN
The Shares will come from either authorized but unissued Shares or from
previously issued Shares that the Company reacquires, including Shares it
purchases on the open market.
Except as adjusted below under ADJUSTMENTS UPON CHANGES IN SHARES:
. the aggregate number of Shares that the Plan may issue under the Options
(whether ISOs or NQSOs), Share Grants, or in satisfaction of Restricted
Phantom Shares may not exceed 2,821,344, provided that the number of
Shares available will increase to 3,771,344 upon the approval of the
increase by the Company's shareholders at their 1999 annual meeting;
. the aggregate number of Shares that the Plan may issue under ISOs may
not exceed 1,000,000 Shares;
. the maximum number of Shares that may be subject to ISOs granted to a
single individual in any calendar year may not exceed 120,000; and
. the maximum number of Shares that may be subject to NQSOs, Share Grants,
and Restricted Phantom Shares granted to or purchased by a single
individual in a calendar year may not exceed 500,000, plus the number
necessary to replace any Unit Options granted before the 1999 Amendment
Date to that individual.
If any Award expires, is canceled, or terminates for any other reason, the
Shares or Units available under that Award will again be available for the
granting of new Awards (but will be counted against that calendar year's limit
for a given individual).
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No adjustment will be made for a dividend or other right for which the
record date precedes the date of exercise.
The optionee will have no rights of a shareholder with respect to the Shares
subject to an Option except to the extent that the Company has issued
certificates for or otherwise confirmed ownership of such Shares upon the
exercise of the Option. The Award may provide that participants will receive
dividends or dividend equivalents with respect to Share Grants and Restricted
Phantom Shares and may provide that participants can vote Shares still subject
to Share Grant restrictions.
The Company will not issue fractional Shares pursuant to the exercise of an
Option or settlement of a Restricted Phantom Share, but the Administrator may,
in its discretion, direct the Company to make a cash payment in lieu of
fractional Shares.
PERSON WHO MAY EXERCISE
During the optionee's lifetime, only the optionee or his duly appointed
guardian or personal representative may exercise the Options or receive or
retain Share Grants and Restricted Phantom Shares. After his death, his
personal representative or any other person authorized under a will or under
the laws of descent and distribution may exercise any then exercisable portion
of an Option or receive or retain Share Grants and Restricted Phantom Shares.
If someone other than the original participant seeks to exercise any portion of
an Option or receive or retain Share Grants and Restricted Phantom Shares, the
Administrator may request such proof as it may consider necessary or
appropriate of the person's right to do so.
ADJUSTMENTS UPON CHANGES IN SHARES
Subject to any required action by the Company (which it shall promptly take)
or its shareholders, and subject to the provisions of applicable corporate law,
if, after the Date of Grant of an Award:
. the outstanding Shares increase or decrease or change into or are
exchanged for a different number or kind of security because of any
recapitalization, reclassification, share split, reverse share split,
combination of shares, exchange of shares, share dividend, or other
distribution payable in capital shares; or
. some other increase or decrease in such Shares occurs without the
Company's receiving consideration.
The Administrator will make an appropriate adjustment in the number and kind of
Shares underlying each Award and to the exercise price of any Award, so that
the rights of the participant immediately following such event will neither be
enlarged nor diminished from those in effect immediately before such event.
Unless the Administrator determines another method would be appropriate, any
such adjustment in outstanding Awards will not change the aggregate Exercise
Price payable with respect to Shares subject to the unexercised portion of the
Awards outstanding but will include a corresponding proportionate adjustment in
the Exercise Price per Share, so that the proportionate interest of the
participant immediately following such event will, to the extent practicable,
be the same as immediately before such event. Any such adjustment to an Award
will not change the total price with respect to Shares underlying the
unexercised portion of the Award but will include a corresponding proportionate
adjustment in the Award's Exercise Price. After the restrictions of the Plan
cease to apply to a participant's Shares, this adjustment section will also
cease to apply to those interests.
The Administrator will make a commensurate change to the maximum number and
kind of shares provided in the SHARES SUBJECT TO PLAN section.
Any issue by the Company of any class of preferred shares, or securities
convertible into shares of common or preferred shares of any class will not
affect, and no adjustment by reason thereof will be made with
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respect to, the number of Shares subject to any Award or the Exercise Price
except as this ADJUSTMENTS section specifically provides. The grant of an Award
under the Plan will not affect in any way the right or power of the Company or
the Operating Partnership to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure, or to merge or
to consolidate, or to dissolve, liquidate, sell, or transfer all or any part of
its business or assets.
SUBSTANTIAL OPERATIONAL CHANGE
Upon a Substantial Operational Change, the Plan, any unexercised Options,
and any still forfeitable Share Grants (after taking into account the Change of
Control provisions) will terminate unless provision is made in writing in
connection with such transaction for:
. the assumption or continuation of outstanding Awards; or
. the substitution for such awards or grants of any awards covering the
stock or securities of a successor employer corporation or partnership,
or a parent or subsidiary of such successor, with appropriate
adjustments as to the number and kind of shares of stock or securities
and prices, in which event the Awards will continue in the manner and
under the terms so provided.
If an Award would otherwise terminate under the preceding sentence, the
participant will have the right, at such time before the consummation of the
transaction causing such termination as the Board reasonably designates, to
exercise any unexercised portions of the Award, whether or not they had
previously become exercisable, and to have treated as nonforfeitable any
otherwise forfeitable Share Grants.
A Substantial Operational Change means the:
. dissolution or liquidation of the Company;
. merger, consolidation, or reorganization of the Company with one or more
corporations or other entities in which the Company is not the surviving
entity;
. the sale of substantially all of the assets of the Company to another
entity or individual; or
. any transaction (including a merger or reorganization in which the
Company survives) approved by the Board that results in any person or
entity (other than any affiliate of the Company as defined in Rule
144(a)(1) under the Securities Act) owning 100% of the combined voting
power of all classes of shares of the Company.
SUBSIDIARY EMPLOYEES
Employees of Company Subsidiaries will be entitled to participate in the
Plan, except as otherwise designated by the Board of Trustees or the Committee.
Eligible Subsidiary means each of the Company's Subsidiaries, except as the
Board otherwise specifies. For ISO grants, Subsidiary means any corporation
(other than the Company) in an unbroken chain of corporations beginning with
the Company if, at the time an ISO is granted to an Optionee under the Plan,
each corporation (other than the last corporation in the unbroken chain) owns
stock possessing 50% or more of the total combined voting power of all classes
of stock in another corporation in such chain. For ISOs, Subsidiary also
includes a single-member limited liability company included within the chain
described in the preceding sentence. The Board or the Administrator may use a
different definition of Subsidiary for NQSOs.
LEGAL COMPLIANCE
The Company will not issue any Shares under an Award until all applicable
requirements imposed by Federal and state securities and other laws, rules, and
regulations, and by any applicable regulatory agencies or stock exchanges, have
been fully met. To that end, the Company may require the participant to take any
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reasonable action to comply with such requirements before issuing such Shares.
No provision in the Plan or action taken under it authorizes any action that
Federal or state laws otherwise prohibit.
The Plan is intended to conform to the extent necessary with all provisions
of the Securities Act of 1933 ("Securities Act") and the Securities Exchange
Act of 1934 and all regulations and rules the Securities and Exchange
Commission issues under those laws. Notwithstanding anything in the Plan to the
contrary, the Administrator must administer the Plan, and Awards may be granted
and exercised, only in a way that conforms to such laws, rules, and
regulations. To the extent permitted by applicable law, the Plan and any Awards
will be treated as amended to the extent necessary to conform to such laws,
rules, and regulations.
REIT Qualification
The Administrator has sole discretion to refrain from selling or issuing any
Shares under Awards if the sale or issuance of such Shares would cause the
Company to fail to qualify as a real estate investment trust for Federal income
tax purposes or would result in the participant's ownership of Shares in
violation of the restrictions on ownership and transfer of Shares set forth in
the Company's Declaration of Trust.
Operating Partnership Qualification
The Administrator has sole discretion to refrain from selling or issuing any
Shares under Awards if the sale or issuance of such Shares would cause the
Partnership to be treated as an association taxable as a corporation (other
than a qualified REIT subsidiary within the meaning of section 856(i) of the
Code).
Purchase for Investment and Other Restrictions
Unless a registration statement under the Securities Act covers the Shares a
participant receives upon exercise of his Award or receipt of his Share Grant,
the Administrator may require, at the time of such exercise or receipt (or the
lapse of forfeiture restrictions), that the participant agree in writing to
acquire such Shares for investment and not for public resale or distribution,
unless and until the Shares subject to the Award are registered under the
Securities Act. Unless the Shares are registered under the Securities Act, the
participant must acknowledge:
. that the Shares purchased on exercise of the Award or received under a
Share Grant are not so registered;
. that the participant may not sell or otherwise transfer the Shares unless:
. the Shares have been registered under the Securities Act in
connection with the sale or transfer thereof; or
. counsel satisfactory to the Company has issued an opinion
satisfactory to the Company that the sale or other transfer of
such Shares is exempt from registration under the Securities Act;
and
. such sale or transfer complies with all other applicable laws,
rules, and regulations, including all applicable Federal and
state securities laws, rules, and regulations.
Additionally, the Shares and, when issued upon the exercise of an Award or
received under a Share Grant, will be subject to any other transfer
restrictions, rights of first refusal, and rights of repurchase set forth in or
incorporated by reference into other applicable documents, including the
Company's articles or certificate of incorporation, by-laws, or generally
applicable shareholders' agreements.
The Administrator may, in its sole discretion, take whatever additional
actions it deems appropriate to comply with such restrictions and applicable
laws, including placing legends on certificates and issuing stop-transfer
orders to transfer agents and registrars.
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TAX WITHHOLDING
The participant must satisfy all applicable Federal, state, and local income
and employment tax withholding requirements before the Company or the Operating
Partnership will deliver certificates upon the exercise of an Option or the
lapse of restrictions under a Share Grant. The Company or the Operating
Partnership, as appropriate, may decide to satisfy the withholding obligations
through additional withholding on salary or wages. If the Company or the
Operating Partnership does not or cannot withhold from other compensation, the
participant must pay the Company or the Partnership, with a cashier's check or
certified check, the full amounts required by withholding. Payment of
withholding obligations is due before the Company issues or releases Shares
with respect to the Award. If the Administrator so determines, the participant
may instead satisfy the withholding obligations by directing the Company to
retain Shares from the Option exercise or from the nonforfeitable Shares
received under a Share Grant, by tendering previously owned Shares, or by
attesting to his ownership of Shares (with the distribution of net Shares), or,
by having a broker tender to the Company cash equal to the withholding taxes.
TRANSFERS, ASSIGNMENTS, AND PLEDGES
An Award may not be assigned, pledged, or otherwise transferred in any way,
whether by operation of law or otherwise or through any legal or equitable
proceedings (including bankruptcy), by the participant to any person, except by
will or by operation of applicable laws of descent and distribution. The
foregoing sentence does not apply to Shares a participant owns after satisfying
the Award's conditions. If Rule 16b-3 then applies to an Award, the participant
may not transfer or pledge Shares acquired upon exercise of an Option or lapse
of restrictions on a Share Grant until at least six months have elapsed from
(but excluding) the Date of Grant, unless the Administrator approves otherwise
in advance in writing.
Notwithstanding the prior paragraph, under no circumstances may an Option be
transferred if the exercise of such Option would cause the Operating
Partnership to be taxable as an association for federal income tax purposes.
AMENDMENT OR TERMINATION OF PLAN AND AWARDS
Subject to the restrictions of this section, the Board may amend, suspend,
or terminate the Plan at any time, without the consent of the participants or
their beneficiaries. Except as required by law or by the OPERATIONAL CHANGES
section, the Administrator may not, without the participant's or beneficiary's
consent, modify the terms and conditions of an Award so as to adversely affect
the participant. No amendment, suspension, or termination of the Plan will,
without the participant's or beneficiary's consent, terminate or adversely
affect any right or obligations under any outstanding Awards.
PRIVILEGES OF OWNERSHIP
No participant and no beneficiary or other person claiming under or through
such participant will have any right, title, or interest in or to any Shares
allocated or reserved under the Plan or subject to any Award except as to such
Shares , if any, that have been issued to such participant. For Shares still
subject to Share Grants, the Administrator may provide that a participant will
receive dividends or dividend equivalents and may vote the Shares.
EFFECT ON OTHER PLANS
Whether exercising an Option, receiving a Share Grant or Restricted Phantom
Share, or becoming free from restrictions under any form of Award causes the
participant to accrue or receive additional benefits under any pension or other
plan is governed solely by the terms of such other plan.
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NATURE OF RESTRICTED PHANTOM SHARES
The Restricted Phantom Shares are solely a device for measuring and
determining the amount to be paid to participants. The Restricted Phantom
Shares do not constitute and should not be treated as property or as a trust
fund of any kind. All amounts at any time attributable to the Restricted
Phantom Shares are the sole property of the Company, and all participants'
rights hereunder are limited to the rights to receive Shares or, if the
Administrator so determines, cash as provided in this Plan. The Company will
pay all amounts with respect to Restricted Phantom Shares from its general
assets. (The Company may establish a rabbi trust to hold the interests.) No
person will have any right or interest or claim to the payment of a benefit
under the Plan from any person other than the Company, and no person will have
any right or interest to the payment of a benefit under this Plan that is
superior in any manner to the right of any other general and unsecured creditor
of the Company. No participant and no beneficiary or other person claiming
under or through such participant will have any right, title, or interest in or
to any Shares then measured by any Restricted Phantom Shares. The participant
will have no rights of a shareholder with respect to the number of Shares
underlying Restricted Phantom Shares except to the extent that the Company has
issued documents indicating purchase, or otherwise confirmed ownership, of such
Shares. The Administrator may provide that a participant or his account will
receive dividend equivalents with respect to Restricted Phantom Shares.
LIMITATIONS ON LIABILITY
Notwithstanding any other provisions of the Plan, no individual acting as a
Trustee, employee, or agent of the Company or the Operating Partnership shall
be liable to any participant, former participant, spouse, beneficiary, or any
other person for any claim, loss, liability, or expense incurred in connection
with the Plan, nor shall such individual be personally liable because of any
contract or other instrument he executes in such other capacity. The Company or
the Operating Partnership will indemnify and hold harmless each Trustee,
employee, or agent of the Company or the Operating Partnership to whom any duty
or power relating to the administration or interpretation of the Plan has been
or will be delegated, against any cost or expense (including attorneys' fees)
or liability (including any sum paid in settlement of a claim with the Board's
approval) arising out of any act or omission to act concerning this Plan unless
arising out of such person's own fraud or bad faith.
NO EMPLOYMENT CONTRACT
Nothing contained in this Plan constitutes an employment contract between
the Company or the Operating Partnership and any individual. The Plan does not
give the participant any right to be retained in the Company's or Operating
Partnership's employ, nor does it enlarge or diminish the Company's or
Operating Partnership's right to terminate the participant's employment.
APPLICABLE LAW
The laws of the State of Maryland (other than its choice of law provisions)
govern this Plan and its interpretation.
DURATION OF PLAN
Unless the Board extends the Plan's term, the Administrator may not grant
Awards after February 19, 2008. The Plan will then terminate but will continue
to govern unexercised and unexpired Awards.
APPROVAL OF SHAREHOLDERS
The Company's shareholders have approved the granting of ISOs provided in
the Plan.
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Exhibit 23.2
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated January 29, 1999
included in Capital Automotive REIT's Form 10-K for the year ended December 31,
1998 and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Washington, D.C.
May 11, 1999
