As filed with the Securities and Exchange Commission on February 11, 1998
Registration No. 333-
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEW PLAN REALTY TRUST
(Exact name of issuer as specified in its charter)
Massachusetts 13-1995781
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1120 Avenue of the Americas
New York, New York 10036
(Address of principal executive offices) (Zip Code)
New Plan Realty Trust 1997 Stock Option Plan
(Full title of the plan)
William Newman
Chief Executive Officer
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
(212) 869-3000
(Name, address and telephone number of agent for service)
Approximate date of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
Title of
Each Class Proposed Maximum Proposed Maximum Amount of
of Securities Amount to be Offering Price Aggregate Offering
Registration
to be RegisteredRegistered Per Share(1) Price(1) Fee
Common Shares
of Beneficial
Interest without
par value 2,500,000(2) $25.65625 $64,140,625 $19,437
(1) Estimated solely for purposes of calculating the registration fee.
Pursuant to Rules 457(c) and (h), the Proposed Maximum Offering Price
Per Share and the Proposed Maximum Aggregate Offering Price are
computed on the basis of the average of the high and low prices for
such security on February 5, 1998, as reported on the New York Stock
Exchange.
(2) The shares covered by this Registration Statement represent the
underlying shares for the stock options to be granted by registrant
under its 1997 Stock Option Plan.
<PAGE>
PART I
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INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Items 1 and 2. Plan Information; Registrant Information and Employee
Plan Annual Information.
The documents containing the information specified in the
instructions to Part I of the Form S-8 will be sent or given to participants
in the 1997 Stock Option Plan as specified by Rule 428(b)(1). In addition,
the statement required to be made pursuant to Item 2 of Part I to the Form S-
8 shall be contained in the Section 10(a) prospectus.
PART II
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by New Plan Realty Trust, a
Massachusetts business trust (the "Company"), with the Securities and
Exchange Commission (the "Commission") are incorporated in this Registration
Statement by reference:
1. Annual Report on Form 10-K for the fiscal year ended
July 31, 1997, filed with the Commission on October 10, 1997.
2. Quarterly Report on Form 10-Q for the quarter ended
October 31, 1997, filed with the Commission on December 9, 1997.
3. Current Report on Form 8-K filed with the Commission on
July 31, 1997.
4. Current Report on Form 8-K/A filed with the Commission
on September 19, 1997.
5. Current Report on Form 8-K filed with the Commission on
January 23, 1998.
6. The description of the Company's Shares of Beneficial
Interest contained in Item 1 of the Company's registration statement on Form
8-A, as amended, and the documents incorporated therein by reference, filed
with the Commission on May 19, 1986.
All documents filed subsequent to the filing date of this
Registration Statement with the Commission by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered by this Registration Statement have
been sold or which de-registers all such securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of the filing of such
documents. Any statement contained in a document incorporated or deemed to
be incorporated herein by reference shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also
is, or is deemed to be, incorporated by reference herein, modifies or
supersedes such prior statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement, except as indicated herein.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Amended and Restated Declaration of Trust of the Company, dated
as of January 15, 1996 (the "Declaration of Trust"), provides in substance
that no Trustee or officer is liable to the Company, to a shareholder or to
third persons except for his own bad faith, willful misconduct, gross
negligence or reckless disregard of his duties or for his failure to act in
good faith in the reasonable belief that his action was in the best interests
of the Company. The Declaration of Trust further provides in substance that,
with the exceptions stated above, a Trustee or officer is entitled to be
indemnified against all liability incurred in connection with the affairs of
the Company. The Declaration of Trust also provides that no Trustee will be
personally liable to the Trust or its shareholders for monetary damages for
breach of fiduciary duty as a Trustee notwithstanding any provision of law
imposing such liability, except for liability (i) for any breach of the
Trustee's duty of loyalty to the Company or its shareholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for obtaining an improper benefit, or (iv)
for paying a dividend or making a distribution to shareholders or a loan to
officers or Trustees which is illegal under the Massachusetts Business
Corporation Law. In addition, the Declaration of Trust authorizes the
Trustees to purchase and pay for liability insurance to indemnify the
Trustees and officers against certain claims and liabilities.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act"), may be permitted
to Trustees, officers, or persons controlling the Company pursuant to the
foregoing provisions, the Company has been informed that in the opinion of
the Commission such indemnification is against public policy as expressed in
the Securities Act and is therefore unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a Trustee, officer or controlling
person of the Trust in the successful defense of any action, suit or
proceeding) is asserted by such Trustee, officer or controlling person in
connection with the securities being registered, the Company, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
will submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Amended and Restated Declaration Trust of New Plan Realty
Trust filed as Exhibit 99.3 to the Company's Form 8-K dated
May 24, 1996.
4.2 Specimen Certificate for Shares of Beneficial Interest filed
as Exhibit 4.1 to the Company's Form 10-K for the fiscal year
ended July 31, 1997.
4.3 New Plan Realty Trust 1997 Stock Option Plan.
5.1 Opinion of Goodwin, Procter & Hoar LLP, Massachusetts counsel
to the Company, as to the legality of the Shares of Beneficial
Interest being registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Eichler, Bergsman & Co., LLP.
23.3 Consent of Goodwin, Procter & Hoar LLP (included as part of
Exhibit 5.1).
24.1 Power of Attorney (included on signature page of this
Registration Statement).
Item 9. Undertakings.
1. The undersigned registrant hereby undertakes:
(a) 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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement
(or the most recent post-effective amendment hereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) will 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 Exchange Act that are
incorporated by reference in this Registration Statement.
(b) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) 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.
2. The undersigned registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act, each filing
of the registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to trustees, officers and controlling persons
of the registrant pursuant to the foregoing provisions described under Item 6
above, or otherwise, the registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in
the Securities 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 trustee, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such trustee, 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 whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<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 City of New York, State of New
York, on this 30th day of January, 1998.
NEW PLAN REALTY TRUST
By:/s/ William Newman
------------------------------------------
- -
William Newman
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint William Newman and Arnold
Laubich, and each or any of them, as his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments (including, without limitation, post-effective amendments and
documents in connection therewith) to this Registration Statement, and to
file the same with the Securities and Exchange Commission, granting unto each
said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to
all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent or either of them, or
their or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the date indicated.
Name Title Date
---- ----- ----
/s/ William Newman Chairman, Chief Executive January 30, 1998
Officer
- ----------------------- (Principal Executive Officer)
(William Newman) and Trustee
/s/ Arnold Laubich President, Chief Operating January 30, 1998
- ----------------------- Officer and Trustee
(Arnold Laubich)
/s/ Michael Brown Chief Financial and Accounting January 30, 1998
- ----------------------- Officer (Principal Financial and
(Michael Brown) Accounting Officer), Controller
/s/ James M. Steuterman Executive Vice President and January 30, 1998
- ----------------------- Trustee
(James M. Steuterman)
/s/ Dean Bernstein Vice President-Administration January 30, 1998
- ----------------------- and Finance and Trustee
(Dean Bernstein)
/s/ Melvin D. Newman Trustee January 30, 1998
- ------------------------
(Melvin D. Newman)
<PAGE>
EXHIBIT INDEX
No. Document Page
4.1 Amended and Restated Declaration Trust of New Plan Realty
Trust filed as Exhibit 99.3 to the Company's Form 8-K
dated May 24, 1996.
4.2 Specimen Certificate for Shares of Beneficial Interest
filed as Exhibit 4.1 to the Company's Form 10-K for the
fiscal year ended July 31, 1997.
4.3 New Plan Realty Trust 1997 Stock Option Plan.
5.1 Opinion of Goodwin, Procter & Hoar LLP, Massachusetts
counsel to the Company, as to the legality of the Shares
of Beneficial Interest being registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Eichler, Bergsman & Co., LLP.
23.3 Consent of Goodwin, Procter & Hoar LLP (included as part
of Exhibit 5.1).
24.1 Power of Attorney (included on signature page of this
Registration Statement).
EXHIBIT 4.3
NEW PLAN REALTY TRUST
1997 STOCK OPTION PLAN
1. Purpose. The purpose of this New Plan Realty Trust 1997
Stock Option Plan ("Plan") is to attract and retain outstanding individuals
as employees and members of the Board of Trustees ("Trustees") of New Plan
Realty Trust (the "Company") and its affiliates (the Company and its
affiliates, collectively or individually, "Employer"), and to provide
incentives for such employees and Trustees to achieve the objectives and
promote the business success of Employer by providing to such individuals
opportunities to acquire common shares of beneficial interest of the Company
("Shares") through the exercise of stock options and thereby provide such
individuals with a greater proprietary interest in and closer identity with
Employer and its financial success. Options granted under this Plan may be
either nonqualified stock options or incentive stock options ("Incentive
Options"). (Nonqualified stock options and Incentive Options, collectively or
individually, "Options"). Options granted under this Plan and designated as
Incentive Options by the Committee (as herein defined) are intended to be
"incentive stock options" within the meaning of that term in section 422 of
the Internal Revenue Code of 1986, as amended ("Code"). To the extent deemed
appropriate by the Committee, the provisions of this Plan with respect to
Incentive Options and of each Incentive Option granted hereunder shall be
interpreted in a manner consistent with that section and all valid
regulations issued thereunder. Incentive Options may not be granted under
the Plan to Trustees, except to those Trustees who are also employees of
Employer at the time of the Option grant.
2. Administration. This Plan will be administered by the Board
of Trustees of the Company (the "Board") or a committee or committees
designated by the Board. (The Board or such committee or committees
hereinafter, collectively or individually, the "Committee"). The Committee
shall interpret the Plan and shall prescribe, amend and rescind rules and
regulations relating thereto and make all other determinations necessary or
advisable for the administration of the Plan. Any such action by the
Committee shall be final and conclusive on all persons having any interest in
the Options or Shares to which such action relates. A majority of the
disinterested members of the Committee shall constitute a quorum and all
determinations of the Committee shall be made by a majority of its
disinterested members. For purposes of this Section, a Committee member is
treated as disinterested if the Committee member is not exercising discretion
at such time with respect to the grant of Options under this Plan to himself
or herself. Any determination of the Committee under this Plan may be made
without notice of meeting of the Committee by a writing signed by a majority
of the disinterested Committee members. Whenever the Committee shall consist
of not more than two disinterested Trustees, all determinations shall be made
by both members either at a meeting or by a writing signed by both members.
The Committee shall determine, within the limits of the express
provisions of this Plan, those employees and Trustees to whom, and the time
or times at which, Options shall be granted to such employees or Trustees.
The Committee shall determine the number of Shares to be subject to each
Option, whether an Option will be a nonqualified stock option or an Incentive
Option, the duration of each Option, the time or times within which (during
the term of the Option) all or portions of each Option may be exercised,
whether or not the exercise schedule will be accelerated, the restrictions
applicable to each Option, and whether cash, Shares, or other property may be
accepted in full or partial payment upon exercise of an Option. In making
such determinations, the Committee may take into account the nature of the
services rendered by the Participants (hereinafter defined), their present
and potential contributions to the Employer's success and such other factors
as the Committee in its discretion shall deem relevant.
3. Participants. The "Participants" in the Plan will consist of
such employees and Trustees of Employer as the Committee in its sole
discretion from time to time designates within the limits of the express
provisions of this Plan. The Committee's designation of a Participant at any
time shall not require the Committee to designate such person at any other
time. The Committee shall consider such factors as it deems pertinent in
selecting Participants and in determining the terms of their respective
Options, including without limitation: (i) the financial condition of
Employer, (ii) anticipated profits of the current or future years, (iii)
contributions of Participants to the profitability and development of
Employer, both present and future, and (iv) other compensation provided to
Participants.
4. Terms and Conditions of Options. The Options granted under
this Plan shall be in such form and upon such terms and conditions as the
Committee shall from time to time determine, subject to the provisions of
this Plan, including the following:
(a) Option Price
The Option exercise price for each Option shall be
established by the Committee; provided that in the case of
Incentive Options, the Option exercise price shall in no event be
less than 100% of the fair market value of the Shares subject to
such Option at the time such Option is granted. In the case of an
Incentive Option granted to a Participant who at the time of grant
owns (directly or indirectly) shares aggregating more than 10% of
the total combined voting powers of all classes of shares of the
Company or any parent or subsidiary corporation ("10% Owner"), the
Option exercise price shall be at least 110% of such fair market
value of the Shares subject to such Incentive Option at the time
such Incentive Option is granted.
(b) Option Term
(i) Each Option granted under this Plan shall be for
such period as the Committee shall determine, which period may include,
without limitation, early termination of the Option upon the
Participant's termination of employment or cessation as a Trustee. For
purposes of this Section 4, termination of employment of a Participant
who is a Trustee shall mean the later of the Participant's termination
of employment with the Employer or termination of service as a Trustee.
(ii) Unless the terms of the Option provide otherwise or
the Committee determines otherwise, the following provisions apply:
a) Disability. In the event of termination of
employment of the Participant by reason of the Participant's
disability, the Participant shall have the right to exercise
all unexercised Options, to the extent exercisable as of the
last day of employment under the terms of the Option, at any
time within one year after such termination, subject to the
expiration of such Options pursuant to the terms of the
Options. Any such Options not so exercised shall terminate.
b) Death. In the event of termination of employment of
the Participant by reason of the Participant's death, any
person who acquires any unexercised Options by will or the
laws of descent and distribution from the Participant shall
have the right to exercise all unexercised Options held by the
Participant which were exercisable on the day of the
Participant's death under the terms of the Option, at any time
within one year after the Participant's death, subject to the
expiration of such Options pursuant to the terms of the
Options. Any such Options not so exercised shall terminate.
c) Other Terminations. In the event of the termination
of employment of a Participant for reasons other than those
described in Sections 4(b)(ii)(a) and 4(b)(ii)(b), any
unexercised Options granted to the Participant hereunder shall
be deemed canceled and terminated, except that such
Participant may, within thirty (30) days after such
termination of employment, exercise such Options which as of
the last day of such Participant's employment were exercisable
under the terms of the Option (after taking into account the
acceleration of exercisability pursuant to Section 8(c)
hereof), subject to the expiration of such Options pursuant to
the terms of the Options.
(iii) No Incentive Option, however, may be for a period
more than ten (10) years from the date the Incentive Option is granted;
provided, however, for a 10% Owner, no Incentive Option may be for a
period more than five (5) years from the date the Incentive Option is
granted. To the extent required by law, but subject to any earlier
cancellation and termination of the Option as provided in the Plan or
the Option, a Participant who ceases to be employed by Employer for any
reason other than death or disability shall not have the right to
exercise his or her Incentive Options at any time after three (3) months
after such cessation of employment and continue to have such Options
treated as Incentive Options. To the extent required by law, a
Participant who ceases to be employed by Employer because of disability
shall have no more than one (1) year after such cessation of employment
to exercise his or her Incentive Options and continue to have such
Options treated as Incentive Options. To the extent a Trustee more than
3 months after the Trustee ceased to be an employee of the Employer
exercises Options granted as Incentive Options and to the extent
required by law, such Options granted as Incentive Options shall be
treated as nonqualified stock options.
(c) Method of Exercise
Options may be exercised by giving written notice to the
Treasurer of the Company, stating the number of Shares with respect
to which the Option is being exercised and tendering payment
therefor. In the discretion of the Committee, made at the time the
Option is exercised, payment for Shares may be made in cash, other
Shares (by either actual delivery of Shares or by attestation),
retention of Shares which would otherwise be issued upon Option
exercise, "cashless exercise" through a third party, a combination
of the foregoing, or by any other means which the Committee
determines. It shall be a condition to the performance of the
Company's obligation to issue or transfer Shares upon exercise of
an Option that the person exercising the Option pay, or make
provision satisfactory to Employer for the payment of, any taxes
(other than stock transfer taxes) which Employer is obligated to
collect with respect to the issue or transfer of Shares upon such
exercise.
To the extent permitted by the Committee and the Employer, in
their sole discretion, Participants in the Plan may borrow funds on
a recourse basis from the Employer with which to purchase Shares
pursuant to the exercise of an Option. Eligibility of any
Participant for such borrowing will be determined solely at the
discretion of the Committee. Any such loan may bear interest at a
rate determined by the Committee.
The Committee may determine to grant additional options to
those Participants in the Plan who exercise their Options with
Shares.
(d) Value of Shares
The aggregate fair market value (determined at the time the
Incentive Options are granted) of the Shares with respect to which
Incentive Options are exercisable for the first time by a
Participant during any calendar year shall not exceed one hundred
thousand dollars ($100,000).
The award of any Options may be subject to other provisions (whether or
not applicable to the Option awarded to any other Participant) as the
Committee, in its sole discretion determines appropriate, including, without
limitation, restrictions on resale or other disposition, installment exercise
limitations, such provisions as may be appropriate to comply with federal or
state securities laws and stock exchange requirements, and undertakings or
conditions as to the Participant's employment in addition to those
specifically provided for under this Plan.
5. Shares. The total number of Shares allocated to this Plan and
available to designated Participants under this Plan is two million five
hundred thousand (2,500,000) Shares, except as such number of Shares shall be
adjusted in accordance with the provisions of Section 8. The maximum number
of Shares available to any one Participant under this Plan through Options
granted in any one calendar year is two hundred fifty thousand (250,000)
Shares. Each Option when granted shall state the number of Shares to which
it pertains. If any Option granted under this Plan expires unexercised, or
is terminated or ceases to be exercisable for any other reason without having
been fully exercised prior to the end of the period during which Options may
be granted under this Plan, or if any Option is canceled, the Shares
theretofore subject to such Option or to the unexercised portion of such
Option shall again become available for new Options to be granted under this
Plan to any eligible person (including the holder of such former Option).
6. Option Notices. Options granted pursuant to this Plan shall
be authorized by the Committee and shall be evidenced by notices ("Option
Notices") in such form as the Committee shall from time to time determine.
Such Option Notices shall state: (i) the number of Shares with respect to
which the Option is granted, (ii) the type of Option - nonqualified stock
option or Incentive Option, (iii) the Option exercise price, (iv) the Option
exercise schedule, (v) the Option term and (vi) such other information as the
Committee deems appropriate. The terms and conditions of each Option Notice
must be consistent with the provisions of this Plan and will be applicable
only to the grant that it announces.
7. Limitations on Transferability. No Incentive Option granted
to a Participant shall be transferable by the Participant except by will or
by the laws of descent and distribution. The Committee in its sole
discretion may permit a Participant to transfer Options, other than Incentive
Options, subject to any conditions or limitations specified by the Committee
such as classifications or categories of permissible transferees.
8. Adjustments.
(a) Capital Adjustments
If the Shares should, as a result of any stock dividend, stock
split, other subdivision or combination of Shares, or any
reclassification, recapitalization or otherwise, be increased or
decreased, the number of Shares covered by each outstanding Option,
the Option exercise price under each outstanding Option, and the
total number of Shares reserved for issuance under this Plan shall
be adjusted as determined by the Committee to reflect such action.
Any new Shares or other securities issued with respect to Shares
shall be deemed Shares.
(b) Sale or Reorganization
Subject to Section 8(c), in the event the Company is
merged or consolidated with another corporation, or in the event
the property or Shares of the Company are acquired by another
corporation, or in the event of a reorganization or liquidation of
Employer, or in the event of any extraordinary transaction, the
board of trustees or directors of any trust or corporation,
respectively, assuming the obligations of the Company hereunder or
the Committee, as applicable, shall have the right to provide for
the continuation of Options granted under the Plan or for other
equitable adjustments as determined by the board of trustees or
directors of such trust or corporation, respectively, assuming the
obligations of the Company hereunder or the Committee, as
applicable (by means, such as, for example, cash payment in an
amount equal to the difference between the Share price and the
Option price, conversion into other property or securities, or
giving written notice to holders of Options that their Options will
become immediately exercisable, notwithstanding any waiting period
otherwise prescribed by the Committee, as applicable, and that such
Options must be exercised within a specified period of days of such
notice or they will be terminated).
(c) Change of Control
Upon a "Change of Control" all Options shall become
immediately exercisable in full notwithstanding the terms of the
Option grant to the contrary. For purposes of this Plan, a Change
of Control means:
(i) The ownership by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) ("Beneficial Ownership") of, or the Beneficial
Ownership by any Person of, 25% or more of either (i) the then-
outstanding shares of beneficial interest of the Company (the
"Outstanding Company Common Shares") or (ii) the combined voting power
of the then-outstanding voting securities of the Company entitled to
vote generally in the election of Trustees (the "Outstanding Company
Voting Securities"); or
(ii) Individuals who, as of the effective date of this
Plan, are members of the Board (the "Incumbent Board Members") cease for
any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a Trustee subsequent to the
effective date of this Plan whose election, or nomination for election
by the Company's shareholders, was approved by a vote of at least a
majority of the Trustees then comprising the Incumbent Board Members
shall be considered as though such individual were an Incumbent Board
Member, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or removal of
Trustees or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(iii) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all
of the assets of the Company (a "Business Combination") unless,
following such Business Combination,
a) All or substantially all of the individuals and
entities who were the beneficial owners of the
Outstanding Company Common Shares and Outstanding Company
Voting Securities immediately prior to such Business
Combination beneficially own more than 50% of the then-
outstanding shares of beneficial interest and the
combined voting power of the then-outstanding voting
securities entitled to vote generally in the election of
trustees or directors of the trust or corporation,
respectively, resulting from the Business Combination
(including, without limitation, a corporation which as a
result of such transaction owns the Company or all or
substantially all of the Company's assets either directly
or through one or more subsidiaries) in substantially the
same proportions as their ownership, immediately prior to
the Business Combination, of the Outstanding Company
Common Shares and Outstanding Company Voting Securities,
as the case may be;
b) No Person (excluding any trust or corporation
resulting from such Business Combination) beneficially
owns, directly or indirectly, 25% or more of the then-
outstanding shares of beneficial interest or common stock
of the trust or corporation, respectively, resulting from
the Business Combination, or the combined voting power of
the then-outstanding voting securities of that trust or
corporation except to the extent that such ownership
existed prior to the Business Combination; and
c) At least a majority of the members of the board
of trustees or directors of the trust or corporation,
respectively, resulting from the Business Combination
were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of
the Board, providing for the Business Combination; or
(iv) Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
9. Legal and Other Requirements. Each Option granted under this
Plan shall be subject to the requirement that if at any time the Committee
shall determine, in its discretion, that the listing, registration or
qualification of the Shares issuable or transferable upon the exercise of the
Option upon any securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with the granting of such
Option, or the issuance, transfer or purchase of Shares thereunder, such
Option may not be exercised in whole or in part unless such listing,
registration, qualification, consent, or approval shall have been effected or
obtained free of any conditions not acceptable to the Committee. The Company
shall not be obligated to sell or issue any Shares in any manner in
contravention of the Securities Act of 1933, as amended, or any state
securities law. No adjustment with respect to any Shares covered by Options
other than pursuant to Section 8 hereof shall be made for dividends or other
rights for which the record date is prior to the date such stock certificate
is delivered.
10. Notice of Sale of Shares. A Participant shall provide prompt
notice of the disposition of any Shares acquired by the Participant upon
exercise of an Incentive Option granted hereunder within two years from the
date such Incentive Option was granted or within one year after the transfer
of such Shares to the Participant; provided, however, that a transfer to a
trustee, receiver, or other fiduciary in any insolvency proceeding, as
described in section 422(c)(3) of the Code, shall not be deemed to be such a
disposition.
11. Tax Withholding. Employer shall comply with the obligations
imposed on Employer under applicable tax withholding laws, if any, with
respect to Options granted hereunder, Shares transferred upon exercise
thereof, and the disposition of such Shares thereafter, and shall be entitled
to do any act or thing to effectuate any such required compliance, including,
without limitation, withholding from amounts payable by Employer to a
Participant and making demand on a Participant for the amounts required to be
withheld.
If the Committee so permits, a Participant, or upon the
Participant's death, the Participant's beneficiary, may satisfy, in whole or
in part, the obligation to pay Employer any amount required to be withheld
under the applicable federal, state and local income tax laws in connection
with exercise of an Option under this Plan by: (i) having Employer withhold
from the Shares to be acquired upon the exercise of the Option, (ii)
delivering to Employer either previously acquired Shares or Shares acquired
upon the exercise of the Option which the Participant or beneficiary was
unconditionally obligated to deliver to Employer or (iii) any other means
which the Committee determines. The fair market value of Shares shall be
determined in accordance with procedures established by the Committee. Any
amounts required to be withheld in excess of the value of Shares withheld or
delivered shall be paid in cash or withheld from other compensation paid by
Employer.
12. No Contract of Employment. Neither the adoption of this Plan
nor the grant of any Options, nor ownership of Shares shall be deemed to
obligate Employer to continue the appointment, employment, or engagement of
any Participant for any particular period.
13. Indemnification of Committee. The members of the Committee
shall be indemnified by the Company to the fullest extent permitted by the
law governing unincorporated Massachusetts business trusts and the governing
instruments of the Company.
14. Amendment and Termination of Plan. The Trustees of the
Company may amend this Plan from time to time or terminate this Plan at any
time, but no such action shall reduce the number of Shares subject to the
then outstanding Options granted to any Participant or adversely to the
Participant change the terms and conditions of outstanding Options without
the Participant's consent. No Option may be granted after ten (10) years
from the original effective date of adoption of this Plan.
15. Massachusetts Law to Govern. This Plan shall be governed by
and construed in accordance with the laws of the Commonwealth of
Massachusetts.
16. Effective Date of Plan. The effective date of this Plan is
September 8, 1997. Designation of Options as Incentive Options shall be
subject to the approval of this Plan by a majority of the votes cast at a
meeting of shareholders and having the right to vote thereon.
<PAGE>
EXHIBIT 5.1
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 10104
January 28, 1998
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by New Plan Realty Trust, a
Massachusetts business trust (the "Company"), on or shortly after the date
hereof with the Securities and Exchange Commission (the "Commission") in
connection with the registration under the Securities Act of 1933, as amended
(the "Securities Act"), of 2,500,000 shares of the Company's common shares of
beneficial interest without par value (the "Common Shares"), reserved for
issuance pursuant to the terms of the Company's 1997 Stock Option Plan (the
"1997 Plan").
We have examined the Amended and Restated Declaration of Trust of
the Company and a certificate of the Secretary of the Company setting forth
the text of the 1997 Plan, of resolutions adopted by the Company's Board of
Trustees and of actions by the Company's shareholders approving the 1997 Plan
with respect to incentive stock options. While not involved in the
preparation of the Registration Statement, we have also examined the text of
the Registration Statement in the form which you have advised us is
substantially the same as is to be filed with the Commission.
Based upon the foregoing, we are of the opinion that the 2,500,000
Common Shares reserved for issuance pursuant to the terms of the 1997 Plan
have been duly authorized and, when issued in accordance with the terms of
the 1997 Plan and in accordance with Options that have been or may be granted
under and in conformity with the 1997 Plan ("Options") and upon payment of
the purchase price provided for in such Options, will be validly issued,
fully paid and nonassessable by the Company.
We hereby consent to the use of this opinion in the Registration
Statement. In giving this consent, we do not thereby admit that we come
within the category of persons whose consent is required under Section 7 of
the Securities Act or the Rules and Regulations of the Commission thereunder.
Very truly yours,
GOODWIN, PROCTER & HOAR LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of our report dated September 11, 1997, on our audits of the
consolidated financial statements and financial statement schedules of New
Plan Realty Trust (the "Trust") as of July 31, 1997 and 1996 and for each of
the three years in the period ended July 31, 1997, which are included in the
Annual Report on Form 10-K of the Trust for the year ended July 31, 1997.
COOPERS & LYBRAND LLP
New York, New York
January 28, 1998
EXHIBIT 23.2
CONSENT OF EICHLER, BERGSMAN & CO., LLP
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of our reports dated July 21, 1997 and November 26, 1997 on our
audit of the Historical Summary of Combined Revenues and Certain Operating
Expenses of certain properties acquired by New Plan Realty Trust (the
"Trust") for the years ended May 31, 1997 and April 30, 1997, respectively,
which are included in the Current Report on Form 8-K of the Trust dated
January 23, 1998.
EICHLER, BERGSMAN & CO., LLP
New York, New York
January 27, 1998
