<PAGE> 1
As filed with the Securities and Exchange Commission on April 8, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EXCEL REALTY TRUST, INC.
(Exact name of registrant as specified in its charter)
MARYLAND 33-0160389
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
16955 VIA DEL CAMPO, SUITE 110
SAN DIEGO, CALIFORNIA 92127
(619) 485-9400
(Address of principal executive offices, Zip Code, and telephone number)
EXCEL REALTY TRUST, INC.
DIRECTORS' 1994 STOCK OPTION PLAN
EXCEL REALTY TRUST, INC.
1992 BOARD OF DIRECTORS
COMMON STOCK PURCHASE OPTION
EXCEL REALTY TRUST, INC.
1993 BOARD OF DIRECTORS
COMMON STOCK PURCHASE OPTION
(Full titles of the plans)
RICHARD B. MUIR Copies to:
EXECUTIVE VICE PRESIDENT SCOTT N. WOLFE, ESQ.
AND SECRETARY LATHAM & WATKINS
16955 VIA DEL CAMPO, SUITE 110 701 "B" STREET
SAN DIEGO, CALIFORNIA 92127 SUITE 2100
(619) 485-9400 SAN DIEGO, CALIFORNIA 92101
(Name, address including zip code, (619) 236-1234
and telephone number, including area
code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Proposed
Proposed Maximum
Amount Maximum Aggregate Amount of
Title of Each Class of being Offering Offering Registration
Securities to be Registered Registered (1) Price Per Share(2) Price(2) Fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value ... 263,324 $19.00 $5,003,670 $1,787.00
================================================================================================================================
</TABLE>
(1) The Excel Realty Trust, Inc. Directors' 1994 Stock Option Plan (the
"Directors' Plan") authorizes the issuance of 240,000 shares of the
Company's Common Stock. Of the 240,000 shares under the Directors'
Plan, 28,000 are subject to presently outstanding options. The
Agreements (as defined herein) authorize the issuance of 23,324 shares.
(2) For purposes of computing the registration fee only. Pursuant to Rule
457(h), the Proposed Maximum Offering Price Per Share is based upon (1)
the average exercise price per share ($19.9375) of outstanding options
for 28,000 shares under the Directors' Plan; (2) the average exercise
price per share ($13.92) of outstanding options for 23,324 shares under
the Agreements; and (3) for the remaining 212,000 shares, upon the
average ($19.43) of the high and low prices for the Company's Common
Stock on the New York Stock Exchange for April 2, 1996.
Exhibit Index on Page 7
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995;
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the Company's fiscal year ended
December 31, 1994; and
(c) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A filed with the
Commission on July 30, 1993.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 after the date this Registration
Statement is filed with the Securities and Exchange Commission and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part of it from the respective dates of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein 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 other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
See item 3(d) above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
2
<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's bylaws require the Company to indemnify its directors,
officers and certain other parties to the fullest extent permitted from time to
time by Maryland Law. The Maryland General Corporation Law permits a corporation
to indemnify its directors, officers and certain other parties against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by them in connection with any proceeding to which they may be made a
party by reason of their service to or at the request of the corporation, unless
it is established that the act or omission of the indemnified party was material
to the matter giving rise to the proceedings and (i) was committed in bad faith
or was the result of active and deliberate dishonesty, (ii) the indemnified
party actually received an improper personal benefit, or (iii) in the case of
any criminal proceeding, the indemnified party had reasonable cause to believe
that the act or omission was unlawful. Indemnification may be made against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by the director or officer in connection with the proceeding; provided,
however, that if the proceeding is one by or in the right of the corporation,
indemnification may not be made with respect to any proceeding in which the
director or officer has been adjudged to be liable to the corporation. In
addition, a director or officer may not be indemnified with respect to any
proceeding charging improper personal benefit to the director or officer in
which the director or officer was adjudged to be liable on the basis that
personal benefit was improperly received. The termination of any proceeding by
conviction, or upon a plea of nolo contendere or its equivalent, or an entry of
any order of probation prior to judgment, creates a rebuttal presumption that
the director or officer did not meet the requisite standard of conduct required
for indemnification to be permitted. It is the position of the Securities and
Exchange Commission that indemnification of directors and officers for
liabilities arising under the Securities Act of 1933, as amended, is against
public policy and is unenforceable pursuant to Section 14 of such Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
3.1 Amended and Restated Articles of Incorporation of the Company,
incorporated by reference to Exhibit 3.1 to Amendment No. 1 to the
Company's Registration Statement on Form S-11 (File No. 33-63160).
3.2 Amended and Restated Bylaws of the Company, incorporated by reference
to Exhibit 3.2 to Amendment No. 1 to the Company's Registration
Statement on Form S-11 (File No.33-63160).
4.1 Excel Realty Trust, Inc., Directors' 1994 Stock Option Plan.
3
<PAGE> 4
4.2 Form of Directors Non-Qualified Stock Option Agreement.
4.3 Form of Common Stock Purchase Option dated November 1, 1992, among the
Company and seven of its directors incorporated by reference to Exhibit
10.27 of the Company's Registration Statement on Form S-11 (File No.
233-63160).
4.4 Form of Common Stock Purchase Option dated March 15 1993, among the
Company and seven of its directors, incorporated by reference to
Exhibit 10.28 to the Company's Registration Statement on Form S-11
(File No. 33-63160).
5.1 Opinion of Ballard, Spahr, Andrews & Ingersoll.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Ballard, Spahr, Andrews & Ingersoll (included in
Exhibit 5.1).
24.1 Power of Attorney (included on page 6 hereof).
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities offered hereby, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(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 thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement; and
(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 the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above 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 this
registration statement.
4
<PAGE> 5
(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 that is incorporated by reference in this
registration statement 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.
(c) 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 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 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 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.
5
<PAGE> 6
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 San Diego, State of California, on March 31,
1996.
EXCEL REALTY TRUST, INC.
By: /s/ GARY B. SABIN
----------------------------
Gary B. Sabin
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below authorizes Gary B. Sabin and
Richard B. Muir, and either of them, with full power of substitution and
resubstitution, his true and lawful attorneys-in-fact, for him in any and all
capacities, to sign any amendments (including post-effective amendments) to this
Registration Statement and to file the same, with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ GARY B. SABIN Chairman of the Board, Chief March 31, 1996
- -------------------------- Executive Officer, and President
Gary B. Sabin (Principal Executive Officer)
/s/ RICHARD B. MUIR Executive Vice President and March 31, 1996
- -------------------------- Director (Principal Financial
Richard B. Muir and Accounting Officer)
/s/ BOYD A. LINDQUIST Director March 31, 1996
- --------------------------
Boyd A. Lindquist
/s/ D. CHARLES MARSTON Director March 31, 1996
- --------------------------
D. Charles Marston
/s/ ROBERT E. PARSONS, JR. Director March 31, 1996
- --------------------------
Robert E. Parsons, Jr.
/s/ BRUCE A. STALLER Director March 31, 1996
- --------------------------
Bruce A. Staller
/s/ JOHN H. WILMOT Director March 31, 1996
- --------------------------
John H. Wilmot
6
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EXHIBIT INDEX
EXHIBIT
- -------
3.1 Amended and Restated Articles of Incorporation of
the Company, incorporated by reference to Exhibit
3.1 to Amendment No. 1 to the Company's
Registration Statement on Form S-11 (File No.
33-63160).
3.2 Amended and Restated Bylaws of the Company,
incorporated by reference to Exhibit 3.2 to
Amendment No. 1 to the Company's Registration
Statement on Form S-11 (File No. 33-63160).
4.1 Excel Realty Trust, Inc., Directors' 1994 Stock
Option Plan.*
4.2 Form of Directors Non-Qualified Stock Option
Agreement.*
4.3 Form of Common Stock Purchase Option dated November
1, 1992, among the Company and seven of its
directors incorporated by reference to Exhibit
10.27 of the Company's Registration Statement on
Form S-11 (File No. 33-63160).
4.4 Form of Common Stock Purchase Option dated March 15
1993, among the Company and seven of its directors,
incorporated by reference to Exhibit 10.28 to the
Company's Registration Statement on Form S-11 (File
No. 33-63160).
5.1 Opinion of Ballard, Spahr, Andrews & Ingersoll
23.1 Consent of Coopers & Lybrand L.L.P.*
23.2 Consent of Ballard, Spahr, Andrews & Ingersoll
(included in Exhibit 5.1).*
24.1 Power of Attorney (included on page 6 hereof).*
* Filed herewith.
7
<PAGE> 1
EXHIBIT 4.1
EXCEL REALTY TRUST, INC.
DIRECTORS' 1994 STOCK OPTION PLAN
1. PURPOSE OF THE PLAN. Under this Directors' 1994 Stock Option Plan
(the "Plan") of EXCEL REALTY TRUST, INC. (the "Company"), options shall be
granted to directors of the Company to purchase shares of the Company's capital
stock. The Plan is designed to enable the Company to attract and retain
directors of the highest caliber and experience.
2. STOCK SUBJECT TO PLAN. The maximum number of shares of stock for
which options granted hereunder may be exercised shall be 240,000 shares of the
Company's Common Stock, par value $.01 per share, subject to the adjustments
provided in Section 7. Shares of stock subject to the unexercised portions of
any options granted under this Plan which expire or terminate or are cancelled
may again be subject to options under the Plan.
3. PARTICIPATING DIRECTORS. The directors of the Company who shall
participate in this Plan are each of the current and future directors who have
been duly elected and qualified.
4. ADMINISTRATION.
(a) The Plan shall be administered by a committee (the
"Committee") which shall consist of two or more directors, appointed by
and holding office at the pleasure of the Board, each of whom is a
"disinterested person" as defined by Rule 16b-3 and an "outside
director" within the meaning of Section 162(m)(4)(C)(ii) of the
Internal Revenue Code of 1986, as amended (the "Code"). Appointment of
Committee members shall be effective upon acceptance of appointment.
Committee members may resign at any time by delivering written notice
to the Board. Vacancies in the Committee shall be filled by the Board.
(b) It shall be the duty of the Committee to conduct the
general administration of the Plan in accordance with its provisions.
The Committee shall have the power to interpret the Plan and the
options and to adopt such rules for the administration, interpretation
and application of the Plan as are consistent therewith and to
interpret, amend or revoke any such rules. The Board shall have no
right to exercise any of the rights or duties of the Committee under
the Plan.
(c) The Committee shall act by a majority of its members in
office. The Committee may act either by vote at a meeting or by a
memorandum or other written instrument signed by a majority of the
Committee.
(d) Members of the Committee shall receive such compensation
for their services as members as may be determined by the Board. All
expenses and liabilities incurred by members of the Committee in
connection with the administration of the Plan shall be borne by the
Company. The Committee may employ attorneys, consultants, accountants,
appraisers, brokers or other persons. The Committee, the Company and
its officers and directors shall be entitled to rely upon the advice,
opinions or valuations of any such persons. All actions taken and all
interpretations and determinations made by the
<PAGE> 2
Committee in good faith shall be final and binding upon all option
holders, the Company and all other interested persons. No member of the
Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or the
options, and all members of the Committee shall be fully protected by
the Company in respect to any such action, determination or
interpretation.
5. GRANT OF OPTIONS. Each participating director shall be granted an
option for 2,000 shares of stock (subject to the adjustments provided in Section
7) on the date on which the Plan is approved by the shareholders of the Company
and on each anniversary date of such shareholder approval on which he or she
continues to serve as a director of the Company (these annual dates of grant are
collectively referred to herein as the "date of grant"). In no event shall any
director receive options for more than 2,000 shares annually under this Plan.
Notwithstanding any other provision of this Plan, no option hereunder shall be
granted unless 2,000 shares (subject to said adjustments) are then available
therefor under Sections 2 and 7. In consideration of the granting of the option,
the option holder shall be deemed to have agreed to remain as a director of the
Company for a period of at least one year after the date of grant. Nothing in
this Plan shall, however, confer upon any option holder any right to continue as
a director of the Company or shall interfere with or restrict in any way the
rights of the Company or the Company's shareholders, which are hereby expressly
reserved, to remove any option holder at any time for any reason whatsoever,
with or without cause, to the extent permitted by the Company's bylaws and
applicable law.
6. OPTION PROVISIONS. Each option granted under the Plan shall be
evidenced by an agreement between the Company and the participating director and
shall contain such terms and provisions as the Committee may authorize,
including in any event the following:
(a) The exercise price of each option shall be equal to the
aggregate fair market value of the shares of stock optioned on the date
of grant of such option. For this purpose, the fair market value of a
share of the Company's Common Stock as of a given date shall be (i) the
closing price of a share of the Company's Common Stock on the principal
exchange on which shares of the Company's Common Stock are then
trading, if any, on the trading day previous to such date, or, if
shares were not traded on the day previous to such date, then on the
next preceding trading day during which a sale occurred; or (ii) if
such Common Stock is not traded on an exchange but is quoted on NASDAQ
or a successor quotation system, (1) the last sales price (if the
Company's Common Stock is then listed as a National Market Issue under
the NASD National Market System) or (2) the mean between the closing
representative bid and asked prices (in all other cases) for the
Company's Common Stock on the trading day previous to such date as
reported by NASDAQ or such successor quotation system; or (iii) if such
Common Stock is not publicly traded on an exchange and not quoted on
NASDAQ or a successor quotation system, the mean between the closing
bid and asked prices for the Company's Common Stock, on the trading day
previous to such date, as determined in good faith by the Committee; or
(iv) if the Company's Common Stock is not publicly traded, the fair
market value established by the Committee acting in good faith.
(b) Payment for stock purchased upon any exercise of the
option shall be made in full in cash concurrently with such exercise.
2
<PAGE> 3
(c) In the case of options which are granted to directors who
are employees of the Company, such directors shall reimburse the
Company in cash for all amounts which the Company is required to
withhold under federal, state or local law in connection with the
exercise of the Option.
(d) The option shall become immediately exercisable.
(e) Any option holder who ceases to be a director, whether
because of death, resignation, removal, expiration of his or her term
of office or any other reason, shall have the right to exercise the
option for thirty (30) days after such event (but not after the
expiration date of the option), at which time the option shall
terminate and may no longer be exercised, except that (i) in the event
of the death of an option holder (x) who is at the time of his or her
death a director of the Company and who has served as a director since
the date of grant of the option, the option may be exercised at any
time within one year following the date of death (but not after the
expiration date of the option), by the option holder's estate or by a
person who acquired the right to exercise the option by bequest or
inheritance, or (y) within thirty (30) days after the termination of
the option holder's status as a director of the Company, the option may
be exercised at any time within six (6) months after the date of death
(but in no event after the expiration date of the option) by the option
holder's estate or by a person who acquired the right to exercise the
option by bequest or inheritance, and (ii) upon the option holder's
ceasing to be a director by reason of disability he or she (or his or
her guardian) shall have the right to exercise the option within one
year after the date the option holder ceased to be a director (but not
after the expiration date of the option.
(f) Notwithstanding any other provision herein, such option
may not be exercised prior to approval of this Plan by the Company's
shareholders having a majority of the voting power of the outstanding
stock; nor prior to the admission of the shares of stock issuable on
exercise of the option to listing on notice of issuance on any stock
exchange on which shares of the same class are then listed; nor unless
and until such securities may be issued and delivered without causing
the Company to be in violation of or incur any liability under any
federal, state or other securities law, any requirement of any
securities exchange listing agreement to which the Company may be a
party, or any other requirement of law or of any regulatory body having
jurisdiction over the Company.
(g) The option shall not be transferable by the option holder
other than by will or the laws of descent and distribution, may not be
pledged or hypothecated, and shall be exercisable during the option
holder's lifetime only by the option holder or by his or her guardian
or legal representative.
(h) The term of each option shall be ten (10) years from the
date of grant thereof or such shorter term as may be provided by the
Committee.
(i) Options granted under the Plan are not intended to
qualify, and shall not be designated, as "incentive stock options"
under Section 422 of the Code.
3
<PAGE> 4
7. ADJUSTMENTS. Subject to any required action by the shareholders of
the Company, the number of shares of Common Stock covered by each outstanding
option, and the number of shares of Common Stock which have been authorized for
issuance under the Plan but as to which no options have yet been granted or
which have been returned to the Plan upon cancellation or expiration of an
option, as well as the price per share of Common Stock covered by each such
outstanding option, shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting from a stock
split, reverse stock split, stock dividend, combination or reclassification of
the Common Stock, or any other increase or decrease in the number of issued
shares of Common Stock effected without receipt of consideration by the Company;
provided, however, that conversion of any convertible securities of the Company
shall not be deemed to have been "effected without receipt of consideration."
Such adjustment shall be made by the Committee, whose determination in that
respect shall be final, binding and conclusive. Except as expressly provided
herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares of Common Stock subject to an option.
8. CORPORATE REORGANIZATIONS. In the event of the proposed dissolution
or liquidation of the Company, the option will terminate immediately prior to
the consummation of such proposed action, unless otherwise provided by the
Committee. The Committee may, in the exercise of its sole discretion in such
instances, declare that any option shall terminate as of a date fixed by the
Committee. In the event of a proposed sale of all or substantially all of the
assets of the Company, or the merger of the Company with or into another
corporation, the option shall be assumed or an equivalent option shall be
substituted by such successor corporation or a parent or subsidiary of such
successor corporation, unless the Committee determines, in the exercise of its
sole discretion and in lieu of such assumption or substitution, that the option
holder shall have the right to exercise the option as to all of the optioned
shares, including shares as to which the option would not otherwise be
exercisable. If the Committee makes an option fully exercisable in lieu of
assumption or substitution in the event of a merger or sale of assets, the
Committee shall notify the option holder that the option shall be fully
exercisable for a period of fifteen (15) days from the date of such notice, and
the option will terminate upon the expiration of such period.
9. DURATION, TERMINATION AND AMENDMENT OF PLAN. This Plan shall become
effective upon its approval by the shareholders of the Company and shall expire
on May 15, 2004, so that no option may be granted hereunder after that date
although any option outstanding on that date may thereafter be exercised in
accordance with its terms. The Board of Directors may alter, amend, suspend or
terminate this Plan, provided that no such action shall deprive an option
holder, without his or her consent, of any option previously granted pursuant to
this Plan or of any of the option holder's rights under such option. Except as
herein provided, no such action of the Board of Directors, unless taken with the
approval of the shareholders of the Company, may make any amendment to the Plan
as to which approval by shareholders is necessary for continued applicability of
Rule 16b-3 of the Securities and Exchange Commission. Notwithstanding anything
to the contrary contained herein, the Board of Directors with respect to the
Plan or any option shall not amend or modify any provision concerning the
amount, price or timing of any option (including, without limitation the
provisions of Sections 2, 5 and 6(a) of the Plan) more than once every six
months other than to comply with changes in the Internal Revenue Code of 1986,
as amended, the Employee Retirement Income Security Act of 1974, as amended, or
the respective rules and regulations thereunder.
4
<PAGE> 1
EXHIBIT 4.2
EXCEL REALTY TRUST, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
EXCEL REALTY TRUST, INC., a Maryland corporation (the
"Company"), has granted to ____________ (the "Optionee") an option (the
"Option") to purchase a total of two thousand (2,000) shares of Common Stock
(the "Shares"), at the price provided herein, and in all respects subject to the
terms, definitions and provisions of the Directors' 1994 Stock Option Plan (the
"Plan") adopted by the Company, which is incorporated herein by reference.
Unless otherwise defined herein, the terms defined in the Plan shall have the
same defined meanings herein.
1. NATURE OF THE OPTION. This Option is intended by the
Company and the Optionee to be a Nonstatutory Stock Option, and does not qualify
for any special tax benefits to the Optionee. This option is not an Incentive
Stock Option within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code").
2. EXERCISE PRICE. The exercise price is ___________________
dollars ($________) for each share of Common Stock.
3. EXERCISE OF OPTION. This Option shall be exercisable during
its term in accordance with the provisions of Section 6 of the Plan as follows:
(i) RIGHT TO EXERCISE; VESTING.
(a) Subject to subsections 3(i)(b), (c) and
(d) below, this Option shall be exercisable, to the extent it
has vested. One hundred percent of the Shares subject to the
Option shall vest upon the date of grant.
(b) This Option may not be exercised for a
fraction of a share.
(c) In the event of Optionee's death,
disability or other termination of status as a director of the
Company, the exercisability of the Option is governed by
Sections 7, 8 and 9 below.
(d) In no event may this Option be exercised
after the date of expiration of the term of this Option as set
forth in Section 11 below.
(ii) METHOD OF EXERCISE. This Option shall be exercisable by
written notice which shall state the election to exercise the Option, the number
of Shares in respect of which the Option is being exercised, and such other
representations and agreements as to the holder's investment intent with respect
to such Shares as may be required by the Company pursuant to the provisions of
the Plan. Such written notice shall be signed by the Optionee and shall be
delivered in person or by certified mail to the Secretary of the Company. The
written notice shall be accompanied by payment of the exercise price. This
Option shall be deemed exercised upon receipt by the Company of such written
notice accompanied by the exercise price.
No Shares will be issued pursuant to the exercise of an Option
unless such issuance and such exercise shall comply with all relevant provisions
of law and the requirements of any stock exchange
<PAGE> 2
upon which the Shares may then be listed. Assuming such compliance, for income
tax purposes the Shares shall be considered transferred to the Optionee on the
date on which the Option is exercised with respect to such Shares.
4. OPTIONEE'S REPRESENTATIONS. In the event the Shares
purchasable pursuant to the exercise of this Option have not been registered
under the Securities Act of 1933, as amended, at the time this Option is
exercised, Optionee shall, concurrently with the exercise of all or any portion
of this Option, deliver to the Company his Investment Representation Statement
in the form attached hereto as Exhibit A.
5. METHOD OF PAYMENT. Payment of the exercise price shall be
by check.
6. RESTRICTIONS ON EXERCISE. This Option may not be exercised
until such time as the Plan has been approved by the shareholders of the
Company, or if the issuance of such Shares upon such exercise or the method of
payment of consideration for such shares would constitute a violation of any
applicable federal or state securities or other law or regulation, including any
rule under Part 207 of Title 12 of the Code of Federal Regulations ("Regulation
G") as promulgated by the Federal Reserve Board. As a condition to the exercise
of this Option, the Company may require Optionee to make any representation and
warranty to the Company as may be required by any applicable law or regulation.
7. TERMINATION OF STATUS AS A DIRECTOR OF THE COMPANY. In the
event of termination of Optionee's status as a Director of the Company, he may,
but only within thirty (30) days after the date of such termination (but in no
event later than the date of expiration of the term of this Option as set forth
in Section 11 below), exercise this Option to the extent that he was entitled to
exercise it at the date of such termination. If he does not exercise this Option
within the time specified herein, the Option shall terminate.
8. DISABILITY OF OPTIONEE. Notwithstanding the provisions of
Section 7 above, in the event of termination of Optionee's status as a Director
of the Company, as a result of his total and permanent disability (as defined in
Section 22(e)(3) of the Code), he may, but only within six (6) months from the
date of such termination (but in no event later than the date of expiration of
the term of this Option as set forth in Section 11 below), exercise his Option
to the extent he was entitled to exercise it at the date of the termination. If
he does not exercise such Option within the time specified herein, the Option
shall terminate.
9. DEATH OF OPTIONEE. In the event of death of the Optionee:
(i) during the term of this Option and while a
director of the Company and having continuously been a director since the date
of the grant of the Option, the Option may be exercised, at any time within
twelve (12) months following the date of death (but in no event later than the
date of expiration of the term of this Option as set forth in Section 11 below),
by Optionee's estate or by a person who acquired the right to exercise the
Option by bequest or inheritance, or
(ii) within thirty (30) days after the termination of
Optionee's continuous status as a director, the Option may be exercised, at any
time within six (6) months following the date of death (but in no event later
than the date of expiration of the term of this Option as set forth in Section
11 below), by Optionee's estate or by a person who acquired the right to
exercise the Option by bequest or inheritance.
10. NON-TRANSFERABILITY OF OPTION. This Option may not be
transferred in any manner otherwise than by will or by the laws of descent or
distribution and may be exercised during the lifetime of Optionee only by him.
The terms of this Option shall be binding upon the executors, administrators,
heirs, successors and assigns of the Optionee.
<PAGE> 3
11. TERM OF OPTION. This Option may not be exercised for more
than ten (10) years from the date of grant of this Option, and may be exercised
during such term only in accordance with the Plan and the terms of this Option.
12. TAXATION UPON EXERCISE OF OPTION. Optionee understands
that, upon exercise of this Option, he will recognize income for tax purposes in
an amount equal to the excess of the then fair market value of the Shares over
the exercise price. The Company will be required to withhold tax from Optionee's
current compensation with respect to such income; to the extent that Optionee's
current compensation is insufficient to satisfy the withholding tax liability,
the Company may require the Optionee to make a cash payment to cover such
liability as a condition of exercise of this Option.
DATE OF GRANT: EXCEL REALTY TRUST, INC., a
Maryland Corporation
______________________
By:_________________________
Richard B. Muir
Secretary
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES
PURSUANT TO SECTION 3 HEREOF IS EARNED ONLY BY CONTINUING SERVICE AS A DIRECTOR
(NOT THROUGH THE ACT OF BEING ELECTED, BEING GRANTED THIS OPTION OR ACQUIRING
SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS OPTION,
THE TRANSACTION CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN
DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A
DIRECTOR FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL.
Optionee acknowledges receipt of a copy of the Plan and
certain information related thereto and represents that he is familiar with the
terms and provisions thereof, and hereby accepts this Option subject to all of
the terms and provisions thereof. Optionee has reviewed the Plan and this Option
in their entirety, has had an opportunity to obtain the advice of counsel prior
to executing this Option and fully understands all provisions of the Option.
Optionee hereby agrees to accept as binding, conclusive and final all decisions
or interpretations of the Board upon any questions arising under the Plan.
Dated: ______________ ___________________________
Optionee
<PAGE> 4
EXHIBIT "A"
INVESTMENT REPRESENTATION STATEMENT
PURCHASER:
SELLER: Excel Realty Trust, Inc.
COMPANY: Excel Realty Trust, Inc.
SECURITY: COMMON STOCK
AMOUNT:
DATE:
In connection with the purchase of the above-listed Securities the
Purchaser represents to the Seller and to the Company the following:
(a) Purchaser is aware of the Company's business affairs and financial
condition, and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Securities. Purchaser is
purchasing these Securities for its own account for investment purposes only and
not with a view to, or for the resale in connection with, any "distribution"
thereof for purposes of the Securities Act of 1933, as amended (the "Securities
Act").
(b) Purchaser understands that the Securities have not been registered
under the Securities Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of its
investment intent as expressed herein. In this connection, Purchaser understands
that, in the view of the Securities and Exchange Commission ("SEC"), the
statutory basis for such exemption may be unavailable if its representation was
predicated solely upon a present intention to hold these Securities for the
minimum capital gains period specified under tax statutes, for a deferred sale,
for or until an increase or decrease in the market price of the Securities, or
for a period of one year or for any other fixed period in the future.
(c) Purchaser further understands that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from registration is otherwise available. Moreover, Purchaser
understands that the Company is under no obligation to register the Securities.
In addition, Purchaser understands that the certificate evidencing the
Securities will be imprinted with a legend which prohibits the transfer of the
Securities unless they are registered or such registration is not required in
the opinion of counsel for the Company.
(d) Purchaser is aware of the provisions of Rule 144, promulgated under
the Securities Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly from the issuer thereof
(or from an affiliate of such issuer), in a non-public offering subject to
satisfaction of certain conditions, including, among other things: The
availability of certain public information about the Company; the resale
occurring not less than two years after the party has purchased and paid for the
securities to be sold; the sale being made through a broker in an unsolicited
"broker's transaction" or in transactions directly with a market maker (as said
term is defined under the Securities and Exchange Act of 1934) and the amount of
securities being sold during any three month period not exceeding the specified
<PAGE> 5
limitations stated herein.
(e) Purchaser further understands that at the time Purchaser wishes to
sell the Securities there may be no public market upon which to make such a
sale, and that, even if such a public market then exists the Company may not be
satisfying the current public information requirements of Rule 144, and that, in
such event, Purchaser would be precluded from selling the Securities under Rule
144 even if the two-year minimum holding period had been satisfied.
(f) Purchaser further understands that in the event all of the
applicable requirements of Rule 144 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rule 144 is
not exclusive, the staff of the SEC has expressed its opinion that persons
proposing to sell private placement securities other than in a registered
offering and otherwise pursuant to Rule 144 will have a substantial burden of
proof in establishing that an exemption from registration is available for such
offers or sales, and that such persons and their respective brokers who
participate in such transactions do so at their own risk.
Date:_________________________ _____________________________
Signature of Purchaser
<PAGE> 1
EXHIBIT 5.1
March 25, 1996
Excel Realty Trust, Inc.
16955 Via Del Campo, Suite 110
San Diego, California 92127
Re: Excel Realty Trust, Inc.
Gentlemen:
In connection with the registration of 263,324 shares of
Common Stock, par value $0.01 per share (the "Shares"), under the Securities Act
of 1933, as amended (the "Act"), by Excel Realty Trust, Inc., a Maryland
corporation (the "Corporation"), on the Form S-8 filed or to be filed with the
Securities and Exchange Commission (the "Commission") by the Corporation on or
about March 31, 1996 (the "Registration Statement"), you have requested our
opinion with respect to the matters set forth below.
The Shares are to be or have been issued by the Corporation
upon the exercise of options (collectively, the "Options") granted or to be
granted by the Corporation pursuant to the Directors' 1994 Stock Option Plan of
the Corporation (the "Plan"), those certain 1992 Board of Directors Common Stock
Purchase Options of the Corporation (the "1992 Option Agreements"), or those
certain 1993 Board of Directors Common Stock Purchase Options of the Corporation
(the "1993 Option Agreements").
We have acted as special Maryland corporate counsel for the
Corporation in connection with the matters described herein. In our capacity as
special Maryland corporate counsel to the Corporation, we have reviewed and are
familiar with the proceedings taken and proposed to be taken by the Corporation
in connection with the authorization, issuance and sale of the Shares, and for
purposes of this opinion, have assumed such proceedings will be timely completed
in the manner presently proposed. We have examined the Articles of Amendment and
Restatement filed on May 23, 1995, with the State Department of Assessments and
Taxation of Maryland (the "Charter") and By-Laws of the Corporation and certain
actions taken by the Corporation's Board of Directors and stockholders,
including relevant authorizations and approvals. We have assumed that the
<PAGE> 2
BALLARD SPAHR ANDREWS & INGERSOLL
Excel Realty Trust, Inc.
March 25, 1996
Page 2
Options have been and, at the time of issuance of the corresponding Shares upon
the exercise thereof, will be, validly issued and outstanding, and that neither
the Options, nor the Shares issued or issuable upon exercise thereof, have been,
are or will be transferred, granted or issued to the holder thereof in violation
of the restrictions or limitations contained in the Charter. We have further
assumed that the issuance and grant by the Corporation of the Options from time
to time, and the issuance by the Corporation of the Shares upon exercise
thereof, has been, is and will be fair and reasonable to the Corporation. We
have also examined such laws, records, documents, certificates, opinions and
instruments as we deem necessary to render this opinion.
We have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as certified, photostatic,
facsimile or conformed copies. In addition, we have assumed that each person
executing any instrument, document or certificate referred to herein on behalf
of any party is duly authorized to do so, and that each certificate submitted to
us is true and accurate, both when given and as of the date hereof.
Based on the foregoing and subject to the assumptions and
qualifications set forth herein, it is our opinion that, as of the date of this
letter, the Shares have been duly authorized and, upon issuance and delivery
thereof in accordance with, and subject to, the terms and conditions described
as the case may be, in the Plan, the 1992 Option Agreements or the 1993 Option
Agreements, will be validly issued, fully paid and non-assessable.
We consent to your filing of this opinion as an Exhibit to the
Registration Statement and to the reference to the name of our firm under the
heading Legal Matters.
We further consent to the filing of this opinion as an exhibit
to the application to securities commissioners for the various states of the
United States for registration of the Shares.
We are qualified to practice law in the State of Maryland and
do not purport to be experts on, or to express any opinions herein concerning,
any law other than the law of the State of Maryland. Furthermore, the opinions
presented in this letter are limited to the matters specifically set forth
herein and no other opinion shall be inferred beyond the matters expressly
stated.
<PAGE> 3
BALLARD SPAHR ANDREWS & INGERSOLL
Excel Realty Trust, Inc.
March 25, 1996
Page 3
The opinions expressed in this letter are solely for your use
and may not be relied upon by any other person without our prior written
consent.
Very truly yours,
<PAGE> 1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
Excel Realty Trust, Inc. on Form S-8 of our report dated February 5, 1996 on
our audits of the consolidated financial statements and financial statement
schedules of Excel Realty Trust, Inc. and subsidiaries as of December 31, 1995
and 1994, and for the years ended December 31, 1995, 1994 and 1993.
COOPERS & LYBRAND L.L.P.
San Diego, California
April 1, 1996
