<PAGE>
As Filed with the Securities and
Exchange Commission on October 1, 1998 Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEW PLAN EXCEL REALTY TRUST, INC.
(Exact Name of Registrant as Specified in its Charter)
Maryland 33-0160389
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
1120 Avenue of the Americas
New York, New York 10036
(212) 869-3000
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
Arnold Laubich
Chief Executive Officer
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
(212) 869-3000
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
Of Agent for Service)
Copies To:
Steven Siegel, Esq.
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [X]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [__]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [__]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [__]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [__]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Shares To Be Aggregate Price Aggregate Registration
To Be Registered Registered (1) Per Share (2) Offering Price (2) Fee (3)
- - ------------------------------ --------------- ---------------- ------------------- -------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 10,000,000 $22.11 $221,100,000 $63,383.58
</TABLE>
(1) Includes 296,444 shares of Common Stock previously registered on Form S-3
File No. 33-69388 and carried forward hereto. Also includes stock purchase
rights. Prior to the occurrence of certain events, these rights will not be
exercisable or evidenced separately from the Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(c), the offering price and registration fee are
computed on the basis of the average of the high and low prices of the
Registrant's Shares, as reported on the New York Stock Exchange Composite
Transactions on September 25, 1998.
(3) Excludes registration fee of $1,840.92, which was previously paid with
respect to 296,444 shares of Common Stock carried forward from Registration
Statement No. 33-69388.
<PAGE>
Prospectus
NEW PLAN EXCEL REALTY TRUST, INC.
10,000,000 Shares of Common Stock
DIVIDEND REINVESTMENT AND SHARE PURCHASE PLAN
We have adopted a new Dividend Reinvestment and Share Purchase Plan.
<TABLE>
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<S> <C>
HOW TO ENROLL: HIGHLIGHTS OF THE PROGRAM:
. If you ARE a former shareholder of . You can purchase shares of our common stock
New Plan Realty Trust, then you without brokerage commissions or sales fees.
should complete the "Enrollment in
Dividend Reinvestment Plan" portion of . You pay for the shares by:
the Letter of Transmittal accompanying
this Prospectus. . automatically reinvesting all or a part of
the dividends on your shares of our common
. If you are NOT a former shareholder stock; or
of New Plan Realty Trust, then you . making optional cash payments of not less
should fill out the Authorization Card than $100 per payment or more than $20,000
accompanying this Prospectus. per quarter; or
. a combination of these payment methods.
For more details, see pages 2 through 4 of
this Prospectus. . The purchase price for the shares is:
. 95% of market price for shares purchased by
dividend reinvestment; and
. 100% of market price for shares purchased by
optional cash payment.
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</TABLE>
Termination of Old Dividend Reinvestment Plans:
Our existing dividend reinvestment plan -- and the existing dividend
reinvestment plan of New Plan Realty Trust, with whom we combined -- were
terminated on September 28, 1998. Our new dividend reinvestment plan is
the only plan that we now offer which will allow you to reinvest dividends.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon
the adequacy or accuracy of this prospectus. Any representation to the
contrary is a criminal offense.
Our common stock is listed on the New York Stock Exchange under the symbol
"NXL". Our principal executive offices are located at 1120 Avenue of the
Americas, New York, New York 10036; (212) 869-3000.
October 1, 1998
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
The Company................................................. 1
How to Enroll............................................... 2
Our New Dividend Reinvestment Plan.......................... 5
Use of Proceeds............................................. 13
Available Information....................................... 13
Incorporation By Reference.................................. 13
Indemnification of Directors and Officers................... 15
Legal Matters............................................... 16
Experts..................................................... 16
Appendix.................................................... 17
</TABLE>
THE COMPANY
We are a real estate investment trust (REIT).
On September 28, 1998, we combined with another REIT, New Plan
Realty Trust. The business combination took the form of a merger
(the "Merger") between New Plan Realty Trust and one of our
subsidiaries.
On the same day, we changed our name from "Excel Realty Trust,
Inc." to "New Plan Excel Realty Trust, Inc."
We are one of the largest community and neighborhood shopping
center REITs in the United States. We invest primarily in community
and neighborhood shopping centers. In addition, we own factory
outlet centers, single tenant properties, and garden apartment
communities.
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<PAGE>
HOW TO ENROLL
You must follow these instructions in order to enroll in our new dividend
reinvestment plan.
Enrollment Instructions for
Former Shareholders of New Plan Realty Trust
If you a former shareholder of New Plan Realty Trust, then, in order to enroll,
you should complete the "Enrollment in Dividend Reinvestment Plan" portion of
the Letter of Transmittal which accompanies this Prospectus.
You must complete the "Enrollment in Dividend Reinvestment Plan"
portion of the Letter of Transmittal. This acts as an enrollment
card. A Letter of Transmittal will accompany this Prospectus only if
you are a former shareholder of New Plan Realty Trust.
You must deliver the completed and signed Letter of Transmittal to our
exchange agent, Boston EquiServe (the "Exchange Agent"), at the
address indicated on the Letter of Transmittal. Delivery to any other
address -- including our offices -- will not constitute valid
delivery.
Special instruction for former participants in the dividend
reinvestment plan of New Plan Realty Trust:
. To enroll in our new dividend reinvestment plan, you must fill
out the "Enrollment in Dividend Reinvestment Plan" portion of
the Letter of Transmittal, just like any other former
shareholder of New Plan Realty Trust.
. The dividend reinvestment plan of New Plan Realty Trust (the
"Terminated New Plan DRIP") was terminated on September 28,
1998.
. If you do not enroll in our new dividend reinvestment plan by
December 11, 1998 -- or if you send in a Letter of Transmittal
prior to that date without filling out the "Enrollment in
Dividend Reinvestment Plan" portion --, then the Exchange Agent
will liquidate your Terminated New Plan DRIP account by issuing
to you certificates for the whole number of shares in such
account and a check for the market value of any fractional share
in such account (adjusted, as appropriate, for any tax
withholding).
. If you enroll in our new dividend reinvestment plan by December
11, 1998, then the shares in your Terminated New Plan DRIP
account will be moved to your new account in our new plan.
Later enrollment: If you deliver your Letter of Transmittal without
enrolling, but decide to enroll later, you can enroll then by
completing and sending in an Authorization Card, as described on the
next page. Attention: former participants in the Terminated New Plan
DRIP: Failure to enroll at the time that you send in the Letter of
Transmittal or by December 11, 1998 will result in the liquidation of
your Terminated New Plan DRIP account. See above on this page.
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Enrollment Instructions for
Other Stockholders
If you are NOT a former shareholder of New Plan Realty Trust, then, in order to
enroll, you should complete the Authorization Card which accompanies this
Prospectus.
You must complete and sign the Authorization Card. An Authorization
Card will accompany this Prospectus if you are not a former
shareholder of New Plan Realty Trust.
You must deliver the completed and signed Authorization Card to our
agent.
. You should deliver the Authorization Card to our dividend
reinvestment agent at the following address: New Plan Excel
Realty Trust, Inc., c/o BankBoston, N.A., Automatic Dividend
Reinvestment Unit, P.O. Box 8040, Boston, MA 02266-8040.
Delivery of the Authorization Card to any other address --
including our offices -- will not constitute valid delivery.
. You may obtain additional copies of the Authorization Card at
any time without charge by written or oral request to New Plan
Excel Realty Trust, Inc., Investor Relations Department, Suite
110, 16955 Via Del Campo, San Diego, CA 92127; (619) 485-9400.
Special instruction for participants in our former dividend
reinvestment plan -- that is, the former dividend reinvestment plan
of Excel Realty Trust, Inc.:
. To enroll in our new dividend reinvestment plan, you must fill
out an Authorization Card.
. Our prior dividend reinvestment plan -- that is, the dividend
reinvestment plan of Excel Realty Trust, Inc. -- (the
"Terminated Excel DRIP") was terminated on September 28, 1998.
. If you do not enroll in our new dividend reinvestment plan by
December 11, 1998, then the Exchange Agent will liquidate your
Terminated Excel DRIP account by issuing to you certificates for
the whole number of shares in such account and a check for the
market value of any fractional share in such account (adjusted,
as appropriate, for any tax withholding).
. If you enroll in our new dividend reinvestment plan by December
11, 1998, then the shares in your Terminated Excel DRIP account
will be moved to your new account in our new plan, as described
in the enclosed Authorization Card.
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No one will be automatically enrolled -- that is, enrolled
without sending in a Letter of Transmittal (with the "Enrollment
in Dividend Reinvestment Plan" portion filled in) or an
Authorization Card, as appropriate. For example, if you do not
do so, you will NOT be enrolled in our new dividend reinvestment
plan even if you were a participant in the former dividend
reinvestment plans of Excel Realty Trust, Inc. or New Plan Realty
Trust, which plans were terminated on September 28, 1998.
You can enroll in our new dividend reinvestment plan only if you
are:
. a stockholder who owns one or more shares of our common
stock;
. a former shareholder of New Plan Realty Trust who is
receiving one or more shares of our common stock in
connection with the Merger; or
. in some circumstances, a participant in an employee
benefit plan of ours or any of our subsidiaries (see
Question 3 below in this Prospectus).
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<PAGE>
OUR NEW
DIVIDEND REINVESTMENT PLAN
This section describes our new dividend reinvestment plan (the "Plan") in a
question and answer format.
1. What is the purpose of the Plan?
The purpose of the Plan is to provide owners of our shares of common stock
("Shares") with a convenient and economical way to buy new Shares with:
. reinvested cash dividends at a price 5% below the market price;
. optional cash payments at 100% of the market price; or
. a combination of both.
The Plan also provides the Company with a source of funds, since the Shares
acquired under the Plan will be purchased from the Company.
2. What are the advantages of the Plan?
The advantages of the Plan are:
. There are no fees or brokerage commissions on purchases.
. The price you pay for Shares purchased with reinvested dividends
is 5% below the market price.
. You can also buy Shares with optional cash payments at 100% of
the market price.
. The automatic reinvestment of cash dividends can help you add to
your investment over time in a systematic fashion.
. Keeping track of your account and entering into new transactions
is easy.
. You can purchase fractional shares under the Plan. This enables
you to fully reinvest your cash dividends, or to fully invest
your optional cash payment. Dividends will be paid on the
fractional shares, which too can be reinvested.
. You don't have to worry about the stock certificates for your
Shares issued under the Plan being lost or stolen, or wonder
where they are located.
3. Who is eligible to participate in the Plan?
You are eligible to participate if you are a holder of record of Shares.
Also, you are eligible to participate if you are a former shareholder of
New Plan Realty Trust who is receiving Shares of our common stock in
connection with the Merger between New Plan Realty Trust and one of our
subsidiaries.
If your Shares are registered in some other person's name (for instance, in
the name of a broker, bank nominee or other record holder), then, to enroll
in our new Plan, you must either:
. arrange participation through that other person, or
. have your Shares transferred into your own name.
We can refuse to permit a broker, bank nominee or other record holder to
participate in the Plan if such participation would in our judgment result
in excessive cost or burden to us.
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<PAGE>
If you participate in an employee benefits plan of ours or any of our
subsidiaries, we may permit you to participate in the Plan on such terms
and conditions as we may establish for such purpose, even if you are not a
holder of record of Shares.
Foreign citizens and foreign residents should make certain that their
participation does not violate the laws of their country, including laws
regarding:
. taxes
. currency and exchange controls
. stock registration, or
. foreign investments.
4. How can you enroll in the Plan?
Please see the instructions in the "How to Enroll" section on pages 2
through 4 of this Prospectus. You can enroll in the Plan only if you are
eligible. (See Question 3 above)
5. What investment options are available under the Plan?
You can choose any of these investment options under the Plan:
. Full Dividend Reinvestment--Reinvest cash dividends on all of
your Shares at 5% less than the market price. If you desire,
make optional cash payments of not less than $100 or more than
$20,000 each quarter at 100% of the market price.
. Partial Dividend Reinvestment--Reinvest cash dividends on less
than all of your Shares at 5% less than the market price. If you
desire, make optional cash payments of not less than $100 or
more than $20,000 at 100% of the market price.
. Optional Cash Payments--Invest by making optional cash payments
of not less than $100 or more than $20,000 per quarter at 100%
of the market price.
When you enroll, you must indicate on the enrollment form which investment
option you are choosing.
Stockholders who do not wish to participate in the Plan will receive their
cash dividends by check.
6. Is partial participation possible?
If you want the dividends on only some of your Shares to be reinvested
under the Plan, you may indicate a whole number of such Shares on the
enrollment form under "Partial Dividend Reinvestment." You cannot elect
partial dividend reinvestment with respect to the dividends on any
fractional Share.
7. Who administers the Plan?
We administer the Plan alone or together with a dividend reinvestment agent
(the "Agent"). Currently, BankBoston, N.A. acts as our Agent. We or the
Agent keep records and send statements of account to participants.
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<PAGE>
8. When can you start dividend reinvestment?
To enroll in the dividend reinvestment feature of the Plan, you must:
. elect "Full Dividend Reinvestment" or "Partial Dividend
Reinvestment" on your enrollment form (which will either be an
Authorization Card or the "Enrollment in Dividend Reinvestment
Plan" portion of your Letter of Transmittal, depending on your
circumstances -- See "How To Enroll" section on pages 2 through 4
of this Prospectus); and
. send the completed enrollment form to the Agent.
If the Agent receives the enrollment form at least three business days
before the record date for a particular dividend, then reinvestment of
your dividends will start with that dividend. If the Agent receives the
enrollment form less than three business days before the record date for
that dividend, then reinvestment of your dividends will not start until the
next dividend.
We anticipate that we will normally pay dividends on or about January 15,
April 15, July 15 and October 15 of each year. Also, we anticipate that
the record dates for these dividends will normally occur on January 1,
April 1, July 1 and October 1. Based on the anticipated dividend payment
schedule -- which may change--, the dates by which your enrollment form
should be received are shown below:
To Invest Dividend Enrollment Form Must Be Received
Anticipated to be At Least Three Business Days Before the
Paid On or About: Record Date Anticipated to Occur On:
January 15 .................................. January 1
April 15 .................................... April 1
July 15 ..................................... July 1
October 15 .................................. October 1
8. Will you incur any expenses in connection with purchases?
No. You will incur no brokerage commissions, service charges or other
expenses for purchases made under the Plan.
9. What is the purchase price of Shares under the Plan?
Method of Purchase Purchase Price Per Share
------------------ ------------------------
Dividend reinvestment 95% of market price
Optional cash purchase 100% of market price
The price per Share of Shares purchased with reinvested cash dividends will
be 5% less than the average of the high and low sales prices per Share for
New York Stock Exchange Composite Transactions on the dividend payment date
or, if Shares are not traded on that day, on the next preceding day on
which the Shares have been traded.
The price per Share of Shares purchased with optional cash payments will be
100% of such average.
For these purposes, the high and low sales prices will be as reported in
The Wall Street Journal. If The Wall Street Journal is not published for
the day in question, we may determine the price of the Shares by reference
to The New York Times or any other appropriate method.
10. How is the number of Shares purchased by you computed?
The number of Shares that you buy under the Plan is computed to three
decimal places.
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To the extent that you buy Shares with reinvested dividends, the number of
Shares purchased is determined by dividing the amount of dividends
reinvested by the purchase price per Share.
To the extent that you buy Shares with optional cash payments, the number
of Shares purchased is determined by dividing the total amount of the
optional cash payments by the purchase price per Share.
11. Will you receive stock certificates for Shares purchased under the
Plan?
Unless you request otherwise, Shares purchased by you under the Plan will
not be represented by a certificate. They will be registered in your name,
credited to your Plan account and shown on your statement of account as
noncertificated Shares.
If you request in writing that we issue certificates for the Shares in your
Plan account, we will do so, except that we will not issue certificates for
fractional Shares. If you request a certificate for all of the Shares in
your Plan account, you will receive cash for the market value of any
fractional Share in your account. We reserve the right, however, to issue
certificates for any of the Shares in your Plan account at any time (in
addition to those for which you request certificates).
A written request for a certificate should be mailed to New Plan Excel
Realty Trust, Inc., c/o BankBoston, N.A., Automatic Dividend Reinvestment
Unit, P.O. Box 8040, Boston, MA 02266-8040.
Shares are "in your Plan account" if they were either:
. acquired by dividend reinvestment;
. acquired by optional cash payment; or
. deposited by you in certificate form into your Plan account.
However, if certificates are issued for Shares in your Plan account at your
request, then such Shares will not be considered as "in your Plan account"
once certificates for them have been issued.
12. How can you make optional cash payments?
To make an optional cash payment, you must pay in U.S. dollars with a check
or money order that is payable to New Plan Excel Realty Trust, Inc. You
must mail the payment to New Plan Excel Realty Trust, Inc., c/o BankBoston,
N.A., Automatic Dividend Reinvestment Unit, P.O. Box 8040, Boston, MA
02266-8040. Payments delivered to any other address will not constitute
valid delivery.
13. When will optional cash payments be invested?
Your optional cash payment will be invested in additional Shares and
credited to your Plan account on the day that we pay a cash dividend, if
the Agent has received your payment at least three business days before the
dividend payment date. If the Agent receives your payment less than three
business days before a dividend payment date, it will be invested on the
next dividend payment date.
Based on our anticipated dividend schedule -- which can change --, this
means that your optional cash payments will be invested on or about January
15, April 15, July 15 and October 15.
No interest will be paid on funds received and held for the purchase of
Shares under the Plan.
14. Are there any limitations on cash payments?
Optional cash payments may not be less than $100 per payment or more than
$20,000 total per quarter. The amount of each cash payment may vary within
these limits and there is no obligation to make optional cash payments on a
regular basis.
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<PAGE>
If your check is returned unpaid for any reason, then your request for
investment of such money will automatically be nullified and the Agent will
remove from your Plan account any Shares that were purchased upon the
credit of such money. You will be charged a $25.00 fee for any check
returned unpaid.
15. What reports will be sent to you in connection with the Plan?
If you buy Shares under the Plan, then shortly after such purchase, we will
send to you a statement showing:
. the purchase price per Share
. the number of Shares purchased
. the number of Shares held in your Plan account
. the number of your Shares held outside of your Plan account, and
. the total number of your Shares.
If your purchase involved dividend reinvestment, then your statement will
also show:
. your total dividend and
. the amount of the dividend reinvested.
These statements are a record of the cost of purchases under the Plan. You
should retain them for tax purposes.
In addition, you will receive copies of the Company's annual and other
reports to stockholders, proxy statements and income tax information for
reporting dividends.
16. Can you deposit Shares held in certificate form into your Plan
account?
Yes. If you are interested, you should contact the Agent (see Question 30)
for the proper procedure to deposit certificates.
17. Will dividends on your Shares be paid in cash or reinvested in Shares?
Whether cash dividends on particular Shares are paid by check or reinvested
in additional Shares is determined as follows:
. If you elect the "Full Dividend Reinvestment" feature, then all
of the cash dividends on your Shares will be reinvested in
additional Shares.
. If you elect the "Partial Dividend Reinvestment" feature, then
the cash dividends that are attributable to the number of whole
Shares as to which you make such election will be reinvested in
additional Shares.
. Cash dividends on all Shares acquired under the Plan -- including
by dividend reinvestment or optional cash payments -- will be
reinvested in additional Shares.
. Cash dividends on Shares that are deposited by you in
certificated form into your Plan account will be reinvested in
additional Shares.
. Cash dividends on any remaining Shares will be paid by check.
. If you do not participate in the Plan, then we will pay your cash
dividends by check.
However, you can change your participation in the Plan at any time (see
Question 18), thereby changing whether dividends are reinvested and if so,
on how many Shares.
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<PAGE>
18. How can you change your participation in the Plan?
You can change your participation in the Plan at any time by:
. switching from one investment option (that is, Full Dividend
Reinvestment, Partial Dividend Reinvestment or Optional Cash
Payments -- see Question 5) to another; or
. increasing or decreasing the number of Shares for which dividends
are reinvested -- -- including Shares that, as of the time of the
change, are held in your Plan account and were acquired under the
Plan or deposited by you in certificated form.
To change your participation, you must execute and deliver a new
Authorization Card to the Agent (BankBoston, N.A., Automatic Dividend
Reinvestment Unit, P.O. Box 8040, Boston, MA 02266-8040).
Your new Authorization Card will be effective three business days after
receipt by the Agent. If you give a notice to change dividend reinvestment,
it must be received by the Agent at least three business days before the
record date for that dividend payment in order to be effective for that
dividend.
19. How can you terminate your participation in the Plan?
You can terminate your participation in the Plan by notifying the Agent in
writing to that effect. Notices will be effective three business days after
receipt by the Agent. If you give a notice to discontinue dividend
reinvestment, it must be received by the Agent at least three business days
before the record date for that dividend payment in order to be effective
for that dividend.
If you terminate your participation in the Plan, the Agent will issue you
certificates for the Shares that are held in your Plan account, except
that:
. we will sell some or all of the Shares in your Plan account if
you ask us to do so in writing at the time that you terminate
your participation in the Plan (see Question 20); and
. no certificates for fractional Shares will be issued. You will
receive cash for the market value of any fractional Share in
your account.
However, we reserve the right, if you terminate participation in the Plan,
not to issue certificates for Shares in your Plan account unless you
request them.
In order to reenter the Plan after termination, you must be eligible to
participate in the Plan (see Question 3 above) at the time of reentry and
complete and submit a new Authorization Card.
20. Can you request that Shares held in your Plan account be sold?
Yes. You may request that all or a part of the whole Shares held in your
Plan account be sold.
Within seven days after receipt of your written request to sell Shares held
in your Plan account, the Agent will place a sell order, through a broker
or dealer designated by the Agent, with respect to the whole number of
Shares covered by your request. You will receive the proceeds of the sale
less any brokerage commission, transfer tax or other fees incurred by the
Agent allocable to the sale of such Shares. You will not be able to direct
the date or sales price at which such Shares may be sold. If you request
that all of your Shares in your Plan account be sold, then you will be paid
cash for the market value of any fractional Share in your account.
If you cease to be eligible to participate in the Plan at any time
(including, without limitation, as result of the sale of all of the Shares
in your Plan account), then your participation in the Plan will
automatically be terminated.
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<PAGE>
If you terminate your participation in the Plan, you may request that all
or any part of the Shares held in your Plan account be sold (see Question
19).
21. What happens if the Company issues a stock dividend or declares a
stock split?
If we issue Shares as a result of a stock split or stock dividend, then
such Shares will be added to your Plan account to the extent that they are
attributable to:
. Shares held in your Plan account (see latter part of answer to
Question 11); or
. any other Shares as to which you have elected dividend
reinvestment.
22. How will the Shares in your Plan account be voted at a meeting of
stockholders?
You may vote all of your Shares, both certificated and noncertificated.
For any meeting of stockholders, you will receive proxy material covering
all of the Shares which you own on the record date for the meeting. You
may vote all of your Shares in person or by proxy.
23. What are the federal income tax consequences of participation in the
Plan?
In general, a participant in the Plan ("Participant") will have the same
federal income tax consequences with respect to distributions on their
Shares as any other owner of Shares. A Participant will be treated for
federal income tax purposes as having received on each distribution payment
date a taxable distribution equal to the sum of (A) the fair market value
of the Shares purchased under the distribution reinvestment feature of the
Plan (i.e., the amount that would have been received as a cash distribution
plus the 5% discount at which the Shares were purchased) plus (B) the cash
(if any) actually distributed or withheld (see Question 24).
Throughout this Prospectus, the word "dividend" or "dividends" is used to
refer broadly to any distribution by the Company to its stockholders,
regardless of whether such distribution technically constitutes a
"dividend" for income tax purposes.
24. What provision is made for foreign Participants subject to income tax
withholding or other Participants subject to back-up withholding?
In the case of both:
. foreign Participants who elect to have their distributions
reinvested and whose distributions are subject to United States
income tax withholding, and
. other Participants who elect to have their distributions
reinvested and who are subject to "back-up" withholding under
Section 3406(a)(1) of the Code,
the Agent will invest in Shares an amount equal to the distributions of
such Participants that would otherwise be reinvested less the amount of tax
required to be withheld. The statements confirming purchases made for such
Participants will indicate the net payment reinvested.
Under Section 3406(a)(1) of the Code, we are required to withhold for
United States income tax purposes 31% of all distribution payments to a
stockholder if:
. such stockholder has failed to furnish to us his or her taxpayer
identification number ("TIN"), which for an individual is his or
her social security number,
. the Internal Revenue Service ("IRS") has notified us that the TIN
furnished by the stockholder is incorrect,
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<PAGE>
. the IRS notifies us that back-up withholding should be commenced
because the stockholder has failed to properly report interest or
dividends, or
. the stockholder has failed to certify under penalty of perjury
that he is not subject to back-up withholding.
If you are one of our stockholders, it is likely that we or your broker have
previously requested you to submit all information and certifications required
in order to exempt you from back-up withholding if such exemption is available.
25. What are the federal income tax consequences of participation in the
Plan by an IRA, Keogh Plan, 401(k) Plan, Simplified Pension Account or
any corporate employer-sponsored retirement plan?
The tax consequences of participation in the Plan by retirement plans differ
from those outlined above for individuals. Since the laws and regulations
regarding the federal income tax consequences of retirement plan participation
are complex and subject to change, a retirement plan considering such
participation should consult with its own retirement plan trustees, custodians
or tax advisors for specific information.
26. What is the responsibility of the Company under the Plan?
Neither we nor the Agent is liable for any act done in good faith -- or for any
good faith omission to act -- in administering the Plan. Among other things,
this limitation of liability applies to any claim of liability regarding:
. failure to terminate your account upon your death;
. the prices and times at which Shares are purchased or sold for
you;
. any fluctuation in market value before or after any purchase or
sale of Shares; or
. failure to invest any funds.
This limitation of liability also protects any agent of the Agent or ours.
Subject to applicable law, neither we, the Agent nor any agent of either has any
obligations in connection with the Plan except as are expressly stated in the
Plan.
Neither we nor the Agent can provide any assurance of a profit or protection
against loss on any Shares purchased under the Plan.
27. May the Plan be changed or discontinued?
Although we hope to continue the Plan indefinitely, we have the right to suspend
or terminate the Plan at any time. We also have the right to make modifications
to the Plan. Among other things, we
. may change the discount, if any, at which Shares may be purchased
under any feature of the Plan;
. may change whether Shares are purchased under any feature of the
Plan from us or on the open market; or
. may refuse optional cash payments from any stockholder who, in
our sole discretion, is attempting to circumvent the intent of the
Plan by making excessive optional cash payments through multiple
stockholder accounts.
We will notify Participants of any suspension, termination or material
modification of the Plan.
Under the Plan, we are authorized to issue such interpretations, adopt such
regulations and take such action as we deem reasonably necessary to effectuate
the Plan. Any action to effectuate the Plan taken by us or the Agent in good
faith will be binding on Participants.
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<PAGE>
28. Are there any limitations to the Company's obligations under the Plan?
Our obligation to sell Shares under the Plan is subject to obtaining any
necessary approval or consent from regulatory authorities. We may elect not to
sell Shares under the Plan to stockholders residing in any jurisdiction where,
in our sole discretion, the burden of compliance with applicable securities laws
makes that sale impracticable or inadvisable.
29. What law governs the Plan?
The Plan is governed by the laws of Maryland.
30. Who can answer your questions about the Plan?
You should address any inquiries or correspondence about the Plan or our Shares
to: New Plan Excel Realty Trust, Inc., c/o BankBoston, N.A., Automatic Dividend
Reinvestment Unit, P.O. Box 8040, Boston, MA 02266-8040: (1-800-730-6001).
31. How can I obtain a copy of the Plan?
A copy of the Plan is included as Appendix I to this Prospectus. Because the
description contained in Questions 1 through 29 of this Prospectus is only a
summary of the Plan, it may not include all of the information that is important
to you. You should read the entire Plan carefully.
USE OF PROCEEDS
We will receive all of the proceeds from the sale of Shares to Participants
under the Plan, because the Agent will purchase such Shares from us. We will use
the proceeds for general corporate purposes, including:
. the acquisition of additional properties as suitable
opportunities arise,
. the renovation, expansion and improvement of existing Company
properties,
. the repayment of indebtedness, and
. working capital.
AVAILABLE INFORMATION
We are a publicly traded company and, therefore, a great deal of information is
available about us.
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission ("SEC"). The public may
read and copy any materials that we file with the SEC at the SEC's Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. The public may
obtain information on the operation of the Public Reference Room by calling the
SEC at 1-800-SEC-0330. The SEC maintains an Internet site that contains reports,
proxy and information regarding issuers -- such as us -- that file
electronically with the SEC. The address of that SEC Internet site is
http://www.sec.gov.
Also, if you have questions about us, you may visit our Internet site at
http://www.newplanexcel.com.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference", which means that we can
disclose important information to you by referring you to other documents which
are legally considered to be part of this Prospectus. The materials that we have
incorporated by reference into this Prospectus are:
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<PAGE>
. our Joint Proxy Statement/Prospectus dated August 12, 1998, contained
in our Registration Statement on Form S-4, filed with the SEC on
August 11, 1998; file number 333-61131;
. our Annual Report on Form 10-K for the year ended December 31, 1997;
. the Annual Report of New Plan Realty Trust on Form 10-K for the year
ended July 31, 1997;
. our Quarterly Reports on Form 10-Q for the three-month periods ended:
. March 31, 1998; and
. June 30, 1998;
. the Quarterly Reports of New Plan Realty Trust on Form 10-Q for the
three-month periods ended:
. October 31, 1997
. January 31, 1998; and
. April 30, 1998.
. our Current Reports on Form 8-K filed:
. January 14, 1998;
. April 2, 1998;
. May 22, 1998;
. May 28, 1998; and
. July 14, 1998.
. the Current Reports of New Plan Realty Trust filed:
. July 31, 1997
. September 19, 1997
. January 23, 1998;
. April 24, 1998;
. May 19, 1998;
. May 22, 1998; and
. August 13, 1998;
. the description of our common stock contained in our Registration
Statement on Form 8-A, filed with the SEC on July 30, 1993; file
number 112244;
. the description of the stock purchase rights contained in our
Registration Statement on Form 8-A, filed with the SEC on May 22,
1998; file number 112244; and
. all documents filed by us under Sections 13(a), 13(c), 14 and 15(d)
of the Securities Exchange Act of 1934 after the date of this
Prospectus and prior to the termination of this offering.
We will provide to each person, including any beneficial owner, to whom
this Prospectus is delivered, a copy of any or all of the information that
has been incorporated by reference in this Prospectus but not delivered
with this Prospectus. We will provide this information at no cost to the
requester. The name, address and telephone number to which the request for
this information must be made is:
New Plan Excel Realty Trust, Inc.
Attention: Graham Bullick
Suite 110
16955 Via Del Campo
San Diego, CA 92127
(619) 485-9400.
-14-
<PAGE>
As you read the above documents, you may find some differences in
information from one document to another. If you find inconsistencies
between the documents and this Prospectus, you should rely on the
statements made in the most recent document.
You should rely only on the information incorporated by reference or
contained in this Prospectus. We have not authorized anyone to provide you
with information that is different.
You should not assume that the information in this Prospectus is accurate
as of any date other than the date on the front of this Prospectus.
We have not authorized anyone to sell any stock in any state or country
where the offer is not permitted.
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Our bylaws require us, to the maximum extent permitted by Maryland law:
. to indemnify our directors and officers; and
. to pay for reasonable expenses prior to the conclusion of a
proceeding.
Generally speaking, Maryland law permits a corporation to indemnify a
director for liability and reasonable expenses incurred by the director in
connection with any proceeding to which the director is made a party as a
result of the director's service to the corporation, unless
. the act or omission of the director was material to the matter
giving rise to the proceeding, and
. either
. the act or omission was committed in bad faith or was the
result of active and deliberate dishonesty, or
. the director received an improper personal benefit in money,
property or services, or
. in the case of a criminal proceeding, the director had
reasonable cause to believe that the act or omission was
unlawful.
Maryland law also provides that:
. if the proceeding is by the corporation -- or in the right of the
corporation -- then the director is not entitled to
indemnification if he is judged to be liable to the corporation;
. a director is not entitled to indemnification if, in a proceeding
charging improper personal benefit to the director, he is judged
liable on the basis that he received such benefit;
. a conviction or plea of nolo contendere (no contest) creates a
presumption, which can be rebutted, that the director did not
meet the applicable standard of conduct; and
. a corporation may indemnify its officers to the same extent as it
indemnifies its directors.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling us
pursuant to the foregoing provisions, we have been informed 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.
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<PAGE>
LEGAL MATTERS
Ballard Spahr Andrews & Ingersoll, LLP, which is acting as our counsel as
to certain matters of Maryland law, has passed on the validity of the
Shares being offered under the Plan.
EXPERTS
We have incorporated our consolidated financial statements in this
Prospectus by reference to our Annual Report on Form 10-K for the year
ended December 31, 1997, in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants. The financial
statements so incorporated were as of December 31, 1997 and 1996 and for
each of the three years in the period ended December 31, 1997. We have
also incorporated the consolidated financial statements of New Plan Realty
Trust in this Prospectus by reference to the Annual Report on Form 10-K of
New Plan Realty Trust for the year ended July 31, 1997, in reliance on the
report of PricewaterhouseCoopers LLP, independent accountants. The
financial statements so incorporated were as of July 31, 1997 and 1996 and
for each of the three years in the period ended July 31, 1997. In each
case, PricewaterhouseCoopers LLP gave the report on its authority as
experts in auditing and accounting.
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<PAGE>
APPENDIX I
DIVIDEND REINVESTMENT
AND
SHARE PURCHASE PLAN
1. DEFINITIONS
The following terms when used herein shall have the following definitions:
"Agent" shall mean any bank as from time to time may be appointed by
the Company as agent to administer the Plan.
"Authorization Card" shall mean such authorization form as the Company
or the Agent may from time to time or upon request furnish
Stockholders and which shall be returned to the Agent by such
Stockholders to indicate their election to participate in specified
portions of the Plan.
"Company" shall mean New Plan Excel Realty Trust, Inc.
"Distribution Payment Date" shall mean the date on which distributions
are paid on Company Shares.
"Enrollment Form" shall mean (i) an Authorization Card or (ii) the
"Enrollment in Dividend Reinvestment Plan" portion of the letter of
transmittal used in connection with the merger between New Plan Realty
Trust and ERT Merger Sub, Inc., a wholly owned subsidiary of the
Company.
"Investment Date" shall mean the same date as the Distribution Payment
Date as indicated above.
"New York Stock Exchange" shall mean the New York Stock Exchange or
any successor institution on which the Shares are listed.
"Participant" shall mean any Stockholder who has returned a properly
completed Enrollment Form to the Company or the Agent indicating
election to participate in any portion of the Plan and who has been
enrolled in that portion of the Plan by the Company.
"Plan" shall mean this Dividend Reinvestment and Share Purchase Plan.
"Shares" shall mean Shares of Common Stock, par value $.01 per share,
of New Plan Excel Realty Trust, Inc.
"Stockholder" means a holder of record of a Share or Shares and, to
the extent that participants in certain employee benefit plans are
eligible to participate in this Plan pursuant to Section 3, any such
participant.
"Subsidiary" means any subsidiary of the Company, which subsidiary may
be any type of entity, including, without limitation, any corporation,
partnership, limited partnership, limited liability company, or
business trust.
2. PURPOSE
The purpose of this Plan is to enable Stockholders to have all or part of
their Share distributions automatically reinvested in additional Shares of
the Company. In addition, Stockholders may acquire additional Shares by
making optional cash payments of up to $20,000 per quarter whether or not
they elect to reinvest their distributions. Because Shares acquired under
the Plan will be purchased directly from the Company, no brokerage
commissions or other fees will be incurred by Stockholders in making the
purchases.
3. ELIGIBILITY FOR PARTICIPATION IN THE PLAN
All Stockholders of record of the Company's Shares are automatically
eligible to participate in the Plan and may do so by completing and
returning to the Company or the Agent the Enrollment Form furnished to them
by the Company or the Agent. Beneficial owners
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<PAGE>
of Shares which are registered in names other than their own (e.g., in the name
of a broker, bank or other nominee) who want to participate, must either make
appropriate arrangements with their broker, bank or other nominee, or have their
Shares transferred into their own names. Although the Shares are not registered
in their own names, the Company may permit participants in its (or any of its
Subsidiaries') employee benefits plans to participate in the Plan on such terms
and conditions as the Company may from time to time establish for such purposes.
The Company reserves the right to refuse to permit a broker, bank or other
nominee to participate in the Plan if the terms of such participation would in
the Company's judgment result in excessive cost or burden on the Company.
4. ADMINISTRATION OF THE PLAN
The Company alone, or in conjunction with the Agent, shall administer the Plan
and the Company shall pay all the costs of such administration (except that a
bounced check fee may be imposed pursuant to Section 6). The Company or the
Agent will maintain records and perform such other duties as may be required.
The Company or the Agent will send to each Participant, shortly after each
purchase of Shares under the Plan (whether by distribution reinvestment or
optional cash payment), a statement which will show the purchase price per
Share, the number of Shares purchased, the number of Shares in the Participant's
Plan account, the number of Shares owned by the Participant outside of the Plan
account and the total number of Shares owned by the Participant. If the purchase
involves distribution reinvestment, then the statement will also show the
Participant's total distribution and the amount of the Participant's
distribution that was reinvested in Shares. In addition, the Company or Agent
will send to each Participant a copy of each annual and other reports to
Stockholders, proxy statements and income tax information for reporting
distributions. Shares purchased by a Participant through reinvested
distributions or optional cash payments will be credited to the Participant's
Plan account.
5. REINVESTMENT OF DISTRIBUTIONS
Stockholders may elect to have cash distributions on all or part of their Shares
automatically reinvested by completing the Enrollment Form to that effect and
returning it to the Company or the Agent. Reinvestment of cash distributions
shall commence with cash distributions paid on the next Distribution Payment
Date following receipt of the Enrollment Form provided it is received at least
three business days before the record date for the distribution. Should an
Enrollment Form be received by the Company less than three business days before
the record date, distribution reinvestment will commence with the following cash
distribution. The price at which Shares shall be purchased by reinvested
distributions on each Distribution Payment Date shall be 5% less than the
average of the high and low sales prices of the Shares as reported in The Wall
Street Journal for the New York Stock Exchange Composite Transactions on that
Distribution Payment Date, or if no such transactions are reported for such
date, then on the next preceding date when such Shares have been sold. If The
Wall Street Journal is not published reporting transactions in Shares for a
Distribution Payment Date, the Company may determine the price of the Shares by
reference to The New York Times or by any other appropriate method.
Cash distributions on all Shares acquired under the Plan (including by
distribution reinvestment or optional cash payments) will be reinvested in
additional Shares. Cash distributions on Shares deposited by a Participant in
certificated form into his Plan account will be reinvested in additional Shares.
6. OPTIONAL CASH PAYMENTS
Optional cash payments will be invested in additional Shares and credited to a
Participant's Plan account on the Investment Date. Optional cash payments
received by the Agent at least 3 business days before an Investment Date will be
invested on such Investment Date. Optional cash payments received less than 3
business days before an Investment Date will be invested on the next Investment
Date. No interest will be paid on funds received and held for the purchase of
Shares under the Plan. No Participant's optional cash payments may be less than
$100 per payment or more than $20,000 total per quarter. The price at which
Shares will be purchased by optional cash payment on each Investment Date will
be the average of the high and low sales prices of the Shares for New York Stock
Exchange Composite Transactions on such date, or if no sales of Shares occur on
the New York Stock Exchange on such date, then on the next preceding date when
such Shares have been sold on the New York Stock Exchange. Such high and low
sales prices shall be as reported in The Wall Street Journal, except that if The
Wall Street Journal is not published reporting such prices for such date, the
Company may determine the price of the Shares by reference to The New York Times
or any other appropriate method. If a Participant's check is returned unpaid for
any reason, then such Participant's request for investment of such money will
automatically be nullified and the Agent will remove from such Participant's
Plan account any Shares that were purchased upon the credit of such money. The
Agent may charge a $25.00 fee for any check returned unpaid.
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<PAGE>
7. CALCULATION OF SHARES PURCHASED
The number of Shares purchased, including fractional Shares rounded to three
decimal places, shall be determined by dividing the amount of the distributions
reinvested and/or optional cash payments made by the purchase price per Share.
8. MODIFICATION OR TERMINATION OF PARTICIPATION
Participants may modify participation in the Plan by (i) switching from one
investment option then offered on the Enrollment Form (e.g., currently Full
Distribution Reinvestment, Partial Distribution Reinvestment or Optional Cash
Payments) to another, or (ii) increasing or decreasing the number of Shares
for which distributions are reinvested (including, without limitation, Shares
that as of the time of the modification are held in the Participant's Plan
account and were acquired under the Plan or deposited into the Plan account in
certificated form by the Participant). In order to modify participation in the
Plan, a Participant must execute and deliver a new Enrollment Form to the Agent.
Participants may terminate participation in the Plan at any time by notifying
the Company or the Agent in writing to that effect. Any notice or Enrollment
Form is effective only three business days after receipt. If such notice is
received by the Company or the Agent at least three business days before any
record date for distribution payment, the Company will modify or terminate the
reinvestment of the Participant's distributions under the Plan as of that
Distribution Payment Date. In order to reenter the Plan after termination, the
Stockholder must be eligible to participate in the Plan as of the time of
reentry, and must complete a new Enrollment Form. If a Participant terminates
his participation in the Plan, the Agent will issue the Participant certificates
for the Shares that are held in his Plan account, except that (i) the Agent will
sell some or all of the Shares in the Participant's Plan account if the
Participant so requests in writing at the same time that he requests termination
of his participation in the Plan, and (ii) no certificates for fractional Shares
will be issued. The Participant will receive cash for the market value of any
fractional Share in the Participant's account. However, the Company reserves the
right, upon termination of a Participant's participation in the Plan, not to
issue certificates for Shares in such Participant's Plan account unless he
requests such certificates.
9. CERTIFICATES FOR PURCHASED SHARES
A Stockholder who has purchased Shares under the Plan and wishes to obtain
certificates for those Shares may do so by notifying the Company or the Agent in
writing to that effect. However, no certificate will be issued for fractional
Shares, but the market value of any fractional Shares will be paid in cash to a
Stockholder requesting a certificate for all his noncertificated Shares.
10. STOCK SPLITS OR STOCK DISTRIBUTIONS
If the Company issues Shares as a result of a stock split or stock distribution,
then such Shares will be credited to a Participant's Plan account to the extent
that they are attributable to (i) Shares held in the Participant's Plan account
or (ii) any other Shares of the Participant subject to a then effective election
to reinvest distributions.
11. VOTING
All Shares credited to a Participant's Plan account under the Plan shall be
voted by the Participant. If on the record date for a meeting of Stockholders
there are Shares credited to the Plan account of a Participant, that Participant
will be sent the proxy material for the meeting and a proxy covering all of the
Shares owned of record by the Participant, including Shares credited to the
Participant's Plan account. If the Participant returns an executed proxy, it
will be voted with respect to all of such Shares (including any fractional
Shares), or the Participant may vote all of such Shares in person at the
meeting.
12. LIABILITY
Neither the Company, the Agent, nor any agent for either, in administering the
Plan, shall be liable for any act or failure to act taken in good faith,
including, without limitation, any claim of liability arising out of or with
respect to: (i) failure to terminate a Participant's participation in the Plan
upon the Participant's death; (ii) the prices and times at which Shares are
purchased or sold for a Participant; (iii) any fluctuation in market value
before or after any purchase or sale of Shares; or (iv) failure to invest any
funds. Subject to applicable law, neither the Company, the Agent nor any agent
of either has any obligations in connection with the Plan except as are
expressly stated in the Plan.
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<PAGE>
The Company (or Agent acting on its behalf) is authorized to issue such
interpretations, adopt such regulations and take such action as it deems
reasonably necessary to effectuate the Plan. Any action to effectuate the Plan
taken by the Company or the Agent in good faith shall be binding on the
Participants.
13. TERMINATION, SUSPENSION OR MODIFICATION OF PLAN
The Company reserves the right to modify, suspend or terminate the Plan at any
time and from time to time. Without limitation of the foregoing, the Company
reserves the right to (i) change the discount, if any, at which Shares may be
purchased under any feature of the Plan; (ii) change whether Shares are
purchased under any feature of the Plan from the Company or on the open market;
or (iii) refuse optional cash payments from any Stockholder who, in the
Company's sole discretion, is attempting to circumvent the intent of the Plan by
making excessive optional cash payments through multiple Stockholder accounts.
The Company will notify Participants of any suspension, termination or material
modification of the Plan.
14. COMPLIANCE WITH APPLICABLE LAW AND REGULATIONS
The Company's obligation to offer, issue or sell its Shares hereunder shall be
subject to the Company's obtaining any necessary approval, authorization and
consent from any regulatory authorities having jurisdiction over the issuance
and sale of the Shares. The Company may elect not to offer or sell its Shares
hereunder to Stockholders residing in any jurisdiction where, in the sole
discretion of the Company, the burden or expense of compliance with applicable
blue sky or securities laws makes that offer or sale impracticable or
inadvisable.
15. SALE OF SHARES
A Participant may request that all or a part of the whole Shares held in his
Plan account be sold. Within seven days after receipt of a Participant's written
request to sell Shares held in his Plan account, the Agent will place a sell
order, through a broker or dealer designated by the Agent, with respect to the
whole number of Shares covered by such request. The Participant will receive the
proceeds of the sale less any brokerage commission, transfer tax or other fees
incurred by the Agent allocable to the sale of such Shares. The Participant will
not be able to direct the date or sales price at which such Shares may be sold.
If the Participant requests that all of the Shares in his Plan account be sold,
then the Participant will be paid cash for the market value of any fractional
Share in his Plan account. If a Participant ceases to be a Stockholder of the
Company at any time (including, without limitation, as result of the sale of all
of the Shares in his Plan account), then his participation in the Plan will
automatically be terminated.
16. DEPOSIT OF SHARES HELD IN CERTIFICATED FORM
A Participant may deposit Shares held in certificated form into his Plan
account, pursuant to such requirements as the Agent may impose.
17. DISTRIBUTIONS ON SHARES
Whether cash distributions on particular Shares are paid by check or reinvested
in additional Shares is determined as follows: (i) if a Participant elects the
"Full Dividend Reinvestment" feature, then all of the cash distributions on his
Shares will be reinvested in additional Shares; (ii) if a Participant elects the
"Partial Dividend Reinvestment" feature, then the cash distributions that are
attributable to the number of full Shares as to which he makes such election
will be reinvested in additional Shares; (iii) cash distributions on all Shares
acquired under the Plan -- including by distribution reinvestment or optional
cash payments -- will be reinvested in additional Shares; (iv) cash
distributions on Shares that are deposited by a Participant in certificated form
into his Plan account will be reinvested in additional Shares; (v) cash
distributions on any remaining Shares will be paid by check. However, a
Participant can change his participation in the Plan at any time (subject and
pursuant to Section 8) thereby changing whether distributions are reinvested and
if so, on how many Shares.
18. CONSTRUCTION
This Plan shall be construed as follows: (i) the singular form of any word shall
be construed to include the plural and vice versa; (ii) the masculine, feminine
or neuter form of any word shall be deemed to include any gender; (iii)
"including" means including without limitation, (iv) the words "herein",
"hereof" or similar words shall be deemed to refer to this Plan as a whole
rather than the provision in which such words appear; and (v) and headings are
solely for convenience of reference and shall not affect the meaning of this
Plan.
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<PAGE>
19. GOVERNING LAW
This Plan shall be governed by the law of Maryland.
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<PAGE>
You should rely only on the information incorporated by reference or contained
in this Prospectus. We have not authorized anyone to provide you with
information that is different.
You should not assume that the information in this Prospectus is accurate as of
any date other than the date on the front of this Prospectus.
We have not authorized anyone to sell any stock in any state or country where
the offer is not permitted.
NEW PLAN EXCEL REALTY TRUST, INC.
10,000,000 Shares of Common Stock
offered by the Company solely pursuant to its
DIVIDEND REINVESTMENT AND SHARE PURCHASE PLAN
PROSPECTUS
October 1, 1998
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with the
offering contemplated by this Registration Statement:
<TABLE>
<CAPTION>
ITEM AMOUNT
---- ------
<S> <C>
SEC Registration Fee..................................... $ 63,383.58
New York Stock Exchange Listing Fee...................... 1,500
Blue Sky Fees and Expenses............................... 1,000
Printing and Engraving Costs............................. 15,000
Accounting Fees and Expenses............................. 2,500
Legal Fees and Expenses.................................. 25,000
Miscellaneous............................................ 2,500
-----------
Total.................................................... 110,883.58
===========
</TABLE>
<TABLE>
<CAPTION>
ITEM 16. EXHIBITS.
Exhibit
Number Description of Exhibit Page
<S> <C> <C>
4.1 Articles Supplementary (Series A Preferred Stock) (1)
4.2 Articles Supplementary (Series B Preferred Stock) (2)
4.3 Stockholder Rights Agreement, dated as of May 15, 1998 between
Excel Realty Trust, Inc. and BankBoston, N.A., which includes
the form of Articles Supplementary of the Series C Preferred
Stock as Exhibit A, the form of Right Certificate as Exhibit B
and the Summary of Rights to Purchase Preferred Shares as
Exhibit C (3)
4.4 Articles of Amendment
4.5 Articles Supplementary (Series D Preferred Stock)
4.6 Amended and Restated Bylaws
4.7 Dividend Reinvestment and Share Purchase Plan
(included as Appendix I of this Prospectus)
5.1 Opinion of Ballard Spahr Andrews & Ingersoll, LLP, as to the
legality of the Shares to be registered
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP
(contained in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Powers of attorney (included on signature page of this
Registration Statement).
</TABLE>
(1) Incorporated by reference to the Company's Current Report on Form 8-K
filed with the SEC on February 7, 1997.
(2) Incorporated by reference to the Company's Current Report on Form 8-K
filed with the SEC on January 14, 1998.
(3) Incorporated by reference to the Company's Registration Statement on
Form 8-A filed with the SEC on May 22, 1998, file number 112234.
II-1
<PAGE>
ITEM 17. UNDERTAKINGS.
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 1933;
(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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b), if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective 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 subparagraphs (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 with or furnished to the
Commission 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.
(4) 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 the 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.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 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 September 28, 1998.
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Arnold Laubich
------------------------------------------
Arnold Laubich, Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
hereby constitutes and appoints Arnold Laubich 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 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, granting unto 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, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ William Newman Chairman of the Board September 28, 1998
- - -----------------------
William Newman
/s/ Arnold Laubich Chief Executive Officer September 28, 1998
- - ----------------------- and Director (Principal
Arnold Laubich Executive Officer)
/s/ Gary B. Sabin President and Director September 28, 1998
- - -----------------------
Gary B. Sabin
/s/ James M. Steuterman Executive Vice President, September 28, 1998
- - ----------------------- Co-Chief Operating Officer
James M. Steuterman and Director
/s/ Richard B. Muir Executive Vice President, September 28, 1998
- - ----------------------- Operating Officer and
Richard B. Muir Director
/s/ David A. Lund Chief Financial Officer September 28, 1998
- - ----------------------- (Principal Financial and
David A. Lund Accounting Officer)
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Dean Bernstein Senior Vice President September 28, 1998
- - -------------------------- - Finance and Multifamily,
Dean Bernstein and Director
/s/ Raymond A. Bottorf Director September 28, 1998
- - --------------------------
Raymond A. Bottorf
/s/ Norman Gold Director September 28, 1998
- - --------------------------
Norman Gold
/s/ Melvin Newman Director September 28, 1998
- - --------------------------
Melvin Newman
Director September __, 1998
- - --------------------------
John Wetzler
/s/ Gregory White Director September 28, 1998
- - --------------------------
Gregory White
/s/ Boyd A. Lindquist Director September 28, 1998
- - --------------------------
Boyd A. Lindquist
/s/ Robert E. Parsons, Jr. Director September 28, 1998
- - --------------------------
Robert E. Parsons, Jr.
/s/ Bruce A. Staller Director September 28, 1998
- - --------------------------
Bruce A. Staller
/s/ John H. Wilmot Director September 28, 1998
- - --------------------------
John H. Wilmot
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Exhibit Page
4.1 Articles Supplementary (Series A Preferred Stock) (1)
4.2 Articles Supplementary (Series B Preferred Stock) (2)
4.3 Stockholder Rights Agreement, dated as of May 15, 1998 between
Excel Realty Trust, Inc.
and BankBoston, N.A., which includes the form of Articles
Supplementary of the Series C
Preferred Stock as Exhibit A, the form of Right Certificate as
Exhibit B and the Summary of
Rights to Purchase Preferred Shares as Exhibit C (3)
4.4 Articles of Amendment
4.5 Articles Supplementary (Series D Preferred Stock)
4.6 Amended and Restated Bylaws
4.7 Dividend Reinvestment and Share Purchase Plan
(included as Appendix I of this Prospectus)
5.1 Opinion of Ballard Spahr Andrews & Ingersoll, LLP, as to the
legality of the Shares to be registered
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP
(contained in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Powers of attorney (included on signature page of this
Registration Statement).
(1) Incorporated by reference to the Company's Current Report on Form 8-K
filed with the SEC on February 7, 1997.
(2) Incorporated by reference to the Company's Current Report on Form 8-K
filed with the SEC on January 14, 1998.
(3) Incorporated by reference to the Company's Registration Statement on
Form 8-A filed with the SEC on May 22, 1998, file number 112234.
<PAGE>
EXHIBIT 4.4
EXCEL REALTY TRUST, INC.
ARTICLES OF AMENDMENT
Excel Realty Trust, Inc., a Maryland corporation (the "Corporation"),
hereby certifies to the State Department of Assessments and Taxation of Maryland
(the "Department") that:
FIRST: The Corporation hereby amends its Charter as currently in effect by
deleting therefrom in their entirety Articles FIRST through NINTH of the
Articles of Amendment and Restatement of the Corporation filed with the
Department on May 23, 1995 and inserting in lieu thereof, the following:
ARTICLE I
INCORPORATOR
The undersigned, Daniel T. Howard, whose address is 701 "B" Street, Suite
2100, San Diego, California 92101-8197, being at least 18 years of age, does
hereby form a corporation under the general laws of the State of Maryland.
ARTICLE II
NAME
The name of the corporation (which is hereinafter called the "Corporation")
is New Plan Excel Realty Trust, Inc.
ARTICLE III
PURPOSE
The purposes for which the Corporation is formed are to engage in any
lawful act or activity (including, without limitation or obligation, engaging in
business as a real estate investment trust under the Internal Revenue Code of
1986, as amended, or any successor statute (the "Code")) for which
corporations may be organized under the general laws of the State of Maryland as
now or hereafter in force. For purposes of these Articles, "REIT" means a real
estate investment trust qualifying under Section 856 through 860 of the Code.
ARTICLE IV
PRINCIPAL OFFICE IN STATE AND RESIDENT AGENT
The post office address of the principal office of the Corporation in the
State of Maryland is c/o Ballard Spahr Andrews & Ingersoll, LLP, 300 East
Lombard Street, 19th Floor, Baltimore City, Maryland 21202, Attention: Douglas
M. Fox. The name of the resident agent of the Corporation in the State of
Maryland is Douglas M. Fox, c/o Ballard Spahr Andrews & Ingersoll, LLP, 300 East
Lombard Street, 19th Floor, Baltimore City, Maryland 21202. The resident agent
is an individual resident of the State of Maryland.
ARTICLE V
STOCK
Section 1. Authorized Shares. The total number of shares of stock that
the Corporation has authority to issue is 275,000,000 shares, of which
250,000,000 are shares of Common Stock, $.01 par value per share ("Common
Stock"), and 25,000,000 are shares
-1-
<PAGE>
of Preferred Stock ("Preferred Stock"), $.01 par value per share. The
aggregate par value of all authorized shares of stock having par value is
$2,750,000.
Section 2. Voting Rights. Each share of Common Stock shall entitle the
holder thereof to one vote.
Section 3. Issuance of Preferred Stock. The Preferred Stock may be
issued, from time to time, in one or more series or classes as authorized by the
Board of Directors. Prior to issuance of shares of each series or class, the
Board of Directors by resolution shall designate that series or class to
distinguish it from all other series and classes of stock of the Corporation,
shall specify the number of shares to be included in the series or class and
shall set the terms, preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends or other distributions, qualifications
and terms or conditions of redemption. Subject to the express terms of any other
series or class of Preferred Stock outstanding at the time and notwithstanding
any other provision of the charter, the Board of Directors may increase or
decrease the number of shares of, or alter the designation or classify or
reclassify, any unissued shares of any series or class of Preferred Stock by
setting or changing, in any one or more respects, from time to time before
issuing the shares, the terms, preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends or other distributions,
qualifications or terms or conditions of redemption of the shares of any series
or class of Preferred Stock.
Section 4. Charter and Bylaws. All persons who shall acquire stock in the
Corporation shall acquire the same subject to the provisions of the charter and
the Bylaws of the Corporation.
ARTICLE VI
PROVISIONS FOR DEFINING, LIMITING AND
REGULATING CERTAIN POWERS OF THE CORPORATION
AND OF THE STOCKHOLDERS AND DIRECTORS
Section 1. Number and Classification. The business and affairs of the
Corporation shall be managed under the direction of the Board of Directors. The
number of directors of the Corporation initially shall be fifteen (15), which
number may be increased or decreased pursuant to the Bylaws of the Corporation,
but shall never be less than the minimum required by the Maryland General
Corporation Law nor more than twenty-one (21). The directors may increase the
number of directors and may fill any vacancy on the Board of Directors, whether
resulting from an increase in the number of directors or otherwise, subject,
however, to any limitations imposed thereupon in the Bylaws of the Corporation,
and subject further to the limitation on the maximum number of directors as set
forth hereinabove.
The directors shall be classified, with respect to the terms for which they
severally hold office, into three classes, as nearly equal in number as
possible, one class, to be designated as Class I, to hold office initially for a
term expiring at the next succeeding annual meeting of stockholders, another
class, to be designated as Class II, to hold office initially for a term
expiring at the second succeeding annual meeting of stockholders, and another
class, to be designated as Class III, to hold office initially for a term
expiring at the third succeeding annual meeting of stockholders, with the
members of each class to hold office until their successors are duly elected and
qualified.
At each annual meeting of the stockholders, the successors to the class of
directors whose term expires at such meeting shall be elected to hold office for
a term expiring at the annual meeting of stockholders held in the third year
following the year of their election and until their successors are duly elected
and qualified.
Section 2. Removal of Directors. Subject to the rights of holders of one
or more classes or series of Preferred Stock to elect or remove one or more
directors, any director or the entire Board of Directors may be removed from
office at any time, but only for cause.
Section 3. Authorization by Board of Stock Issuance. The Board of
Directors of the Corporation may authorize the issuance from time to time of
shares of its stock of any class, whether now or hereafter authorized, or
securities convertible into shares of its stock of any class, whether now or
hereafter authorized, for such consideration as the Board of Directors may deem
advisable, subject to such restrictions or limitations, if any, as may be set
forth in the charter or the Bylaws of the Corporation or in the general laws of
the State of Maryland.
Section 4. No Preemptive Rights. Except as may be provided by the Board
of Directors in authorizing the issuance of shares of Preferred Stock pursuant
to Section 3 of Article V, no holder of shares of stock of the Corporation
shall, as such holder, have any
-2-
<PAGE>
preemptive right to purchase or subscribe for any additional shares of the stock
of the Corporation or any other security of the Corporation that it may issue or
sell.
Section 5. Indemnification. The Corporation may, and may obligate itself
to, to the maximum extent permitted by Maryland law in effect from time to time,
indemnify, and pay or reimburse reasonable expenses in advance of final
disposition of a proceeding to, (i) any individual who is a present or former
director or officer of the Corporation or (ii) any individual who, while a
director of the Corporation and at the request of the Corporation, serves or has
served another corporation, partnership, joint venture, trust, employee benefit
plan or any other enterprise as a director, officer, partner or trustee of such
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise. The Corporation shall have the power, with the approval of its Board
of Directors, to provide such indemnification and advancement of expenses to a
person who served a predecessor of the Corporation in any of the capacities
described in (i) or (ii) above and to any employee or agent of the Corporation
or a predecessor of the Corporation.
Section 6. Advisor Agreements. Subject to such approval of stockholders
and other conditions, if any, as may be required by any applicable statute, rule
or regulation, the Board of Directors may authorize the execution and
performance by the Corporation of one or more agreements with any person,
corporation, association, company, trust, partnership (limited or general) or
other organization whereby, subject to the supervision and control of the Board
of Directors, any such other person, corporation, association, company, trust,
partnership (limited or general) or other organization shall render or make
available to the Corporation managerial, investment, advisory and/or related
services, office space and other services and facilities (including, if deemed
advisable by the Board of Directors, the management or supervision of the
investments of the Corporation) upon such terms and conditions as may be
provided in such agreement or agreements (including, if deemed fair and
equitable by the Board of Directors, the compensation payable thereunder by the
Corporation).
Section 7. Related Party Transactions. Without limiting any other
procedures available by law or otherwise to the Corporation, the Board of
Directors may authorize any agreement of the character described in Section 6 of
this Article VI or other transaction with any person, corporation, association,
company, trust, partnership (limited or general) or other organization, although
one or more of the directors or officers of the Corporation may be a party to
any such agreement or an officer, director, stockholder or member of such other
party, and no such agreement or transaction shall be invalidated or rendered
void or voidable solely by reason of the existence of any such relationship if
the existence is disclosed or known to the Board of Directors, and the contract
or transaction is approved by the affirmative vote of a majority of the
disinterested directors, even if they constitute less than a quorum of the
Board. Any director of the Corporation who is also a director, officer,
stockholder or member of such other entity may be counted in determining the
existence of a quorum at any meeting of the Board of Directors considering such
matter.
Section 8. Determinations by Board. The determination as to any of the
following matters, made in good faith by or pursuant to the direction of the
Board of Directors consistent with the charter of the Corporation and in the
absence of actual receipt of an improper benefit in money, property or services
or active and deliberate dishonesty established by a court, shall be final and
conclusive and shall be binding upon the Corporation and every holder of shares
of its stock: the amount of the net income of the Corporation for any period and
the amount of assets at any time legally available for the payment of dividends,
redemption of its stock or the payment of other distributions on its stock; the
amount of paid-in surplus, net assets, other surplus, annual or other net
profit, net assets in excess of capital, undivided profits or excess of profits
over losses on sales of assets; the amount, purpose, time of creation, increase
or decrease, alteration or cancellation of any reserves or charges and the
propriety thereof (whether or not any obligation or liability for which such
reserves or charges shall have been created shall have been paid or discharged);
the fair value, or any sale, bid or asked price to be applied in determining the
fair value, of any asset owned or held by the Corporation; and any matters
relating to the acquisition, holding and disposition of any assets by the
Corporation.
Section 9. Reserved Powers of Board. The enumeration and definition of
particular powers of the Board of Directors included in this Article VI shall in
no way be limited or restricted by reference to or inference from the terms of
any other clause of this or any other provision of the charter of the
Corporation, or construed or deemed by inference or otherwise in any manner to
exclude or limit the powers conferred upon the Board of Directors under the
general laws of the State of Maryland as now or hereafter in force.
Section 10. REIT Qualification. The Board of Directors shall use its
reasonable best efforts to cause the Corporation and its stockholders to qualify
for U.S. Federal income tax treatment in accordance with the provisions of the
Code applicable to a REIT. In furtherance of the foregoing, the Board of
Directors shall use its reasonable best efforts to take such actions as are
necessary, and may take such actions as in its sole judgment and discretion are
desirable, to preserve the status of the Corporation as a REIT; provided,
however, that if the Board of Directors determines that it is no longer in the
best interests of the Corporation to continue to have the Corporation qualify as
a REIT, the Board of Directors may revoke or otherwise terminate the
Corporation's REIT election pursuant to Section 856(g) of the Code.
-3-
<PAGE>
Section 11. Stockholder Approval. Notwithstanding any provision of
law requiring the affirmative vote of the holders of a greater number of
votes, the affirmative vote of a majority of all votes entitled to be cast
on any matter or act requiring approval of the stockholders of the
Corporation (including, but not limited to, any amendment to the charter,
merger, consolidation, share exchange, transfer of assets or dissolution)
shall be sufficient, valid and effective, after due authorization, approval
or advice of the Board of Directors.
ARTICLE VII
RESTRICTION ON TRANSFER,
ACQUISITION AND REDEMPTION OF SHARES
Section 1. Definitions. For the purposes of this Article VII, the
following terms shall have the following meanings:
"Beneficial Ownership" shall mean ownership of Equity Stock by a
Person who is or would be treated as an owner of such Equity Stock under
Section 542(a)(2) of the Code either actually or constructively through the
application of Section 544 of the Code, as modified by Section 856(h)(1)(B)
of the Code. The terms "Beneficially Own," "Beneficially Owned" and
"Beneficial Owner" shall have the correlative meanings.
"Charitable Beneficiary" shall mean one or more beneficiaries of the
Trust as determined pursuant to Section 3(g) of this Article VII, each of
which shall be an organization described in Sections 170(b)(1)(A),
170(c)(2) or 501(c)(3) of the Code.
"Constructive Ownership" shall mean ownership of Equity Stock by a
Person who is or would be treated as an owner of such shares of Equity
Stock either actually or constructively through the application of Section
318 of the Code, as modified by Section 856(d)(5) of the Code. The terms
"Constructively Own," "Constructively Owned" and "Constructive Owner"
shall have the correlative meanings.
"Equity Stock" shall mean stock which is either Common Stock or
Preferred Stock.
"Excess Transfer" has the meaning specified in Section 3(a) of this
Article VII.
"Market Price" shall mean the last reported sales price reported on
the New York Stock Exchange of the applicable class or series of Equity
Stock, on the trading day immediately preceding the relevant date, or if
not then traded on the New York Stock Exchange, the last reported sales
price of the applicable class or series of Equity Stock, on the trading day
immediately preceding the relevant date as reported on any exchange or
quotation system over which the applicable class or series of Equity Stock,
may be traded, or if not then traded over any exchange or quotation system,
then the market price of the applicable class or series of Equity Stock, on
the relevant date as determined in good faith by the Board of Directors of
the Corporation.
"NYSE" shall mean the New York Stock Exchange, Inc.
"Ownership Limit" shall mean 9.8% of the outstanding Equity Stock
determined separately on a class by class and series by series basis and in
each case without regard to any other class or series of stock comprising a
portion of the outstanding Equity Stock; provided, however, that as
respects the Series A Preferred Stock and the Series D Preferred Stock the
Ownership Limit shall mean 9.8% of the outstanding Equity Stock considered
together and shall not be determined separately on a class by class or
series by series basis; and provided further that determination as to the
Ownership Limit shall be by value or number of shares, whichever is more
restrictive, except in the case of the Series A Preferred Stock and the
Series B Preferred Stock, as respects each of which the determination as to
the Ownership Limit shall be by value. The number and value of shares of
outstanding Equity Stock of the Corporation shall be determined by the
Board of Directors in good faith, which determination shall be conclusive
for all purposes hereof.
"Person" shall mean an individual, corporation, partnership, estate,
trust (including a trust qualified under Section 401(a) or 501(c)(17) of
the Code), a portion of a trust permanently set aside for or to be used
exclusively for the purposes described in Section 642(c) of the Code,
association, private foundation within the meaning of Section 509(a) of the
Code, joint stock company or other entity; but does not include an
underwriter acting in a capacity as such in a public offering of shares of
Equity Stock provided that the ownership of such shares of Equity Stock by
such underwriter would not result in the Corporation being "closely held"
within the meaning of Section 856(h) of the Code, or otherwise result in
the Corporation failing to qualify as a REIT.
-4-
<PAGE>
"Purported Beneficial Transferee" shall mean, with respect to any
purported Transfer (or other event) that results in a transfer to a Trust
as described in Section 3 of this Article VII, the Purported Record
Transferee unless the Purported Record Transferee would have acquired or
owned shares of Equity Stock, for another Person who is the beneficial
transferee or owner of such shares, in which case the Purported Beneficial
Transferee shall be such Person.
"Purported Record Transferee" shall mean, with respect to any
purported Transfer (or other event) that results in a transfer to the Trust
as described in Section 3 of this Article VII, the record holder of Equity
Stock if such Transfer had been valid under Section 2 of this Article VII.
"Restriction Termination Date" shall mean the first day on which the
Board of Directors of the Corporation determines that it is no longer in
the best interests of the Corporation to attempt to, or continue to,
qualify as a REIT.
"Series A Preferred Stock" shall mean the 8 1/2% Series A Cumulative
Convertible Preferred Stock, par value $.01 per share, of the Corporation
as now or hereafter classified by the Board of Directors.
"Series B Preferred Stock" shall mean the 8 5/8% Series B
Cumulative Redeemable Preferred Stock, par value $.01 per share, of the
Corporation, as now or hereafter classified by the Board of Directors.
"Series D Preferred Stock" shall mean the 7.8% Series D Cumulative
Voting Step-Up Premium Rate Preferred Stock, par value $.01 per share, of
the Corporation, as now or hereafter classified by the Board of Directors.
"Transfer" shall mean any sale, transfer, gift, assignment, devise
or other disposition of Equity Stock (including (i) the granting of any
option or entering into any agreement for the sale, transfer or other
disposition of Equity Stock or (ii) the sale, transfer, assignment or other
disposition of any securities or rights convertible into or exchangeable
for Equity Stock), whether voluntary or involuntary, whether of record or
Beneficially or Constructively (including but not limited to transfers of
interests in other entities that result in changes in Beneficial Ownership
or Constructive Ownership of Equity Stock), and whether such transfer has
occurred by operation of law or otherwise. The terms "Transfers" and
"Transferred" shall have the correlative meanings.
"Trust" shall mean the trust created pursuant to Section 3 of this
Article VII.
"Trustee" shall mean a Person unaffiliated with either the
Corporation, the Purported Beneficial Transferee or the Purported Record
Transferee, that is appointed by the Corporation to serve as trustee of the
Trust, and any successor trustee appointed by the Corporation.
Section 2. Ownership Limitation.
(a) Except as provided in Section 10 of this Article VII, prior to the
Restriction Termination Date, no Person shall Beneficially Own or
Constructively Own shares of Equity Stock in excess of the Ownership Limit.
(b) Except as provided in Section 10 of this Article VII, prior to the
Restriction Termination Date, any Transfer that, if effective, would result
in any Person Beneficially Owning or Constructively Owning Equity Stock in
excess of the Ownership Limit shall be void ab initio as to the Transfer of
such shares of Equity Stock that would be otherwise Beneficially Owned or
Constructively Owned (as the case may be) by such Person in excess of the
Ownership Limit, and the intended transferee shall acquire no rights in
such shares of Equity Stock.
(c) Except as provided in Section 10 of this Article VII, prior to the
Restriction Termination Date, any Transfer that, if effective, would result
in Equity Stock being beneficially owned by less than 100 Persons
(determined without reference to any rules of attribution) shall be void ab
initio as to the Transfer of such shares of Equity Stock that would be
otherwise Beneficially Owned by the transferee; and the intended transferee
shall acquire no rights in such shares of Equity Stock.
(d) Prior to the Restriction Termination Date, any Transfer that, if
effective, would result in the Corporation being "closely held" within
the meaning of Section 856(h) of the Code, or would otherwise result in the
Corporation failing to qualify as a REIT (including, but not limited to, a
Transfer or other event that would result in the Corporation owning
(directly or Constructively) an interest in a tenant that is described in
Section 856(d)(2)(B) of the Code if the income derived by the Corporation
from such tenant would cause the Corporation to fail to satisfy any of the
gross income requirements of Section 856(c) of the Code), shall be void ab
initio as to the Transfer of the shares of Equity Stock that would cause
the Corporation (i) to be "closely held" within the meaning
-5-
<PAGE>
of Section 856(h) of the Code or (ii) otherwise to fail to qualify as a
REIT, as the case may be; and the intended transferee shall acquire no
rights in such shares of Equity Stock.
(e) A Transfer of a share of Equity Stock that is null and void under
Section 2(b), Section 2(c) or Section 2(d) of this Article VII because it
could, if effective, result in (i) the ownership of Equity Stock in excess
of the Ownership Limit, (ii) the Equity Stock being beneficially owned by
less than 100 Persons (determined without reference to any rules of
attribution), (iii) the Corporation being "closely held" within the
meaning of Section 856(h) of the Code or (iv) the Corporation otherwise
failing to qualify as a REIT, shall not adversely affect the validity of
the Transfer of any other share of Equity Stock in the same or any other
related transaction.
Section 3. Transfers to Trust.
(a) If, notwithstanding the other provisions contained in this Article
VII, at any time prior to the Restriction Termination Date there is a
purported Transfer (whether or not such Transfer is the result of
transactions entered into through the facilities of the NYSE or other
securities exchange or an automated inter-dealer quotation system) or other
change in the capital structure of the Corporation or other event (an
"Excess Transfer") (i) such that any Person would Beneficially Own or
Constructively Own Equity Stock in excess of the Ownership Limit or (ii)
that, if effective, would cause the Corporation (1) to become "closely
held" within the meaning of Section 856(h) of the Code or (2) otherwise to
fail to qualify as a REIT (including, but not limited to, a Transfer or
other event that would result in the Corporation owning (directly or
Constructively) an interest in a tenant that is described in Section
856(d)(2)(B) of the Code if the income derived by the Corporation from such
tenant would cause the Corporation to fail to satisfy any of the gross
income requirements of Section 856(c) of the Code), then, except as
otherwise provided in Section 10 of this Article VII, (x) in the case of an
event described in clause (i) of this Section 3(a), such shares of Equity
Stock in excess of the Ownership Limit or (y) in the case of an event
described in clause (ii)(1) or clause (ii)(2) of this Section 3(a), the
shares of Equity Stock being Transferred that would cause the Corporation
to be "closely held" within the meaning of Section 856(h) of the Code or
otherwise to fail to qualify as a REIT, as the case may be, (rounded up to
the nearest whole share) shall be automatically transferred to the Trustee
in his or its capacity as trustee of the Trust for the exclusive benefit of
one or more Charitable Beneficiaries. Such transfer to the Trustee shall be
deemed to be effective as of the close of business on the business day
prior to the date of the Excess Transfer giving rise to (I) the potential
violation of the Ownership Limit or (II) the event described in clause
(ii)(1) or clause (ii)(2) of this Section 3(a).
(b) The Trustee shall be appointed by the Corporation and shall be a
Person unaffiliated with either the Corporation, any Purported Beneficial
Transferee or any Purported Record Transferee. The Trustee may be an
individual or a bank or trust company duly licensed to conduct a trust
business.
(c) Shares of Equity Stock held by the Trustee shall be issued and
outstanding shares of capital stock of the Corporation. Except to the
extent provided in Section 3(e) of this Article VII, neither the Purported
Beneficial Transferee nor the Purported Record Transferee shall have any
rights in the Equity Stock held by the Trustee, and neither the Purported
Beneficial Transferee nor the Purported Record Transferee shall benefit
economically from ownership of any shares held in trust by the Trustee,
have any rights to dividends or possess any rights to vote or other rights
attributable to the shares held in the Trust.
(d) The Trustee shall have all voting rights and rights to dividends
with respect to shares of Equity Stock held in the Trust, which rights
shall be exercised for the benefit of the Charitable Beneficiary. Any
dividend or distribution paid prior to the discovery by the Corporation
that the shares of Equity Stock have been transferred to the Trustee shall
be repaid to the Corporation upon demand, and any dividend or distribution
declared but unpaid shall be rescinded as void ab initio with respect to
such shares of Equity Stock. Any dividends or distributions so disgorged or
rescinded shall be paid over to the Trustee and held in trust for the
Charitable Beneficiary. Subject to Maryland law and provided that the
Corporation has not already taken irrevocable corporate action on the basis
thereof, any vote cast by a Purported Record Transferee prior to the
discovery by the Corporation that the shares of Equity Stock have been
transferred to the Trustee will be rescinded as void ab initio and shall be
recast in accordance with the desires of the Trustee acting for the benefit
of the Charitable Beneficiary. The owner of the shares at the time of the
Excess Transfer giving rise to (i) a potential violation of the Ownership
Limit or (ii) the event described in clause (ii)(1) or clause (ii)(2) of
Section 3(a) of this Article VII shall be deemed to have given an
irrevocable proxy to the Trustee to vote the shares of Equity Stock for the
benefit of the Charitable Beneficiary. Notwithstanding any provision hereof
to the contrary, until the Corporation has received notification of the
transfer of Equity Stock into a Trust, the Corporation shall be entitled to
rely on its share transfer and other stockholder records for purposes of
preparing lists of stockholders entitled to vote at meetings, determining
the validity and authority of proxies, and otherwise conducting votes of
stockholders.
(e) The Trustee of the Trust may transfer the shares held in the Trust
to a person, designated by the Trustee, whose ownership of the shares will
not violate the Ownership Limit or the other limitations of Section 2 of
this Article VII. If such a transfer is made, the interest of the
Charitable Beneficiary shall terminate and proceeds of the sale shall be
payable to the Purported Beneficial
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Transferee and to the Charitable Beneficiary as provided in this Section
3(e). The Purported Record Transferee shall have no right or interest in
any such proceeds. The Purported Beneficial Transferee shall receive the
lesser of (1) the price paid by the Purported Beneficial Transferee for the
shares or, if the Purported Beneficial Transferee did not give value for
the shares (through a gift, devise or other transaction), the Market Price
of the shares on the day of the event causing the shares to be held in the
Trust and (2) the price per share received by the Trustee from the sale or
other disposition of the shares held in the Trust. Any proceeds in excess
of the amount payable to the Purported Beneficial Transferee shall be
payable to the Charitable Beneficiary. If any of the transfer restrictions
set forth in this Section 3(e) or any application thereof is determined in
a final judgment to be void, invalid or unenforceable by any court having
jurisdiction over the issue, the Purported Beneficial Transferee and the
Purported Record Transferee may be deemed, at the option of the
Corporation, to have acted as the agent of the Corporation in acquiring the
Equity Stock as to which such restrictions would, by their terms, apply,
and to hold such Equity Stock on behalf of the Corporation.
(f) Shares of Equity Stock transferred to the Trustee shall be deemed
to have been offered for sale to the Corporation, or its designee, at a
price per share equal to the lesser of (i) the price per share in the
transaction that resulted in such transfer to the Trust (or, in the case of
a devise or gift, the Market Price at the time of such devise or gift) and
(ii) the Market Price on the date the Corporation, or its designee, accepts
such offer. The Corporation shall have the right to accept such offer for a
period of 90 days after the later of (i) the date of the Excess Transfer
resulting in a transfer to the Trust and (ii) the date that the Board of
Directors determines in good faith that an Excess Transfer occurred.
(g) By written notice to the Trustee, the Corporation shall designate
one or more nonprofit organizations to be the Charitable Beneficiary of the
interest in the Trust relating to such Purported Beneficial Transferee and
Purported Record Transferee if (i) the shares of Equity Stock held in the
Trust would not violate the Ownership Limit in the hands of such Charitable
Beneficiary and (ii) each Charitable Beneficiary is an organization
described in Sections 170(b)(1)(A), 170(c)(2) or 501(c)(3) of the Code.
Section 4. Prevention of Transfer. If the Board of Directors or its
designee shall at any time determine in good faith that a Transfer has
taken place in violation of Section 2 of this Article VII or that a Person
intends to acquire or has attempted to acquire beneficial ownership
(determined without reference to any rules of attribution), Beneficial
Ownership or Constructive Ownership of any shares of stock of the
Corporation in violation of Section 2 of this Article VII, the Board of
Directors or its designee shall take such action as it deems advisable to
refuse to give effect to or to prevent such Transfer, including, but not
limited to, refusing to give effect to such Transfer on the books of the
Corporation or instituting proceedings to enjoin such Transfer; provided,
however, that any Transfers or attempted Transfers in violation of Section
2(b), Section 2(c) or Section 2(d) of this Article VII shall (i) be void ab
initio and (ii) automatically result in the transfer to the Trust described
in Section 3, irrespective of any action (or non-action) by the Board of
Directors; provided, further, that the provisions of this Section 4 shall
be subject to the provisions of Section 5 of this Article VII.
Section 5. Settlement. Nothing in Section 3 of this Article VII
shall be interpreted to preclude the settlement of any transaction entered
into through the facilities of the NYSE or other securities exchange or an
automated inter-dealer quotation system.
Section 6. Notice To Corporation. Any Person who acquires or
attempts to acquire shares in violation of Section 2 of this Article VII,
or any Person who is a transferee such that a transfer to the Trust results
under Section 3 of this Article VII, shall immediately give written notice
or, in the event of a proposed or attempted Transfer, give at least 15
days' prior written notice to the Corporation of such event and shall
provide to the Corporation such other information as the Corporation may
request in order to determine the effect, if any, of such Transfer or
attempted Transfer on the Corporation's status as a REIT.
Section 7. Information For Corporation. Prior to the Restriction
Termination Date:
(a) every Beneficial Owner or Constructive Owner of 5.0% or more (or
such other percentage, between 0.5% and 5.0%, as provided in the income tax
regulations promulgated under the Code) of the number or value of
outstanding shares of Equity Stock of the Corporation shall, within 30 days
after January 1 of each year, give written notice to the Corporation
stating the name and address of such Beneficial Owner or Constructive
Owner, the number of shares Beneficially or Constructively Owned, and a
description of how such shares are held. Each such Beneficial Owner or
Constructive Owner shall provide to the Corporation such additional
information as the Corporation may reasonably request in order to determine
the effect, if any, of such Beneficial or Constructive Ownership on the
Corporation's status as a REIT; and
(b) each Person who is a Beneficial Owner or Constructive Owner of
Equity Stock and each Person (including the stockholder of record) who is
holding Equity Stock for a Beneficial Owner or Constructive Owner shall
provide to the Corporation such information that the Corporation may
reasonably request in order to determine the Corporation's status as a
REIT, to comply with the requirements of any taxing authority or
governmental agency or to determine any such compliance.
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Section 8. Other Action by Board. Nothing contained in this Article
VII shall limit the authority of the Board of Directors to take such other
action as it deems necessary or advisable to protect the Corporation and
the interests of its stockholders by preservation of the Corporation's
status as a REIT.
Section 9. Ambiguities. In the case of an ambiguity in the
application of any of the provisions of this Article VII, including any
definition contained in Section 1, the Board of Directors shall have the
power to determine the application of the provisions of this Article VII
with respect to any situation based on the facts known to it.
Section 10. Exemptions by Board.
(a) The Board of Directors, upon receipt of a ruling from the Internal
Revenue Service or an opinion of counsel or other evidence satisfactory to
the Board of Directors and upon at least 15 days' written notice from a
Transferee prior to the proposed Transfer that, if consummated, would
result in the intended Transferee Beneficially Owning shares in excess of
the Ownership Limit, and upon such other conditions as the Board of
Directors may direct, may exempt a Person from the Ownership Limit.
(b) The Board of Directors, upon receipt of a ruling from the Internal
Revenue Service or an opinion of counsel or other evidence satisfactory to
the Board of Directors, may exempt a Person from the limitation on a Person
Constructively Owning shares of Equity Stock in excess of the Ownership
Limit, if such Person does not and represents that it will not own,
directly or Constructively, more than a 9.9% interest (as set forth in
Section 856(d)(2)(B)) in a tenant of the Corporation and the Corporation
obtains such representations and undertakings from such Person as are
reasonably necessary to ascertain this fact and agrees that any violation
or attempted violation will result in such shares of Equity Stock in excess
of the Ownership Limit being transferred to the Trust in accordance with
Section 3 of this Article VII.
Section 11. Legend. The Board may elect that each certificate for
shares of Common Stock and for shares of Preferred Stock shall bear
substantially the following legend:
The securities represented by this certificate are subject to
restrictions on transfer for the purpose of the Corporation's maintenance
of its status as a "real estate investment trust" under the Internal
Revenue Code of 1986, as amended. Except as otherwise provided pursuant to
the charter of the Corporation, no Person may Beneficially Own or
Constructively Own shares of any class or series of the Corporation's
Common or Preferred Stock in excess of 9.8% (or such greater percentage as
may be determined by the Board of Directors of the Corporation) of the
value or number of shares outstanding (whichever is more restrictive) of
such class or series of the Corporation's Common or Preferred Stock. Any
Person who attempts or proposes to Beneficially Own or Constructively Own
shares of Equity Stock in excess of the above limitation must notify the
Corporation in writing at least 15 days prior to such proposed or attempted
Transfer. All capitalized terms in this legend have the meanings defined
in the charter of the Corporation, a copy of which, including the
restrictions on transfer, will be sent without charge to each stockholder
who so requests. If the restrictions on transfer are violated, the
securities represented hereby may be automatically transferred to a trust
for the benefit of one or more charitable organizations to be designated by
the Corporation.
Section 12. Severability. If any provision of this Article VII or
any application of any such provision is determined to be void, invalid or
unenforceable by any court having jurisdiction over the issue, the validity
and enforceability of the remaining provisions shall not be affected and
other applications of such provision shall be affected only to the extent
necessary to comply with the determination of such court.
Section 13. Discretion of Board of Directors. Anything to the
contrary in this Article VII notwithstanding, the Board of Directors shall
be entitled to take or omit to take such actions as it in its discretion
shall determine to be advisable in order that the Corporation maintain its
status as and continue to qualify as a REIT, including, but not limited to,
reducing, restricting or redefining the Ownership Limit in the event of a
change in law.
ARTICLE VIII
AMENDMENTS
The Corporation reserves the right from time to time to make any
amendment to its charter, now or hereafter authorized by law, including any
amendment altering the terms or contract rights, as expressly set forth in
this charter, of any shares of outstanding stock. Any amendment to the
charter of the Corporation shall be valid only if such amendment shall have
been approved by the affirmative vote of a majority of all the votes of
stockholders entitled to be cast on the matter. All rights and powers
conferred by the charter of
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the Corporation on stockholders, directors and officers are granted subject
to this reservation; provided, however, that: (i) neither the repeal or
amendment of Section 5 of Article VI of the charter nor the adoption or
amendment of any other provision of the charter inconsistent with said
Section 5 shall adversely affect the rights of any person entitled to
indemnification or advancement of expenses under said Section 5 or Article
XII of the Bylaws of the Corporation with respect to any act or omission to
act which occurred prior to such repeal, amendment or adoption; and (ii)
neither the repeal or amendment of Article XII of the Bylaws of the
Corporation nor the adoption or amendment of any other provision of the
Bylaws inconsistent with said Article XII shall adversely affect the rights
of any person entitled to indemnification or advancement of expenses under
said Article XII or Section 5 of Article VI of the charter with respect to
any act or omission to act which occurred prior to such repeal, amendment
or adoption.
ARTICLE IX
LIMITATION OF LIABILITY
To the maximum extent that Maryland law in effect from time to time
permits limitation of the liability of directors and officers, no director
or officer of the Corporation shall be liable to the Corporation or its
stockholders for money damages. Neither the amendment nor repeal of this
Article IX, nor the adoption or amendment of any other provision of the
charter or Bylaws of the Corporation inconsistent with this Article IX,
shall apply to or affect in any respect the applicability of the preceding
sentence with respect to any act or failure to act that occurred prior to
such amendment, repeal or adoption.
SECOND: These Articles of Amendment of the Corporation as hereinabove
set forth have been duly advised by the Board of Directors of the
Corporation and approved by the stockholders of the Corporation as required
by law.
THIRD: Immediately prior to the foregoing amendments, the Corporation
had the authority to issue One Hundred Ten Million (110,000,000) shares of
the Corporation's stock, consisting of Ten Million (10,000,000) shares of
Preferred Stock, par value One Cent ($.01) per share, and One Hundred
Million (100,000,000) shares of Common Stock, par value One Cent ($.01) per
share. The aggregate par value of all such shares of stock which the
Corporation had authority to issue being One Million One Hundred Thousand
Dollars ($1,100,000).
FOURTH: After giving effect to the foregoing amendments, the
Corporation will have authority to issue Two Hundred Seventy Five Million
(275,000,000) shares of the Corporation's stock, consisting of Twenty Five
Million (25,000,000) shares of Preferred Stock, par value One Cent ($.01)
per share and Two Hundred Fifty Million (250,000,000) shares of Common
Stock, par value One Cent ($.01) per share. The aggregate par value of all
such shares of stock which the Corporation has authority to issue being Two
Million Seven Hundred Fifty Thousand Dollars ($2,750,000).
FIFTH: The Articles Supplementary filed with the Department on
February 4, 1997, in respect of the Corporation's 8 1/2% Series A
Cumulative Convertible Preferred Stock, on January 12, 1998, in respect of
the Corporation's 8 5/8% of Series B Cumulative Redeemable Preferred
Stock, on June 5, 1998, in respect of the Corporation's Series C Junior
Participating Preferred Stock, and on September 28, 1998 in respect of the
Corporation's 7.80% Series D Cumulative Voting Step-Up Premium Rate
Preferred Stock, and in each case setting forth with respect to the such
stock the terms, preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends or other distributions,
qualifications and terms or conditions of redemption applicable thereto,
remain in full force and effect without modification or amendment hereby,
and the information required by Section 2-607(b)(2)(i) of the Maryland
General Corporation Law was not changed by the foregoing amendments.
SIXTH: The undersigned President acknowledges these Articles of
Amendment to be the corporate act of the Corporation and, as to all matters
or facts required to be verified under oath, the undersigned President
acknowledges that, to the best of his knowledge, information and belief,
these matters and facts are true in all material respects and that this
statement is made under the penalties for perjury.
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In Witness Whereof, the Corporation has caused these Articles of
Amendment to be signed in its name and on its behalf by its President and
attested to by its Secretary as of this 28th day of September, 1998.
Attest: Excel Realty Trust, Inc.
/s/ Richard B. Muir By /s/ Gary B. Sabin,
----------------------------- --------------------------------
Richard B. Muir, Secretary Gary B. Sabin, President
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EXHIBIT 4.5
EXCEL REALTY TRUST, INC.
ARTICLES SUPPLEMENTARY CLASSIFYING
7.80% SERIES D CUMULATIVE VOTING STEP-UP
PREMIUM RATE PREFERRED STOCK
Pursuant to Section 2-105 of the Maryland General Corporation Law
("MGCL"), Excel Realty Trust, Inc., a corporation organized and existing
under the laws of the State of Maryland and having its principal office in
the State of Maryland located at c/o The Prentice Hall Corporation System,
Maryland, 11 East Chase Street, Baltimore City, Maryland 21202 (the
"Corporation"), hereby certifies to the State Department of Assessments
and Taxation of Maryland that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Article V of the Corporation's Charter
(inclusive of these Articles Supplementary) and Section 2-105 of the MGCL,
the Board of Directors has adopted resolutions (i) classifying a separate
class of authorized but unissued Preferred Stock of the Corporation to
consist of not more than 150,000 shares, (ii) designating the aforesaid
class of Preferred Stock as 7.80% Series D Cumulative Voting Step-up
Premium Rate Preferred Stock (the "Series D Preferred Stock"), (iii)
setting the preferences, conversion and other rights, voting powers,
restrictions and limitations as to distributions, qualifications and terms
and conditions of redemption of the Series D Preferred Stock and (iv)
authorizing the issuance of 150,000 shares of Series D Preferred Stock.
SECOND: The class of Preferred Stock of the Corporation created by the
resolutions duly adopted by the Board of Directors of the Corporation and
referred to in Article FIRST of these Articles Supplementary shall have the
following designation, number of shares, preferences, conversion and other
rights, voting powers, restrictions and limitations as to distributions,
qualifications, terms and conditions of redemption and other terms and
conditions:
Section 1. Certain Definitions. Unless the context otherwise
requires, the terms defined in this Section 1 shall have, for all purposes
of these Articles Supplementary, the meanings herein specified (with terms
defined in the singular having comparable meanings when used in the
plural):
"Board of Directors" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series D Preferred
Stock.
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in
New York City are authorized or required by law, regulation or executive
order to close.
"Capital Gains Amount" shall have the meaning set forth in Section
(2)(c) hereof.
"Carry-Over Distribution" shall have the meaning set forth in
Section 2(c) hereof.
"Carry-Over Distribution Date" shall have the meaning set forth in
Section 2(c) hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Stock" shall mean the Common Stock, par value $0.01 per
share, of the Corporation.
"Depositary Shares" shall mean the Depositary Shares each
representing a one-tenth (1/10) fractional interest in a share of Series
D Preferred Stock.
"Distribution Payment Date" shall mean, with respect to each
Distribution Period, as applicable, the fifteenth (15th) day of January,
April, July and October in each year, commencing with the first
Distribution Payment Date following the Effective Date; provided, however,
that if the Distribution Payment Date falls on any day other than a
Business Day, the distribution payment due on such Distribution Payment
Date shall be paid on the Business Day immediately following such
Distribution Payment Date.
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"Distribution Periods" shall mean quarterly distribution periods commencing
January 1, April 1, July 1 and October 1 of each year and ending on and
including the day preceding the first day of the next succeeding Distribution
Period (other than (i) the first Distribution Period following the Effective
Date, which shall commence on the day immediately following the Carry-Over
Distribution Payment Date in the event that the Carry-Over Distribution accrues
pursuant to Section 2(c)(w) hereof, or on the day following the last New Plan
Distribution Date immediately preceding the Effective Date in the event that the
Carry-Over Distribution does not accrue pursuant to Section 2(c)(w) hereof, and
will in either event end on and include the initial Distribution Payment Date,
and (ii) the Distribution Period immediately succeeding the first Distribution
Period following the Effective Date, which shall commence on the day immediately
following the first Distribution Period following the Effective Date and will
end on and include the day preceding the first day of the next succeeding
Distribution Period). The length or term of any Distribution Period occurring in
whole or in part prior to the Effective Date will not be affected by the fact
that the Distribution period is deemed hereunder to have commenced prior to the
Effective Date.
"Effective Date" shall mean the effective date of the Merger under
applicable law.
"Excel Distribution Period" shall mean, with respect to the Series A
Preferred Stock and the Series B Preferred Stock, quarterly distribution periods
commencing January 1, April 1, July 1 and October 1 of each year and ending on
and including the day preceding the first day of the next succeeding Excel
Distribution Period.
"Junior Stock" shall have the meaning set forth in Section 2(b) hereof.
"Merger" shall mean the merger of ERT Merger Sub, Inc., a Maryland
corporation and wholly owned subsidiary of the Corporation ("Merger Sub"), with
and into New Plan Realty Trust, a Massachusetts business trust ("New Plan"), as
contemplated by the Merger Agreement.
"Merger Agreement" shall mean that certain Agreement and Plan of Merger
dated as of May 14, 1998, by and among the Corporation, New Plan and Merger Sub,
as amended as of August 7, 1998, as such Agreement may be further amended from
time to time.
"New Plan Distribution Date" shall mean the fifteenth (15th) day, or if not
a Business Day, the next succeeding Business Day, of March, June, September and
December of any year.
"Preferred Stock" shall mean the Preferred Stock, par value $0.01 per
share, of the Corporation.
"Preferred Stock Director" shall have the meaning set forth in Section 2(f)
hereof.
"Record Date" shall mean the date designated by the Board of Directors of
the Corporation at the time a distribution is declared; provided, however, that
(i) except as provided below, such Record Date shall be the first day of the
calendar month in which the applicable Distribution Payment Date occurs in the
case of a distribution made with respect to a Distribution Period, or such other
date designated by the Board of Directors for the payment of distributions that
is not more than thirty (30) days nor less than ten (10) days prior to such
Distribution Payment Date; (ii) in the case of any Carry-Over Distribution and
in the case of the distribution made with respect to the initial Distribution
Period such Record Date shall not be prior to the Effective Date nor less than
ten (10) nor more than thirty (30) days preceding the Carry-Over Distribution
Date or the initial Distribution Payment Date, as the case may be, except in the
event that the Effective Date is less than ten (10) days prior to the Carry-Over
Distribution Date or the initial Distribution Payment Date, as the case may be,
in which case the applicable Record Date may be less than ten (10) days prior.
"REIT" shall mean a Real Estate Investment Trust under Section 856 of the
Code.
"Series A Preferred Stock" shall mean the 8 1/2% Series A Cumulative
Convertible Preferred Stock, par value $0.01 per share, of the Corporation.
"Series B Preferred Stock" shall mean the 8 5/8% Series B Cumulative
Redeemable Preferred Stock, par value $0.01 per share, of the Corporation.
"Series C Preferred Stock" shall mean the Series C Junior Participating
Preferred Stock, par value $0.01 per share, of the Corporation.
"Series D Redemption Date" shall have the meaning set forth in Section 2(e)
hereof.
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"Series D Redemption Price" shall have the meaning set forth in
Section 2(e) hereof.
"Total Dividends" shall have the meaning set forth in Section 2(c) hereof.
Section 2. Series D Preferred Stock.
(a) Number. The maximum number of shares of the Series D Preferred Stock
shall be 150,000.
(b) Relative Seniority. In respect of rights to receive distributions and
to participate in distributions or payments in the event of any liquidation,
dissolution or winding-up of the Corporation, the Series D Preferred Stock shall
rank pari passu with any other Preferred Stock of the Corporation, including
without limitation the Series A Preferred Stock and the Series B Preferred
Stock, unless the terms of such other Preferred Stock provide otherwise, and
will rank senior to the Common Stock, the Series C Preferred Stock and any other
class or series of capital stock of the Corporation ranking, as to distributions
and upon liquidation, dissolution or winding-up, junior (collectively, the
"Junior Stock") to the Series D Preferred Stock. The Corporation may authorize
or increase any class or series of shares ranking on a parity with or junior to
the Series D Preferred Stock as to distribution rights and upon liquidation,
dissolution or winding-up, without the vote or consent of the holders of the
Series D Preferred Stock.
(c) Distributions. The holders of the then outstanding shares of Series D
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors, out of funds legally available therefor
(w) provided that the Effective Date occurs during the period
following the date on which a distribution is made in respect of the most
recently ended Excel Distribution Period and preceding or concurrently with
the immediately following New Plan Distribution Date, a special cumulative
carry-over distribution (the "Carry-Over Distribution") at the rate of
$39.00 per share per year (or $9.75 per share quarterly) in cash on the
first New Plan Distribution Date following the Effective Date (the "Carry-
Over Distribution Payment Date"), which shall constitute the distribution
payable for the full quarterly period commencing on the last New Plan
Distribution Date immediately preceding the Effective Date and ending on
the Carry-Over Distribution Payment Date; and
(x) in any event, a special cumulative distribution at the rate of
$39.00 per share per year (or $9.75 per share quarterly) in cash on the
first Distribution Payment Date following the Effective Date, with such
distribution to be made in respect of the first applicable Distribution
Period, and with the amount of such distribution to be pro rated and
computed on the basis of a 360-day year of twelve 30-day months (or a 90-
day quarter of three 30-day months); and
(y) a special cumulative distribution at the rate of $39.00 per share
per year (or $9.75 per share quarterly) in cash on the Distribution Payment
Date first succeeding the first Distribution Payment Date following the
Effective Date, with such distribution to be made in respect of the
Distribution Period immediately succeeding the first Distribution Period
following the Effective Date, and with the amount of such distribution to
be pro rated and computed on the basis of a 360-day year of twelve 30-day
months (or a 90-day quarter of three 30-day months); and
(z) cumulative distributions thereafter in respect of each successive
Distribution Period, at the rate of $39.00 per share per year through
September 15, 2012 and at the rate of $49.00 per share per year thereafter,
payable in equal amounts of $9.75 per share quarterly in arrears in cash
through September 15, 2012 and in equal amounts of $12.25 per share
quarterly in arrears in cash thereafter, on the applicable Distribution
Payment Date, beginning on the second Distribution Payment Date to occur
following the first Distribution Payment Date following the Effective Date,
as referred to in (x) above;
in each case, to stockholders of record at the close of business on the Record
Date for such distribution. The amount of any distribution payable for any
Distribution Period shorter than a full Distribution Period shall be pro rated
and computed on the basis of a 360-day year of twelve 30-day months (or a 90-day
quarter of three 30-day months). Distributions on each share of Series D
Preferred Stock shall accrue and be cumulative from and including the date of
original issue thereof (or in the case of the Carry Over Distribution or, if the
Carry Over Distribution does not accrue under subparagraph (w) above, in the
case of the distribution otherwise occurring under subparagraph (x) above, from
and including the last New Plan Distribution Date immediately preceding or
concurrently with the Effective Date), whether or not (i) the Corporation has
earnings, (ii) on any Distribution Payment Date (or on the Carry-Over
Distribution Payment Date, as the case may be) there shall be funds legally
available for the payment of distributions,
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or (iii) such distributions are authorized. Distributions paid on shares of
Series D Preferred Stock in an amount less than the total amount of such
distributions at the time accrued and payable on such shares shall be allocated
pro rata on a per share basis among all such shares at the time outstanding.
Accrued but unpaid distributions on shares of Series D Preferred Stock will not
bear interest and holders of the Series D Preferred Stock will not be entitled
to any distributions in excess of full cumulative distributions as described
above. Any distribution payment on shares of Series D Preferred Stock shall
first be credited against the earliest accrued but unpaid distribution due with
respect to such shares which remains payable.
The amount of any distributions accrued on any shares of Series D Preferred
Stock at any date shall be the amount of any unpaid distributions accumulated
thereon, to and including such date, whether or not earned or declared, and in
the case of any period other than a full Distribution Period shall be equal to
the sum of the amount of any distributions accumulated thereon to and including
the most recently ended Distribution Period (or the Carry-Over Distribution
Payment Date, as the case may be) and remaining unpaid, plus an amount,
calculated on the basis of the applicable annual distribution rate, for the
period after the ending of such last preceding Distribution Period (or the
Carry-Over Distribution Payment Date, as the case may be) to and including the
date on which the calculation is made, based on a 360-day year of twelve 30-day
months (or a 90-day quarter of three 30-day months).
If, for any taxable year, the Corporation elects to designate as "capital
gain dividends" (as defined in Section 857 of the Code) any portion (the
"Capital Gains Amount") of the dividends paid or made available for the year to
holders of classes of stock (the "Total Dividends"), then that portion of the
Capital Gains Amount that shall be allocable to holders of the Series D
Preferred Stock shall be the amount that the total dividends paid or made
available to the holders of the Series D Preferred Stock for the year bears to
the Total Dividends.
Except as provided in these Articles Supplementary, the Series D Preferred
Stock shall not be entitled to participate in the earnings or assets of the
Corporation.
(d) Liquidation Rights.
(i) Upon the voluntary or involuntary dissolution, liquidation or
winding-up of the Corporation, the holders of the shares of Series D
Preferred Stock then outstanding shall be entitled to receive and to be
paid out of the assets of the Corporation legally available for
distribution to its stockholders, before any payment or distribution shall
be made on any Junior Stock, the amount of $500.00 per share of Series D
Preferred Stock, plus accrued and unpaid distributions thereon to the date
of such dissolution, liquidation or winding-up.
(ii) After the payment to the holders of the Series D Preferred Stock
of full preferential amounts provided for in these Articles Supplementary,
the holders of the Series D Preferred Stock as such shall have no right or
claim to any of the remaining assets of the Corporation.
(iii) If, upon any voluntary or involuntary dissolution, liquidation
or winding-up of the Corporation, the amounts payable with respect to the
preference value of the Series D Preferred Stock and any other shares of
capital stock of the Corporation ranking as to any such distribution on a
parity with the Series D Preferred Stock are not paid in full, the holders
of shares of Series D Preferred Stock and of such other shares will share
ratably in any such distribution of assets of the Corporation in proportion
to the full respective preference amounts to which they are entitled. The
Series D Preferred Stock will rank on a parity with the Series A Preferred
Stock and the Series B Preferred Stock as to liquidation rights.
(iv) Neither (A) the sale or other disposition of all or substantially
all of the property or business of the Corporation, (B) the merger or
consolidation of the Corporation into or with any other entity, nor (C) the
dissolution, liquidation, winding-up or reorganization of the Corporation
immediately followed by organization of another entity to which the assets
in such dissolution, liquidation or winding-up are distributed, shall be
deemed to be a dissolution, liquidation or winding-up, voluntary or
involuntary, for the purposes of this subsection (d); provided that, in
each case, effective provision is made in the charter of the resulting and
surviving entity or otherwise for the recognition, preservation and
protection of the rights of the holders of the Series D Preferred Stock.
(v) In determining whether a distribution (other than upon voluntary
or involuntary liquidation) by dividend, redemption or other acquisition of
shares of stock of the Corporation or otherwise is permitted under the
MGCL, no effect shall be given to amounts that would be needed, if the
Corporation were to be
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dissolved at the time of the distribution, to satisfy the preferential
rights upon dissolution of holders of shares of stock of the Corporation,
whose preferential rights upon dissolution are superior to those receiving
the distribution.
(e) Redemption.
(i) Optional Redemption. On and after June 15, 2007, the Corporation
may, at its option, redeem in whole or in part, at any time or from time to
time, the Series D Preferred Stock at a price per share (the "Series D
Redemption Price"), of $500.00 per share of Series D Preferred Stock,
together with all accrued and unpaid distributions to and including the
date fixed for redemption (the "Series D Redemption Date").
(ii) Procedures for Redemption.
(A) Notice of any redemption will be given by publication in an
edition of The Wall Street Journal or The New York Times published in
the City of New York, or if neither newspaper is then being published
in the City of New York, any other daily newspaper of general
circulation in the City of New York, such publication to be made once
a week for two successive weeks commencing not less than 30 nor more
than 60 days prior to the Series D Redemption Date. A similar notice
of any redemption will be mailed by the Corporation, postage prepaid,
not less than 30 nor more than 60 days prior to the Series D
Redemption Date, addressed to the holders of record of the Series D
Preferred Stock to be redeemed at their addresses as they appear on
the share transfer records of the Corporation. No failure to give such
notice or any defect therein or in the mailing thereof shall affect
the validity of the proceedings for the redemption of any Series D
Preferred Stock except as to the holder to whom the notice was
defective or not given. In addition to any information required by law
or by the applicable rules of any exchange upon which the Series D
Preferred Stock may be listed or admitted to trading, such notice
shall state: (1) the Series D Redemption Date; (2) the Series D
Redemption Price; (3) the number of shares of Series D Preferred Stock
to be redeemed; (4) the place or places where certificates
representing such shares are to be surrendered for payment of the
Series D Redemption Price; and (5) that distributions on the shares to
be redeemed will cease to accrue on the Series D Redemption Date. If
fewer than all of the shares of Series D Preferred Stock held by any
holder are to be redeemed, the notice mailed to such holder shall also
specify the number of shares to be redeemed from such holder.
(B) If notice has been mailed in accordance with subsection
(e)(ii)(A) above and provided that on or before the Series D
Redemption Date specified in such notice all funds necessary for such
redemption shall have been irrevocably set aside by the Corporation,
separate and apart from its other funds in trust for the pro rata
benefit of the holders of shares of Series D Preferred Stock so called
for redemption, so as to be, and to continue to be available therefor,
then, from and after the Series D Redemption Date, distributions on
the shares of Series D Preferred Stock so called for redemption shall
cease to accrue, and said shares shall no longer be deemed to be
outstanding and shall not have the status of Series D Preferred Stock
and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive the Series D Redemption
Price) shall cease. Upon surrender, in accordance with said notice, of
the certificates for any shares of Series D Preferred Stock so
redeemed (properly endorsed or assigned for transfer, if the
Corporation shall so require and the notice shall so state), such
shares of Series D Preferred Stock shall be redeemed by the
Corporation at the Series D Redemption Price. In case fewer than all
of the shares of Series D Preferred Stock represented by any such
certificate are redeemed, a new certificate or certificates shall be
issued representing the unredeemed shares of Series D Preferred Stock
without cost to the holder thereof.
(C) Any funds deposited with a bank or trust company for the
purpose of redeeming shares of Series D Preferred Stock shall be
irrevocable except that:
(1) the Corporation shall be entitled to receive from such
bank or trust company the interest or other earnings, if any,
earned on any money so deposited
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in trust, and the holders of any shares redeemed shall have no
claim to such interest or other earnings; and
(2) any balance of monies so deposited by the Corporation
and unclaimed by the holders of the Series D Preferred Stock
entitled thereto at the expiration of two years from the
applicable Series D Redemption Date shall be repaid, together
with any interest or other earnings earned thereon, to the
Corporation, and after any such repayment, the holders of the
shares entitled to the funds so repaid to the Corporation shall
look only to the Corporation for payment without interest or
other earnings.
(D) No shares of Series D Preferred Stock may be redeemed except
with funds legally available for the payment of the Series D
Redemption Price. The Series D Redemption Price (other than any
portion thereof consisting of accrued and unpaid distributions) shall
be paid solely from the sales proceeds of other capital stock of the
Corporation and not from any other source. For purposes of the
preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), depositary shares,
interests, participations or other ownership interests (however
designated) and any rights (other than debt securities convertible
into or exchangeable for equity securities) or options to purchase any
of the foregoing.
(E) Unless full accumulated distributions on all shares of Series
D Preferred Stock shall have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof set
apart for payment for all past Distribution Periods and the then
current Distribution Period, no shares of Series D Preferred Stock
shall be redeemed (unless all outstanding shares of Series D Preferred
Stock are simultaneously redeemed) or purchased or otherwise acquired
directly or indirectly (except by conversion into or exchange for
capital stock of the Corporation ranking junior to the Series D
Preferred Stock as to distributions and upon liquidation); provided,
however, that the foregoing shall not prevent the redemption of shares
of Series D Preferred Stock pursuant to Article VII of the
Corporation's Charter or the purchase or acquisition of shares of
Series D Preferred Stock pursuant to a purchase or exchange offer made
on the same terms to holders of all outstanding shares of Series D
Preferred Stock.
(F) If the Series D Redemption Date occurs after a Record Date
and before the related Distribution Date, the distribution payable on
such Distribution Date shall be paid to the holder in whose name the
shares of Series D Preferred Stock to be redeemed are registered at
the close of business on such Record Date notwithstanding the
redemption thereof between such Record Date and the related
Distribution Date or the Corporation's default in the payment of the
distribution due.
(G) In case of redemption of less than all of the shares of
Series D Preferred Stock at the time outstanding, the shares of Series
D Preferred Stock to be redeemed shall be selected pro rata from the
holders of record of such shares in proportion to the number of shares
of Series D Preferred Stock held by such holders (with adjustments to
avoid redemption of fractional shares) or by any other equitable
method, including without limitation pro rata from the holders of
record of Depositary Shares representing interests in shares of Series
D Preferred Stock in proportion to the number of such Depositary
Shares held by such holders, determined by the Corporation.
(H) All shares of Series D Preferred Stock which have been issued
and reacquired in any manner by the Corporation shall be restored to
the status of authorized but unissued shares of Preferred Stock,
without further designation as to series or class. The Corporation may
also retire any unissued shares of Series D Preferred Stock and such
shares shall then be restored to the status of authorized but unissued
shares of Preferred Stock, without further designation as to series or
class.
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(f) Voting Rights.
(i) The Series D Preferred Stock shall have voting rights as provided
herein. In any matter in which the Series D Preferred Stock is entitled to
vote, including any action by written consent, each share of Series D Preferred
Stock shall be entitled to 10 votes, each of which 10 votes may be directed
separately by the holder thereof (or by any proxy or proxies of such holder),
except that when any other class or series of Preferred Stock shall have the
right to vote together with the Series D Preferred Stock as if they were a
single class on any matter, then the Series D Preferred Stock and such other
class or series shall have with respect to such matters one (1) vote per $25.00
of stated liquidation preference and fractional votes shall be ignored. With
respect to each share of Series D Preferred Stock, the holder thereof may
designate up to that number of proxies equal to the number of votes represented
thereby, with each such proxy having the right to vote a whole number of votes.
(ii) The holders of the Series D Preferred Stock shall have the right to
vote with the Common Stock on all matters on which the holders of the Common
Stock are entitled to vote, or give written consent in lieu of a vote, as though
part of the same class as holders of the Common Stock. The holders of the
Series D Preferred Stock shall receive all notices of meetings of the holders of
the Common Stock, and all other notices and correspondence to the holders of the
Common Stock provided by the Corporation, and shall be entitled to take such
actions, and shall have such rights, as are set forth in these Articles
Supplementary or are otherwise available to the holders of the Common Stock in
the Charter and in the Bylaws of the Corporation as are in effect on the date
hereof and from time to time hereafter.
(iii) Whenever distributions on any shares of Series D Preferred Stock
shall be in arrears for six or more Distribution Periods, the holders of the
Series D Preferred Stock, voting separately as a class with all other series or
classes of Preferred Stock upon which like voting rights have been conferred and
are exercisable, will be entitled to vote for the election of two additional
directors of the Corporation at a special meeting called by the Secretary of the
Corporation upon the written request (addressed to the Secretary at the
principal office of the Corporation) of any holder of any series or class of
Preferred Stock so in arrears (unless such request is received less than 90 days
before the date fixed for the next annual or special meeting of the
stockholders) or at the next annual meeting of stockholders or special meeting
held in place thereof, and at each subsequent annual meeting until all
distributions accumulated on such shares of Series D Preferred Stock for the
past Distribution Periods and the then current Distribution Period shall have
been fully paid or declared and a sum sufficient for the payment thereof set
aside for payment. If any such special meeting required to be called as above
provided shall not be called by the Secretary within 20 days after receipt of
any such request, then any such holder may call such meeting, upon the notice
provided, and for that purpose shall have access to the stock books of the
Corporation. In such case, the entire Board of Directors of the Corporation
will be increased by two directors. If and when all accumulated distributions
on the Series D Preferred Stock have been declared and paid or set aside for
payment in full, the holders of the Series D Preferred Stock shall be divested
of the special voting rights provided by this subsection (f)(iii). Upon
termination of such special voting rights attributable to all holders of the
Series D Preferred Stock, the term of office of each director elected by the
holders of the Series D Preferred Stock and all other series of Preferred Stock
upon which like voting rights had been conferred (a "Preferred Stock Director")
pursuant to such special voting rights shall forthwith terminate and the number
of directors constituting the entire Board of Directors shall be reduced by the
number of Preferred Stock Directors. Except as provided in the immediately
preceding sentence, any Preferred Stock Director may be removed only by the vote
of the holders of record of a majority of the outstanding shares of Series D
Preferred Stock and all other series of Preferred Stock of the Corporation upon
which like voting rights had been conferred, voting together as a separate
class, at a meeting called for such purpose.
So long as any shares of Series D Preferred Stock are outstanding, the
number of directors constituting the entire Board of Directors of the
Corporation shall at all times be such that the exercise, by the holders of the
Series D Preferred Stock and the holders of Preferred Stock of the Corporation
upon which like voting rights have been conferred, of the right to elect
directors under the circumstances provided above will not contravene any
provision of the Corporation's Charter or Bylaws restricting the number of
directors which may constitute the entire Board of Directors.
Any vacancy in the office of a Preferred Stock Director shall be filled for
the remainder of the term of the Preferred Stock Director creating the vacancy,
by vote of the Board of Directors, upon the nomination of the then remaining
Preferred Stock Director or the successor of such remaining Preferred Stock
Director.
(iv) So long as any shares of Series D Preferred Stock remain outstanding,
the Corporation will not, without the affirmative vote or consent of the holders
of at least two-thirds of the shares of Series D Preferred Stock outstanding at
the time, given in person or by proxy, either in writing or at a meeting (such
series voting separately as a class), (A) authorize or create, or increase the
authorized or issued amount of, any class or series of shares of capital stock
ranking prior or senior to the Series D Preferred Stock with respect to the
payment of distributions or the distribution of assets upon liquidation,
dissolution or winding-up or reclassify any authorized shares of capital stock
of the Corporation into such shares, or create, authorize or issue any
obligation or security
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convertible into or evidencing the right to purchase any such shares; or (B)
amend, alter or repeal the provisions of the Corporation's Charter or these
Articles Supplementary whether by merger, consolidation or otherwise (an
"Event"), so as to materially and adversely affect any right, preference,
privilege or voting power of the Series D Preferred Stock or the holders
thereof; provided, however, with respect to the occurrence of any of the Events
set forth in (B) above, so long as the shares of Series D Preferred Stock remain
outstanding with the terms thereof materially unchanged, taking into account
that upon the occurrence of an Event, the Corporation may not be the surviving
entity, the occurrence of any such Event shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting power of holders
of Series D Preferred Stock and provided further that (X) any increase in the
amount of the authorized Preferred Stock or the creation or issuance of any
other shares of Series D Preferred Stock, or (Y) any increase in the amount of
authorized Series D Preferred Stock or any other Preferred Stock, in each case
ranking on a parity with or junior to the Series D Preferred Stock with respect
to payment of distributions or the distribution of assets upon liquidation,
dissolution or winding-up, shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting powers.
(v) The foregoing voting provisions will not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding shares of Series D Preferred Stock shall have
been redeemed or called for redemption upon proper notice and sufficient funds
shall have been irrevocably deposited in trust to effect such redemption.
(g) Conversion. The Series D Preferred Stock is not convertible into or
exchangeable for any other property or securities of the Corporation.
(h) Restrictions on Transfer, Acquisition and Redemption of Shares. The
Series D Preferred Stock constitutes a class of Preferred Stock of the
Corporation and Preferred Stock constitutes Equity Stock of the Corporation.
Therefore, the Series D Preferred Stock, being Equity Stock, is governed by and
issued subject to all of the limitations, terms and conditions of the Charter of
the Corporation applicable to the Equity Stock generally, including but not
limited to the terms and conditions (including exceptions and exemptions) of
Article VII of the Charter applicable to Equity Stock. The foregoing sentence
shall not be construed to limit to the Series D Preferred Stock the
applicability of any other term or provision of the Charter.
In addition to the legend contemplated by Article VII, Section 11 of the
Charter, each certificate for Series D Preferred Stock shall bear substantially
the following legend:
"The Corporation will furnish to any stockholder, on request and without
charge, a full statement of the information required by Section 2-211(b) of
the Corporations and Associations Article of the Annotated Code of Maryland
with respect to the designations and any preferences, conversion and other
rights, voting powers, restrictions, limitations as to distributions,
qualifications, and terms and conditions of redemptions of the stock of
each class which the Corporation has authority to issue and, if the
Corporation is authorized to issue any preferred or special class in series
or classes, (i) the difference in the relative rights and preferences
between the shares of each series and class to the extent set, and (ii) the
authority of the Board of Directors to set such rights and preferences of
subsequent series and classes. The foregoing summary does not purport to
be complete and is subject to and qualified in its entirety by reference to
the Charter of the Corporation, a copy of which will be sent without charge
to each stockholder who so requests. Such request must be made to the
Secretary of the Corporation at its principal office."
Section 3. Exclusion of Other Rights. Except as may otherwise be required
by law, the Series D Preferred Stock shall not have any voting powers,
preferences and relative, participating, optional or other special rights, other
than those specifically set forth in these Articles Supplementary and in the
Corporation's Charter (as such Articles Supplementary or Charter may be amended
from time to time). The Series D Preferred Stock shall have no preemptive or
subscription rights.
Section 4. Severability of Provisions. If any voting powers, preferences
and relative, participating, optional and other special rights of the Series D
Preferred Stock and qualifications, limitations and restrictions thereof set
forth in these Articles Supplementary (as such Articles Supplementary may be
amended from time to time) is invalid, unlawful or incapable of being enforced
by reason of any rule of law or public policy, all other voting powers,
preferences and relative, participating, optional and other special rights of
the Series D Preferred Stock and qualifications, limitations and restrictions
thereof set forth in these Articles Supplementary (as so amended) which can be
given effect without the invalid, unlawful or unenforceable voting powers,
preferences and relative, participating, optional or other special rights of the
Series D Preferred Stock and qualifications, limitations and restrictions
thereof herein set forth shall remain in full force and effect and shall not be
deemed dependent upon any other such voting powers, preferences and relative,
participating, optional or other special right of the Series D Preferred Stock
and qualifications, limitations and restrictions thereof unless so expressed
herein.
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Section 5. Registration as Depositary Shares. Shares of Series D
Preferred Stock may be registered in the form of Depositary Shares each
representing a one-tenth (/1//10) fractional interest in a share of Series D
Preferred Stock on such terms and conditions as may be provided for in any
agreement binding upon the Corporation (whether directly or through merger with
any other corporation or business entity).
THIRD: The shares of Series D Preferred Stock have been classified and
designated by the Board of Directors under the authority contained in the
Charter.
FOURTH: These Articles Supplementary have been approved by the Board of
Directors in the manner and by the vote required by law.
FIFTH: The undersigned President of the Corporation acknowledges these
Articles Supplementary to be the corporate act of the Corporation and, as to all
matters or facts required to be verified under oath, the undersigned President
acknowledges that to the best of his knowledge, information and belief, these
matters and facts are true in all material respects and that this statement is
made under the penalties for perjury.
In Witness Whereof, the Corporation has caused these Articles Supplementary
to be executed under seal in its name and on its behalf by its President and
attested to by its Assistant Secretary on this 28th day of September, 1998.
Attest: EXCEL REALTY TRUST, INC.
By /s/ Richard B. Muir By /s/ Gary B. Sabin
------------------------- -----------------------------
Name: Richard B. Muir Name: Gary B. Sabin
Title: Secretary Title: President and Chief Executive Officer
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EXHIBIT 4.6
NEW PLAN EXCEL REALTY TRUST, INC.
---------------------------------
AMENDED AND RESTATED BYLAWS
---------------------------
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The principal office of the Corporation
shall be located in New York, New York, or at such other place or places as the
Board of Directors may designate.
Section 2. ADDITIONAL OFFICES. The Corporation may have additional
offices at such places as the Board of Directors may from time to time determine
or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE. All meetings of stockholders shall be held at the
principal office of the Corporation or at such other place within the United
States as shall be stated in the notice of the meeting.
Section 2. ANNUAL MEETING. An annual meeting of the stockholders for
the election of directors and the transaction of any business within the powers
of the Corporation shall be held on a date and at the time set by the Board of
Directors during the month of May in each year.
Section 3. SPECIAL MEETINGS. Special meetings of the stockholders
may be called only (i) by the chairman of the board or (ii) by action of the
Board of Directors or (iii) by the holders of shares entitled to cast not less
than fifty percent of all the votes entitled to be cast at such meeting.
Section 4. NOTICE. Not less than ten nor more than 90 days before
each meeting of stockholders, the secretary shall give to each stockholder
entitled to vote at such meeting and to each stockholder not entitled to vote
who is entitled to notice of the meeting written or printed notice stating the
time and place of the meeting and, in the case of a special meeting or as
otherwise may be required by statute, the purpose for which the meeting is
called, either by mail or by presenting it to such stockholder personally or by
leaving it at his residence or usual place of business. If mailed, such notice
shall be deemed to be given when deposited in the United States mail addressed
to the stockholder at his post office address as it appears on the records of
the Corporation, with postage thereon prepaid.
Section 5. SCOPE OF NOTICE. Any business of the Corporation may be
transacted at an annual meeting of stockholders without being specifically
designated in the notice, except such business as is required by statute to be
stated in such notice. No business shall be transacted at a special meeting of
stockholders except as specifically designated in the notice.
Section 6. QUORUM. At any meeting of stockholders, the presence in
person or by proxy of stockholders entitled to cast a majority of all the votes
entitled to be cast at such meeting shall constitute a quorum; but this section
shall not affect any requirement under any statute or the Charter of the
Corporation for the vote necessary for the adoption of any measure. If, however,
such quorum shall not be present at any meeting of the stockholders, the
stockholders entitled to vote at such meeting, present in person or by proxy,
shall have power to adjourn the meeting from time to time to a date not more
than 120 days after the original record date without notice other than
announcement at the meeting. At such adjourned meeting at which a quorum shall
be present, any business may be transacted which might have been transacted at
the meeting as originally notified.
Section 7. VOTING. A plurality of all the votes cast at a meeting of
stockholders duly called and at which a quorum is present shall be sufficient to
elect a director. Each share may be voted for as many individuals as there are
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directors to be elected and for whose election the share is entitled to be
voted. A majority of the votes cast at a meeting of stockholders duly called and
at which a quorum is present shall be sufficient to approve any other matter
which may properly come before the meeting, unless more than a majority of the
votes cast is required by statute or by the Charter of the Corporation. Unless
otherwise provided in the Charter, each outstanding share, regardless of class,
shall be entitled to one vote on each matter submitted to a vote at a meeting of
stockholders.
Section 8. PROXIES. A stockholder may vote the stock owned of record
by him, either in person or by proxy executed in writing by the stockholder or
by his duly authorized attorney in fact. Such proxy shall be filed with the
secretary of the Corporation before or at the time of the meeting. No proxy
shall be valid after eleven months from the date of its execution, unless
otherwise provided in the proxy.
Section 9. VOTING OF STOCK BY CERTAIN HOLDERS. Stock registered in
the name of a corporation, partnership, trust or other entity, if entitled to be
voted, may be voted by the president or a vice president, a general partner or
trustee thereof, as the case may be, or a proxy appointed by any of the
foregoing individuals, unless some other person who has been appointed to vote
such stock pursuant to a bylaw or a resolution of the board of directors (or
equivalent body) of such corporation or other entity presents a certified copy
of such bylaw or resolution, in which case such person may vote such stock. Any
director or other fiduciary may vote stock registered in his name as such
fiduciary, either in person or by proxy.
Shares of stock of the Corporation directly or indirectly owned by it
shall not be voted at any meeting and shall not be counted in determining the
total number of outstanding shares entitled to be voted at any given time,
unless they are held by it in a fiduciary capacity, in which case they may be
voted and shall be counted in determining the total number of outstanding shares
at any given time.
The Board of Directors may adopt by resolution a procedure by which a
stockholder may certify in writing to the Corporation that any shares of stock
registered in the name of the stockholder are held for the account of a
specified person other than the stockholder. The resolution shall set forth the
class of stockholders who may make the certification, the purpose for which the
certification may be made, the form of certification and the information to be
contained in it; if the certification is with respect to a record date or
closing of the stock transfer books, the time after the record date of closing
of the stock transfer books within which the certification must be received by
the Corporation; and any other provisions with respect to the procedure which
the Board of Directors considers necessary or desirable. On receipt of such
certification, the person specified in the certification shall be regarded as,
for the purposes set forth in the certification, the stockholder of record of
the specified stock in place of the stockholder who makes the certification.
Notwithstanding any other provision of the Charter of the Corporation
or these Bylaws, Title 3, Subtitle 7 of the Corporations and Associations
Article of the Annotated Code of Maryland (or any successor statute) shall not
apply to any acquisition by any person of stock of the Corporation.
Section 10. INSPECTORS. At any meeting of stockholders, the chairman
of the meeting may, or upon the request of any stockholder shall, appoint one or
more persons as inspectors for such meeting. Such inspectors shall ascertain and
report the number of shares represented at the meeting based upon their
determination of the validity and effect of proxies, count all votes, report the
results and perform such other acts as are proper to conduct the election and
voting with impartiality and fairness to all the stockholders.
Each report of an inspector shall be in writing and signed by him or
by a majority of them if there is more than one inspector acting at such
meeting. If there is more than one inspector, the report of a majority shall be
the report of the inspectors. The report of the inspector or inspectors on the
number of shares represented at the meeting and the results of the voting shall
be prima facie evidence thereof.
Section 11. NOMINATIONS AND STOCKHOLDER BUSINESS.
(a) Annual Meetings of Stockholders. (1) Nominations of persons for
election to the Board of Directors and the proposal of business to be considered
by the stockholders may be made at an annual meeting of stockholders (i)
pursuant to the Corporation's notice of meeting, (ii) by or at the direction of
the Board of Directors or (iii) by any stockholder of the Corporation who was a
stockholder of record at the time of giving of notice provided for in this
Section 11(a), who is entitled to vote at the meeting and who complied with the
notice procedures set forth in this Section 11(a).
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(2) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (iii) of paragraph (a)(1)
of this Section 11, the stockholder must have given timely notice thereof in
writing to the secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered to the secretary at the principal executive offices of
the Corporation not less than 60 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is advanced by more than 30 days
or delayed by more than 60 days from such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the 90th day
prior to such annual meeting and not later than the close of business on the
later of the 60th day prior to such annual meeting or the tenth day following
the day on which public announcement of the date of such meeting is first made.
Such stockholders' notice shall be set forth (i) as to each person whom the
stockholder proposes to nominate for election or reelection as a director all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (including such person's written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected); (ii) as to any other business that the stockholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and of the beneficial
owner, if any, on whose behalf the proposal is made; and (iii) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made, (x) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner and (y) the class and number of shares of stock of the Corporation which
are owned beneficially and of record by such stockholder and such beneficial
owner.
(3) Notwithstanding anything in the second sentence of paragraph
(a)(2) of this Section 11 to the contrary, in the event that the number of
directors to be elected to the Board of Directors is increased and there is no
public announcement naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the Corporation at least 70
days prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Section 11(a) shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the secretary at the principal executive
offices of the Corporation not later than the close of business on the tenth day
following the day on which such public announcement is first made by the
Corporation.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of stockholders at which directors are to be elected (i) pursuant to the
Corporation's notice of meeting, (ii) by or at the direction of the Board of
Directors or (iii) provided that the Board of Directors has determined that
directors shall be elected at such special meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this Section 11(b), who is entitled to vote at the meeting and
who complied with the notice procedures set forth in this Section 11(b). In the
event the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
may nominate a person or persons (as the case may be) for election to such
position as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (a)(2) of this Section 11(b) shall be
delivered to the secretary at the principal executive offices of the Corporation
not earlier than the 90th day prior to such special meeting and not later than
the close of business on the later of the 60th day prior to such special meeting
or the tenth day following the day on which public announcement is the first
made of the date of the special meeting and of the nominees proposed by the
Board of Directors to be elected at such meeting.
(c) General. (1) Only such persons who are nominated in accordance
with the procedures set forth in this Section 11 shall be eligible to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 11. The presiding officer of the meeting shall have
the power and duty to determine whether a nomination or any business proposed to
be brought before the meeting was made in accordance with the procedures set
forth in this Section 11 and, if any proposed nomination or business is not in
compliance with this Section 11, to declare that such defective nomination or
proposal be disregarded.
(2) For purposes of this Section 11, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Sections 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 11, a
stockholder shall also comply with all applicable requirements of state law and
of the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 11. Nothing in this Section 11 shall be deemed
to affect any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
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Section 12. INFORMAL ACTION BY STOCKHOLDER. Any action required or
permitted to be taken at a meeting of stockholders may be taken without a
meeting if (i) a consent in writing, setting forth such action, is signed by
each stockholder entitled to vote on the matter and (ii) a written waiver of any
right to dissent is signed by each stockholder entitled to notice of the meeting
of stockholders but not to vote thereat, and such consent and waiver are filed
with the minutes of proceedings of the stockholders.
Section 13. VOTING BY BALLOT. Voting on any question or in any
election may be viva voce unless the presiding officer shall order or any
stockholder shall demand that voting be by ballot.
ARTICLE III
DIRECTORS
Section 1. GENERAL POWERS; QUALIFICATIONS. The business and affairs
of the Corporation shall be managed under the direction of its Board of
Directors.
Section 2. NUMBER, TENURE AND QUALIFICATIONS. At any regular meeting
or at any special meeting called for that purpose, the Board of Directors may
establish, increase or decrease the number of directors, provided that the
number thereof shall never be less than the minimum number required by the
Maryland General Corporation Law, nor more than 21 (including two directorships
which shall be reserved to the extent necessary to comply with any default
director provisions under the Corporation's preferred stock), and further
provided that the tenure of office of a director shall not be affected by any
decrease in the number of directors. Pursuant to the charter of the Corporation,
the directors have been divided into classes with terms of three years, with the
term of office of one class expiring at the annual meeting of stockholders in
each year. Each director shall hold office for the term for which he is elected
and until his successor is elected and qualified.
Section 3. ANNUAL AND REGULAR MEETINGS. An annual meeting of the
Board of Directors shall be held immediately after and at the same place as the
annual meeting of stockholders, no notice other than this Bylaw being necessary.
Unless the Board of Directors shall provide by resolution the time and place,
either within or without the State of Maryland, for the holding of regular
meetings of the Board of Directors, the chairman of the board shall fix such
time and place for such meetings.
Section 4. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called only by or at the request of (i) the chairman of the
board, the chief executive officer, the president or (ii) directors constituting
a majority of the directors then in office. The chairman of the board shall fix
the time and place, either within or without the State of Maryland, as the time
and place for holding any special meeting of the Board of Directors.
Section 5. NOTICE. Notice of any meeting of the Board of Directors
shall be given by written notice delivered personally or transmitted by
facsimile to each director at his business address. Personally delivered or
facsimile transmitted notices shall be given at least five business days prior
to such meeting (or such shorter period, not shorter than two calendar days in
any event, as may be approved by the chairman of the board with respect to a
particular meeting or meetings under exigent circumstances). Personally
delivered notices may be delivered to a director's business address by a
reputable courier service. Neither the business to be transacted at, nor the
purpose of, any annual or regular meeting of the Board of Directors need be
stated in this notice, unless specifically required by statute or these Bylaws.
No business shall be transacted at a special meeting of the Board of Directors
except as specifically designated in the notice thereof.
Section 6. QUORUM. Directors constituting a majority of the total
number of directorships then constituting the Board of Directors (including
vacant Board of Directors seats, except any vacancy created by an increase in
the number of Board of Directors seats) (such a majority being referred to in
these Bylaws as a "Majority of the Board") and who are present in person shall
constitute a quorum for transaction of business at any meeting of the Board of
Directors, provided that if, pursuant to the Charter of the Corporation or these
Bylaws, the vote of a majority of a particular group of directors is required
for action, a quorum must also include a majority of such group.
If at any time during any meeting of the Board of Directors, directors
constituting a Majority of the Board shall cease to be present in person at the
meeting, then the Board of Directors shall cease at such time to have a quorum
for transaction of business and such meeting shall immediately terminate.
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Section 7. VOTING. The action of the majority of the directors
present at a meeting at which a quorum is present shall be the action of the
Board of Directors, except as otherwise expressly provided herein or unless the
concurrence of a greater proportion is required for such action by applicable
statute, the Corporation's Charter or these Bylaws.
Section 8. TELEPHONE MEETINGS. Subject to Section 6 of this Article
III, directors may participate in a meeting by means of a conference telephone
or similar communications equipment if all persons participating in the meeting
can hear each other at the same time. Participation in a meeting by these means
shall constitute presence in person at the meeting.
Section 9. INFORMAL ACTION BY DIRECTORS. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting, if a consent in writing to such action is signed by each
director and such written consent is filed with the minutes of proceedings of
the Board of Directors.
Section 10. VACANCIES. If for any reason any or all the directors
cease to be directors, such event shall not terminate the Corporation or affect
these Bylaws or the powers of the remaining directors hereunder (even if fewer
than three directors remain). Any vacancy on the Board of Directors for any
cause other than an increase in the number of directors may be filled by a
majority of the remaining directors, although such majority is less than a
quorum. Any vacancy on the Board of Directors created by an increase in the
number of directors may be filled by directors constituting a Majority of the
Board. The stockholders may elect a successor to fill a vacancy on the Board of
Directors which results from the removal of a director (other than the removal
of a director elected separately by any class or series). If the stockholders
of any class or series are entitled separately to elect one or more directors,
the stockholders of that class or series may elect a successor to fill a vacancy
on the Board of Directors which results from the removal of a director elected
by that class or series. A director elected by the Board of Directors to fill a
vacancy serves until the next annual meeting of stockholders and until his
successor is elected and qualifies. A director elected by the stockholders to
fill a vacancy which results from the removal of a director serves for the
balance of the term of the removed director.
Section 11. COMPENSATION. Directors shall not receive any stated
salary for their services as directors but, by resolution of the Board of
Directors, fixed sums per year and/or per meeting. Expenses of attendance, if
any, may be allowed to directors for attendance at each annual, regular or
special meeting of the Board of Directors or of any committee thereof; but
nothing herein contained shall be construed to preclude any directors from
serving the Corporation in any other capacity and receiving compensation
therefor.
Section 12. REMOVAL OF DIRECTORS. Directors may only be removed for
cause.
Section 13. LOSS OF DEPOSIT. No director shall be liable for any
loss which may occur by reason of the failure of the bank, trust company,
savings and loan association, or other institution with whom moneys or stock
have been deposited.
Section 14. SURETY BONDS. Unless required by law, no director shall
be obligated to give any bond or surety or other security for the performance of
any of his duties.
Section 15. RELIANCE. Each director, officer, employee and agent of
the Corporation shall, in the performance of his duties with respect to the
Corporation, be fully justified and protected with regard to any act or failure
to act in reliance in good faith upon the books of account or other records of
the Corporation, upon an opinion of counsel or upon reports made to the
Corporation by any of its officers or employees or by the adviser, accountants,
appraisers or other experts or consultants selected by the Board of Directors or
officers of the Corporation, regardless of whether such counsel or expert may
also be a director.
Section 16. CERTAIN RIGHTS OF DIRECTORS, OFFICERS, EMPLOYEES AND
AGENTS. The directors shall have no responsibility to devote their full time to
the affairs of the Corporation. Any director or officer, employee or agent of
the Corporation, in his personal capacity or in a capacity as an affiliate,
employee, or agent of any other person, or otherwise, may have business
interests and engage in business activities similar to or in addition to those
of or relating to the Corporation; provided that in no event shall any such
person appropriate any opportunity of the Corporation.
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ARTICLE IV
COMMITTEES
Section 1. NUMBER, TENURE AND QUALIFICATIONS. The Board of Directors
may appoint from among its members an Investment Committee and other committees
composed of two or more directors (provided that the Investment Committee shall
be composed of four directors), to serve at the pleasure of the Board of
Directors. Notwithstanding the foregoing, the Corporation shall not have an
Executive Committee.
Section 2. POWERS. Subject to Section 5 of this Article, the Board
of Directors may delegate to committees appointed under Section 1 of this
Article any of the powers of the Board of Directors, except as prohibited by
law.
Section 3. TELEPHONE MEETINGS. Members of a committee of the Board
of Directors may participate in a meeting by means of a conference telephone or
similar communications equipment if all persons participating in the meeting can
hear each other at the same time. Participation in a meeting by these means
shall constitute presence in person at the meeting.
Section 4. INFORMAL ACTION BY COMMITTEES. Any action required or
permitted to be taken at any meeting of a committee of the Board of Directors
may be taken without a meeting, if a consent in writing to such action is signed
by each member of the committee and such written consent is filed with the
minutes of proceedings of such committee.
Section 5. INVESTMENT COMMITTEE. The Board of Directors shall
appoint an Investment Committee composed of four directors. Subject to
requirements under applicable law regarding action or approval by the Board of
Directors or any Stockholders, as the case may be, the Investment Committee will
have the power and authority (i) but only by the consent of at least three
members, to approve on behalf of the Corporation any acquisition or disposition
with a purchase price (taking into account purchase money financing and
assumption of existing mortgage indebtedness) of less than five percent (5%) of
the total assets (before accumulated depreciation and amortization) of the
Corporation and its consolidated subsidiaries determined in accordance with
generally accepted accounting principles at the time such transaction is entered
into and (ii) also to approve any such transaction with such a purchase price in
an amount in excess of five percent (5%), but less than ten percent (10%), of
total assets (before accumulated depreciation and amortization) of the
Corporation and its consolidated subsidiaries, determined in accordance with
generally accepted accounting principles, by the consent of all four members of
the Investment Committee and two additional members of the Board of Directors of
the Corporation. Subject to authority which the Board of Directors shall
delegate from time to time, the Investment Committee shall be entitled to
authorize and approve the use of so-called Down-REIT Units in connection with
such a transaction and authorize and reserve for issuance shares of the
Corporation's capital stock upon conversion of such Down-REIT Units. The
Investment Committee shall not have the power or authority to approve any
refinancing, unsecured financing or new financing, other than purchase money
financing or debt assumed as described above.
ARTICLE V
OFFICERS
Section 1. GENERAL PROVISIONS. The officers of the Corporation shall
include a chairman of the board, a chief executive officer, a president, a chief
operating officer (or, as the Board of Directors shall determine, co-chief
operating officers), one or more executive vice presidents, a chief financial
officer, a treasurer and a secretary and may include one or more vice
presidents, one or more assistant secretaries and one or more assistant
treasurers. In addition, the Board of Directors may from time to time appoint
such other officers with such powers and duties as they shall deem necessary or
desirable. The officers of the Corporation shall be elected annually by the
Board of Directors at the first meeting of the Board of Directors held after
each annual meeting of stockholders, except that the chief executive officer may
appoint one or more vice presidents, assistant secretaries and assistant
treasurers. If the election of officers shall not be held at such meeting, such
election shall be held as soon thereafter as may be convenient. Each officer
shall hold office until his successor is elected and qualifies or until his
death, resignation or removal in the manner hereinafter provided. Any two or
more offices may be held by the same person. In its discretion, the Board of
Directors may leave unfilled any office except that of chief executive officer,
president, treasurer and secretary. Election of an officer or agent shall not
of itself create contract rights between the Corporation and such officer or
agent.
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Section 2. REMOVAL AND RESIGNATION. Any officer or agent of the
Corporation may be removed by the Board of Directors if in its judgment the best
interests of the Corporation would be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed. Any
officer of the Corporation may resign at any time by giving written notice of
his resignation to the Board of Directors, the chairman of the board, the chief
executive officer, the president or the secretary. Any resignation shall take
effect at any time subsequent to its receipt at the time specified therein or,
if the time when it shall become effective is not specified therein, immediately
upon its receipt. The acceptance of a resignation shall not be necessary to
make it effective unless otherwise stated in the resignation.
Section 3. VACANCIES. A vacancy in any office may be filled by the
Board of Directors for the balance of the term.
Section 4. CHAIRMAN OF THE BOARD. The Board of Directors shall
designate a chairman of the board. The chairman of the board shall preside over
the meetings of the Board of Directors and of the stockholders at which he shall
be present. The chairman of the board shall perform such other duties as may be
assigned to him by the Board of Directors. The chairman of the board shall call
regular and special meetings of the Board of Directors and/or stockholders as
the chairman shall determine are necessary or appropriate for the conduct of the
business and affairs of the Corporation.
Section 5. CHIEF EXECUTIVE OFFICER. The Board of Directors shall
designate a chief executive officer. The chief executive officer shall have
general responsibility for implementation of the policies of the Corporation, as
determined by the Board of Directors, and for the management (under the
direction of the Board of Directors) of the business and affairs of the
Corporation, shall in general supervise and control such business and affairs
and shall report to the Board of Directors. He shall make reports to the Board
of Directors and the stockholders and shall see that all orders of the Board of
Directors and any committee thereof are carried into effect. The chief
executive officer may execute any deed, mortgage, bond, contract or other
instrument, except in cases where the execution thereof shall be expressly
delegated by the Board of Directors or by these Bylaws to some other officer or
agent of the Corporation or shall be required by law to be otherwise executed.
The chief executive officer shall in general perform all duties incident to the
office of chief executive officer and such other duties as may be properly
prescribed by the Board of Directors from time to time. The chief executive
officer shall, in the absence of or because of the inability to act of the
chairman of the board, perform all duties of the chairman of the board.
Section 6. PRESIDENT. The president shall be the most senior
executive officer of the Corporation below the chief executive officer and shall
assist the chief executive officer in the implementation of the policies of and
management of the business and affairs of the Corporation and in the supervision
and control of such business and affairs. The president shall report to the
chief executive officer. The president shall, in the absence of or because of
the inability to act of the chief executive officer, perform all duties of the
chief executive officer. In the absence of a designation of a chief operating
officer by the Board of Directors, the president shall also be the chief
operating officer. He may execute any deed, mortgage, bond, contract or other
instrument, except in cases where the execution thereof shall be expressly
delegated by the Board of Directors or by these Bylaws to some other officer or
agent of the Corporation or shall be required by law to be otherwise executed;
and in general shall perform all duties incident to the office of president and
such other duties as may be properly prescribed by the chief executive officer
or the Board of Directors from time to time.
Section 7. CHIEF OPERATING OFFICER. The Board of Directors shall
designate a chief operating officer (or co-chief operating officers as the Board
of Directors shall determine). The chief operating officer(s) shall report to
the president of the Corporation and shall oversee the day-to-day administration
and operation of the Corporation's business. The chief operating officer(s)
shall have such other responsibilities and duties as set forth by the Board of
Directors or the chief executive officer or the president and as are normally
incident to the office of a chief operating officer.
Section 8. VICE PRESIDENTS. The Board of Directors shall designate
one or more executive vice presidents. The executive vice president(s) shall
have such duties and responsibilities as set forth by the Board of Directors or
the chief executive officer or the president. The Board of Directors may also
designate one or more vice presidents and designate such vice presidents for
particular areas of responsibility.
Section 9. CHIEF FINANCIAL OFFICER. The Board of Directors shall
designate a chief financial officer. The chief financial officer shall have
responsibility for the financial affairs of the Corporation and shall exercise
supervisory responsibility for the performance of the duties of the Treasurer.
The chief financial officer shall have such other responsibilities and duties as
set forth by the Board of Directors or the chief executive officer or the
president.
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Section 10. SECRETARY. The secretary shall (a) keep the minutes of
the proceedings of the stockholders, the Board of Directors and committees of
the Board of Directors in one or more books provided for that purpose; (b) see
that all notices are duly given in accordance with the provisions of these
Bylaws or as required by law; (c) be custodian of the trust records and of the
seal of the Corporation; (d) keep a register of the post office address of each
stockholder which shall be furnished to the secretary by such stockholder; (e)
have general charge of the share transfer books of the Corporation; and (f) in
general perform such other duties as from time to time may be assigned to him by
the chief executive officer, the president or by the Board of Directors.
Section 11. TREASURER. The treasurer shall have the custody of the
funds and securities of the Corporation and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors. In the absence of a designation of a chief financial officer by
the Board of Directors, the treasurer shall be the chief financial officer of
the Corporation.
The treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the president and Board of Directors, at the
regular meetings of the Board of Directors or whenever it may so require, an
account of all his transactions as treasurer and of the financial condition of
the Corporation.
If required by the Board of Directors, he shall give the Corporation a
bond in such sum and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties of his office
and for the restoration to the Corporation, in case of his death, resignation,
retirement or removal from office, all books, papers, vouchers, moneys and other
property of whatever kind in his possession or under his control belonging to
the Corporation.
Section 12. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
assistant secretaries and assistant treasurers, in general, shall perform such
duties as shall be assigned to them by the secretary or treasurer, respectively,
or by the president, the chief executive officer or the Board of Directors. The
assistant treasurers shall, if required by the Board of Directors, give bonds
for the faithful performance of their duties in such sums and with such surety
or sureties as shall be satisfactory to the Board of Directors.
Section 13. SALARIES. The salaries of the officers shall be fixed
from time to time by the Board of Directors and no officer shall be prevented
from receiving such salary by reason of the fact that he is also a director.
Section 14. NON-CONTRAVENTION. Whenever in this Article V, the
responsibilities and duties of an officer may be specified by the chief
executive officer and/or the president, neither the chief executive officer nor
the president shall contravene the instructions of the Board of Directors with
respect to such responsibilities and duties or the performance thereof and the
president shall not contravene the instructions of the chief executive officer
with respect to such responsibilities and duties or the performance thereof.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. CONTRACTS. The Board of Directors may authorize any
officer or agent to enter into any contract or to execute and deliver any
instrument in the name of and on behalf of the Corporation and such authority
may be general or confined to specific instances. Any agreement, deed,
mortgage, lease or other document executed by one or more of the directors or by
an authorized person shall be valid and binding upon the Board of Directors and
upon the Corporation when authorized or ratified by action of the Board of
Directors.
Section 2. CHECKS AND DRAFTS. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by such officer or officers, agent or
agents of the Corporation and in such manner as shall from time to time be
determined by the Board of Directors.
Section 3. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board of Directors
may designate.
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ARTICLE VII
STOCK
Section 1. CERTIFICATES. Each stockholder shall be entitled to
a certificate or certificates which shall represent and certify the number of
shares of each class of stock held by him in the Corporation; provided, however,
that the Board of Directors may authorize the issue of some or all of the shares
of some or all of its classes or series without certificates. Each certificate
shall be signed by the chief executive officer, the president or a vice
president and countersigned by the secretary or an assistant secretary or the
treasurer or an assistant treasurer and may be sealed with the seal, if any, of
the Corporation. The signatures may be either manual or facsimile. Certificates
shall be consecutively numbered; and if the Corporation shall, from time to
time, issue several classes of stock, each class may have its own number series.
A certificate is valid and may be issued whether or not an officer who signed it
is still an officer when it is issued. Each certificate representing shares
which are restricted as to their transferability or voting powers, which are
preferred or limited as to their dividends or as to their allocable portion of
the assets upon liquidation or which are redeemable at the option of the
Corporation, shall have a statement of such restriction, limitation, preference
or redemption provision, or a summary thereof, plainly stated on the
certificate. In lieu of such statement or summary, the Corporation may set forth
upon the face or back of the certificate a statement that the Corporation will
furnish to any stockholder, upon request and without charge, a full statement of
such information.
Section 2. TRANSFERS. Upon surrender to the Corporation or the
transfer agent of the Corporation of a stock certificate duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
The Corporation shall be entitled to treat the holder of record of
any share of stock as the holder in fact thereof and, accordingly, shall not be
bound to recognize any equitable or other claim to or interest in such share on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of
Maryland.
Notwithstanding the foregoing, transfers of shares of any class of
stock will be subject in all respects to the Charter of the Corporation and all
of the terms and conditions.
Section 3. LOST CERTIFICATES. The Board of Directors (or any
officer designated by it) may direct a new certificate to be issued in place of
any certificate previously issued by the Corporation alleged to have been lost,
stolen or destroyed upon the making of an affidavit of that fact by the person
claiming the certificate to be lost, stolen or destroyed. When authorizing the
issuance of a new certificate, the Board of Directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or his legal representative to advertise
the same in such manner as they shall require and/or to give bond, with
sufficient surety, to the Corporation to indemnify it against any loss or claim
which may arise as a result of the issuance of a new certificate.
Section 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. The
Board of Directors may set, in advance, a record date for the purpose of
determining stockholders entitled to notice of or to vote at any meeting of
stockholders, or stockholders entitled to receive payment of any dividend or the
allotment of any other rights, or in order to make a determination of
stockholders for any other purpose. Such date, in any case, shall not be prior
to the close of business on the day the record date is fixed and shall be not
more than 90 days and, in the case of a meeting of stockholders, not less than
ten days, before the date on which the meeting or particular action requiring
such determination of stockholders is to be held or taken.
In lieu of fixing a record date, the Board of Directors may provide
that the stock transfer books shall be closed for a stated period but not longer
than 20 days. If the stock transfer books are closed for the purpose of
determining stockholders entitled to notice of or to vote at a meeting of
stockholders, such books shall be closed for at least ten days before the date
of such meeting.
If no record date is fixed and the stock transfer books are not
closed for the determination of stockholders, (a) the record date for the
determination of stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day on which the notice of
meeting is mailed or the 30th day before the meeting, whichever is the closer
date to the meeting; and (b) the record date for the determination of
stockholders entitled to receive payment of a dividend or an allotment of any
other rights shall be the close of business on the day on which the resolution
of the directors, declaring the dividend or allotment of rights, is adopted.
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When a determination of stockholders entitled to vote at any
meeting of stockholders has been made as provided in this section, such
determination shall apply to any adjournment thereof, except where the
determination has been made through the closing of the transfer books and the
stated period of closing has expired.
Section 5. STOCK LEDGER. The Corporation shall maintain at its
principal office or at the office of its counsel, accountants or transfer agent,
an original or duplicate share ledger containing the name and address of each
stockholder and the number of shares of each class held by such stockholder.
Section 6. FRACTIONAL STOCK; ISSUANCE OF UNITS. The Board of
Directors may issue fractional stock or provide for the issuance of scrip, all
on such terms and under such conditions as they may determine. Notwithstanding
any other provision of the Charter or these Bylaws, the Board of Directors may
issue units consisting of different securities of the Corporation. Any security
issued in a unit shall have the same characteristics as any identical securities
issued by the Corporation, except that the Board of Directors may provide that
for a specified period securities of the Corporation issued in such unit may be
transferred on the books of the Corporation only in such unit.
ARTICLE VIII
ACCOUNTING YEAR
The Board of Directors shall have the power, from time to time, to
fix the fiscal year of the Corporation by a duly adopted resolution.
ARTICLE IX
DIVIDENDS
Section 1. DECLARATION. Dividends upon the stock of the Corporation
may be declared by the Board of Directors, subject to the provisions of law and
the Charter of the Corporation. Dividends may be paid in cash, property or stock
of the Corporation, subject to the provisions of law and the Charter.
Section 2. CONTINGENCIES. Before payment of any dividends, there
may be set aside out of any funds of the Corporation available for dividends
such sum or sums as the Board of Directors may from time to time, in its
absolute discretion, think proper as a reserve fund for contingencies, for
equalizing dividends, for repairing or maintaining any property of the
Corporation or for such other purpose as the Board of Directors shall determine
to be in the best interest of the Corporation, and the Board of Directors may
modify or abolish any such reserve in the manner in which it was created.
ARTICLE X
INVESTMENT POLICY
Subject to the provisions of the Charter of the Corporation, the
Board of Directors may from time to time adopt, amend, revise or terminate any
policy or policies with respect to investments by the Corporation as it shall
deem appropriate in its sole discretion.
ARTICLE XI
SEAL
Section 1. SEAL. The Board of Directors may authorize the adoption
of a seal by the Corporation. The seal shall have inscribed thereon the name of
the Corporation and the year of its organization. The Board of Directors may
authorize one or more duplicate seals and provide for the custody thereof.
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Section 2. AFFIXING SEAL. Whenever the Corporation is required
to place its seal to a document, it shall be sufficient to meet the requirements
of any law, rule or regulation relating to a seal to place the word "(SEAL)"
adjacent to the signature of the person authorized to execute the document on
behalf of the Corporation.
ARTICLE XII
INDEMNIFICATION
To the maximum extent permitted by Maryland law in effect from time
to time, the Corporation, without requiring a preliminary determination of the
ultimate entitlement to indemnification, shall indemnify and shall pay or
reimburse reasonable expenses in advance of final disposition of a proceeding to
(i) any individual who is a present or former director or officer of the
Corporation or (ii) any individual who, while a director of the Corporation and
at the request of the Corporation, serves or has served another corporation,
partnership, joint venture, trust, employee benefit plan or any other enterprise
as a director, officer, partner or trustee of such corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise. The Corporation
may, with the approval of its Board of Directors, provide such indemnification
and advancement of expenses to a person who served a predecessor of the
Corporation in any of the capacities described in (i) or (ii) above and to any
employee or agent of the Corporation or a predecessor of the Corporation.
Neither the amendment nor repeal of this Article, nor the adoption or
amendment of any provision of the Bylaws or Charter of the Corporation
inconsistent with this Article, shall apply to or affect in any respect the
applicability of the preceding paragraph with respect to any act or failure to
act which occurred prior to such amendment, repeal or adoption.
ARTICLE XIII
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the Charter
of the Corporation or these Bylaws or pursuant to applicable law, a waiver
thereof in writing, signed by the person or persons entitled to such notice,
whether before or after the time stated herein, shall be deemed equivalent to
the giving of such notice. Neither the business to be transacted at nor the
purpose of any meeting need be set forth in the waiver of notice, unless
specifically required by statute. The attendance of any person at any meeting
shall constitute a waiver of notice of such meeting, except where such person
attends a meeting for the express purpose of objecting to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
ARTICLE XIV
AMENDMENT OF BYLAWS
The Board of Directors shall have the exclusive power to adopt, alter
or repeal any provision of these Bylaws and to make new Bylaws; provided that no
amendment to increase the size of the board of directors above 21 members (or to
amend this proviso) shall be made without the approval of the holders of a
majority of the shares entitled to vote at a meeting of stockholders.
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EXHIBIT 5.1
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP]
September 29, 1998
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
Re: New Plan Excel Realty Trust, Inc.
Registration Statement on Form S-3:
Dividend Reinvestment and Share Purchase Plan
---------------------------------------------
Ladies and Gentlemen:
We have acted as special Maryland corporate counsel to New Plan Excel
Realty Trust, Inc., a Maryland corporation (the "Company"), in connection with
certain matters arising out of the issuance of up to 10,000,000 shares (the
"Shares") of common stock, par value $.01 per share, of the Company (the "Common
Stock"), covered by the above-referenced Registration Statement filed on or
about September 29, 1998 (the "Registration Statement"), under the Securities
Act of 1933, as amended. The Shares are to be issued pursuant to the Dividend
Reinvestment and Share Purchase Plan of the Company (the "Plan") and the
transactions related thereto. Capitalized terms used but not defined herein
shall have the meanings assigned to them in the Registration Statement.
In our capacity as special Maryland corporate counsel to the Company and
as a basis for the opinions hereinafter set forth, we have examined originals,
or copies certified or otherwise identified to our satisfaction, of the
following documents:
(i) The charter of the Company (the "Charter"), consisting of Articles of
Incorporation filed with the State Department of Assessments and Taxation of
Maryland (the "Department") on May 13, 1993, Articles of Amendment and
Restatement of the Company filed with the Department on July 9, 1993, Articles
of Amendment and Restatement of the Company filed with the Department on May 23,
1995, Articles of Amendment filed with the Department on September 28, 1998,
Articles Supplementary filed with the Department on February 4, 1997, Articles
Supplementary filed with the Department on January 12, 1998, Articles
Supplementary filed with the Department on June 5, 1998, and Articles
Supplementary filed with the Department on September 28, 1998;
(ii) The Amended and Restated Bylaws of the Company (the "Bylaws") as
adopted effective as of September 28, 1998;
(iii) Resolutions duly adopted by the Board of Directors of the Company
by unanimous written consent on or as of September 28, 1998 (collectively, the
"Directors' Resolutions");
(iv) The Plan;
(v) The form of certificate (the "Certificate") representing the Shares;
(vi) A Certificate of Officer of the Company, dated as of a recent date,
to the effect that, among other things, the copies of the Charter, Bylaws,
Directors' Resolutions, Certificate, Rights Agreement, and Plan are true and
correct, have not been rescinded or modified and are in full force and effect as
of the date hereof, and that the Directors' Resolutions were duly adopted at a
meeting of directors of the Company duly called and held or by the unanimous
written consent of all incumbent directors, or a committee thereof, as the case
may be, of the Company;
(vii) A status certificate of recent date issued by the Department to the
effect that the Company is duly incorporated and existing under the laws of the
State of Maryland;
(viii) The Registration Statement, including the related form of
prospectus therein, of the Company; and
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New Plan Excel Realty Trust, Inc.
September 29, 1998
Page 2
(ix) Such other documents, corporate and other records of the Company and
certificates of public officials and officers of the Company as we have deemed
necessary or appropriate to provide a basis for the opinions set forth below,
subject to the limitations, assumptions and qualifications noted below.
In reaching the opinions set forth below, we have assumed the following:
(a) each person executing any instrument, document or agreement on behalf
of any party (other than the Company) is duly authorized to do so;
(b) each natural person executing any instrument, document or agreement
is legally competent to do so;
(c) all documents submitted to us as originals are authentic; all
documents submitted to us as certified, facsimile or photostatic copies conform
to the original document; all signatures on all documents submitted to us for
examination are genuine; the form and content of any documents submitted to us
as unexecuted drafts do not and will not differ in any respect relevant to this
opinion from such documents as executed and delivered; and all public records
reviewed are accurate and complete;
(d) none of the Shares will be issued in violation of the provisions of
the Charter of the Company imposing restrictions on ownership and transfer of
shares of stock of the Company, the Shares will be issued against payment of the
consideration as set forth in the Plan, and the issuance of such Shares will not
cause the total number of shares of Common Stock issued and outstanding to
exceed the total number of shares of Common Stock that the Company is then
authorized to issue; and
(e) all certificates received by us are true, correct and complete 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:
1. The Company is a corporation duly incorporated and existing under and
by virtue of the laws of the State of Maryland and is in good standing with the
Department.
2. The Shares have been duly authorized and, upon issuance in accordance
with and subject to the terms of the Plan and the Directors' Resolutions
relating thereto, and upon payment of the consideration as set forth therein or
required thereby, such Shares will be validly issued, fully paid and non-
assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and further consent to the filing of this opinion as an exhibit to
applications to the securities commissioners of the various states of the United
States for registration of the Shares. We also consent to the identification of
our firm as Maryland counsel to the Company in the section of the Prospectus
(which is a part of the Registration Statement) entitled "Legal Matters."
This opinion is limited to the present corporate laws of the State of
Maryland and we express no opinion with respect to the laws of any other
jurisdiction. 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 set forth herein.
The opinions set forth in this letter are rendered as of the date hereof
and are necessarily limited to laws now in effect and facts and circumstances
presently existing and brought to our attention. We assume no obligation to
supplement this opinion if any applicable law is changed after the date hereof
or if we become aware of any facts or circumstances which now exist or which
occur or arise in the future and may change the opinions expressed herein after
the date hereof.
This opinion is being furnished to you solely for your benefit.
Accordingly, it may not be relied upon by, quoted in any manner to or delivered
to any other person or entity without, in each instance, our prior written
consent.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll, LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of our report dated February 13, 1998, on our audits of the
consolidated financial statements and financial statement schedules of Excel
Realty Trust, Inc. ("Excel") and subsidiaries as of December 31, 1997 and 1996
and for each of the three years in the period ended December 31, 1997, which are
included in the Annual Report on Form 10-K of Excel for the year ended December
31, 1997. We also consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated September 9, 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. We also
consent to the reference to our firm under the caption "Experts".
/s/ PRICEWATERHOUSECOOPERS LLP
New York, New York
September 29, 1998
