<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-8
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 of incorporation) (I.R.S. Employer Identification No.)
1120 Avenue of the Americas
New York, New York 10036
(Address of principal executive offices) (Zip Code)
--------------------
1993 Stock Option Plan of New Plan Excel Realty Trust, Inc.
(Full title of the plan)
--------------------
Arnold Laubich
Chief Executive Officer
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
(Name and address of agent for service)
---------------------
(212) 869-3000
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
Calculation of Registration Fee
============================================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered (1) Offering Price Aggregate Registration
Per Share (2) Offering Price (2) Fee (2)(3)
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 4,000,000 Shares $22.11 $88,440,000 $23,640.91
per share
============================================================================================================================
</TABLE>
(1) Includes 420,843 shares of Common Stock previously registered on Form S-8
File No. 333-13481 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 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 Transaction on September 25, 1998.
(3) Excludes registration fee of $2,448.89, which was previously paid with
respect to 420,843 shares of Common Stock carried forward from Registration
Statement No. 333-13481.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference
The following documents filed by New Plan Excel Realty Trust, Inc. ("Excel"
or "Registrant") or New Plan Realty Trust ("New Plan") with the Securities and
Exchange Commission ("Commission"), are specifically incorporated herein by
reference:
(i) Joint Proxy Statement/Prospectus dated August 12, 1998, contained
in Registration Statement on Form S-4, filed by Excel with the
Commission on August 11, 1998 (file number 333-61131);
(ii) Annual Report of Excel on Form 10-K for the year ended December 31,
1997;
(iii) Annual Report of New Plan on Form 10-K for the year ended July 31,
1997;
(iv) Quarterly Report of Excel on Form 10-Q for the three-month period
ended March 31, 1998 and June 30, 1998;
(v) Quarterly Report of New Plan on Form 10-Q for the three-month
period ended October 31, 1997, January 31, 1998 and April 30,
1998;
(vi) Current Reports of Excel on Form 8-K filed January 14, 1998, April
2, 1998, May 22, 1998, May 28, 1998 and July 14, 1998;
(vii) Current Reports of New Plan on Form 8-K filed July 31, 1997,
September 19, 1997, January 23, 1998, April 24, 1998, May 19, 1998,
May 22, 1998 and August 13, 1998;
(viii) the description of common stock of Excel contained in Registration
Statement on Form 8-A, filed by Excel with the Commission on July
30, 1993 (file number 112244); and
(ix) the description of stock purchase rights contained in Registration
Statement on Form 8-A, filed by Excel with the Commission on May
22, 1998 (file number 112244).
All documents filed subsequent to the filing date of this Registration
Statement with the Commission by the Registrant pursuant to Section 13(a),
13(c),14 or 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold, or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is, or is
deemed to be incorporated by reference herein modifies or supersedes such prior
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement except as indicated herein.
Item 6. Indemnification of Directors and Officers
The Registrant's charter and bylaws require the Registrant to indemnify
its directors, officers and certain other persons to the fullest extent
permitted from time to time by Maryland law. The Maryland General Corporation
Law permits a corporation to indemnify its directors, officers and certain other
persons against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceeding to which they may be
made a party by reason of their service to or at the request of the corporation,
unless it is established that the act or omission of the indemnified party was
1
<PAGE>
material to the matter giving rise to the proceedings and (i) was committed in
bad faith or was the result of active and deliberate dishonesty, (ii) the
indemnified party actually received an improper personal benefit or (iii) in the
case of any criminal proceeding the indemnified party had reasonable cause to
believe that the act or omission was unlawful. Indemnification may be made
against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by the director or officer in connection with the proceeding;
provided, however, that if the proceeding is one by or in the right of the
corporation, indemnification may not be made with respect to any proceeding in
which the director or officer has been adjudged to be liable to the corporation.
In addition, a director or officer may not be indemnified with respect to any
proceeding charging improper personal benefit to the director or officer in
which the director or officer was adjudged to be liable on the basis that
personal benefit was improperly received. The termination of any proceeding by
conviction, or upon a plea of nolo contendere or its equivalent, or an entry of
any order of probation prior to judgment, creates a rebuttable presumption that
the director or officer did not meet the requisite standard of conduct required
for indemnification to be permitted. It is the position of the Commission that
indemnification of directors and officers for liabilities arising under the
Securities Act is against public policy as expressed in the Securities Act and
is therefore unenforceable.
Item 8. Exhibits
Exhibit
Number Description
------ -----------
4.1 1993 Stock Option Plan of New Plan Excel Realty Trust, Inc., as
amended.
4.2 Articles of Amendment and Restatement, incorporated by reference
to Amendment No. 1 to the Registrant's Registration Statement on
Form S-3 filed with the Commission on May 25, 1995, file number
33-59195.
4.3 Articles Supplementary (Series A Preferred Stock), incorporated
by reference to the Registrant's Current Report on Form 8-K filed
with the Commission on February 7, 1997.
4.4 Articles Supplementary (Series B Preferred Stock), incorporated
by reference to the Registrant's Current Report on Form 8-K filed
with the Commission on January 14, 1998.
4.5 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,
incorporated by reference to the Registrant's Registration
Statement on Form 8-A filed with the Commission on May 22, 1998,
file number 112234.
4.6 Articles of Amendment, incorporated by reference to the
Registrant's Registration Statement on Form S-3 filed with the
Commission on October 1, 1998.
4.7 Articles Supplementary (Series D Preferred Stock), incorporated
by reference to the Registrant's Registration Statement on Form
S-3 filed with the Commission on October 1, 1998.
4.8 Amended and Restated Bylaws, incorporated by reference to the
Registrant's Registration Statement on Form S-3 filed with the
Commission on October 1, 1998.
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.
2
<PAGE>
Item 9. Undertakings.
(i) The undersigned Registrant hereby undertakes:
(a) to file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(1) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(2) to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-
effective amendment hereof) which, individually or in the aggregate
represent a fundamental change in the information set forth in this
Registration Statement; and
(3) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
and
provided, however, that paragraphs (1) and (2) above will not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement; and
(b) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(c) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(ii) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(iii) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
3
<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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 28th day of
September, 1998.
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Arnold Laubich
-------------------------------
Arnold Laubich
Chief Executive Officer
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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<C> <S> <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
- ---------------------------- Co-Chief Operating Officer
Richard B. Muir and Director
/s/ David A. Lund Chief Financial Officer September 28, 1998
- ---------------------------- (Principal Financial and
David A. Lund Accounting Officer)
/s/ Dean Bernstein Senior Vice President - September 28, 1998
- ---------------------------- Finance and Multifamily
Dean Bernstein and Director
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<C> <S> <C>
/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
Director September __, 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>
5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description Page
- ------- ----------- ----
<C> <S> <C>
4.1 1993 Stock Option Plan of New Plan Excel Realty Trust, Inc.,
as amended ..................................................... 8
4.2 Articles of Amendment and Restatement, incorporated by
reference to Amendment No. 1 to the Registrant's Registration
Statement on Form S-3 filed with the Commission on May 25,
1995, file number 33-59195.
4.3 Articles Supplementary (Series A Preferred Stock), incorporated
by reference to the Registrant's Current Report on Form 8-K filed
with the Commission on February 7, 1997.
4.4 Articles Supplementary (Series B Preferred Stock), incorporated
by reference to the Registrant's Current Report on Form 8-K filed
with the Commission on January 14, 1998.
4.5 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, incorporated by reference to the Registrant's
Registration Statement on Form 8-A filed with the Commission
on May 22, 1998, file number 112234.
4.6 Articles of Amendment, incorporated by reference to the
Registrant's Registration Statement on Form S-3 filed with
the Commission on October 1, 1998.
4.7 Articles Supplementary (Series D Preferred Stock), incorporated
by reference to the Registrant's Registration Statement on
Form S-3 filed with the Commission on October 1, 1998.
4.8 Amended and Restated Bylaws, incorporated by reference to the
Registrant's Registration Statement on Form S-3 filed with the
Commission on October 1, 1998.
5.1 Opinion of Ballard Spahr Andrews & Ingersoll, LLP as to the
legality of the Shares to be registered ........................ 22
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP (contained in
Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP .......................... 26
</TABLE>
6
<PAGE>
EXHIBIT 4.1
CONFORMED COPY
1993 STOCK OPTION PLAN
OF
NEW PLAN EXCEL REALTY TRUST, INC.
(Amended and Restated May 28, 1998)
(Submitted for Stockholder Approval May 28, 1998)
EXCEL REALTY TRUST, INC., a corporation organized under the laws of the
State of Maryland, hereby adopts this Amended and Restated 1993 Stock Option
Plan (this "Plan") of Excel Realty Trust, Inc. The purposes of this Plan are as
follows:
(1) To further the growth, development and financial success of the Company
by providing additional incentives to certain of its executive and other key
Employees who have been or will be given responsibility for the management or
administration of the Company's business affairs, by assisting them to become
owners of the Company's Common Stock and thus to benefit directly from its
growth, development and financial success.
(2) To enable the Company to obtain and retain the services of the type of
professional, technical and managerial employees considered essential to the
long-range success of the Company by providing and offering them an opportunity
to become owners of the Company's Common Stock under options, including options
that are intended to qualify as "incentive stock options" under Section 422 of
the Code.
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Plan, they shall have the
meaning specified below unless the context clearly indicates to the contrary.
The masculine pronoun shall include the feminine and neuter and the singular
shall include the plural, where the context so indicates.
Section 1.1 - Board
"Board" shall mean the Board of Directors of the Company.
Section 1.2 - Code
"Code" shall mean the Internal Revenue Code of 1986, as amended.
<PAGE>
Section 1.3 - Committee
"Committee" shall mean the Stock Option Committee of the Board, appointed
as provided in Section 6.1.
Section 1.4 - Company
"Company" shall mean New Plan Excel Realty Trust, Inc. In addition,
"Company" shall mean any corporation assuming, or issuing new employee stock
options in substitution for, Incentive Stock Options, outstanding under the
Plan, in a transaction to which Section 424(a) of the Code applies.
Section 1.5 - Director
"Director" shall mean a member of the Board.
Section 1.6 - Employee
"Employee" shall mean any employee (as defined in accordance with the
regulations and revenue rulings then applicable under Section 3401(c) of the
Code) of the Company, or of any Subsidiary, whether such employee is so employed
at the time this Plan is adopted or becomes so employed subsequent to the
adoption of this Plan.
Section 1.7 - Exchange Act
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
Section 1.8 - Incentive Stock Option
"Incentive Stock Option" shall mean an Option which qualifies under Section
422 of the Code and which is designated as an Incentive Stock Option by the
Committee.
Section 1.9 - Non-Qualified Option
"Non-Qualified Option" shall mean an Option which is not an Incentive Stock
Option and which is designated as a Non-Qualified Option by the Committee.
Section 1.10 - Officer
"Officer" shall mean an officer of the Company, as defined in Rule 16a-l(f)
under the Exchange Act, as such Rule may be amended in the future.
Section 1.11 - Option
2
<PAGE>
"Option" shall mean an option to purchase Common Stock of the Company,
granted under the Plan. "Options" includes both Incentive Stock Options and
Non-Qualified Options.
Section 1.12 - Optionee
"Optionee" shall mean an Employee to whom an Option is granted under the
Plan.
Section 1.13 - Plan
"Plan" shall mean this 1993 Stock Option Plan of New Plan Excel Realty
Trust, Inc. The Plan consists of two plans--one plan providing for the grant of
Incentive Stock Options and the other plan providing for the grant of
Non-Qualified Options.
Section 1.14 - Rule 16b-3
"Rule 16b-3" shall mean that certain Rule 16b-3 under the Exchange Act, as
such Rule may be amended in the future.
Section 1.15 - Secretary
"Secretary" shall mean the Secretary of the Company.
Section 1.16 - Securities Act
"Securities Act" shall mean the Securities Act of 1933, as amended.
Section 1.17 - Subsidiary
"Subsidiary" shall mean any entity affiliated with or related to the
Company, including, without limitation, any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing 50% or
more of the total combined voting power of all classes of stock in one of the
other corporations in such chain.
Section 1.18 - Termination of Employment
"Termination of Employment" shall mean the time when the employee-employer
relationship between the Optionee and the Company or a Subsidiary is terminated
for any reason, with or without cause, including, but not by way of limitation,
a termination by resignation, discharge, death or retirement, but excluding
terminations where there is a simultaneous reemployment by the Company or a
Subsidiary. The Committee, in its absolute discretion, shall determine the
effect of all other matters and questions relating to Termination of Employment,
including, but not by way of limitation, the question of whether a Termination
of Employment resulted from a discharge for good cause, and all questions of
whether particular leaves of absence constitute Terminations of Employment;
provided, however, that, with respect to Incentive Stock Options, a leave of
absence shall constitute a Termination of Employment if, and to the extent that,
such leave of absence interrupts employment for the purposes of
3
<PAGE>
Section 422(a)(2) of the Code and the then applicable regulations and revenue
rulings under said Section.
ARTICLE II
SHARES SUBJECT TO PLAN
Section 2.1 - Shares Subject to Plan
For each of the five fiscal years from and including the fiscal year ending
December 31, 1998, a number of shares of the Company's Common Stock, par value
$0.01 per share, equal to the amount of 2.0% of the total number of issued and
outstanding shares of Common Stock as of the last day of the immediately
preceding fiscal year (the "2.0% Limit") shall become available for issuance
under the Plan. In addition, (i) any shares of the Company's Common Stock
remaining from the 1,450,000 shares initially reserved for issuance under the
Plan but which have not been issued; (ii) any shares of Common Stock relating to
awards granted at any time under the Plan which have expired or have been
cancelled, including but not limited to shares of Common Stock covered by
Options which have expired or which have been cancelled without having been
exercised; (iii) any shares of Common Stock which are exchanged by an Optionee
as full or partial payment to the Company in connection with the exercise of an
Option awarded under the Plan; and (iv) any unused portion of the 2.0% Limit for
any fiscal year, shall be added to the aggregate number of shares of Common
Stock available for issuance in each fiscal year under the Plan. In no event,
except as subject to adjustment as provided in Section 2.2 (to the extent
permitted by Section 422 of the Code), shall the aggregate number of shares of
Common Stock which cumulatively may be available for issuance upon exercise of
Incentive Stock Options exceed 10,000,000 plus to the extent such addition does
not jeopardize the treatment of Incentive Stock Options as incentive stock
options under Section 422 of the Code, the number of shares of Common Stock
relating to Incentive Stock Options granted under the Plan which have expired or
have been cancelled without having been exercised. The maximum number of shares
of Common Stock which may be subject to Options granted under the Plan to any
individual in any fiscal year shall not exceed 1,000,000.
Section 2.2 - Changes in Company's Shares
In the event that the outstanding shares of Common Stock of the Company are
hereafter changed into or exchanged for a different number or kind of shares or
other securities of the Company, or of another corporation, by reason of
reorganization, merger, consolidation, recapitalization, reclassification, stock
split-up, stock dividend or combination of shares, appropriate adjustments shall
be made by the Committee in the number and kind of shares for the purchase of
which Options may be granted, including adjustments of the limitations in
Section 2.1 on the maximum number and kind of shares which may be issued on
exercise of Options.
ARTICLE III
GRANTING OF OPTIONS
Section 3.1 - Eligibility
4
<PAGE>
Any executive or other key Employee of the Company or of any Subsidiary
shall be eligible to be granted Options, except as provided in Section 3.2.
Section 3.2 - Qualification of Incentive Stock Options
No Incentive Stock Option shall be granted unless such Option, when
granted, qualifies as an "incentive stock option" under Section 422 of the Code.
Section 3.3 - Granting of Options
(a) The Committee shall from time to time, in its absolute discretion:
(1) Determine which Employees are executive or other key Employees and
select from among the executive or other key Employees (including those to
whom Options have been previously granted under the Plan) such of them as
in its opinion should be granted Options; and
(2) Determine the number of shares to be subject to such Options
granted to such selected executive or other key Employees, and determine
whether such Options are to be Incentive Stock Options or Non-Qualified
Options; and
(3) Determine the terms and conditions of such Options, consistent
with the Plan.
(b) Upon the selection of an executive or other key Employee to be granted
an Option, the Committee shall instruct the Secretary to issue such Option and
may impose such conditions on the grant of such Option as it deems appropriate.
Without limiting the generality of the preceding sentence, the Committee may, in
its discretion and on such terms as it deems appropriate, require as a condition
on the grant of an Option to an Employee that the Employee surrender for
cancellation some or all of the unexercised Options which have been previously
granted to him. An Option the grant of which is conditioned upon such surrender
may have an option price lower (or higher) than the option price of the
surrendered Option, may cover the same (or a lesser or greater) number of shares
as the surrendered Option, may contain such other terms as the Committee deems
appropriate and shall be exercisable in accordance with its terms, without
regard to the number of shares, price, option period or any other term or
condition of the surrendered Option.
ARTICLE IV
TERMS OF OPTIONS
Section 4.1 - Option Agreement
Each Option shall be evidenced by a written Stock Option Agreement, which
shall be executed by the Optionee and an authorized Officer of the Company and
which shall contain
5
<PAGE>
such terms and conditions as the Committee shall determine, consistent with the
Plan. Stock Option Agreements evidencing Incentive Stock Options shall contain
such terms and conditions as may be necessary to qualify such Options as
"incentive stock options" under Section 422 of the Code.
Section 4.2 - Option Price
(a) The price of the shares subject to each Option shall be set by the
Committee; provided, however, that the price per share shall be not less than
100% of the fair market value of such shares on the date such Option is granted;
provided, further, that, in the case of an Incentive Stock Option, the price per
share shall not be less than 110% of the fair market value of such shares on the
date such Option is granted in the case of an individual then owning (within the
meaning of Section 424(d) of the Code) more than 10% of the total combined
voting power of all classes of stock of the Company, any Subsidiary or any
parent corporation.
(b) For purposes of the Plan, the fair market value of a share of the
Company's Common Stock as of a given date shall be: (i) the closing price of a
share of the Company's Common Stock on the principal exchange on which shares of
the Company's Common Stock are then trading, if any, on the trading day previous
to such date, or, if shares were not traded on the day previous to such date,
then on the next preceding trading day during which a sale occurred; or (ii) if
such Common Stock is not traded on an exchange but is quoted on NASDAQ or a
successor quotation system, (1) the last sales price (if the Company's Common
Stock is then listed as a National Market Issue under the NASD National Market
System) or (2) the mean between the closing representative bid and asked prices
(in all other cases) for the Company's Common Stock on the trading day previous
to such date as reported by NASDAQ or such successor quotation system; or (iii)
if such Common Stock is not publicly traded on an exchange and not quoted on
NASDAQ or a successor quotation system, the mean between the closing bid and
asked prices for the Company's Common Stock, on the trading day previous to such
date, as determined in good faith by the Committee; or (iv) if the Company's
Common Stock is not publicly traded, the fair market value established by the
Committee acting in good faith.
Section 4.3 - Commencement of Exercisability
(a) Except as the Committee may otherwise provide, no Option may be
exercised in whole or in part during the first six months after such Option is
granted.
(b) Subject to the provisions of Sections 4.3(a), 4.3(c) and 7.3, Options
shall become exercisable at such times and in such installments (which may be
cumulative) as the Committee shall provide in the terms of each individual
Option; provided, however, that by a resolution adopted after an Option is
granted the Committee may, on such terms and conditions as it may determine to
be appropriate and subject to Sections 4.3(a), 4.3(c) and 7.3, accelerate the
time at which such Option or any portion thereof may be exercised.
(c) No portion of an Option which is unexercisable at Termination of
Employment shall thereafter become exercisable.
6
<PAGE>
(d) To the extent that the aggregate fair market value of stock with
respect to which "incentive stock options" (within the meaning of Section 422 of
the Code, but without regard to Section 422(d) of the Code) are exercisable for
the first time by an Optionee during any calendar year (under the Plan and all
other incentive stock option plans of the Company, any Subsidiary and any parent
corporation) exceeds $100,000, such options shall be taxed as Non-Qualified
Options. The rule set forth in the preceding sentence shall be applied by taking
options into account in the order in which they were granted. For purposes of
this Section 4.3(d), the fair market value of stock shall be determined as of
the time the option with respect to such stock is granted.
Section 4.4 - Expiration of Options
(a) No Option may be exercised to any extent by anyone after the first to
occur of the following events:
(1) The expiration of ten years from the date the Option was granted;
or
(2) With respect to an Incentive Stock Option in the case of an
Optionee owning (within the meaning of Section 424(d) of the Code), at the
time the Incentive Stock Option was granted, more than 10% of the total
combined voting power of all classes of stock of the Company, any
Subsidiary or any parent corporation, the expiration of five years from the
date the Incentive Stock Option was granted; or
(3) Except in the case of any Optionee who is disabled (within the
meaning of Section 22(e)(3) of the Code), the expiration of three months
from the date of the Optionee's Termination of Employment for any reason
other than such Optionee's death unless the Optionee dies within said
three-month period; or
(4) In the case of an Optionee who is disabled (within the meaning of
Section 22(e)(3) of the Code), the expiration of one year from the date of
the Optionee's Termination of Employment for any reason other than such
Optionee's death unless the Optionee dies within said one-year period; or
(5) The expiration of one year from the date of the Optionee's death.
(b) Subject to the provisions of Section 4.4(a), the Committee shall
provide, in the terms of each individual Option, when such Option expires and
becomes unexercisable; and (without limiting the generality of the foregoing)
the Committee may provide in the terms of individual Options that said Options
expire immediately upon a Termination of Employment for any reason.
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Section 4.5 - Consideration
In consideration of the granting of an Option, the Optionee shall agree, in
the written Stock Option Agreement, to remain in the employ of the Company or a
Subsidiary for a period of at least one year after the Option is granted.
Nothing in this Plan or in any Stock Option Agreement hereunder shall confer
upon any Optionee any right to continue in the employ of the Company or any
Subsidiary or shall interfere with or restrict in any way the rights of the
Company and its Subsidiaries, which are hereby expressly reserved, to discharge
any Optionee at any time for any reason whatsoever, with or without cause.
Section 4.6 - Adjustments in Outstanding Options
In the event that the outstanding shares of the stock subject to Options
are changed into or exchanged for a different number or kind of shares of the
Company or other securities of the Company by reason of merger, consolidation,
recapitalization, reclassification, stock split-up, stock dividend or
combination of shares, the Committee shall make an appropriate and equitable
adjustment in the number and kind of shares as to which all outstanding Options,
or portions thereof then unexercised, shall be exercisable, to the end that
after such event the Optionee's proportionate interest shall be maintained as
before the occurrence of such event. Such adjustment in an outstanding Option
shall be made without change in the total price applicable to the Option or the
unexercised portion of the Option (except for any change in the aggregate price
resulting from rounding-off of share quantities or prices) and with any
necessary corresponding adjustment in Option price per share; provided, however,
that, in the case of Incentive Stock Options, each such adjustment shall be made
in such manner as not to constitute a "modification" within the meaning of
Section 424(h)(3) of the Code. Any such adjustment made by the Committee shall
be final and binding upon all Optionees, the Company and all other interested
persons.
Section 4.7 - Merger, Consolidation, Acquisition, Liquidation or Dissolution
Notwithstanding the provisions of Section 4.6, in its absolute discretion,
and on such terms and conditions as it deems appropriate, the Committee may
provide by the terms of any Option that such Option cannot be exercised after
the merger or consolidation of the Company with or into another corporation, the
acquisition by another corporation or person of all or substantially all of the
Company's assets or 80% or more of the Company's then outstanding voting stock
or the liquidation or dissolution of the Company; and if the Committee so
provides, it may, in its absolute discretion and on such terms and conditions as
it deems appropriate, also provide, either by the terms of such Option or by a
resolution adopted prior to the occurrence of such merger, consolidation,
acquisition, liquidation or dissolution, that, for some period of time prior to
such event, such Option shall be exercisable as to all shares covered thereby,
notwithstanding anything to the contrary in Section 4.3(a), Section 4.3(b)
and/or any installment provisions of such Option.
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ARTICLE V
EXERCISE OF OPTIONS
Section 5.1 - Person Eligible to Exercise
During the lifetime of the Optionee, only he may exercise an Option (or any
portion thereof) granted to him. After the death of the Optionee, any
exercisable portion of an Option may, prior to the time when such portion
becomes unexercisable under the Plan or the applicable Stock Option Agreement,
be exercised by his personal representative or by any person empowered to do so
under the deceased Optionee's will or under the then applicable laws of descent
and distribution.
Section 5.2 - Partial Exercise
At any time and from time to time prior to the time when any exercisable
Option or exercisable portion thereof becomes unexercisable under the Plan or
the applicable Stock Option Agreement, such Option or portion thereof may be
exercised in whole or in part; provided, however, that the Company shall not be
required to issue fractional shares and the Committee may, by the terms of the
Option, require any partial exercise to be with respect to a specified minimum
number of shares.
Section 5.3 - Manner of Exercise
An exercisable Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Secretary or his office of all of the following prior
to the time when such Option or such portion becomes unexercisable under the
Plan or the applicable Stock Option Agreement:
(a) Notice in writing signed by the Optionee or other person then
entitled to exercise such Option or portion, stating that such Option or
portion is exercised, such notice complying with all applicable rules
established by the Committee; and
(b) (1) Full payment (in cash or by check) for the shares with
respect to which such Option or portion is thereby exercised; or
(2) With the consent of the Committee, but subject to the timing
requirements of Section 5.4, (A) shares of the Company's Common Stock
owned by the Optionee duly endorsed for transfer to the Company or (B)
shares of the Company's Common Stock issuable to the Optionee upon
exercise of the Option, with a fair market value (as determined under
Section 4.2(b)) on the date of Option exercise equal to the aggregate
Option price of the shares with respect to which such Option or
portion is thereby exercised; or
(3) With the consent of the Committee, a full recourse
promissory note bearing interest (at no less than such rate as shall
then preclude the imputation of interest under the Code or any
successor provision) and payable upon such terms
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as may be prescribed by the Committee. The Committee may also
prescribe the form of such note and the security to be given for such
note. No Option may, however, be exercised by delivery of a promissory
note or by a loan from the Company when or where such loan or other
extension of credit is prohibited by law; or
(4) With the consent of the Committee, any combination of the
consideration provided in the foregoing subsections (1), (2) and (3);
and
(c) The payment to the Company (or other employer corporation) of all
amounts which it is required to withhold under federal, state or local law
in connection with the exercise of the Option; with the consent of the
Committee, but subject to the timing requirements of Section 5.4, (i)
shares of the Company's Common Stock owned by the Optionee duly endorsed
for transfer or (ii) shares of the Company's Common Stock issuable to the
Optionee upon exercise of the Option, valued in accordance with Section
4.2(b) at the date of Option exercise, may be used to make all or part of
such payment;
(d) Such representations and documents as the Committee, in its
absolute discretion, deems necessary or advisable to effect compliance with
all applicable provisions of the Securities Act and any other federal or
state securities laws or regulations. The Committee may, in its absolute
discretion, also take whatever additional actions it deems appropriate to
effect such compliance including, without limitation, placing legends on
share certificates and issuing stop-transfer orders to transfer agents and
registrars; and
(e) In the event that the Option or portion thereof shall be
exercised pursuant to Section 5.1 by any person or persons other than the
Optionee, appropriate proof of the right of such person or persons to
exercise the Option or portion thereof.
Section 5.4 - Certain Timing Requirements
Shares of the Company's Common Stock, whether or not issuable to the
Optionee upon exercise of the Option, may be used to satisfy the Option price or
the tax withholding consequences of such exercise in accordance with procedures
set forth by the Committee.
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Section 5.5 - Conditions to Issuance of Stock Certificates
The shares of the Company's Common Stock issuable and deliverable upon the
exercise of an Option, or any portion thereof, may be either previously
authorized but unissued shares or issued shares which have then been reacquired
by the Company. The Company shall not be required to issue or deliver any
certificate or certificates for shares of stock purchased upon the exercise of
any Option or portion thereof prior to fulfillment of all of the following
conditions:
(a) The admission of such shares to listing on all stock exchanges on
which such series or class of stock is then listed; and
(b) The completion of any registration or other qualification of such
shares under any state or federal law or under the rulings or regulations
of the Securities and Exchange Commission or any other governmental
regulatory body, which the Committee shall, in its absolute discretion,
deem necessary or advisable; and
(c) The obtaining of any approval or other clearance from any state
or federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) The payment to the Company (or other employer corporation) of all
amounts which it is required to withhold under federal, state or local law
in connection with the exercise of the Option; and
(e) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may establish from time to time for
reasons of administrative convenience.
Section 5.6 - Rights as Shareholders
The holders of Options shall not be, nor have any of the rights or
privileges of, shareholders of the Company in respect of any shares purchasable
upon the exercise of any part of an Option unless and until certificates
representing such shares have been issued by the Company to such holders.
Section 5.7 - Transfer Restrictions
Unless otherwise approved in writing by the Committee, no shares acquired
upon exercise of any Option by any Officer may be sold, assigned, pledged,
encumbered or otherwise transferred until at least six months have elapsed from
(but excluding) the date that such Option was granted. The Committee, in its
absolute discretion, may impose such other restrictions on the transferability
of the shares purchasable upon the exercise of an Option as it deems
appropriate. Any such other restriction shall be set forth in the respective
Stock Option Agreement and may be referred to on the certificates evidencing
such shares. The Committee
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may require the Employee to give the Company prompt notice of any disposition of
shares of stock, acquired by exercise of an Incentive Stock Option, within two
years from the date of granting such Option or one year after the transfer of
such shares to such Employee. The Committee may direct that the certificates
evidencing shares acquired by exercise of an Incentive Stock Option refer to
such requirement to give prompt notice of disposition.
ARTICLE VI
ADMINISTRATION
Section 6.1 - Stock Option Committee
The Stock Option Committee shall consist of two or more Directors,
appointed by and holding office at the pleasure of the Board. Appointment of
Committee members shall be effective upon acceptance of appointment. Committee
members may resign at any time by delivering written notice to the Board.
Vacancies in the Committee shall be filled by the Board.
Section 6.2 - Duties and Powers of Committee
It shall be the duty of the Committee to conduct the general administration
of the Plan in accordance with its provisions. The Committee shall have the
power to interpret the Plan and the Options and to adopt such rules for the
administration, interpretation and application of the Plan as are consistent
therewith and to interpret, amend or revoke any such rules. Any such
interpretations and rules in regard to Incentive Stock Options shall be
consistent with the basic purpose of the Plan to grant "incentive stock options"
within the meaning of Section 422 of the Code. The Board shall have no right to
exercise any of the rights or duties of the Committee under the Plan.
Section 6.3 - Majority Rule
The Committee shall act by a majority of its members in office. The
Committee may act either by vote at a meeting or by a memorandum or other
written instrument signed by a majority of the Committee.
Section 6.4 - Compensation; Professional Assistance; Good Faith Actions
Members of the Committee shall receive such compensation for their services
as members as may be determined by the Board. All expenses and liabilities
incurred by members of the Committee in connection with the administration of
the Plan shall be borne by the Company. The Committee may employ attorneys,
consultants, accountants, appraisers, brokers or other persons. The Committee,
the Company and its Officers and Directors shall be entitled to rely upon the
advice, opinions or valuations of any such persons. All actions taken and all
interpretations and determinations made by the Committee in good faith shall be
final and binding upon all Optionees, the Company and all other interested
persons. No member of the Committee shall be personally liable for any action,
determination or interpretation made in good
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faith with respect to the Plan or the Options, and all members of the Committee
shall be fully protected by the Company in respect to any such action,
determination or interpretation.
ARTICLE VII
OTHER PROVISIONS
Section 7.1 - Options Not Transferable
No Option or interest or right therein or part thereof shall be liable for
the debts, contracts or engagements of the Optionee or his successors in
interest or shall be subject to disposition by transfer, alienation,
anticipation, pledge, encumbrance, assignment or any other means whether such
disposition be voluntary or involuntary by operation of law by judgment, levy,
attachment, garnishment or any other legal or equitable proceedings (including
bankruptcy), and any attempted disposition thereof shall be null and void and no
effect; provided, however, that nothing in this Section 7.1 shall prevent
transfers by will, by the applicable laws of descent and distribution, or with
respect to Options other than Incentive Stock Options, if the Committee in its
sole discretion permits the transfer of such Options subject to any conditions
or limitations specified by the Committee.
Section 7.2 - Amendment, Suspension or Termination of the Plan
The Plan may be wholly or partially amended or otherwise modified,
suspended or terminated at any time or from time to time by the Committee.
However, without approval of the Company's shareholders given within 12 months
before or after the action by the Committee, no action of the Committee may,
except as provided in Section 2.2, increase any limit imposed in Section 2.1 on
the maximum number of shares which may be issued on exercise of Options,
materially modify the eligibility requirements of Section 3.1, reduce the
minimum Option price requirements of Section 4.2(a), extend the limit imposed in
this Section 7.2 on the period during which Options may be granted or amend or
modify the Plan in a manner requiring shareholder approval under Rule 16b-3.
Neither the amendment, suspension nor termination of the Plan shall, without the
consent of the holder of the Option, impair any rights or obligations under any
Option theretofore granted. No Option may be granted during any period of
suspension nor after termination of the Plan, and in no event may any Option be
granted under this Plan after the first to occur of the following events:
(a) The expiration of ten years from the date the Plan is adopted by
the Board; or
(b) The expiration of ten years from the date the Plan is approved by
the Company's shareholders under Section 7.3.
Section 7.3 - Approval of Plan by Shareholders
This Plan will be submitted for the approval of the Company's shareholders
within 12 months after the date of the Board's initial adoption of the Plan.
Options may be granted prior to
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such shareholder approval; provided, however, that such Options shall not be
exercisable prior to the time when the Plan is approved by the shareholders;
provided, further, that if such approval has not been obtained at the end of
said 12-month period, all Options previously granted under the Plan shall
thereupon be cancelled and become null and void. The Company shall take such
actions with respect to the Plan as may be necessary to satisfy the requirements
of Rule 16b-3(b).
Section 7.4 - Effect of Plan Upon Other Option and Compensation Plans
The adoption of this Plan shall not affect any other compensation or
incentive plans in effect for the Company or any Subsidiary. Nothing in this
Plan shall be construed to limit the right of the Company or any Subsidiary (a)
to establish any other forms of incentives or compensation for employees of the
Company or any Subsidiary or (b) to grant or assume options otherwise than under
this Plan in connection with any proper corporate purpose, including, but not by
way of limitation, the grant or assumption of options in connection with the
acquisition by purchase, lease, merger, consolidation or otherwise, of the
business, stock or assets of any corporation, firm or association.
Section 7.5 - Titles
Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of the Plan.
Section 7.6 - Conformity to Securities Laws
The Plan is intended to conform to the extent necessary with all provisions
of the Securities Act and the Exchange Act and any and all regulations and rules
promulgated by the Securities and Exchange Commission thereunder.
Notwithstanding anything herein to the contrary, the Plan shall be administered,
and Options shall be granted and may be exercised, only in such a manner as to
conform to such laws, rules and regulations. To the extent permitted by
applicable law, the Plan and Options granted hereunder shall be deemed amended
to the extent necessary to conform to such laws, rules and regulations.
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EXHIBIT 5.1
OPINION 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: 1993 Stock Option Plan of
New Plan Excel Realty Trust, Inc.
Registration Statement on Form S-8
----------------------------------
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 4,000,000 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 issuable upon the exercise of options
granted or to be granted by the Company (the "Options") pursuant to the 1993
Stock Option Plan of the Company, as amended (the "1993 Stock Option 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;
<PAGE>
New Plan Excel Realty Trust, Inc.
September 29, 1998
Page 2
(iii) Resolutions duly adopted by the Board of Directors of the Company
(the "Board of Directors") by unanimous written consent on or as of September
28, 1998 (collectively, the "Directors' Resolutions");
(iv) The 1993 Stock Option Plan;
(v) The form of certificate representing the Shares (the "Certificate");
(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, and 1993 Stock Option 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
(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 opinion 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
<PAGE>
New Plan Excel Realty Trust, Inc.
September 29, 1998
Page 3
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 nor will any Options or any of the Shares be issued in
violation of the provisions of the 1993 Stock Option Plan, including Section 2.1
thereof limiting the number of shares issuable from time to time under the 1993
Stock Option Plan; and the Shares will be issued against payment of the
consideration set forth in the respective Options; and the issuance of the
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
SDAT.
2. The Shares have been duly authorized and, upon issuance in accordance
with and subject to the terms of the 1993 Stock Option Plan, and upon payment of
the exercise price set forth in the respective Options as established by the
Board of Directors or a duly authorized committee thereof, 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
<PAGE>
New Plan Excel Realty Trust, Inc.
September 29, 1998
Page 4
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
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 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-8 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
