<PAGE>
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
Filed by the Registrant /X/
Filed by a party other than the Registrant / /
Check the appropriate box:
/ / Preliminary Proxy Statement
/ / Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
/X/ Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting Material Pursuant to Section 240.14a-11(c) or Section
240.14a-12
Excel Realty Trust, Inc.
- --------------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
/X/ No fee required
/ / Fee computed on table below per Exchange Act Rules 14a-6(i)(1)
and 0-11
(1) Title of each class of securities to which transaction applies:
------------------------------------------------------------------------
(2) Aggregate number of securities to which transaction applies:
------------------------------------------------------------------------
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
------------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
------------------------------------------------------------------------
(5) Total fee paid:
------------------------------------------------------------------------
/ / Fee paid previously with preliminary materials.
/ / Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
------------------------------------------------------------------------
(2) Form, Schedule or Registration Statement No.:
------------------------------------------------------------------------
(3) Filing Party:
------------------------------------------------------------------------
(4) Date Filed:
------------------------------------------------------------------------
<PAGE>
EXCEL REALTY TRUST, INC.
16955 Via Del Campo, Suite 110
San Diego, California 92127
NOTICE OF ANNUAL MEETING OF
STOCKHOLDERS AND PROXY STATEMENT
TO THE STOCKHOLDERS OF EXCEL REALTY TRUST, INC.:
Notice is hereby given that the Annual Meeting of Stockholders of EXCEL
REALTY TRUST, INC. (the "Company"), will be held at the Rancho Bernardo Inn,
17550 Bernardo Oaks Drive, San Diego, California, on May 28, 1998, at 10:00 a.m.
(PDT), for the following purposes:
1. TO ELECT, PURSUANT TO THE COMPANY CHARTER, TWO DIRECTORS FOR A THREE-YEAR
TERM AND UNTIL THEIR SUCCESSORS HAVE BEEN DULY ELECTED AND QUALIFIED.
THE PRESENT BOARD OF DIRECTORS OF THE COMPANY HAS NOMINATED AND RECOMMENDS
FOR SUCH ELECTION AS DIRECTORS THE FOLLOWING TWO PERSONS:
RICHARD B. MUIR
JOHN H. WILMOT
2. TO CONSIDER AND VOTE UPON A PROPOSAL TO APPROVE AND ADOPT THE 1993 STOCK
OPTION PLAN OF EXCEL REALTY TRUST, INC., AS AMENDED AND RESTATED HEREIN
(THE "EMPLOYEE PLAN").
3. TO TRANSACT SUCH OTHER BUSINESS AS MAY PROPERLY COME BEFORE THE ANNUAL
MEETING OR ANY ADJOURNMENTS THEREOF.
The Board of Directors has fixed the close of business on April 21, 1998 as
the record date with respect to this solicitation.
Accompanying this Notice is a Proxy. WHETHER OR NOT YOU EXPECT TO BE AT
THE MEETING, PLEASE MARK, SIGN AND DATE THE ENCLOSED PROXY AND RETURN IT
PROMPTLY. If you plan to attend the meeting and wish to vote your shares
personally, you may do so at any time before the Proxy is voted.
All stockholders are cordially invited to attend the meeting.
BY ORDER OF THE BOARD OF DIRECTORS,
Richard B. Muir
EXECUTIVE VICE PRESIDENT AND SECRETARY
San Diego, California
April 24, 1998
<PAGE>
EXCEL REALTY TRUST, INC.
16955 Via Del Campo, Suite 110
San Diego, California 92127
PROXY STATEMENT
for
ANNUAL MEETING OF STOCKHOLDERS
May 28, 1998
The accompanying Proxy is solicited by the Board of Directors of Excel
Realty Trust, Inc., a Maryland corporation (the "Company"), in connection with
the Annual Meeting of Stockholders to be held at 10:00 a.m. (PDT) on May 28,
1998, at the Rancho Bernardo Inn, 17550 Bernardo Oaks Drive, San Diego,
California, and at any and all adjournments thereof. By signing and returning
the enclosed Proxy, you authorize the representatives of the Company named on it
to represent you and vote your shares.
If you attend the meeting, you may vote by ballot. But, if you are not
present, your shares can be voted only when represented by proxy. You may
indicate a vote for or against each proposal on the Proxy and your shares will
be voted accordingly. A stockholder may revoke his or her Proxy at will at any
time prior to the voting of his or her shares by voting in person at the Annual
Meeting, by filing with the Secretary of the Company a duly executed Proxy
bearing a later date as his or her instrument revoking this Proxy, or by
delivering to the Secretary a written notice prior to the Annual Meeting stating
that he or she revokes his or her Proxy. Unless the accompanying Proxy has been
previously revoked, the shares represented by the Proxy will, unless otherwise
directed, be voted at the Annual Meeting for the nominees named below for
election as Directors, for the approval of the proposal to approve and adopt the
Employee Plan and for all other matters described in this Proxy Statement.
Votes cast by Proxy or in person at the Annual Meeting will be counted by the
person appointed by the Company to act as Inspector of Election for the Annual
Meeting. The Inspector of Election will treat shares represented by Proxies
that reflect abstentions or include "broker non-votes" as shares that are
present and entitled to vote for purposes of determining the presence of a
quorum. Abstentions or "broker non-votes" do not constitute a vote "for" or
"against" any matter and thus will be disregarded in the calculation of "votes
cast." Any unmarked Proxies, including those submitted by brokers or nominees,
will be voted in favor of the proposals and nominees of the Board of Directors,
as indicated in the accompanying Proxy card.
The costs of solicitation of Proxies will be paid by the Company. In
addition to soliciting Proxies by mail, the Company's officers, directors and
other regular employees, without additional compensation, may solicit Proxies
personally or by other appropriate means. It is anticipated that banks,
brokers, fiduciaries, other custodians and nominees will forward proxy
soliciting materials to their principals, and that the Company will reimburse
such persons' out-of-pocket expenses.
It is anticipated that this Proxy Statement will first be mailed to
stockholders on or about April 24, 1998. The Company's 1997 Annual Report to
its stockholders is also enclosed and should be read in conjunction with the
matters set forth herein.
Only stockholders of record of the Company's Common Stock as of the close
of business on April 21, 1998 will be entitled to vote at the Annual Meeting.
At the close of business on April 21, 1998, there were outstanding 23,176,989
shares of the Company's Common Stock, which constitute all of the outstanding
voting securities of the Company, each of which is entitled to one vote on each
of the matters to be presented to the stockholders at the meeting. A majority
of the outstanding shares of the Company, represented in person or by proxy at
the meeting, will constitute a quorum.
<PAGE>
PROPOSAL 1:
ELECTION OF DIRECTORS
The Board of Directors currently consists of the following seven Directors:
Gary B. Sabin, Richard B. Muir, Boyd A. Lindquist, D. Charles Marston, Robert E.
Parsons, Jr., Bruce A. Staller and John H. Wilmot. Pursuant to the Company
charter, the Directors are divided into three classes. The Directorship terms
of current Directors Richard B. Muir and John H. Wilmot expire at the Annual
Meeting on May 28, 1998, while the terms of the remaining Directors expire in
1999 and 2000. Messrs. Muir and Wilmot have been nominated and recommended for
election to serve as Directors for a term of three years and until their
respective successors shall have been duly elected and qualified. Messrs. Muir
and Wilmot have advised the Board of Directors that they are able and willing to
serve as Directors. If, for any reason, either of them shall become unavailable
for election, the individuals named in the enclosed Proxy may exercise their
discretion to vote for any substitute nominee or nominees proposed by the Board
of Directors.
The two individuals with the highest number of affirmative votes will be
elected to the two Directorships.
INFORMATION REGARDING DIRECTORS
The information set forth below is submitted with respect to Management's
nominees to the Board of Directors, as well as those Directors whose terms of
office are continuing after the meeting.
NOMINEES FOR ELECTION TO THE BOARD OF DIRECTORS
FOR A THREE-YEAR TERM EXPIRING AT THE
2001 ANNUAL MEETING OF STOCKHOLDERS
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Name Age Present Position With The Company Director Since
- ------ --- --------------------------------- --------------
Richard B. Muir 42 Director, Executive Vice President and Secretary 1989
John H. Wilmot 55 Director 1989
</TABLE>
RICHARD B. MUIR has served as Director, Executive Vice President and
Secretary of the Company since January 1989. Mr. Muir has served as an officer
and director for various affiliates of the Company since 1978, primarily in
administrative and executive capacities, including asset acquisition, financing
and management.
JOHN H. WILMOT has served as a Director of the Company since 1989. Mr.
Wilmot, individually and through his wholly-owned corporations, develops and
manages real property, primarily in the Phoenix/Scottsdale area, and has been
active in such business since prior to 1989.
MEMBERS OF THE BOARD OF DIRECTORS CONTINUING IN OFFICE
TERM EXPIRING AT THE
1999 ANNUAL MEETING OF STOCKHOLDERS
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Name Age Present Position With The Company Director Since
- ------ --- --------------------------------- --------------
Gary B. Sabin 44 Chairman of the Board, President and
Chief Executive Officer 1989
Boyd A. Lindquist 60 Director 1992
Robert E. Parsons, Jr. 42 Director 1989
</TABLE>
GARY B. SABIN has served as Chairman of the Board of Directors, President
and Chief Executive Officer of the Company since January 1989. Mr. Sabin has
served as Chief Executive Officer of various companies since his founding of the
predecessor company and its affiliates starting in 1977. He has been active in
diverse aspects of the financial services industry, including the evaluation and
negotiation of real estate acquisitions, management, financing and disposition.
2
<PAGE>
BOYD A. LINDQUIST has served as a Director of the Company since February
1992. Mr. Lindquist is presently President, Chief Executive Officer and a
Director of Republic Bank. Prior to joining Republic Bank in July 1991, Mr.
Lindquist served since prior to 1987 as President and Chief Executive Officer
of the Bank of San Diego, where he was responsible for the management of the
six-branch bank. Mr. Lindquist has over 30 years of experience in managing
financial institutions.
ROBERT E. PARSONS, JR. has served as a Director of the Company since
January 1989. Mr. Parsons is presently Executive Vice President and Chief
Financial Officer of Host Marriott Corporation, a company he joined in 1981.
He also serves as a Director and an officer of several Host Marriott
subsidiaries, and as a Director of Merrill Financial Corporation, a
privately-held real estate company.
TERM EXPIRING AT THE
2000 ANNUAL MEETING OF STOCKHOLDERS
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Name Age Present Position With The Company Director Since
- ------ --- --------------------------------- --------------
D. Charles Marston 82 Director 1992
Bruce A. Staller 56 Director 1986
</TABLE>
D. CHARLES MARSTON has served as a Director of the Company since
February 1992. Mr. Marston is the owner and designated supervising broker
for Acacia Realty, a real estate brokerage firm specializing in commercial
real estate in northern San Diego County, California. Since prior to 1987,
Mr. Marston served as a mediator with the Mediation Tribunal Associations for
the U.S. District Court, Detroit, Michigan, and the Wayne County Circuit
Court in Michigan. Mr. Marston was a senior partner and litigation counsel
for the firm of Marston, Sachs, Nunn, Kates, Kadushin and O'Hare until his
retirement in 1980.
BRUCE A. STALLER has served as a Director of the Company since its
inception. Prior to establishing Bruce Atwater Staller, Registered
Investment Advisor in 1995, Mr. Staller served as President and Director of
First Wilshire Securities Management, Inc., a privately-held securities
brokerage firm, from 1988 to 1995. Mr. Staller is also a founder and
Director of The Monrovia Schools Foundation, Inc., a privately-held company
which provides financial support to the Monrovia Unified School District.
CERTAIN COMMITTEES OF THE BOARD; MEETINGS
The Board of Directors held four meetings (excluding telephonic
meetings) during the year ended December 31, 1997. For that year, no nominee
for Director who served as a Director during the past year attended fewer
than 75% of the aggregate of the total number of meetings of the Board of
Directors and of any meetings of committees upon which he served. The Board
of Directors has established the following standing committees: Audit
Committee, Executive Committee and Executive Compensation and Stock Option
Committee. There is no standing Nominating Committee. The Board of
Directors has delegated certain functions to the following standing
committees of the Board:
AUDIT COMMITTEE. The Audit Committee consists of three Directors who
are not employees of the Company ("non-employee Directors"). Messrs.
Lindquist, Parsons and Marston are the current members of the Committee. The
Audit Committee was established to make recommendations concerning the
engagement of independent public accountants, review with independent public
accountants the plans and results of the audit engagement, approve
professional services provided by the independent accountants, review the
independence of the independent accountants, consider the range of audit and
non-audit fees, and review the adequacy of the Company's internal accounting
controls. The Audit Committee met three times during 1997.
EXECUTIVE COMMITTEE. The Executive Committee consists of three
Directors, one of whom must be a non-employee Director. Messrs. Gary Sabin,
Muir and Wilmot currently serve on the Executive Committee. Subject to the
Company's conflict of interest policies, the Executive Committee has been
granted the authority to acquire and dispose of real property and to borrow
or loan funds on behalf of the Company; provided, however, that any such
transaction involving amounts equal to 10% or more of the Company's gross
assets require the approval of at least a majority of the Directors, subject
to certain further restrictions set forth in the Company's Bylaws. The
Executive Committee also has the power to authorize the execution of certain
contracts and agreements, including
3
<PAGE>
those related to the borrowing of money by the Company. The Executive
Committee met five times during 1997, and held numerous meetings
telephonically.
EXECUTIVE COMPENSATION AND STOCK OPTION COMMITTEE. The Executive
Compensation and Stock Option Committee (the "Compensation Committee")
consists of three Directors, all of whom must be non-employee Directors.
Messrs. Lindquist, Parsons and Staller currently serve on the Compensation
Committee. The Compensation Committee determines compensation for the
Company's executive officers and administers the granting of stock options.
The Compensation Committee met two times during 1997.
DIRECTORS' COMPENSATION
Directors who are not otherwise paid employees or consultants of the
Company received during 1997 annual compensation of $14,000 plus a fee of
$1,000 for attendance, in person, at each meeting of the Board of Directors,
and the Directors received $500 per committee meeting for the Audit and
Compensation Committees and $750 per committee meeting for the Executive
Committee, but not for telephonic meetings. Each such non-employee Director
also is reimbursed for expenses incurred in attending meetings (including
committee meetings). Officers of the Company who are Directors are not paid
Director fees or committee meeting fees.
Pursuant to the terms of the Company's Directors' 1994 Stock Option
Plan, every duly elected and qualified Director is entitled to, on an annual
basis, options to purchase shares of the Company's Common Stock in accordance
with the following formula: 3,000 shares, plus (250 shares multiplied by the
number of years of continuous service beginning in 1997, including any
portion of any fiscal year of service as a full year).
RECOMMENDATION OF THE BOARD OF DIRECTORS
The Board of Directors unanimously recommends a vote FOR the nominees
set forth above. Proxies solicited by the Company will be so voted unless
stockholders specify otherwise on the accompanying Proxy.
PROPOSAL 2:
APPROVAL OF THE EMPLOYEE PLAN
At the Annual Meeting, the stockholders of the Company will be asked to
consider and vote upon a proposal to approve and adopt the 1993 Stock Option
Plan of Excel Realty Trust, Inc., as amended and restated herein (the
"Employee Plan"). The Employee Plan was originally adopted by the Company's
Board of Directors on May 3, 1993 and approved by the Company's stockholders
on July 12, 1993.
GENERAL NATURE AND PURPOSES. The Employee Plan was adopted (i) to
further the growth, development and financial success of the Company by
providing additional incentives to certain of its 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 capital
stock of the Company and thus to benefit directly from its growth,
development and financial success, and (ii) 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 capital stock
of the Company.
The Employee Plan authorizes the granting of "incentive stock options"
(as defined in Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code")) and non-qualified stock options. Options may be granted under
the Employee Plan for a period through May 3, 2003 unless the Employee Plan
is earlier terminated. The Employee Plan may be wholly or partially amended
or otherwise modified, suspended or terminated at any time by the
Compensation Committee, except that stockholder approval is required to
increase the number of shares that may be issued under the Employee Plan, to
materially modify eligibility requirements for participants, to reduce the
minimum option price below the fair market value of the shares when an option
is granted, to extend the term of the Employee Plan or to modify the Employee
Plan in a manner requiring stockholder approval under Rule 16b-3 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). The
Employee Plan is not subject to the provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), and is not a qualified
plan under Section 401(a) of the Code. Proceeds received by the Company from
the sale of Common Stock pursuant to the exercise of options granted under
the Employee Plan will be used for general corporate purposes.
4
<PAGE>
A brief description of the material features of the Employee Plan follows,
but the description is qualified in its entirety by the terms of the Employee
Plan, a copy of which is included as Exhibit "A" to this Proxy Statement.
SECURITIES SUBJECT TO THE PLAN. The aggregate number of shares which
currently may be issued upon exercise of options granted under the Employee Plan
may not exceed 1,450,000 (but see "Proposed Amendment to the Employee Plan"
below for a discussion of the proposed amendment to this provision).
Furthermore, the maximum number of shares of Common Stock which may be subject
to options granted under the Employee Plan to any individual in any fiscal year
may not exceed 1,000,000. The Employee Plan provides for appropriate
adjustments in the number and kind of shares subject to the Employee Plan and to
outstanding options in the event of a stock split, stock dividend or certain
other similar changes in the Company's Common Stock and in the event of a
merger, consolidation or certain other types of recapitalizations.
It is impossible at the present time to indicate specifically the names of
persons to whom future options will be granted, or the aggregate number of
shares, within the limitations of the Employee Plan, to be covered by such
options.
ADMINISTRATION OF THE PLAN. The Employee Plan provides for administration
by the Compensation Committee, consisting of at least two Directors, appointed
from time to time (and removable) by the Company's Board of Directors. No
person is eligible to serve on the Compensation Committee unless such person is
then a "disinterested person" within the meaning of paragraph (c)(2) of Rule
16b-3. Options may not be granted to any member of the Compensation Committee
during the term of such person's membership on the Committee. The current
members of the Compensation Committee are Messrs. Lindquist, Parsons
and Staller.
In addition to administering the Employee Plan, the Compensation Committee
is also authorized to interpret the Employee Plan and the related Stock Option
Agreements, to adopt such rules for the administration, interpretation and
application of the Employee Plan as are consistent therewith and to interpret,
amend or revoke any such rules. The Board has not retained the right to
exercise the rights or duties of the Compensation Committee under the Employee
Plan.
Members of the Compensation Committee shall receive such compensation for
their services as may be determined by the Board of Directors, and all expenses
and liabilities that they incur in connection with the administration of the
Employee Plan will be borne by the Company. The Compensation Committee may at
any time suspend or terminate the Employee Plan, subject to rights under options
previously granted.
ELIGIBILITY AND PARTICIPATION. Any executive or other key employee of the
Company or of any corporation which is then a subsidiary of the Company (as such
terms are defined in the Employee Plan) is eligible to be granted options.
Approximately seventy-one (71) persons are eligible to participate in the
Employee Plan. Directors of the Company (other than those serving as members of
the Compensation Committee) are eligible to be granted options if they are also
employees. More than one option may be granted to an individual.
The Compensation Committee is authorized to determine which individuals are
executive or other key employees, to select from among them the individuals to
whom options are to be granted, to determine the number of shares to be subject
to such options, to designate whether such options will be incentive stock
options or non-qualified stock options and to establish the terms and conditions
of the options, consistent with the Employee Plan.
EXERCISABILITY OF OPTIONS. Options are exercisable at such times and in
such installments (which may be cumulative) as the Compensation Committee may
provide in the terms of each individual option. No portion of an option
which is unexercisable at termination of employment may thereafter become
exercisable. To the extent that the aggregate fair market value of stock with
respect to which incentive stock options (determined without regard to the
vesting limitations contained in Section 422(d) of the Code) are exercisable
for the first time by an optionee during any calendar year (under the
Employee Plan and all other incentive stock option plans of the Company, any
subsidiary and any parent corporation) exceeds $100,000, such options will be
taxed as non-qualified stock options. For this purpose, the fair market
value of stock shall be determined as of the time the option is granted.
Options are exercisable in whole or in part by written notice to the
Company, specifying the number of shares being purchased and accompanied by
payment of the purchase price for such shares. The option price must be paid in
cash or by check or, with the consent of the Compensation Committee, by delivery
of shares of the
5
<PAGE>
Company's Common Stock owned by the optionee or issuable upon exercise of the
option or by delivery of a recourse, interest-bearing promissory note where
permitted by law. The Compensation Committee may, as a condition to the
exercise of any option, require that the optionee deliver such
representations and documents as it deems necessary to effect compliance with
applicable federal and state securities laws and regulations. The
Compensation Committee may also take whatever additional action it deems
appropriate to effect such compliance.
On the date the option price is to be paid, the optionee (or his successor)
must make full payment to the Company of all amounts that must be withheld by
the Company for federal, state or local tax purposes. Any such tax withholding
may be paid in cash, by check or, with the Compensation Committee's consent,
with shares of the Company's Common Stock.
Shares of the Company's Common Stock, whether or not issuable to the
optionee upon exercise of an option, may be used to satisfy the option price or
the tax withholding consequences of such exercise only (i) during the period
beginning on the third business day following the date of release of the
quarterly or annual summary statement of sales and earnings of the Company and
ending on the twelfth business day following such date or (ii) pursuant to an
irrevocable written election by the optionee to use shares of the Company's
Common Stock to pay all or part of the option price or the withholding taxes
(subject to the approval of the Compensation Committee) made at least six months
prior to the payment of such option price or withholding taxes.
STOCK OPTION AGREEMENTS; CONSIDERATION TO THE COMPANY. In consideration of
the granting of an option, the employee to whom such option is granted will
agree, in a written Stock Option Agreement, to remain in the employ of the
Company, or a subsidiary of the Company, for a period of at least one year after
the option is granted. Nothing in the Employee Plan or in any Stock Option
Agreement will confer upon any optionee any right to continue in the employ of
the Company, or any subsidiary of the Company, or will interfere with or
restrict in any way the rights of the Company, or a subsidiary of the Company,
to discharge any optionee at any time for any reason whatsoever, with or without
cause.
PURCHASE PRICE OF SHARES SUBJECT TO OPTIONS. The price of the shares of
Common Stock subject to each option shall be set by the Compensation Committee;
provided, however, that the price per share of an option shall be not less than
100% of the fair market value of such option.
For purposes of the Employee Plan, the fair market value of a share of the
Company's Common Stock as of a given date will be: (i) the closing price of a
share of the Company's Common Stock on the principal exchange on which such
shares are then trading, if any, on the trading day immediately preceding such
date, or, if shares are not traded on such date, then on the next preceding
trading date during which a sale occurred; or (ii) if such stock is not traded
on an exchange but is quoted on Nasdaq or a successor quotation system, (1) the
last sales price (if the stock is then listed as a National Market Issue under
the Nasdaq National Market System) or (2) the mean between the closing
representative bid and asked prices (in all other cases) for the stock on the
trading day immediately previous to such date as reported by Nasdaq or such
successor quotation system; or (iii) if such 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 stock on the trading day
immediately preceding such date, as determined in good faith by the Compensation
Committee; or (iv) if the Company's Common Stock is not publicly traded, the
fair market value established by the Compensation Committee acting in good
faith.
NON-ASSIGNABILITY. Options may be transferred only by will or by the laws
of descent and distribution. During a participant's lifetime, options are
exercisable only by the participant. No option or interest or right therein or
part thereof will be liable for the debts, contracts or engagements of the
optionee or the optionee's successors in interest or will be subject to
disposition by transfer, alienation, pledge, encumbrance, assignment or any
other means, whether voluntary, involuntary or by operation of law.
EXPIRATION OF OPTIONS. Options may not 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 (whether or not the Employee Plan
has expired or been terminated), or (2) the expiration of three months from the
date of the employee's termination of employment by reason of retirement or
other termination (with or without cause) (but excluding termination of
employment by reason of death or permanent disability), or (3) the expiration of
one year from the date of the employee's termination of employment in the case
of an employee subject to a permanent disability
6
<PAGE>
(within the meaning of Section 22(e)(3) of the Code), unless the optionee
dies within such one-year period, or (4) the expiration of one year from the
date of the employee's death.
Subject to the foregoing, the Compensation Committee will provide, in the
terms of each individual option, when such option expires and becomes
unexercisable; and the Compensation Committee may provide in the terms of
individual options that said options expire immediately upon a termination of
employment for any reason.
MERGER, CONSOLIDATION, ACQUISITION, LIQUIDATION OR DISSOLUTION OF THE
COMPANY. The Compensation 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. The Compensation Committee may also provide for the acceleration of
the exercisability of any such option prior to the occurrence of such merger,
consolidation, acquisition, liquidation or dissolution.
ADJUSTMENTS UPON CHANGE IN CAPITALIZATION. If the outstanding shares of
Common 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 Compensation Committee
will make an appropriate and equitable adjustment in the number and kind of
shares as to which all outstanding options, or portions thereof then
unexercised, will be exercisable, to the end that after such event the
optionee's proportionate interest will be maintained as before the occurrence of
such event. Such adjustment will be made without change in the total price
applicable to the option except as results from rounding of share quantities or
prices and with any necessary corresponding adjustment in option price per
share. Any such adjustment made by the Compensation Committee will be final and
binding upon all optionees, the Company and all other interested persons.
TRANSFER RESTRICTIONS. Unless otherwise approved in writing by the
Compensation Committee, no shares acquired upon exercise of any option by any
officer (as defined in Rule 16a-1(f) of the Exchange Act) 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
Compensation Committee, in its 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 Compensation Committee 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
Compensation 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.
NO RIGHTS AS A STOCKHOLDER. The holders of options will not be, nor have
any of the rights or privileges of, a stockholder of the Company as to shares
covered by an option until such shares are issued by the Company and delivered
to such holders.
CONFORMITY TO SECURITIES LAWS. The Employee Plan is intended to conform to
the extent necessary with all provisions of the Securities Act of 1933, as
amended (the "Securities Act") and the Exchange Act and any and all regulations
and rules promulgated by the Securities and Exchange Commission (the "SEC")
thereunder, including without limitation Rule 16b-3. The Employee Plan will be
administered, and options will 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 Employee Plan and options granted thereunder
shall be deemed amended to the extent necessary to conform to such laws, rules
and regulations.
FEDERAL INCOME TAX ASPECTS OF THE PLAN. The following discussion is a
general summary of the material federal income tax consequences to participants
in the Employee Plan. The discussion is based on the Code, regulations
thereunder, rulings and decisions now in effect, all of which are subject to
change. The summary does not discuss all aspects of federal income taxation
that may be relevant to a particular participant in light of such participant's
personal investment circumstances. Also, state and local income taxes are not
discussed and may vary from locality to locality.
7
<PAGE>
Holders of non-qualified stock options do not realize income as a result of
the grant of such options, but normally realize compensation income taxable at
ordinary income rates upon such options' exercise to the extent that the fair
market value of the shares of Common Stock on the date of the exercise of such
options exceeds the option exercise price paid. However, in the case of an
optionee subject to Section 16(b) of the Exchange Act who has held non-qualified
stock options for less than six months and, with the consent of the Compensation
Committee, exercises such options, the ordinary income portion generally would
be calculated using the fair market value of the shares upon the lapse of the
six-month period from the date of grant of such options rather than the fair
market value on the date of exercise, unless the optionee elects to recognize
income immediately upon exercise in accordance with Section 83(b) of the Code.
The Company will be entitled to a tax deduction in an amount equal to the amount
that the optionee is required to include in ordinary income at the time of such
inclusion, and will be required to withhold taxes on such ordinary income. The
optionee's initial tax basis for shares acquired upon the exercise of a
non-qualified stock option will be the option exercise price paid plus the
amount of ordinary income realized by the optionee. Any appreciation in the
value of such shares may qualify for capital gains treatment depending upon the
applicable holding period.
Holders of incentive stock options will not be considered to have received
taxable income upon either the grant of the option or its exercise. Upon the
sale or other taxable disposition of the shares of the Common Stock, long-term
capital gain will normally be recognized in the full amount of the difference
between the amount realized and the option exercise price if no disposition of
the shares has taken place within either (a) two years from the date of grant of
the incentive stock option or (b) eighteen (18) months from the date of transfer
of the shares of the Common Stock to the optionee upon exercise (whether or not
such optionee is subject to Section 16(b) of the Exchange Act). If the shares
of Common Stock are sold or otherwise disposed of before the end of the 18-month
period or the two-year period, the difference between the option exercise price
and the fair market value of the shares of Common Stock on the date of the
option's exercise will be taxed as ordinary income; the balance of the gain, if
any, will be taxed as capital gain. If the shares of Common Stock are disposed
of before the expiration of the one-year period or the two-year period and the
amount realized is less than the fair market value of the shares at the date of
exercise, the optionee's ordinary income is limited to the amount realized less
the option exercise price paid. The Company will be entitled to a tax deduction
in regard to an incentive stock option only to the extent the optionee has
ordinary income upon sale or other disposition of the shares of Common Stock.
The difference between the fair market value of the shares of Common Stock
on the exercise date and the exercise price of an incentive stock option is
generally deemed to be a "tax preference" under the alternative minimum tax
rules of the Code. Since the consequences of the application of these
provisions to individual optionees may vary depending on their particular
circumstances, optionees should consult their personal tax advisors with respect
to these provisions of the Code.
PROPOSED AMENDMENT TO THE EMPLOYEE PLAN
A total of 1,450,000 shares of Common Stock are currently reserved for
issuance under the Employee Plan, and under the terms of the Employee Plan, the
aggregate number of shares which may be issued upon exercise of options shall
not exceed 1,450,000, subject to certain adjustments. The Board of Directors
recommends an amendment to the Employee Plan to increase the number of shares
available for issuance under the Employee Plan for each of the next five fiscal
years by 2.0% of the number of shares of Common Stock issued and outstanding as
of the end of the immediately preceding fiscal year.
As of March 31, 1998, options to purchase an aggregate of 1,449,150 shares
of Common Stock had been granted under the Employee Plan. Accordingly, only
850 shares of Common Stock were available for the issuance of new options.
Assuming no additional shares of Common Stock were issued, this amendment would
authorize additional options to purchase approximately 500,000 shares of Common
Stock for each of the next five fiscal years. The Board of Directors believes
that increasing the number of shares available for issuance under the Employee
Plan is necessary in order for the Compensation Committee to have sufficient
flexibility to carry out its responsibilities to (i) further the growth,
development and financial success of the Company by providing additional
incentives to its executives and (ii) enable the Company to obtain and retain
the services of the type of executives considered essential to the long-range
success of the Company.
8
<PAGE>
RECOMMENDATION OF THE BOARD OF DIRECTORS
The Board of Directors unanimously recommends a vote FOR approval and
adoption of the Employee Plan. Proxies solicited by the Company will be so
voted unless stockholders specify otherwise on the accompanying Proxy.
SECURITIES OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
As of April 21, 1998, the Company had 1,447 stockholders of record. The
following table sets forth information regarding beneficial ownership of the
shares of Common Stock as of such date by (i) each of the Company's officers and
directors, (ii) the Company's officers and directors as a group and (iii) all
other stockholders known by the Company to beneficially own more than five
percent of the Company's Common Stock. For purposes of this Proxy Statement,
beneficial ownership of securities is defined in accordance with the rules of
the SEC and means generally the power to vote or exercise investment discretion
with respect to securities, regardless of any economic interests therein.
Except as otherwise indicated, the Company believes that the beneficial owners
of the securities listed below have sole investment and voting power with
respect to such shares, subject to community property laws where applicable.
Unless otherwise indicated, the business address for each of the individuals
listed below is c/o Excel Realty Trust, Inc., 16955 Via Del Campo, Suite 110,
San Diego, California 92127.
<TABLE>
<CAPTION>
Number of Shares Percent
Name Beneficially Owned(1) Beneficially Owned(2)
- ----------------------- --------------------- --------------------
OFFICERS AND DIRECTORS
<S> <C> <C>
Gary B. Sabin(3). . . . . . . . . 1,330,725 5.38%
Chief Executive Officer,
President, Chairman of
the Board
Richard B. Muir . . . . . . . . . 434,304 1.76%
Executive Vice President,
Secretary, Director
Ronald B. Sabin . . . . . . . . . 245,937 *
Senior Vice President
David A. Lund . . . . . . . . . . 170,181 *
Chief Financial Officer,
Treasurer
Mark T. Burton. . . . . . . . . . 152,331 *
Senior Vice President/
Acquisitions
Graham R. Bullick . . . . . . . . 135,636 *
Senior Vice President
S. Eric Ottesen . . . . . . . . . 92,087 *
Senior Vice President,
General Counsel, Assistant
Secretary
John H. Wilmot(4) . . . . . . . . 110,336 *
Director
Bruce A. Staller(5) . . . . . . . 17,184 *
Director
Robert E. Parsons, Jr.(6) . . . . 15,373 *
Director
Boyd A. Lindquist(7). . . . . . . 13,268 *
Director
D. Charles Marston. . . . . . . . 12,082 *
Director
OFFICERS AND DIRECTORS AS A GROUP 2,729,444 11.04%
(12 persons)
Fidelity Management & Research Company(8) 2,715,790 10.99%
82 Devonshire Street
Boston, MA 02109
</TABLE>
- -----------------------
* Represents less than 1% of the outstanding shares of stock.
9
<PAGE>
(1) Includes options to purchase shares, exercisable within sixty days of April
21, 1998, as follows: Mr. Gary Sabin, 507,500; Mr. Muir, 351,500;
Mr. Ronald Sabin, 158,500; Mr. Lund, 147,900; Mr. Burton, 133,500;
Mr. Bullick, 128,500; Mr. Ottesen, 91,000; Mr. Staller, 8,250; Mr. Parsons,
3,250; Mr. Lindquist, 10,250; and Mr. Marston, 10,250.
(2) Represents stock plus options divided by the total of the shares
outstanding and options of the individual officer or director.
(3) Includes shares held by Excel Interfinancial Corporation ("EIC"), of which
Gary B. Sabin is the controlling stockholder.
(4) Mr. Wilmot's business address is 4455 E. Camelback Rd., Phoenix, Arizona
85018.
(5) Mr. Staller's business address is 618 W. Hillcrest Blvd., Monrovia,
California 91016.
(6) Mr. Parson's business address is Host Marriott Corporation, 10400 Fernwood
Road, Washington, D.C. 20058.
(7) Mr. Lindquist's business address is 23133 Hawthorne Boulevard, Torrance,
California 90505.
(8) The information is presented as of December 31,1997 and is based on a
Schedule 13G filed with the SEC. Fidelity is a group of funds of which no
single fund owns more than five percent of the Company's Common Stock.
EXECUTIVE COMPENSATION AND OTHER INFORMATION
EXECUTIVE OFFICERS
The information set forth below is submitted with respect to each of the
Company's executive officers.
<TABLE>
<CAPTION>
Name of Individual Capacity in Which Served Age
------------------ ------------------------ ---
<S> <C> <C>
Gary B. Sabin Chief Executive Officer, President and 44
Chairman of the Board
Richard B. Muir Executive Vice President and Secretary 42
David A. Lund Chief Financial Officer/Treasurer 46
Ronald H. Sabin Senior Vice President 47
Graham R. Bullick Senior Vice President 47
Mark T. Burton Senior Vice President/Acquisitions 37
S. Eric Ottesen Senior Vice President, General Counsel 42
and Assistant Secretary
</TABLE>
GARY B. SABIN has served as Chairman of the Board of Directors, President
and Chief Executive Officer of the Company since January 1989. For a more
detailed discussion of Mr. Sabin's business experience, see "PROPOSAL 1:
ELECTION OF DIRECTORS -- Information Regarding Directors."
RICHARD B. MUIR has served as Director, Executive Vice President and
Secretary of the Company since January 1989. For a more detailed discussion of
Mr. Muir's business experience, see "PROPOSAL 1: ELECTION OF DIRECTORS --
Information Regarding Directors."
DAVID A. LUND has served as Chief Financial Officer of the Company since
1994 and as a Vice President of the Company since 1988. Mr. Lund has served as
an officer and director of certain affiliates of the Company since 1983. Mr.
Lund is a Certified Public Accountant and, prior to 1983, was a partner in a
public accounting firm.
RONALD H. SABIN has served as Senior Vice President of the Company since
January 1989. Mr. Sabin has served as an officer or otherwise been employed by
affiliates of the Company since 1979, primarily providing property management
services. Mr. Sabin has managed the Company's properties for the past nine
years. He is a licensed real estate broker and a licensed property and casualty
insurance agent. Ronald Sabin is the brother of Gary B. Sabin.
GRAHAM R. BULLICK, PH.D. has served as Senior Vice President of the Company
since January 1991. Previously, Dr. Bullick was associated with the Company as
a Director from 1991 to 1992. From 1985 to 1991, Dr. Bullick served as Vice
President and Chief Operations Officer for an Arizona-based real estate
investment firm, where his responsibilities included acquisition and financing
of investment real estate projects.
MARK T. BURTON has served as Senior Vice President/Acquisitions of the
Company since October 1995 and as a Vice President of the Company since January
1989. Mr. Burton has been associated with the Company, its predecessor and its
affiliates since 1983, primarily in the evaluation and selection of property
acquisitions.
10
<PAGE>
S. ERIC OTTESEN has served as General Counsel of the Company since January
1995, as Senior Vice President since October 1995 and as Assistant Secretary
since September 1996. Previously, Mr. Ottesen was a senior partner in a San
Diego law firm from 1987 to 1995.
SUMMARY COMPENSATION TABLE
The following table shows, for the fiscal years ended December 31, 1995,
1996 and 1997, the compensation paid by the Company to its Chief Executive
Officer and each of the four most highly compensated executive officers other
than the Chief Executive Officer (collectively, the "Named Executive Officers").
<TABLE>
<CAPTION>
Other Securities All Other
Annual Under- Compen-
Name and Bonus Compen- lying sation
Principal Position Year Salary (1) (2) sation (3) Options (4)
- ------------------ ---- ---------- ------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Gary B. Sabin 1997 $282,562 $247,845 $5,690 265,750(5) $4,750
Chief Executive Officer, 1996 273,083 137,500 3,585 103,000(5) 4,750
President and Chairman 1995 251,000 126,000 3,975 37,000(5) 4,620
of the Board
Richard B. Muir 1997 174,675 153,212 7,000 178,250(5) 4,750
Executive Vice President 1996 168,083 85,000 8,739 73,000(5) 4,750
and Secretary 1995 146,417 73,500 7,196 28,250(5) 4,620
David A. Lund 1997 138,713 76,477 6,000 44,000 4,750
Chief Financial Officer 1996 134,167 67,500 5,250 56,400 4,750
and Treasurer 1995 125,000 62,500 -- 17,500 4,620
Graham R. Bullick 1997 128,437 70,812 6,650 44,000 3,673
Senior Vice President 1996 123,750 62,500 8,894 47,000 4,188
1995 110,000 55,000 9,194 17,500 3,575
Ronald H. Sabin 1997 128,437 70,812 6,000 44,000 4,028
Senior Vice President 1996 122,554 62,500 6,250 47,000 4,468
1995 110,000 55,000 6,000 17,500 4,620
</TABLE>
- ---------------------
(1) Includes compensation that was accrued and deferred pursuant to the
Company's 401(k) Plan.
(2) Bonuses were awarded pursuant to the Employment Agreements (as defined
below) which were entered into in April 1993 or, with respect to David A.
Lund, by grant of the Compensation Committee.
(3) Includes car allowance and miscellaneous incentive compensation.
(4) Comprised of 401(k) contributions by the Company.
(5) Includes stock options granted in capacity as a Director of the Company.
11
<PAGE>
STOCK OPTION GRANTS TABLE
The following table provides information concerning the grant of stock
options to the Named Executive Officers as of the end of the last fiscal year.
The Company does not have any outstanding stock appreciation rights.
<TABLE>
<CAPTION>
Potential Realizable
Value at Assumed Annual
Rates of Stock
Price Appreciation
Individual Grants for Option Term (1)
-------------------------------------------------------------------------------------------
Number of % of Total
Securities Options
Underlying Granted to
Options Employees in Exercise or Base Expiration
Name Granted (2) Fiscal Year Price Date 5% 10%
------ ------------ ------------- ---------------- ---------- --------- --------------
<S> <C> <C> <C> <C> <C> <C>
Gary B. Sabin 262,500 38% $31.00 11-Dec-2007 $5,192,415 $13,039,522
3,250(3) 0% $25.38 09-May-2007 $77,871 $165,344
Richard B. Muir 175,000 26% $31.00 11-Dec-2007 $3,461,610 $8,693,015
3,250(3) 0% $25.38 09-May-2007 $77,871 $165,344
David A. Lund 44,000 6% $31.00 11-Dec-2007 $870,348 $2,185,672
Graham R. Bullick 44,000 6% $31.00 11-Dec-2007 $870,348 $2,185,672
Ronald H. Sabin 44,000 6% $31.00 11-Dec-2007 $870,348 $2,185,672
</TABLE>
- -----------------------
(1) Based on a price of $31.00 per share at December 31, 1997. These amounts
represent assumed rates of appreciation in the price of the Company's
Common Stock during the terms of the options in accordance with rates
specified in applicable federal securities regulations. Actual gains, if
any, on stock option exercises will depend on the future price of the
Common Stock and overall stock market conditions. There is no
representation that the rates of appreciation reflected in this table will
be achieved.
(2) Except as otherwise indicated, these options were granted pursuant to the
Employment Agreements (or in the case of Mr. Lund, pursuant to a grant by
the Compensation Committee), and are immediately exercisable. The exercise
price of the options was equal to the market price on the date of grant.
(3) These options were granted to Messrs. Sabin and Muir in their capacities as
Directors of the Company and became immediately exercisable as of the date
of grant. The exercise price of the options was equal to the market price
on the date of grant.
AGGREGATED OPTION EXERCISES AND FISCAL YEAR-END OPTION VALUE TABLE
The following table sets forth information with respect to the Named
Executive Officers concerning the exercise of stock options during the last
fiscal year and unexercised options held as of the end of the fiscal year.
<TABLE>
<CAPTION>
Number of
Securities Value of
Underlying Unexercised
Unexercised In-the-Money
Options at Options at
Year-End Year-End (2)
Number of -------- ------------
Shares Acquired Value Exercisable/ Exercisable/
Name on Exercise Realized (1) Unexercisable Unexercisable
---- ----------- ------------- ------------- --------------
<S> <C> <C> <C> <C>
Gary B. Sabin. . . . . 0 0 507,750/0 $2,773,656/0
Richard B. Muir. . . . 0 0 351,500/0 $1,990,469/0
David A. Lund. . . . . 0 0 147,900/0 $1,119,125/0
Graham R. Bullick. . .10,000 $72,500 128,500/0 $908,250/0
Ronald H. Sabin. . . . 0 0 158,500/0 $1,265,750/0
</TABLE>
- ----------------------
(1) Fair market value of underlying securities at exercise minus the exercise
price.
(2) Represents the difference between the closing price of the Common Stock on
December 31, 1997 and the exercise price of the options.
12
<PAGE>
EMPLOYMENT AGREEMENTS
The Company entered into separate employment agreements (the "Employment
Agreements") with Messrs. Gary Sabin, Muir, Ronald Sabin and Bullick
effective as of April 1, 1993. Each of the Employment Agreements is
automatically extended for an additional year at the end of each year of the
agreement, subject to the right of either the Company or said employees to
terminate the agreement voluntarily by giving at least three months' prior
written notice. Each of the Employment Agreements provides for an annual base
salary as well as an automobile allowance, an award of stock options and
medical insurance coverage. In addition, the Employment Agreements contain
severance provisions which provide that, under certain circumstances, the
employees are entitled to lump sum severance payments following the
termination of their employment with the Company. Such severance payments
are as follows: Messrs. Gary Sabin, Muir, Ronald Sabin and Bullick are each
entitled to an amount equal to one and one-half (1-1/2) times the highest
compensation paid to each of them under their respective Employment Agreement
for any year, or if greater, that which is payable to each of them for the
year in which their respective Employment Agreement is terminated. The
Employment Agreements provided for annualized base salaries in 1997 as
follows: Mr. Gary Sabin, $283,250; Mr. Muir, $175,100; Mr. Ronald Sabin,
$128,750; and Mr. Bullick, $128,750. Each of such employees is entitled to
annual bonus compensation and options to be determined by the Compensation
Committee. The award of any bonus or option compensation, however, is
dependent on the achievement of certain performance levels by the Company,
including per share growth in funds from operations and cash flow.
On June 12, 1997, the Board of Directors of the Company resolved to
amend the severance provisions contained in the Employment Agreements to
provide severance payments as follows: Mr. Gary Sabin will be entitled to an
amount equal to two and one-half (2-1/2) times, Mr. Muir will be entitled to
an amount equal to two (2) times, and Messrs. Ronald Sabin and Bullick will
each be entitled to an amount equal to one and one-half (1-1/2) times the
highest compensation paid to each of them under their respective Employment
Agreement for any year, or if greater, that which is payable to each of them
for the year in which their respective Employment Agreement is terminated.
COMPENSATION PLANS
401(K) PLAN. The Company has established a tax-qualified employee
savings and retirement plan (the "401(k) Plan") covering all of the Company's
eligible full-time employees. The Company adopted the 401(k) Plan effective
as of January 1, 1993. Pursuant to the 401(k) Plan, participants may elect
to contribute, through salary reductions, up to 15% of their annual
compensation. The Company provides an additional 50% matching contribution
equal to 3% of the first 6% of compensation that is contributed by all
participating employees. The 401(k) Plan is designed to qualify under Section
401 of the Code so that contributions by employees or by the Company to the
401(k) Plan, and income earned on plan contributions, are not taxable to
employees until withdrawn from the 401(k) Plan, and so that contributions by
the Company, if any, will be deductible by the Company when made.
DIRECTOR PLAN. The 1994 Directors' Stock Option Plan of Excel Realty
Trust, Inc. (the "Director Plan") was adopted by the Company's Board of
Directors on April 19, 1994 and approved by the Company's stockholders on May
25, 1994. The Director Plan is administered by the Compensation Committee
and provides for the granting to duly elected and qualified Directors of the
Company of stock options with respect to an aggregate of 240,000 shares of
the Company's Common Stock. The Director Plan expires on May 15, 2004,
unless sooner terminated by the Board of Directors. Pursuant to the Director
Plan, every participating Director is entitled to, on an annual basis,
options to purchase shares of the Company's Common Stock in accordance with
the following formula: 3,000 shares, plus (250 shares multiplied by the
number of years of continuous service beginning in 1997, including any
portion of any fiscal year of service as a full year). Options granted under
the Director Plan are exercisable on the date of grant, and the exercise
price of such options is equal to the fair market value of the Common Stock
on the date of grant. As of March 31, 1998, options to purchase an aggregate
of 71,750 shares of Common Stock had been granted under the Director Plan at
prices ranging from $18.25 to $25.38, of which 59,500 were still unexercised.
EMPLOYEE PLAN. In May 1993, the Company's Board of Directors approved
the Employee Plan. For a discussion of the material terms of the Employee
Plan, see "PROPOSAL 2: APPROVAL OF THE EMPLOYEE PLAN." As of March 31,
1998, options to purchase an aggregate of 1,449,150 shares of Common Stock
had been
13
<PAGE>
granted under the Employee Plan at prices ranging from $16.38 to $31.69,of
which 1,272,750 were still unexercised.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
During fiscal 1997, the Compensation Committee was comprised of Messrs.
Lindquist, Parsons and Staller. No interlocking relationship exists between any
member of the Compensation Committee and any member of any other company's board
of directors or compensation committee.
COMPENSATION COMMITTEE REPORT
Set forth below in full is the Report of the Compensation Committee
regarding the compensation paid by the Company to its executive officers
during 1997:
In 1997, the Compensation Committee retained the compensation consulting
firm FPL Advisory Group ("FPL") to review management compensation and make
recommendations on company compensation policy which would increase
shareholder value by aligning closely the financial interests of the
Company's management with that of its stockholders. Based on recommendations
from FPL, the Compensation Committee recommended and the Company adopted
certain adjustments in management compensation, all of which adjustments make
management's compensation comparable to executive officers of other public
companies of comparable size.
Stockholders are interested in how companies pay their executives, both
in terms of the plan designs that generate pay, and in the ultimate amount of
compensation. Following is a discussion of the thought process that has gone
into the Company's 1997 executive pay plans and amounts.
GENERAL. The Compensation Committee has implemented compensation
policies which seek to enhance the profitability of the Company, and thus
stockholder values, by aligning closely the financial interests of the
Company's management with those of its stockholders.
Executive pay continues to consist of three elements that are designed to
meet those policies:
- Base salary, based primarily on job content and peer group
comparisons. The Compensation Committee believes that base salaries
at least at market average are essential to retaining good performers.
- Bonuses, which are based primarily upon the achievement of certain
performance levels by the Company, including per share growth in funds
from operations.
- Stock options, which allow executives to benefit when the Company's
stock price increases. The Compensation Committee believes that its
grant of stock options, along with the award of bonuses based on
Company performance, aligns executives' interests with stockholders.
Following is additional information regarding each of the above elements.
BASE SALARY. The Company entered into the Employment Agreements with
Messrs. Gary Sabin, Muir, Bullick and Ronald Sabin as of April 1, 1993. The
salaries paid to each of such executive officers in 1997, as set forth in the
Summary Compensation Table above, are comparable to salaries paid in 1997 to
executive officers at similarly-sized comparable companies.
BONUSES. The Employment Agreements generally allow for bonus awards,
dependent upon the Company's achievement of certain performance levels,
including 1) growth in funds from operations, 2) a comparison of peer group
compensation and 3) execution of the Company's strategic plan. Such bonus
amounts, as indicated in the Summary Compensation Table, were declared in
December 1997 and paid in January 1998, and were awarded with respect to
service to the Company from January 1, 1997 through December 31, 1997. The
bonus awards for 1997 were based in part on the Company's performance in
1997. In 1997, the Company's funds from operations increased 89.1% to $62.6
million ($2.54 per share) as compared to $33.1 million ($2.30 per share) in
fiscal 1996.
14
<PAGE>
The funds from operations per share increased 10.4%. Revenue and net
income also increased in 1997 compared to 1996.
STOCK OPTIONS. Options to purchase shares were issued during 1997 to
the Named Executive Officers as indicated in the Summary Compensation Table
under the Company's 1993 Stock Option Plan. The options were granted based
upon the Compensation Committee's determination that the performance of the
Company during 1997, as discussed above, warranted such options. Stock value
must increase from the value at time of grant in order for option holders to
realize any benefit from these rewards. Thus, option holders benefit only if
all stockholders benefit. The annual return to stockholders has been 35.7%,
34.6% and 32.9% for the years 1995 through 1997, respectively. Also, as to
executive options, FPL proposed, and the Compensation Committee adopted,
dividend equivalent compensation based on the incremental increase on the
value of the Company's dividend over time. This dividend equivalent
compensation would provide an award only on the incremental increase in the
value of the dividend rather than the full dividend. The Compensation
Committee believes the dividend equivalent approach enables Company
executives to receive compensation that is closely linked to a total
shareholder return philosophy. This applies only to options granted during
1997 and thereafter, and only as to cash common stock dividends in excess of
$2.00 per share.
CHIEF EXECUTIVE OFFICER PAY. Amounts earned during 1997 by the Chief
Executive Officer, Mr. Gary Sabin, are shown in the Summary Compensation
Table. Some additional notes regarding his pay follow.
- The base salary for Mr. Sabin, as set forth in the Summary
Compensation Table, is believed by the Compensation Committee to be
comparable to the base salary of chief executive officers of other
public companies of comparable size.
- FPL recommended, and Mr. Sabin was awarded, a cash bonus of $247,845
in recognition of his outstanding performance in 1997. This is
consistent with, or even somewhat conservative compared to, other
public companies of similar size.
- During 1995, Mr. Sabin received options to purchase 35,000 shares of
stock at $19.25 per share and to purchase 40,000 shares of stock at
$23.375 per share. The option for 35,000 shares was granted in May
1995 for services performed in 1994. The option for 40,000 shares was
granted in January 1996 for services performed in 1995. During 1995,
Mr. Sabin also received options to purchase 2,000 shares of stock at
$19.63 per share in his capacity as a director of the Company. During
1996, Mr. Sabin received options to purchase 60,000 shares of stock at
$23.375 per share. In addition, Mr. Sabin received options to
purchase 3,000 shares of stock at $18.25 per share in his capacity as
a director of the Company. During 1997, Mr. Sabin received options to
purchase 262,500 shares of stock at $31.00 per share. In addition,
Mr. Sabin received options to purchase 3,250 shares of stock at
$25.375 per share in his capacity as a director of the Company. The
exercise price of all such options is equal to the market price at the
date of grant. The Compensation Committee believes that this
long-term incentive opportunity is conservative when compared to other
public companies of comparable size.
SUMMARY. Currently, the Company's executive compensation program continues
to reward the following elements of performance:
- Individual performance is rewarded through continued employment with
the Company and, to some extent, through the bonus plan.
- Achievement of internal Company goals is rewarded through the bonus
plan.
- Stock price performance is rewarded through increases in the value of
previously granted stock options.
The Compensation Committee believes that the current program has been
effective in rewarding executives appropriately for performance, retaining
good performers, and aligning executives' interests with those of
stockholders. While the Compensation Committee is pleased with the current
compensation system, it reserves the right to make changes to the program as
are necessary to continue to meet stated goals in future years.
15
<PAGE>
Benefits also are offered to officers that are not based on performance.
Such benefits provide a safety net of protection in the event of illness,
disability, death, retirement, etc. Such a safety net is provided to most of
the employees of the Company.
The Compensation Committee
of the Company's Board of Directors
Boyd A. Lindquist
Robert E. Parsons, Jr.
Bruce A. Staller
March 28, 1998
PERFORMANCE GRAPH
The following performance graph compares the performance of the Company's
Common Stock to the S&P 500 Index and to the published National Association of
Real Estate Investment Trust's ("NAREIT") All Equity Index (excluding Health
Care REITs). The graph assumes that the value of the investment in the
Company's Common Stock and each index was 100 at December 31, 1992 and that all
dividends were reinvested.
<TABLE>
<CAPTION>
1992 1993 1994 1995 1996 1997
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
EXCEL 100 130 128 174 235 312
NAREIT 100 119 120 141 192 228
S&P 500 100 110 111 153 188 251
</TABLE>
16
<PAGE>
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
In 1995, a taxable affiliate company, EDV Development Corporation
("EDV"), was formed to assist in the Company's acquisition of additional
properties. The Company owns 100% of the outstanding preferred shares of
EDV. The preferred shares receive 95% of the dividends, if any, from EDV.
One hundred percent (100%) of the outstanding common shares of EDV are owned
by EIC. Gary B. Sabin, who is President, Chief Executive Officer and
Chairman of the Board of the Company, is President, Chief Executive Officer
and Chairman of the Board of EIC, and certain other officers of the Company
serve as officers and directors of EIC. At December 31, 1997, the Company
had notes receivable outstanding to EDV of $90.1 million to facilitate
certain transactions (which indebtedness was subsequently reduced by
approximately $33.3 million in connection with the Spin-off (as defined
below)).
On March 31, 1998, the Company consummated its previously-announced
spin-off (the "Spin-off") of Excel Legacy Corporation ("Legacy") through the
distribution, on a pro-rata basis, to the holders of record of the Company's
Common Stock on March 2, 1998 of all of the common stock of Legacy. Legacy
was organized to create and realize value by identifying and making
opportunistic real estate investments which are not restricted by REIT tax
laws or influenced by the Company's objectives of increasing cash flows and
maintaining certain leverage ratios. Prior to the Spin-off, the Company
transferred to Legacy ten single tenant properties owned by the Company with
a December 31, 1997 book value of approximately $46.2 million and a property
under development with a book value of approximately $14.7 million, in
exchange for a sufficient number of shares of Legacy common stock to effect
the Spin-off, a note payable from Legacy to the Company in the amount of
approximately $20.6 million, and the assumption by Legacy of indebtedness on
the properties in the amount of approximately $34.2 million. Prior to the
Spin-off, EDV transferred to Legacy four notes receivable, a leasehold
interest in a parcel of land, an office building and a single tenant
property, in exchange for the cancellation by the Company of approximately
$33.3 million of EDV's indebtedness to the Company. The Company's executive
officers will continue to manage the Company's operations as well as
supervise the management of Legacy.
Concurrently with the Spin-off, certain officers of Legacy, including
the Company's executive officers, (i) purchased 9,195,224 shares of Legacy
common stock in a private placement at a price per share of $2.39 (the market
value of the Legacy common stock as of the Spin-off based upon the value of
the assets being transferred to Legacy), for an aggregate purchase price of
approximately $22.0 million, and (ii) were granted options to acquire
3,100,000 shares of Legacy common stock under the 1998 Stock Option Plan of
Legacy, 50% of which have an exercise price of $5.00 per share and 50% of
which have an exercise price of $10.00 per share. Legacy agreed to loan to
such officers, in connection with their purchase of Legacy common stock, 50%
of the purchase price therefor (an aggregate amount of approximately $11.0
million). Such loans bear interest at the rate of 7.0% per annum, mature in
March 2003 and are recourse obligations of such officers.
COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE ACT
Under Section 16(a) of the Exchange Act, directors, officers and
beneficial owners of ten percent or more of the Company's Common Stock
("Reporting Persons") are required to report to the SEC on a timely basis the
initiation of their status as a Reporting Person and any changes with respect
to their beneficial ownership of the Company's Common Stock. Regulations
promulgated by the SEC require the Company to disclose in this Proxy
Statement any reporting violations with respect to the 1997 fiscal year which
came to the Company's attention based on a review of the applicable filings
required by the SEC to report such status as an officer or director or such
changes in beneficial ownership as submitted to the Company. Based solely on
its review of such forms received by it, the Company believes that all filing
requirements applicable to its executive officers, directors and beneficial
owners of more than ten percent of the Company's Common Stock were complied
with during the fiscal year ended December 31, 1997.
RELATIONSHIP WITH INDEPENDENT ACCOUNTANTS
The Company's financial statements for the fiscal year ended December
31, 1997 have been examined by Coopers & Lybrand L.L.P. Representatives of
Coopers & Lybrand L.L.P. are expected to be available at the meeting to
respond to appropriate questions and to make a statement if they desire to do
so. The Company will select independent accountants for the current year
sometime after the meeting.
17
<PAGE>
OTHER BUSINESS
No other matters are to be presented for action at the Annual Meeting
other than as set forth in this Proxy Statement. If other matters should
properly come before the meeting, however, the persons named in the
accompanying Proxy will vote all Proxies in accordance with their best
judgment.
ANNUAL REPORT
The Annual Report of the Company for the fiscal year ended December 31,
1997 is provided with this Proxy Statement to the stockholders of record as
of April 21, 1998. However, the Annual Report does not constitute, and
should not be considered, a part of this Proxy solicitation material.
STOCKHOLDER PROPOSALS
Any proposal to be considered for inclusion in the Company's proxy
statement for the next annual meeting must be received at the Company's
principal executive offices not later than December 25, 1998.
STOCKHOLDERS ARE URGED TO IMMEDIATELY MARK, DATE, SIGN AND RETURN THE
ENCLOSED PROXY IN THE ENVELOPE PROVIDED, TO WHICH NO POSTAGE NEED BE AFFIXED
IF MAILED IN THE UNITED STATES.
BY ORDER OF THE BOARD OF DIRECTORS,
RICHARD B. MUIR
EXECUTIVE VICE PRESIDENT AND SECRETARY
April 24, 1998
San Diego, California
18
<PAGE>
1993 STOCK OPTION PLAN
OF
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.
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 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.
19
<PAGE>
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 corporation which is then a 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-1(f)
under the Exchange Act, as such Rule may be amended in the future.
SECTION 1.11 - OPTION
"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 Excel Realty Trust, Inc.
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 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.
20
<PAGE>
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 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. 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
Any executive or other key Employee of the Company or of any corporation
which is then a 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:
21
<PAGE>
(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 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 with respect to Options
granted to Employees who are not Officers, no Option may be exercised in whole
or in part during the first six months after such Option is granted.
22
<PAGE>
(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.
(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.
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.
23
<PAGE>
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.
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
24
<PAGE>
(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
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 only (i) during the
period beginning on the third business day following the date of release of
the quarterly or annual summary statement of sales and earnings of the
Company and ending on the twelfth business day following such date or (ii)
pursuant to an irrevocable written election by the Optionee to use shares of
the Company's Common Stock to pay all or part of the Option price or the
withholding taxes (subject to the approval of the Committee) made at least
six months prior to the payment of such Option price or withholding taxes.
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
25
<PAGE>
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 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, each of whom is
both (a) a "DISINTERESTED PERSON" as defined by Rule 16b-3 and (b) an
"outside director" within the meaning of Section 162(m)(4)(c)(ii) of the
Code. Appointment of Committee members shall be effective upon acceptance of
appointment. Committee members may resign at any time by delivering written
notice to the Board. Vacancies in the Committee shall be filled by the Board.
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
26
<PAGE>
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 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 or 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 of no effect; PROVIDED, HOWEVER, that nothing in this Section
7.1 shall prevent transfers by will or by the applicable laws of descent and
distribution.
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 such shareholder approval;
PROVIDED, HOWEVER, that such Options shall not be exercisable prior to the
time when the Plan is approved by the shareholders;
27
<PAGE>
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, including without limitation Rule 16b-3. 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.
28
<PAGE>
This Proxy is Solicited on Behalf of the Board of Directors of
EXCEL REALTY TRUST, INC.
16955 Via Del Campo, Suite 110
San Diego, California 92127
The undersigned, a stockholder of Excel Realty Trust, Inc., a Maryland
corporation, hereby appoints Gary B. Sabin and Richard B. Muir as proxies,
each with the power to appoint his substitute, and hereby authorizes them to
represent and to vote, as designated on the reverse side, all the shares of
common stock of said Company held of record by the undersigned on April 21,
1998, at the Annual Meeting of Stockholders to be held on May 28, 1998, and at
any adjournment or postponement thereof.
SEE REVERSE SEE REVERSE
SIDE CONTINUED AND TO BE SIGNED ON REVERSE SIDE SIDE
<PAGE>
Please mark
/X/ votes as in
this example.
This proxy will be voted for the election as Directors of all nominees
set forth in the Notice of Annual Meeting and Proxy Statement, unless
the contrary is indicated in the appropriate place. This proxy also will
be voted for the approval and adoption of the Amended and Restated 1993
Stock Option Plan as described in the Notice of Annual Meeting and Proxy
Statement, unless the contrary is indicated in the appropriate place.
1. Election of Directors
Nominees: Richard B. Muir and John H. Wilmot
FOR WITHHELD
/ / / /
/ /_________________________________________
For all nominees except as noted above
FOR AGAINST ABSTAIN
2. Proposal to Approve and Adopt the
Amended and Restated 1993 Stock / / / / / /
Option Plan of the Company.
3. In their discretion, the Proxies are authorized to vote such other
business as may properly come before the meeting.
The undersigned revokes any prior proxy at such meeting and ratifies all that
said Proxies, or any of them, may lawfully do by virtue hereof. Receipt of the
Notice of Annual Meeting and Proxy Statement is hereby acknowledged.
MARK HERE FOR ADDRESS CHANGE AND NOTE AT LEFT / /
PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD
PROMPTLY USING THE ENCLOSED ENVELOPE.
Please sign exactly as name appears at left. When shares are held by joint
tenants, both should sign. When signing as attorney, executor, administrator,
trustee or guardian, please give full title as such. If a corporation, please
sign in full corporate name by President or other authorized officer. If a
partnership, please sign in partnership name by authorized person.
Signature: Date: Signature: Date:
----------------- ------- ------------------ -------
