<PAGE>
As filed with the Securities and Exchange Commission on October 1, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
NEW PLAN EXCEL REALTY TRUST, INC.
(Exact name of registrant as specified in its charter)
Maryland 33-0160389
(State of incorporation) (I.R.S. Employer Identification No.)
1120 Avenue of the Americas
New York, New York 10036
(Address of principal executive offices) (Zip Code)
------------
New Plan Realty Trust 1997 Stock Option Plan
New Plan Realty Trust 1991 Stock Option Plan, As Amended
Amended and Restated New Plan Realty Trust 1985 Incentive Stock Option Plan
March 1991 Stock Option Plan
Nonqualifying Stock Option Plan
(Full title of the plans)
------------
Arnold Laubich
Chief Executive Officer
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
(Name and address of agent for service)
------------
(212) 869-3000
(Telephone number, including area code, of agent for service)
------------
Calculation of Registration Fee
<TABLE>
<CAPTION>
===================================================================================================
Title of Securities Amount to be Proposed Proposed Amount of
to be Registered Registered(1) Maximum Maximum Registration
Offering Price Aggregate Fee (2)
Per Share(2) Offering Price(2)
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 3,576,000 $22.11 $79,065,360 $23,324.28
per share Shares
===================================================================================================
</TABLE>
(1) Also includes stock purchase rights. Prior to the occurrence of certain
events, these rights will not be exercisable or evidenced separately from the
Common Stock.
(2) Estimated solely for the purpose of registration fee. Pursuant to Rule
457(c), the offering price and registration fee are computed on the basis of the
average of the high and low prices of the Registrant's Shares, as reported on
the New York Stock Exchange Composite Transaction on September 25, 1998.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference
The following documents filed by New Plan Excel Realty Trust, Inc. ("Excel"
or "Registrant") or New Plan Realty Trust ("New Plan") with the Securities and
Exchange Commission ("Commission"), are specifically incorporated herein by
reference:
(i) Joint Proxy Statement/Prospectus dated August 12, 1998, contained
in Registration Statement on Form S-4, filed by Excel with the
Commission on August 11, 1998 (file number 333-61131);
(ii) Annual Report of Excel on Form 10-K for the year ended December 31,
1997;
(iii) Annual Report of New Plan on Form 10-K for the year ended July 31,
1997;
(iv) Quarterly Report of Excel on Form 10-Q for the three-month period
ended March 31, 1998 and June 30, 1998;
(v) Quarterly Report of New Plan on Form 10-Q for the three-month period
ended October 31, 1997, January 31, 1998 and April 30, 1998;
(vi) Current Reports of Excel on Form 8-K filed January 14, 1998,
April 2, 1998, May 22, 1998, May 28, 1998 and July 14, 1998;
(vii) Current Reports of New Plan on Form 8-K filed July 31, 1997,
September 19, 1997, January 23, 1998, April 24, 1998, May 19, 1998,
May 22, 1998 and August 13, 1998;
(viii) the description of common stock of Excel contained in Registration
Statement on Form 8-A, filed by Excel with the Commission on July
30, 1993 (file number 112244); and
(ix) the description of stock purchase rights contained in Registration
Statement on Form 8-A, filed by Excel with the Commission on May 22,
1998 (file number 112244).
All documents filed subsequent to the filing date of this Registration
Statement with the Commission by the Registrant pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold, or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is, or is
deemed to be incorporated by reference herein modifies or supersedes such prior
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement except as indicated herein.
Item 6. Indemnification of Directors and Officers
The Registrant's charter and bylaws require the Registrant to indemnify
its directors, officers and certain other persons to the fullest extent
permitted from time to time by Maryland law. The Maryland General Corporation
Law permits a corporation to indemnify its directors, officers and certain other
persons against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceeding to which they may be
made a party by reason of their service to or at the request of the corporation,
unless it is established that the act or omission of the indemnified party was
material to the matter giving rise to the proceedings and (i) was committed in
bad faith or was the result of active and deliberate dishonesty, (ii) the
indemnified party actually received an improper personal benefit
1
<PAGE>
or (iii) in the case of any criminal proceeding the indemnified party had
reasonable cause to believe that the act or omission was unlawful.
Indemnification may be made against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by the director or officer in connection
with the proceeding; provided, however, that if the proceeding is one by or in
the right of the corporation, indemnification may not be made with respect to
any proceeding in which the director or officer has been adjudged to be liable
to the corporation. In addition, a director or officer may not be indemnified
with respect to any proceeding charging improper personal benefit to the
director or officer in which the director or officer was adjudged to be liable
on the basis that personal benefit was improperly received. The termination of
any proceeding by conviction, or upon a plea of nolo contendere or its
equivalent, or an entry of any order of probation prior to judgment, creates a
rebuttable presumption that the director or officer did not meet the requisite
standard of conduct required for indemnification to be permitted. It is the
position of the Commission that indemnification of directors and officers for
liabilities arising under the Securities Act is against public policy as
expressed in the Securities Act and is therefore unenforceable.
Item 8. Exhibits
Exhibit
Number Description
------ -----------
4.1 New Plan Realty Trust 1997 Stock Option Plan.
4.2 New Plan Realty Trust 1991 Stock Option Plan, as amended.
4.3 Amended and Restated New Plan Realty Trust 1985 Incentive Stock
Option Plan.
4.4 March 1991 Stock Option Plan and Nonqualifying Stock Option Plan.
4.5 Articles of Amendment and Restatement, incorporated by reference
to Amendment No. 1 to the Registrant's Registration Statement on
Form S-3 filed with the Commission on May 25, 1995, file number
33-59195.
4.6 Articles Supplementary (Series A Preferred Stock), incorporated
by reference to the Registrant's Current Report on Form 8-K filed
with the Commission on February 7, 1997.
4.7 Articles Supplementary (Series B Preferred Stock), incorporated
by reference to the Registrant's Current Report on Form 8-K filed
with the Commission on January 14, 1998.
4.8 Stockholder Rights Agreement, dated as of May 15, 1998 between
Excel Realty Trust, Inc. and BankBoston, N.A., which includes the
form of Articles Supplementary of the Series C Preferred Stock as
Exhibit A, the form of Right Certificate as Exhibit B and the
Summary of Rights to Purchase Preferred Shares as Exhibit C,
incorporated by reference to the Registrant's Registration
Statement on Form 8-A filed with the Commission on May 22, 1998,
file number 112234.
4.9 Articles of Amendment, incorporated by reference to the
Registrant's Registration Statement on Form S-3 filed with the
Commission on October 1, 1998.
4.10 Articles Supplementary (Series D Preferred Stock), incorporated
by reference to the Registrant's Registration Statement on Form
S-3 filed with the Commission on October 1, 1998.
4.11 Amended and Restated Bylaws, incorporated by reference to the
Registrant's Registration Statement on Form S-3 filed with the
Commission on October 1, 1998.
5.1 Opinion of Ballard Spahr Andrews & Ingersoll, LLP as to the
legality of the shares to be registered.
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP (contained
in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
2
<PAGE>
Item 9. Undertakings.
(i) The undersigned Registrant hereby undertakes:
(a) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(1) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(2) to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement; and
(3) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement; and
provided, however, that paragraphs (1) and (2) above will not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement; and
(b) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(c) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(ii) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(iii) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 28th day of
September, 1998.
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Arnold Laubich
--------------------------------------
Arnold Laubich
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ William Newman Chairman of the Board September 28, 1998
- -------------------------
William Newman
/s/ Arnold Laubich Chief Executive Officer and Director
- ------------------------- (Principal Executive Officer) September 28, 1998
Arnold Laubich
/s/ Gary B. Sabin President and Director September 28, 1998
- -------------------------
Gary B. Sabin
/s/ James M. Steuterman Executive Vice President, Co-Chief
- ------------------------- Operating Officer and Director September 28, 1998
James M. Steuterman
/s/ Richard B. Muir Executive Vice President, Co-Chief
- -------------------------
Richard B. Muir Operating Officer and Director September 28, 1998
/s/ David A. Lund Chief Financial Officer
- ------------------------- (Principal Financial and Accounting Officer) September 28, 1998
David A. Lund
/s/ Dean Bernstein Senior Vice President - Finance and
- ------------------------- Multifamily and Director September 28, 1998
Dean Bernstein
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Raymond A. Bottorf
_________________________ Director September 28, 1998
Raymond A. Bottorf
/s/ Norman Gold
_________________________ Director September 28, 1998
Norman Gold
/s/ Melvin Newman
_________________________ Director September 28, 1998
Melvin Newman
_________________________ Director September __, 1998
John Wetzler
/s/ Gregory White
_________________________ Director September 28, 1998
Gregory White
/s/ Boyd A. Lindquist
_________________________ Director September 28, 1998
Boyd A. Lindquist
/s/ Robert E. Parsons, Jr.
_________________________ Director September 28, 1998
Robert E. Parsons, Jr.
/s/ Bruce A. Staller
_________________________ Director September 28, 1998
Bruce A. Staller
/s/ John H. Wilmot
_________________________ Director September 28, 1998
John H. Wilmot
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
INDEX TO EXHIBITS
Exhibit
Number Description Page
- ------ ----------- ----
<S> <C>
4.1 New Plan Realty Trust 1997 Stock Option Plan...................... 8
4.2 New Plan Realty Trust 1991 Stock Option Plan,
as amended........................................................16
4.3 Amended and Restated New Plan Realty Trust 1985
Incentive Stock Option Plan.......................................25
4.4 March 1991 Stock Option Plan and Nonqualifying Stock Option Plan..32
4.5 Articles of Amendment and Restatement, incorporated
by reference to Amendment No. 1 to the Registrant's
Registration Statement on Form S-3 filed with the
Commission on May 25, 1995, file number 33-59195.
4.6 Articles Supplementary (Series A Preferred Stock),
incorporated by reference to the Registrant's Current
Report on Form 8-K filed with the Commission
on February 7, 1997.
4.7 Articles Supplementary (Series B Preferred Stock),
incorporated by reference to the Registrant's Current
Report on Form 8-K filed with the Commission on
January 14, 1998.
4.8 Stockholder Rights Agreement, dated as of May 15,
1998 between Excel Realty Trust, Inc. and BankBoston,
N.A., which includes the form of Articles Supplementary
of the Series C Preferred Stock as Exhibit A, the form of
Right Certificate as Exhibit B and the Summary
of Rights to Purchase Preferred Shares as Exhibit C,
incorporated by reference to the Registrant's Registration
Statement on Form 8-A filed with the Commission on
May 22, 1998, file number 112234.
4.9 Articles of Amendment, incorporated by reference to the
Registrant's Registration Statement on Form S-3 filed with
the Commission on October 1, 1998.
4.10 Articles Supplementary (Series D Preferred Stock),
incorporated by reference to the Registrant's
Registration Statement on Form S-3 filed with the
Commission on October 1, 1998.
4.11 Amended and Restated Bylaws, incorporated by reference
to the Registrant's Registration Statement on
Form S-3 filed with the Commission on October 1, 1998.
5.1 Opinion of Ballard Spahr Andrews & Ingersoll, LLP as to
the legality of the Shares to be registered.....................33
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP
(contained in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP...........................37
</TABLE>
6
<PAGE>
EXHIBIT 4.1
NEW PLAN REALTY TRUST 1997 STOCK OPTION PLAN
--------------------------------------------
1. Purpose. The purpose of this New Plan Realty Trust 1997 Stock
Option Plan ("Plan") is to attract and retain outstanding individuals as
employees and members of the Board of Trustees ("Trustees") of New Plan Realty
Trust (the "Company") and its affiliates (the Company and its affiliates,
collectively or individually, "Employer"), and to provide incentives for such
employees and Trustees to achieve the objectives and promote the business
success of Employer by providing to such individuals opportunities to acquire
common shares of beneficial interest of the Company ("Shares") through the
exercise of stock options and thereby provide such individuals with a greater
proprietary interest in and closer identity with Employer and its financial
success. Options granted under this Plan may be either nonqualified stock
options or incentive stock options ("Incentive Options"). (Nonqualified stock
options and Incentive Options, collectively or individually, "Options"). Options
granted under this Plan and designated as Incentive Options by the Committee (as
herein defined) are intended to be "incentive stock options" within the meaning
of that term in section 422 of the Internal Revenue Code of 1986, as amended
("Code"). To the extent deemed appropriate by the Committee, the provisions of
this Plan with respect to Incentive Options and of each Incentive Option granted
hereunder shall be interpreted in a manner consistent with that section and all
valid regulations issued thereunder. Incentive Options may not be granted under
the Plan to Trustees, except to those Trustees who are also employees of
Employer at the time of the Option grant.
2. Administration. This Plan will be administered by the Board of
Trustees of the Company (the "Board") or a committee or committees designated by
the Board. (The Board or such committee or committees hereinafter, collectively
or individually, the "Committee"). The Committee shall interpret the Plan and
shall prescribe, amend and rescind rules and regulations relating thereto and
make all other determinations necessary or advisable for the administration of
the Plan. Any such action by the Committee shall be final and conclusive on all
persons having any interest in the Options or Shares to which such action
relates. A majority of the disinterested members of the Committee shall
constitute a quorum and all determinations of the Committee shall be made by a
majority of its disinterested members. For purposes of this Section, a Committee
member is treated as disinterested if the Committee member is not exercising
discretion at such time with respect to the grant of Options under this Plan to
himself or herself. Any determination of the Committee under this plan may be
made without notice of meeting of the Committee by a writing signed by a
majority of the disinterested Committee members. Whenever the Committee shall
consist of not more than two disinterested Trustees, all determinations shall be
made by both member either at a meeting or by a writing signed by both members.
The Committee shall determine, within the limits of the express
provisions of this Plan, those employees and Trustees to whom, and the time or
times at which, options shall be granted to such employees or Trustees. The
Committee shall determine the number of Shares to be subject to each Option,
whether an Option will be a nonqualified stock option or an Incentive Option,
the duration of each Option, the time or times within which (during the term of
the Option) all or portions of each Option may be exercised, whether or not the
exercise schedule will be
<PAGE>
accelerated, the restrictions applicable to each Option, and whether cash,
Shares, or other property may be accepted in full or partial payment upon
exercise of an Option. In making such determinations, the Committee may take
into account the nature of the services rendered by the Participants
(hereinafter defined), their present and potential contributions to the
Employer's success and such other factors as the Committee in its discretion
shall deem relevant.
3. Participants. The "Participants" in the Plan will consist of such
employees and Trustees of Employer as the Committee in its sole discretion from
time to time designates within the limits of the express provisions of this
Plan. The Committee's designation of a Participant at any time shall not require
the Committee to designate such person at any other time. The Committee shall
consider such factors as it deems pertinent in selecting Participants and in
determining the terms of their respective Options, including without limitation:
(i) the financial condition of Employer, (ii) anticipated profits of the current
or future years, (iii) contributions of Participants to the profitability and
development of Employer, both present and future, and (iv) other compensation
provided to Participants.
4. Terms and Conditions of Options. The Options granted under this
Plan shall be in such form and upon such terms and conditions as the Committee
shall from time to time determine, subject to the provisions of this Plan,
including the following:
a. Option Price
The Option exercise price for each Option shall be established
by the Committee; provided that in the case of Incentive Options, the
Option exercise price shall in no event be less than 100% of the fair
market value of the Shares subject to such Option at the time such Option
is granted. In the case of an Incentive Option granted to a Participant who
at the time of grant owns (directly or indirectly) shares aggregating more
than 10% of the total combined voting powers of all classes of shares of
the Company or any parent or subsidiary corporation ("10% Owner"), the
Option exercise price shall be at least 110% of such fair market value of
the Shares subject to such Incentive Option at the time such Incentive
Option is granted.
b. Option Term
(i) Each Option granted under this Plan shall be for such
period as the Committee shall determine, which period may include, without
limitation, early termination of the Option upon the Participant's
termination of employment or cessation as a Trustee. For purposes of this
Section 4, termination of employment of a Participant who is a Trustee
shall mean the later of the Participant's termination of employment with
the Employer or termination of service as a Trustee.
2
<PAGE>
(ii) Unless the terms of the Option provide otherwise or the
Committee determines otherwise, the following provisions apply:
a) Disability. In the event of termination of employment of
the Participant by reason of the Participant's disability, the
Participant shall have the right to exercise all unexercised Options,
to the extent exercisable as of the last day of employment under the
terms of the Option, at any time within one year after such
termination, subject to the expiration of such Options pursuant to the
terms of the Options. Any such Options not so exercised shall
terminate.
b) Death. In the event of termination of employment of the
Participant by reason of the Participant's death, any person who
acquires any unexercised Options by will or the laws of descent and
distribution from the Participant shall have the right to exercise all
unexercised Options held by the Participant which were exercisable on
the day of the Participant's death under the terms of the Option, at
any time within one year after the Participant's death, subject to the
expiration of such Options pursuant to the terms of the Options. Any
such Options not so exercised shall terminate.
c) Other Termination. In the event of the termination of
employment of a Participant for reasons other than those described in
Sections 4(b)(ii)(a) and 4(b)(ii)(b), any unexercised Options granted
to the Participant hereunder shall be deemed canceled and terminated,
except that such Participant may, within thirty (30) days after such
termination of employment, exercise such Options which as of the last
day of such Participant's employment were exercisable under the terms
of the Option (after taking into account the acceleration of
exercisibility pursuant to Section 8(c) hereof), subject to the
expiration of such Options pursuant to the terms of the Options.
(iii) No Incentive Option, however, may be for a period more than
ten (10) years from the date the Incentive Option is granted; provided,
however, for a 10% Owner, no Incentive Option may be for a period more than
five (5) years from the date the Incentive Option is granted. To the extent
required by law, but subject to any earlier cancellation and termination of
the Option as provided in the Plan or the Option, a Participant who ceases
to be employed by Employer for any reason other than death or disability
shall not have the right to exercise his or her Incentive Options at any
time after three (3) months after such cessation of employment and continue
to have such Options treated as Incentive Options. To the extent required
by law, a Participant who ceases to be employed by Employer because of
disability shall have no more than one (1) year after such cessation of
employment to exercise his or her Incentive Options and continue to have
such Options treated as Incentive Options. To the extent a Trustee more
than 3 months after the Trustee ceased to be an employee of the Employer
exercises Options granted as Incentive Options and to the extent required
by law, such Options granted as Incentive Options shall be treated as
nonqualified stock options.
3
<PAGE>
c. Method of Exercise
Options may be exercised by giving written notice to the
Treasurer of the Company, stating the number of Shares with respect to
which the Option is being exercised and tendering payment therefor. In the
discretion of the Committee, made at the time the Option is exercised,
payment for Shares may be made in cash, other Shares (by either actual
delivery of Shares or by attestation), retention of Shares which would
otherwise be issued upon Option exercise, "cashless exercise" through a
third party, a combination of the foregoing, or by any other means which
the Committee determines. It shall be a condition to the performance of the
Company's obligation to issue or transfer Shares upon exercise of an Option
that the person exercising the Option pay, or make provision satisfactory
to Employer for the payment of, any taxes (other than stock transfer taxes)
which Employer is obligated to collect with respect to the issue or
transfer of Shares upon such exercise.
To the extent permitted by the Committee and the Employer, in
their sole discretion, Participants in the Plan may borrow funds on a
recourse basis from the Employer with which to purchase Shares pursuant to
the exercise of an Option. Eligibility of any Participant for such
borrowing will be determined solely at the discretion of the Committee. Any
such loan may bear interest at a rate determined by the Committee.
The Committee may determine to grant additional options to
those Participants in the Plan who exercise their Options with Shares.
d. Value of Shares
The aggregate fair market value (determined at the time the
Incentive Options are granted) of the Shares with respect to which
Incentive Options are exercisable for the first time by a Participant
during any calendar year shall not exceed one hundred thousand dollars
($100,000).
The award of any Options may be subject to other provisions (whether or not
applicable to the Option awarded to any other Participant) as the Committee, in
its sole discretion determines appropriate, including, without limitation,
restrictions on resale or other disposition, installment exercise limitations,
such provisions as may be appropriate to comply with federal or state securities
laws and stock exchange requirements, and undertakings or conditions as to the
Participant's employment in addition to those specifically provided for under
this Plan.
5. Shares. The total number of Shares allocated to this Plan and
available to designated Participants under this Plan is two million five hundred
thousand (2,500,000) Shares, except as such number of Shares shall be adjusted
in accordance with the provisions of Section 8. The maximum number of Shares
available to any one Participant under this Plan through Options granted in any
one calendar year is two hundred fifty thousand (250,000) Shares. Each Option
when granted shall state the number of Shares to which it pertains. If any
Option granted under this Plan expires unexercised, or is terminated or ceases
to be exercisable for any other reason without having
4
<PAGE>
been fully exercised prior to the end of the period during which Options may be
granted under this Plan, or if any Option is canceled, the Shares theretofore
subject to such Option or to the unexercised portion of such Option shall again
become available for new Options to be granted under this Plan to any eligible
person (including the holder of such former Option).
6. Option Notices. Options granted pursuant to this Plan shall be
authorized by the Committee and shall be evidenced by notices ("Option Notices")
in such form as the Committee shall from time to time determine. Such Option
Notices shall state: (i) the number of Shares with respect to which the Option
is granted, (ii) the type of Option - nonqualified stock option or Incentive
Option, (iii) the Option exercise price, (iv) the Option exercise schedule, (v)
the Option term and (vi) such other information as the Committee deems
appropriate. The terms and conditions of each Option Notice must be consistent
with the provisions of this Plan and will be applicable only to the grant that
it announces.
7. Limitations on Transferability. No Incentive Option granted to a
Participant shall be transferable by the Participant except by will or by the
laws of descent and distribution. The Committee in its sole discretion may
permit a Participant to transfer Options, other than Incentive Options, subject
to any conditions or limitations specified by the Committee such as
clarifications or categories of permissible transferees.
8. Adjustments.
a. Capital Adjustments
If the Shares should, as a result of any stock dividend,
stock split, other subdivision or combination of Shares, or any
reclassification, recapitalization or otherwise, be increased or decreased,
the number of Shares covered by each outstanding Option, the Option
exercise price under each outstanding Option, and the total number of
Shares reserved for issuance under this Plan shall be adjusted as
determined by the Committee to reflect such action. Any new Shares or other
securities issued with respect to Shares shall be deemed Shares.
b. Sale or Reorganization
Subject to Section 8(c), in the event the Company is merged
or consolidated with another corporation, or in the event the property or
Shares of the Company are acquired by another corporation, or in the event
of a reorganization or liquidation of Employer, or in the event of any
extraordinary transaction, the board of trustees or directors of any trust
or corporation, respectively, assuming the obligations of the Company
hereunder or the Committee, as applicable, shall have the right to provide
for the continuation of Options granted under the Plan or for other
equitable adjustments as determined by the board of trustees or directors
of such trust or corporation, respectively, assuming the obligations of the
Company hereunder or the Committee, as applicable (by means, such as, for
example, cash payment in an amount equal to the difference between the
Share price and the Option price, conversion into other property or
securities, or giving written notice to holders of
5
<PAGE>
Options that their Options will become immediately exercisable,
notwithstanding any waiting period otherwise prescribed by the Committee,
as applicable, and that such Options must be exercised within a specified
period of days of such notice or they will be terminated).
c. Change of Control
Upon a "Change of Control" all Options shall become
immediately exercisable in full notwithstanding the terms of the Option
grant to the contrary. For purposes of this Plan, a Change of Control
means:
(i) The ownership by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) ("Beneficial Ownership") of, or the Beneficial Ownership by any Person
of, 25% or more of either (i) the then-outstanding shares of beneficial
interest of the Company (the "Outstanding Company Common Shares") or (ii)
the combined voting power of the then-outstanding voting securities of the
Company entitled to vote generally in the election of Trustees (the
"Outstanding Company Voting Securities"); or
(ii) Individuals who, as of the effective date of this Plan, are
Members of the Board (the "Incumbent Board Member") cease for any reason to
constitute at least a majority of the Board; provided, however, that any
individual becoming a Trustee subsequent to the effective date of this Plan
whose election, or nomination for election by the Company's shareholders,
was approved by a vote of at least a majority of the Trustees then
comprising the Incumbent Board Members shall be considered as though such
individual were an Incumbent Board Member, but excluding, for this purpose,
any such individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the election or
removal of Trustees or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board; or
(iii) Consummation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the assets of
the Company (a "Business Combination") unless, following such Business
Combination,
a) All or substantially all of the individuals and
entities who were the beneficial owners of the Outstanding Company
Common Shares and Outstanding Company Voting Securities immediately
prior to such Business Combination beneficially own more than 50% of
the then-outstanding shares of beneficial interest and the combined
voting power of the then-outstanding voting securities entitled to
vote generally in the election of trustees or directors of the trust
or corporation, respectively, resulting from the Business Combination
including, without limitation, a corporation which as a result of such
transaction owns the Company or all or
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substantially all of the Company's assets either directly or through
one or more subsidiaries) in substantially the same proportions as
their ownership, immediately prior to the Business Combination, of the
Outstanding Company Common Shares and Outstanding Company Voting
Securities, as the case may be;
b) No Person (excluding any trust or corporation resulting
from such Business Combination) beneficially owns, directly or
indirectly, 25% or more of the then-outstanding shares of beneficial
interest or common stock of the trust or corporation, respectively,
resulting from the Business Combination, or the combined voting power
of the then-outstanding voting securities of that trust or corporation
except to the extent that such ownership existed prior to the Business
Combination; and
c) At least a majority of the members of the board of
trustees or directors of the trust or corporation, respectively,
resulting from the Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for the Business Combination; or
(iv) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
9. Legal and Other Requirements. Each Option granted under this Plan
shall be subject to the requirement that if at any time the Committee shall
determine, in its discretion, that the listing, registration or qualification of
the Shares issuable or transferable upon the exercise of the Option upon any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body, is necessary or desirable as a
condition of, or in connection with the granting of such Option, or the
issuance, transfer or purchase of Shares thereunder, such Option may not be
exercised in whole or in part unless such listing, registration, qualification,
consent, or approval shall have been effected or obtained free of any conditions
not acceptable to the Committee. The Company shall not be obligated to sell or
issue any Shares in any manner in contravention of the Securities Act of 1933,
as amended, or any state securities law. No adjustment with respect to any
Shares covered by Options other than pursuant to Section 8 hereof shall be made
for dividends or other rights for which the record date is prior to the date
such stock certificate is delivered.
10. Notice of Sale of Shares. A Participant shall provide prompt
notice of the disposition of any Shares acquired by the Participant upon
exercise of an Incentive Option granted hereunder within two years from the date
such Incentive Option was granted or within one year after the transfer of such
Shares to the Participant; provided, however, that a transfer to a trustee,
receiver, or other fiduciary in any insolvency proceeding, as described in
section 422(c)(3) of the Code, shall not be deemed to be such a disposition.
11. Tax Withholding. Employer shall comply with the obligations
imposed on Employer under applicable tax withholding laws, if any, with respect
to Options granted hereunder,
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Shares transferred upon exercise thereof, and the disposition of such Shares
thereafter, and shall be entitled to do any act or thing to effectuate any such
required compliance, including, without limitation, withholding from amounts
payable by Employer to a Participant and making demand on a Participant for the
amounts required to be withheld.
If the Committee so permits, a Participant, or upon the Participant's
death, the Participant's beneficiary, may satisfy, in whole or in part, the
obligation to pay Employer any amount required to be withheld under the
applicable federal, state and local income tax laws in connection with exercise
of an Option under this Plan by: (i) having Employer withhold from the Shares to
be acquired upon the exercise of the Option, (ii) delivering to Employer either
previously acquired Shares or Shares acquired upon the exercise of the Option
which the Participant or beneficiary was unconditionally obligated to deliver to
Employer or (iii) any other means which the Committee determines. The fair
market value of Shares shall be determined in accordance with procedures
established by the Committee. Any amounts required to be withheld in excess of
the value of Shares withheld or delivered shall be paid in cash or withheld from
other compensation paid by Employer.
12. No Contract of Employment. Neither the adoption of this Plan nor
the grant of any Options, nor ownership of Shares shall be deemed to obligate
Employer to continue the appointment, employment, or engagement of any
Participant for any particular period.
13. Indemnification of Committee. The members of the Committee shall
be indemnified by the Company to the fullest extent permitted by the law
governing unincorporated Massachusetts business trusts and the governing
instruments of the Company.
14. Amendment and Termination of Plan. The Trustees of the Company
may amend this Plan from time to time or terminate this Plan at any time, but no
such action shall reduce the number of Shares subject to the then outstanding
Options granted to any Participant or adversely to the Participant change the
terms and conditions of outstanding Options without the Participant's consent.
No Option may be granted after ten (10) years from the original effective date
of adoption of this Plan.
15. Massachusetts Law to Govern. This Plan shall be governed by and
construed in accordance with the laws of the State of Massachusetts.
16. Effective Date of Plan. The effective date of this Plan is
September 8, 1997. Designation of Options as Incentive Options shall be subject
to the approval of this Plan by a majority of the votes cast at a meeting of
shareholders and having the right to vote thereon.
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EXHIBIT 4.2
CONFORMED COPY
NEW PLAN REALTY TRUST 1991
STOCK OPTION PLAN, AS AMENDED
1. Purpose. The purpose of this New Plan Realty Trust 1991 Stock Option
Plan is to advance the interests of New Plan Realty Trust by providing Trustees,
officers and other key employees of the Company who have substantial
responsibilities for the direction and management of the Company with additional
incentive for them to promote the success of the business, to increase their
proprietary interests in the success of the Company, and to encourage them to
remain in its employ. These aims will be effectuated through the granting of
options to acquire shares of beneficial interest of the Company on terms as
further described below. Options granted under the Plan may be either
nonqualified stock options or incentive stock options. Options granted under the
Plan and designated as Incentive Options by the Committee under paragraph 5 are
intended to be "incentive stock options" within the meaning of that term in
Section 422 of the Code. The provisions of this Plan and of each Incentive
Option granted hereunder shall be interpreted in a manner consistent with
Section 422 of the Code and with all valid regulations issued thereunder.
2. Definitions. For purposes of this Plan, the following definitions
shall apply:
2.1 "Board"--the Board of Trustees of the Company.
2.1A "Change of Control" --
2.1A.1 The acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act)
("Beneficial Ownership") of, or the Beneficial Ownership by any Person of,
25% or more of either (i) the then-outstanding shares of beneficial
interest of the Company (the "Outstanding Company Common Shares") or (ii)
the combined voting power of the then-outstanding voting securities of the
Company entitled to vote generally in the election of Trustees (the
"Outstanding Company Voting Securities"); or
2.1A.2 Individuals who, as of May 27, 1997, are members of the Board
(the "Incumbent Board Members") cease for any reason to constitute at least
a majority of the Board; provided, however, that any individual becoming a
Trustee subsequent to May 27, 1997 whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least
a majority of the Trustees then comprising the Incumbent Board Members
shall be considered as though such individual were an Incumbent Board
member, but excluding, for this purpose, any such individual whose initial
assumption of
<PAGE>
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of Trustees or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board; or
2.1A.3 Consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Company (a "Business Combination") unless, following such Business
Combination;
2.1A.3.1 All or substantially all of the individuals and
entities who were the beneficial owners of the Outstanding Company
Common Shares and Outstanding Company Voting Securities immediately
prior to such Business Combination beneficially own more than 50% of
the then-outstanding shares of beneficial interest and the combined
voting power of the then-outstanding voting securities entitled to vote
generally in the election of trustees or directors of the trust or
corporation, respectively, resulting from the Business Combination
(including, without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of the
Company's assets either directly or through one or more subsidiaries)
in substantially the same proportions as their ownership, immediately
prior to the Business Combination, of the Outstanding Company Common
Shares and Outstanding Company Voting Securities, as the case may be;
2.1A.3.2 No Person (excluding any trust or corporation
resulting from such Business Combination) beneficially owns, directly
or indirectly, 25% or more of then-outstanding shares of beneficial
interest or common stock of the trust or corporation, respectively,
resulting from the Business Combination, or the combined voting power
of the then-outstanding voting securities of that trust or corporation
except to the extent that such ownership existed prior to the Business
Combination; and
2.1A.3.3 At least a majority of the members of the board of
trustees or directors of the trust or corporation, respectively,
resulting from the Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for the Business Combination; or
2.1A.4 Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
2.2 "Code"--the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
2.3 "Committee"--the Stock Option Plan Committee referred to in
paragraph 3.
2.4 "Company"--New Plan Realty Trust.
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2.5 "Date of Grant"--with respect to each option, the date on which
such option is granted to a Participant.
2.6 "Disability"--a Participant's termination of employment will be
deemed to be by reason of disability if the Participant is disabled within
the meaning of Section 22(e)(3) of the Code.
2.7 [Reserved]
2.8 [Reserved]
2.9 "Fair Market Value"--the amount determined in good faith by the
Committee in consultation with the Board to be the fair market value of the
Company's Shares as so determined at any time without regard to any
restriction other than a restriction which, by its terms, will never lapse.
2.10 '"Incentive Options"--incentive stock options within the meaning
of Section 422 of the Code to purchase Shares, which are granted to
Participants under the Plan.
2.11 "Participant"--any Trustee, officer or other key employee of the
Company designated by the Committee pursuant to paragraph 4.
2.12 "Plan"--this New Plan Realty Trust 1991 Stock Option Plan.
2.13 "Shares"--common shares of beneficial interest of the Company.
2.14 "Trustee"--a member of the Board of Trustees of the Company.
3. Administration. The Board shall appoint a Stock Option Plan Committee
which shall consist of two or more Trustees. The Committee shall interpret the
Plan, prescribe, amend and rescind rules and regulations relating thereto and
make all other determinations necessary or advisable for the administration of
the Plan. Any such action by the Committee shall be final and conclusive on all
persons having any interest in the Shares to which such action relates. A
majority of the disinterested members of the Committee shall constitute a quorum
and all determinations of the Committee shall be made by a majority of its
disinterested members. Any determination of the Committee under the Plan may be
made without notice of meeting of the Committee by a writing signed by a
majority of the disinterested Committee members. Whenever the Committee shall
consist of not more than two disinterested Trustees, all determinations shall be
made by both members either at a meeting or by a writing signed by both members.
For purposes of this paragraph, a Committee member is treated as disinterested
if the Committee member is not at such time exercising discretion with respect
to the grant of options under the Plan to himself or herself. The Committee
shall interpret and construe the Plan to the extent it deems appropriate to the
end that it and the Incentive Options granted hereunder shall satisfy and
otherwise meet the requirements of Section 422 and any other applicable
provisions of the Code for the Incentive Options to be treated as incentive
stock options under the Code. This Plan shall be construed accordingly, and any
3
<PAGE>
provisions in this Plan which remain inconsistent therewith or contrary thereto
shall be ineffective. No member of the Committee shall be liable for any action
taken or determination made in good faith.
4. Participants. Options shall be granted to Participants at such time or
times and on such terms and conditions (which need not be identical with respect
to all participants or with respect to all options granted with respect to a
participant) as the Committee determines pursuant to this Plan. Participants in
the Plan will consist of such officers or other key employees of the Company,
and beginning September 1, 1992 Trustees of the Company, as the Committee in its
sole discretion designates from time to time. The Committee's designation of an
employee or Trustee as a Participant in any year shall not require the Committee
to so designate such employee or Trustee in any other year. The Committee shall
consider such factors as it deems pertinent in selecting Participants and in
determining the options to be granted to them, including without limitation (i)
the financial condition of the Company; (ii) anticipated profits for the current
or future years; (iii) contributions of Participants to the profitability and
development of the Company; and (iv) other compensation provided to
Participants.
5. Option Exercise Price and Number of Shares.
5.1 At the time of the grant of each option under this Plan, the Committee
shall determine whether such option is to be designated as an Incentive Option.
Incentive Options may only be granted within the 10-year period beginning on the
date of adoption of this Plan by the Board or the date this Plan is approved by
the vote of the holders of a majority of the Shares of the Company present in
person or by proxy at a meeting of shareholders and having the right to vote
thereon.
5.2 Each option when granted shall state the number of Shares to which it
pertains and shall state the option exercise price for each Share.
5.3 The option exercise price for each option shall be established by the
Committee at the time of grant; provided that in the case of Incentive Options,
the option exercise price shall be not less than 100% of the Fair Market Value
of the Shares on the Date of Grant; and provided further that in the case of
Incentive Options granted to a Participant who then owns Shares possessing more
than 10% of the total combined voting power of all classes of shares of the
Company or any subsidiary or parent corporation of the Company, if any, the
option exercise price shall not be less than 110% of the Fair Market Value of
the Shares on the Date of Grant. In determining the number of Shares owned by a
Participant for the purposes of this paragraph and paragraph 6.1, the
attribution rules set forth in Section 424(d) of the Code shall apply.
5.4 If paragraph 5.5 does not apply or to the extent the Participant does
not elect to defer the payment of the option exercise price under paragraph 5.5,
then, subject to paragraph 10.2, the option exercise price shall be paid in cash
at the time of exercise.
5.5 This paragraph 5.5 shall apply only if the terms of the option grant
state that this paragraph 5.5 shall apply. Under this paragraph 5.5, the payment
of all or any portion of the option exercise price not subject to paragraph 10.2
(the amount thereof to be set forth by the Participant in
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<PAGE>
a written notice to the Company at the time of exercise, such amount to be known
as the "stated principal amount") shall be paid, in cash, on a deferred payment
basis. The stated principal amount shall be due on the fifth anniversary of the
date of exercise; provided that the Committee may declare that the unpaid stated
principal amount and all unpaid stated interest is accelerated and due at any
date chosen by the Committee which is 15 days after the Participant's failure to
pay any installment of interest when due (if such failure has not then been
cured), 180 days after the Participant's death or Disability, or 90 days after
the termination of the Participant's employment other than by death or
Disability. The unpaid stated principal amount may be prepaid by the Participant
in whole or in part at any time without penalty or premium. The unpaid stated
principal amount shall bear stated interest which shall be payable semiannually
with the first semiannual payment being on the day which is six months after the
date of exercise; provided that all then unpaid stated interest shall be payable
at the earlier of any time any payment of stated principal amount is due or is
paid, whether at maturity, by prepayment, or upon acceleration, and provided
further that the Participant may prepay all or any portion of the stated
interest without premium or penalty. The rate of stated interest on the unpaid
principal amount shall be the lowest rate, and stated interest shall compound at
the greatest intervals (but not in excess of intervals between stated interest
payment dates), as will nevertheless avoid the coming into existence of any
amount (other than stated interest) to be treated under the Code as interest or
an amount in the nature of interest, including original issue discount, unstated
interest and foregone interest. Determinations of the rate of stated interest
and of the intervals for compounding shall be made without regard to the effect,
if any, under the Code of any transfer after the time of exercise of the right
to receive, or the obligation to make, payments under this paragraph 5.5. The
obligations of the Participant under this paragraph 5.5 shall be full recourse
obligations of the Participant. The obligation of the Participant shall be
evidenced by his promissory note, in form satisfactory to the Committee (but the
giving of such note shall not discharge the Participant from his obligations
under this paragraph 5.5). The obligations of the Participant (and his note)
shall be secured by the Shares acquired by him on exercise which are
attributable to the deferred payment hereunder. The Committee shall retain as
security possession of the certificates representing such Shares, and the
Participant shall endorse such certificates in blank. All distributions on or
proceeds of such Shares shall be applied against the Participant's obligations
hereunder, except that distributions on the Shares shall be promptly remitted to
the Participant unless he is then in default on his obligations hereunder. The
Participant may not vote such Shares while he is in default on any of his
obligations hereunder. On each anniversary of the date of exercise, if all
stated interest then accrued has been paid and the Participant is not then
otherwise in default, Shares shall be released from collateral to the extent
that the Shares remaining in collateral will be equal to the lowest-even
multiple of 100 Shares the value of which, measured by the exercise price, will
equal or exceed the unpaid stated principal amount. The provisions of this
paragraph 5.5 may be modified by the Committee but only in the terms of, and at
the time of, the option grant. Anything herein to the contrary withstanding, the
Committee, the Company, and the Participant shall take no action which shall
effect a modification, extension, or renewal of any Incentive Option within the
meaning of Section 424(h) of the Code.
6. Period of Option and Certain Limitations on Right to Exercise.
6.1 Maximum Period of Exercise. Any unexercised option shall cease to be
exercisable after the expiration of seven years from the Date of Grant of such
option, unless the terms of the
5
<PAGE>
option granted provide otherwise; provided, that no Incentive Option shall be
exercisable after the expiration of 10 years from the Date of Grant; and
provided further, that an Incentive Option granted to a Participant who then
owns Shares possessing more than 10% of the total combined voting power of all
classes of shares of the Company or any subsidiary or parent corporation of the
Company, if any, shall cease to be exercisable after the expiration of 5 years
from the Date of Grant.
6.2 General Period of Exercise. Unless the terms of the option granted
provide otherwise, each option granted under this Plan shall not be exercisable
prior to the expiration of one year following the Date of Grant, and thereafter
shall be exercisable only as follows: to the extent of one-fifth of the total
number of optioned Shares after the expiration of one year following the Date of
Grant, to the extent of two-fifths of the total number of optioned Shares after
the expiration of two years following the Date of Grant, to the extent of three-
fifths of the total number of optioned Shares after the expiration of three
years following the Date of Grant, to the extent of four-fifths of the total
number of optioned Shares after the expiration of four years following the Date
of Grant, and in full after the expiration of five years following the Date of
Grant, such limitations being calculated, in the case of any resulting fraction,
to the nearest lower whole number of any Shares. By action of the Committee, the
time any option granted is exercisable may be accelerated. Unless the terms of
the option granted provide otherwise, each option granted under this Plan on or
subsequent to May 27, 1997 shall, notwithstanding the provisions of paragraph
6.2 to the contrary, be exercisable in full upon a Change of Control.
6.3 Termination of Employment. Unless the terms of the option granted
provided otherwise, the following provisions apply:
6.3.1 Disability. In the event of termination of employment of the
Participant by reason of the Participant's Disability, the Participant
shall have the right to exercise all unexercised options, to the extent
exercisable as of the last day of employment under paragraph 6.2, at any
time within one year after such termination, subject to the expiration of
such options under paragraph 6.1. Any such options not so exercised shall
terminate.
6.3.2 Death. In the event of termination of employment of the
Participant by reason of the Participant's death, any person who acquires
any unexercised options by will or the laws of descent and distribution
from the Participant shall have the right to exercise all unexercised
options held by him which were exercisable on the day of the Participant's
death under paragraph 6.2, at any time within one year after the
Participant's death, subject to the expiration of such options under
paragraph 6.1. Any such options not so exercised shall terminate.
6.3.3 Other Terminations. In the event of the termination of
employment of a Participant for reasons other than those described in
paragraphs 6.3.1 and 6.3.2, any unexercised options granted to him
hereunder shall be deemed canceled and terminated forthwith, except that
such Participant may, within thirty (30) days after such termination of
employment, exercise such options which as of the last day of such
Participant's employment were exercisable under paragraph 6.2, subject to
the expiration of such options under paragraph 6.1.
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<PAGE>
6.3.4 Termination by Trustee. For purposes of this paragraph 6.3,
termination of employment of a Participant who is a Trustee shall mean the
later of the Participant's termination of employment with the Company or
termination of service as a Trustee. To the extent a Trustee more than 3
months after the Trustee ceased to be an employee of the Company exercises
options granted as Incentive Options and to the extent required by law,
such options granted as Incentive Options shall be treated as nonqualified
stock options.
7. Shares Reserved Under the Plan. There is hereby reserved for issuance
under the Plan an aggregate of One Million (1,000,000) Shares of the Company,
which may be newly issued or treasury shares. If there is a lapse, expiration,
termination or cancellation of any option granted hereunder, such Shares may
again be used for new options; provided, however, that in no event may the
number of Shares issued under this Plan exceed the aggregate number of Shares so
reserved for issuance.
8. Limitations of Transferability. No Incentive Option granted to a
Participant shall be transferable by the Participant except by will or by the
laws of descent and distribution. Except as otherwise determined by the
Committee in its sole discretion, the Committee may permit a Participant to
transfer options, other than Incentive Options, subject to any conditions or
limitations specified by the Committee such as classifications or categories of
permissible transferees.
9. Listing and Registration of Shares. Each option shall be subject to the
requirements that if at any time the Committee shall determine, in its
discretion, that the listing, registration, or qualification of the Shares
covered thereby upon any securities exchange, under any state or federal law, or
the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the granting of such option
or the issue or purchase of Shares thereunder, such option may not be exercised
in whole or in part unless and until such listing, registration, qualification,
consent, or approval shall have been effected or obtained free of any condition
not acceptable to the Committee.
10. Other Provisions. The grant of an option under the Plan may also be
subject to other provisions (whether or not applicable to any option awarded to
any other Participant) as the Committee, in its sole discretion, determines
appropriate, including, without limitation:
10.1 provisions permitting the purchase of Shares under option in
installments:
10.2 provisions for the payment of the purchase price of Shares under
option by delivery of other Shares of the Company having a then market
value equal to the purchase price of such Shares:
10.3 such provisions as may be appropriate to comply with federal or
state securities laws and stock exchange requirements; and
10.4 undertakings or conditions as to the Participant's employment in
addition to those specifically provided for in the Plan.
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11. Adjustment Provisions.
11.1 If the Company shall at any time change the number of issued Shares
without new consideration to the Company, the total number of Shares reserved
for issuance under this Plan, the number of Shares covered by each outstanding
option and the option exercise price under each outstanding option shall be
adjusted so that the aggregate consideration payable to the Company and the
value of each such option shall not be changed.
11.2 Notwithstanding any other provisions of this Plan, in case the Company
is merged or consolidated with another corporation, or in case the property or
Shares of the Company is acquired by another corporation, or in case of a
reorganization or liquidation of the Company, or in case of any extraordinary
transaction, the Committee or the board of directors of any corporation assuming
the obligations of the Company hereunder, shall have the right to provide for
the continuation of options or for other equitable adjustments as determined by
the Committee (by means, such as, for example, cash payment in an amount equal
to the difference between the Share price and the option exercise price,
conversion into other property or securities, or giving written notice to
holders that their options will become immediately exercisable, notwithstanding
any waiting period otherwise prescribed by the Committee, and that such options
must be exercised within a specified period of days of such notice or they will
be terminated).
12. Tax Withholding. The Company shall comply with the obligations imposed
on the Company under applicable tax withholding laws, if any, with respect to
options granted hereunder, Shares transferred upon exercise thereof, and the
disposition of such Shares thereafter, and shall be entitled to do any act or
thing to effectuate any such required compliance, including withholding from
amounts payable by the Company to a Participant and including making demand on a
Participant for the amounts required to be withheld. The Committee, in its sole
discretion, may establish a procedure allowing persons exercising an option
granted under the Plan to direct the Company to satisfy its obligation imposed
under applicable tax withholding laws in connection with the exercise of such
option under the Plan by either 1) withholding from the Shares to be acquired
upon exercise of the option, or 2) delivery to the Company either previously
acquired Shares or Shares acquired upon exercise of the option which the person
unconditionally obligated himself to deliver to the Company.
13. Certificate Legend. Upon issuance of any certificate evidencing Shares
in respect of which options have been exercised, such certificate shall bear the
appropriate legends with regard to any agreement among the Company and its
shareholders with respect to the transfer or other disposition of the Shares
evidenced by such certificate, and shall bear any other legend which the
Committee shall deem appropriate to assure that the purposes and intent of the
various provisions of this Plan shall be fulfilled, and that the obligations
imposed on the Company by the tax laws, securities laws, or other laws are
complied with.
14. No Contract of Employment. Neither the adoption of this Plan nor the
grant of any options pursuant to the terms of this Plan shall be deemed to
obligate the Company or any subsidiary of the Company to continue employment of
any Participant for any particular period, nor shall the
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granting of any option constitute a request or consent to postpone the
retirement date of any participant.
15. Indemnification of Committee. In addition to such other rights of
indemnification as they may have as Trustees or as members of the Committee, the
members of the Committee shall be indemnified by the Company against the
reasonable expenses, including attorneys' fees actually and necessarily incurred
in connection with the defense of any action, suit or proceeding, (or in
connection with any appeal therefrom to which they or any of them may be a party
by reason of any action taken or failure to act under or in connection with the
Plan or any option granted hereunder, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by independent legal
counsel selected by the Company) or paid by them in satisfaction of a judgment
in any such action, suit or proceeding, except in relation to matters as to
which it shall be judged and such action, suit or proceeding as such Committee
member is liable for gross negligence or misconduct in performance of his
duties; provided that within 60 days after institution of any such action, suit
or proceeding a Committee member shall in writing offer the Company the
opportunity, at its own expense, to handle and defend the same.
16. Amendment and Termination of Plan. The Trustees of the Company may
amend the Plan from time to time or terminate the Plan at any time, but no such
action shall reduce the number of the Shares subject to the then outstanding
options granted to any Participant or adversely to the Participant change the
terms and conditions thereof without the Participant's consent.
17. Effective Date of Plan. This Plan shall become effective on the earlier
of the date of its adoption by the Board of Trustees of the Company or the date
of its approval by the vote of the holders of the majority of the Shares of the
Company present in person or by proxy at a meeting of shareholders and having
the right to vote thereon.
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EXHIBIT 4.3
AMENDED AND RESTATED
NEW PLAN REALTY TRUST 1985
INCENTIVE STOCK OPTION PLAN
---------------------------
1. Purpose. The purpose of this amended and restated New Plan Realty Trust
1985 Incentive Stock Option Plan is to advance the interests of New Plan Realty
Trust by providing officers and other key employees of the Company who have
substantial responsibilities for the direction and management of the Company
with additional incentive for them to promote the success of the business, to
increase their proprietary interests in the success of the Company, and to
encourage them to remain in its employ. These aims will be effectuated through
the granting of options to acquire shares of beneficial interest of the Company
on terms as further described below. The provisions of this Plan and of each
Incentive Option granted hereunder shall be interpreted in a manner consistent
with Section 422 of the Code and with all valid regulations issued thereunder.
2. Definitions. For purposes of this Plan, the following definitions shall
apply:
2.1 "Board" - the Board of Trustees of the Company.
2.2 "Code" - the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
2.3 "Committee" - the Stock Option Plan Committee referred to in
paragraph 3.
2.4 "Company" - New Plan Realty Trust.
2.5 "Date of Grant" - with respect to each Incentive Option, the date on
which such Incentive Option is granted to a Participant.
2.6 "Disability" - a Participant's termination of employment will be
deemed to be by reason of disability if the Participant is disabled within the
meaning of Section 22(e)(3) of the Code.
2.7 "Fair Market Value" - the amount determined in good faith by the
Committee in consultation with the Board to be the fair market value of the
Company's Shares as so determined at any time without regard to any restriction
other than a restriction which, by its terms, will never lapse.
2.8 "Incentive Options" - incentive stock options within the meaning of
Section 422 of the Code to purchase Shares, which are granted to Participants
under the Plan.
2.9 "Participant" - any officer or other key employee of the Company
designated by the Committee pursuant to paragraph 4.
<PAGE>
2.10 "Plan" - this New Plan Realty Trust 1985 Incentive Stock Option Plan.
2.11 "Shares" - common shares of beneficial interest of the Company.
2.12 "Trustee" - a member of the Board of Trustees of the Company.
3. Administration. The Board shall appoint a Stock Option Plan Committee
which shall consist of not fewer than two members. The Committee shall interpret
the Plan, prescribe, amend and rescind rules and regulations relating thereto
and make all other determinations necessary or advisable for the administration
of the Plan. Any such action by the Committee shall be final and conclusive on
all persons having any interest in the Shares to which such action relates. A
majority of the members of the Committee shall constitute a quorum and all
determinations of the Committee shall be made by a majority of its members. Any
determination of the Committee under the Plan may be made without notice of
meeting of the Committee by a writing signed by a majority of the Committee
members. The Committee shall interpret and construe the Plan to the end that it
and the Incentive Options granted hereunder shall satisfy and otherwise meet the
requirements of Section 422 and any other applicable provisions of the Code for
the Incentive Options to be treated as incentive stock options under the Code.
This Plan shall be construed accordingly, and any provisions in this Plan which
remain inconsistent therewith or contrary thereto shall be ineffective. No
member of the Committee shall be liable for any action taken or determination
made in good faith.
4. Participants. Incentive Options shall be granted to Participants at such
time or times and on such terms and conditions (which need not be identical with
respect to all participants or with respect to all Incentive Options granted
with respect to a participant) as the Committee determines pursuant to this
Plan. Participants in the Plan will consist of such officers or other key
employees of the Company, as the Committee in its sole discretion designates
from time to time. The Committee's designation of an employee as a Participant
in any year shall not require the Committee to so designate such employee in any
other year. The Committee shall consider such factors as it deems pertinent in
selecting Participants and in determining the Incentive Options to be granted to
them, including without limitation (i) the financial condition of the Company;
(ii) anticipated profits for the current or future years; (iii) contributions of
Participants to the profitability and development of the Company; and (iv) other
compensation provided to Participants.
5. Option Exercise Price and Number of Shares.
5.1 Incentive Options may only be granted within the 10-year period
beginning on the original date of adoption of this Plan by the Board or the date
this Plan was first approved by the vote of the holders of a majority of the
outstanding Shares of the Company, whichever is earlier.
5.2 Each Incentive Option when granted shall state the number of Shares to
which it pertains and shall state the option exercise price for each Share.
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5.3 The option exercise price for each Incentive Option shall be
established by the Committee at the time of grant; provided that the option
exercise price shall be not less than 100% of the Fair Market Value of the
Shares on the Date of Grant; and provided further that in the case of Incentive
Options granted to a Participant who then owns Shares possessing more than 10%
of the total combined voting power of all classes of shares of the Company or
any subsidiary or parent corporation of the Company, if any, the option exercise
price shall not be less than 110% of the Fair Market Value of the Shares on the
Date of Grant. In determining the number of Shares owned by a Participant for
the purposes of this paragraph and paragraph 6.1, the attribution rules set
forth in Section 424(d) of the Code shall apply.
5.4 If paragraph 5.5 does not apply or to the extent the Participant does
not elect to defer the payment of the option exercise price under paragraph 5.5,
then, subject to paragraph 10.2, the option exercise price shall be paid in cash
at the time of exercise.
5.5 This paragraph 5.5 shall apply only if the terms of the option grant
state that this paragraph 5.5 shall apply. Under this paragraph 5.5, the payment
of all or any portion of the option exercise price not subject to paragraph 10.2
(the amount thereof to be set forth by the Participant in a written notice to
the Company at the time of exercise, such amount to be known as the "stated
principal amount") shall be paid, in cash, on a deferred payment basis. The
stated principal amount shall be due on the fifth anniversary of the date of
exercise; provided that the Committee may declare that the unpaid stated
principal amount and all unpaid stated interest is accelerated and due at any
date chosen by the Committee which is 15 days after the Participant's failure to
pay any installment of interest when due (if such failure has not then been
cured), 180 days after the Participant's death or Disability, or 90 days after
the termination of the Participant's employment other than by death or
Disability. The unpaid stated principal amount may be prepaid by the Participant
in whole or in part at any time without penalty or premium. The unpaid stated
principal amount shall bear stated interest which shall be payable semiannually
with the first semiannual payment being on the day which is six months after the
date of exercise; provided that all then unpaid stated interest shall be payable
at the earlier of any time any payment of stated principal amount is due or is
paid, whether at maturity, by prepayment, or upon acceleration, and provided
further that the Participant may prepay all or any portion of the stated
interest without premium or penalty. The rate of stated interest on the unpaid
principal amount shall be the lowest rate, and stated interest shall compound at
the greatest intervals (but not in excess of intervals between stated interest
payment dates), as will nevertheless avoid the coming into existence of any
amount (other than stated interest) to be treated under the Code as interest or
an amount in the nature of interest, including original issue discount, unseated
interest and foregone interest. Determinations of the rate of stated interest
and of the intervals for compounding shall be made without regard to the effect,
if any, under the Code of any transfer after the time of exercise of the right
to receive, or the obligation to make, payments under this paragraph 5.5. The
obligations of the Participant under this paragraph 5.5 shall be full recourse
obligations of the Participant. The obligation of the Participant shall be
evidenced by his promissory note, in form satisfactory to the Committee (but the
giving of such note shall not discharge the Participant from his obligations
under this paragraph 5.5). The obligations of the Participant (and his note)
shall be secured by the Shares acquired by him on exercise which are
attributable to the deferred payment hereunder. The Committee shall retain as
security
3
<PAGE>
possession of the certificates representing such Shares, and the Participant
shall endorse such certificates in blank. All distributions on or proceeds of
such Shares shall be applied against the Participant's obligations hereunder,
except that distributions on the Shares shall be promptly remitted to the
Participant unless he is then in default on his obligations hereunder. The
Participant may not vote such Shares while he is in default on any of his
obligations hereunder. On each anniversary of the date of exercise, if all
stated interest then accrued has been paid and the Participant is not then
otherwise in default, Shares shall be released from collateral to the extent
that the Shares remaining in collateral will be equal to the lowest even
multiple of 100 Shares the value of which, measured by the exercise price, will
equal or exceed the unpaid stated principal amount. The provisions of this
paragraph 5.5 may be modified by the Committee but only in the terms of, and at
the time of, the option grant. Anything herein to the contrary notwithstanding,
the Committee, the Company, and the Participant shall take no action which shall
effect a modification, extension, or renewal of any Incentive Option within the
meaning of Section 424(h) of the Code.
6. Period of Option and Certain Limitations on Right to Exercise.
6.1 Maximum Period of Exercise. Any unexercised Incentive Option shall
cease to be exercisable after the expiration of seven years from the Date of
Grant of such Incentive Option, unless the terms of the Incentive Option granted
provide otherwise; provided, that no Incentive Option shall be exercisable after
the expiration of 10 years from the Date of Grant; and provided further, that an
Incentive Option granted to a Participant who then owns Shares possessing more
than 10% of the total combined voting power of all classes of shares of the
Company or any subsidiary or parent corporation of the Company, if any, shall
cease to be exercisable after the expiration of 5 years from the Date of Grant.
6.2 General Period of Exercise. Unless the terms of the Incentive Option
granted provide otherwise, each Incentive Option granted under this Plan shall
not be exercisable prior to the expiration of one year following the Date of
Grant, and thereafter shall be exercisable only as follows: to the extent of
one-fifth of the total number of optioned Shares after the expiration of one
year following the Date of Grant, to the extent of two-fifths of the total
number of optioned Shares after the expiration of two years following the Date
of Grant, to the extent of three-fifths of the total number of optioned Shares
after the expiration of three years following the Date of Grant, to the extent
of four-fifths of the total number of optioned Shares after the expiration of
four years following the Date of Grant, and in full after the expiration of five
years following the Date of Grant, such limitations being calculated, in the
case of any resulting fraction, to the nearest lower whole number of any Shares.
By action of the Committee, the time any Incentive Option granted is exercisable
may be accelerated.
6.3 Termination of Employment.
6.3.1 Disability. In the event of termination of employment of the
Participant by reason of the Participant's Disability, the Participant
shall have the right to exercise all unexercised Incentive Options, to the
extent exercisable as of the last day of employment under paragraph 6.2, at
any time within one year after such termination, subject to the
4
<PAGE>
expiration of such Incentive Options under paragraph 6.1. Any such
Incentive Options not so exercised shall terminate.
6.3.2 Death. In the event of termination of employment of the
Participant by reason of the Participant's death, any person who acquires
any unexercised Incentive Options by will or the laws of descent and
distribution from the Participant shall have the right to exercise all
unexercised Incentive Options held by him which were exercisable on the day
of the Participant's death under paragraph 6.2, at any time within one year
after the Participant's death, subject to the expiration of such Incentive
Options under paragraph 6.1. Any such Incentive Options not so exercised
shall terminate.
6.3.3 Other Terminations. In the event of the termination of
employment of a Participant for reasons other than those described in
paragraphs 6.3.1 and 6.3.2, any unexercised Incentive Options granted to
him hereunder shall be deemed canceled and terminated forthwith, except
that such Participant may, within thirty (30) days after such termination
of employment, exercise such Incentive Options which as of the last day of
such Participant's employment were exercisable under paragraph 6.2, subject
to the expiration of such Incentive Options under paragraph 6.1.
7. Shares Reserved Under the Plan. There is hereby reserved for issuance under
the Plan an aggregate of Four Hundred Fifty Thousand (450,000) Shares of the
Company, which may be newly issued or treasury shares. If there is a lapse,
expiration, termination or cancellation of any Incentive Option granted
hereunder, such Shares may again be used for new Incentive Options; provided,
however, that in no event may the number of Shares issued under this Plan exceed
the aggregate number of Shares so reserved for issuance.
8. Nontransferability. No Incentive Option shall be transferable other than by
will or the laws of descent and distribution and shall be exercisable during the
Participant's lifetime only by the Participant.
9. Listing and Registration of Shares. Each Incentive Option shall be subject to
the requirements that if at any time the Committee shall determine, in its
discretion, that the listing, registration, or qualification of the Shares
covered thereby upon any securities exchange, under any state or federal law, or
the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the granting of such
Incentive Option or the issue or purchase of Shares thereunder, such Incentive
Option may not be exercised in whole or in part unless and until such listing,
registration, qualification, consent, or approval shall have been effected or
obtained free of any condition not acceptable to the Committee.
10. Other Provisions. The grant of an Incentive Option under the Plan may also
be subject to other provisions (whether or not applicable to any Incentive
Option awarded to any other Participant) as the Committee, in its sole
discretion, determines appropriate, including, without limitation:
10.1 provisions permitting the purchase of Shares under option in
installments;
5
<PAGE>
10.2 provisions for the payment of the purchase price of Shares under
option by delivery of other Shares of the Company having a then market value
equal to the purchase price of such Shares;
10.3 such provisions as may be appropriate to comply with federal or state
securities laws and stock exchange requirements; and
10.4 undertakings or conditions as to the Participant's employment in
addition to those specifically provided for in the Plan.
11. Adjustment Provisions.
11.1 If the Company shall at any time change the number of issued Shares
without new consideration to the Company, the total number of Shares reserved
for issuance under this Plan, the number of Shares covered by each outstanding
Incentive Option and the option exercise price under each outstanding Incentive
Option shall be adjusted so that the aggregate consideration payable to the
Company and the value of each such Incentive Option shall not be changed.
11.2 Notwithstanding any other provisions of this Plan, in case the Company
is merged or consolidated with another corporation, or in case the property or
Shares of the Company is acquired by another corporation, or in case of a
reorganization or liquidation of the Company, or in case of any extraordinary
transaction, the Committee or the board of directors of any corporation assuming
the obligations of the Company hereunder, shall have the right to provide for
the continuation of Incentive Options or for other equitable adjustments as
determined by the Committee (by means, such as, for example, cash payment in an
amount equal to the difference between the Share price and the option exercise
price, conversion into other property or securities, or giving written notice to
holders that their Incentive Options will become immediately exercisable,
notwithstanding any waiting period otherwise prescribed by the Committee, and
that such options must be exercised within a specified period of days of such
notice or they will be terminated).
12. Tax Withholding. The Company shall comply with the obligations imposed on
the Company under applicable tax withholding laws, if any, with respect to
Incentive Options granted hereunder, Shares transferred upon exercise thereof,
and the disposition of such Shares thereafter, and shall be entitled to do any
act or thing to effectuate any such required compliance, including withholding
from amounts payable by the Company to a Participant and including making demand
on a Participant for the amounts required to be withheld. The Committee, in its
sole discretion, may establish a procedure allowing persons exercising an
Incentive Option granted under the Plan to direct the Company to satisfy its
obligation imposed under applicable tax withholding laws in connection with the
exercise of such Incentive Option under the Plan by either 1) withholding from
the Shares to be acquired upon exercise of the Incentive Option, or 2) delivery
to the Company either previously acquired Shares or Shares acquired upon
exercise of the Incentive Option which the person unconditionally obligated
himself to deliver to the Company.
6
<PAGE>
13. Certificate Legend. Upon issuance of any certificate evidencing Shares in
respect of which Incentive Options have been exercised, such certificate shall
bear the appropriate legends with regard to any agreement among the Company and
its shareholders with respect to the transfer or other disposition of the Shares
evidenced by such certificate, and shall bear any other legend which the
Committee shall deem appropriate to assure that the purposes and intent of the
various provisions of this Plan shall be fulfilled, and that the obligations
imposed on the Company by the tax laws, securities laws, or other laws are
complied with.
14. No Contract of Employment. Neither the adoption of this Plan nor the grant
of any Incentive Options pursuant to the terms of this Plan shall be deemed to
obligate the Company or any subsidiary of the Company to continue employment of
any Participant for any particular period, nor shall the granting of any
Incentive Option constitute a request or consent to postpone the retirement date
of any participant.
15. Indemnification of Committee. In addition to such other rights of
indemnification as they may have as Trustees or as members of the Committee, the
members of the Committee shall be indemnified by the Company against the
reasonable expenses, including attorneys' fees actually and necessarily incurred
in connection with the defense of any action, suit or proceeding, (or in
connection with any appeal therefrom), to which they or any of them may be a
party by reason of any action taken or failure to act under or in connection
with the Plan or any Incentive Option granted hereunder, and against all amounts
paid by them in settlement thereof (provided such settlement is approved by
independent legal counsel selected by the Company) or paid by them in
satisfaction of a judgment in any such action, suit or proceeding, except in
relation to matters as to which it shall be judged and such action, suit or
proceeding as such Committee member is liable for gross negligence or misconduct
in performance of his duties; provided that within 60 days after institution of
any such action, suit or proceeding a Committee member shall in writing offer
the Company the opportunity, at its own expense, to handle and defend the same.
16. Amendment and Termination of Plan. The Board may amend the Plan from time to
time or terminate the Plan at any time, but no such action shall reduce the
number of the Shares subject to the then outstanding Incentive Options granted
to any Participant or adversely to the Participant change the terms and
conditions thereof without the Participant's consent. However, except for
adjustments expressly provided for herein, no amendment may (i) increase the
Incentive Options theretofore granted to Participants, (ii) increase the number
of Shares which may be issued, or (iii) materially modify any requirement as to
eligibility for participation in the Plan.
17. Effective Date of This Amendment and Restatement of the Plan. This amendment
and restatement of the Plan shall become effective on the date of its adoption
by the Board.
7
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EXHIBIT 4.4
STOCK OPTION PROPOSAL
APPROVAL OF THE ADOPTION OF
THE 1991 EMPLOYEES STOCK OPTION PLAN
AND OF THE GRANT OF STOCK OPTIONS TO
WILLIAM NEWMAN AND ARNOLD LAUBICH
Description
Grants Separate from the 1985 Plan. In 1986 and 1987, the Board of Trustees
approved grants of stock options for an aggregate of 134,000 Shares to Dover
Management Corporation, which then managed all of the Trust's properties and for
5,000 Shares each in favor of the then six Trustees. The grants were intended to
complement the Trust's 1985 Incentive Stock Option Plan by providing a source of
stock options for employees of Dover Management and those Trustees who were not
officers or employees of the Trust. Such individuals were not otherwise eligible
to receive grants under the 1985 Plan, which limited eligibility to the Trust's
officers and key employees.
The grants to Dover Management Corporation and the Trustees specified that
the options were to be similar to options authorized under the 1985 Plan. The
exercise prices for Dover's options are $12.50 and for the Trustees' options
$16.50, being the market prices of the Shares on the respective dates of grant.
In January 1991, the Board granted a stock option for 5,000 Shares to
Arnold Laubich at an exercise price of $16.50, which was the market price on the
date of grant. During 1991, two previously granted options were partially
exercised: Leonard Cancell acquired 13,000 Shares and Irwin Kwartler purchased
5,600 Shares. The exercise prices were $12.50 and the aggregate net value
realized (i.e., market price less exercise price) was $137,725.
The Grant to Messrs. Newman and Laubich. Upon the recommendation of a
special committee of outside Trustees, which had consulted with a leading
executive compensation consulting firm, on March 12, 1991 the Board of Trustees
approved the grant of stock options to William Newman and Arnold Laubich for
650,000 Shares each. In awarding the stock options, the Board sought to provide
additional incentive in lieu of monetary compensation to Messrs. Newman and
Laubich for their services as Chief Executive Officer and President of the
Trust.
Apart from the two options for 650,000 Shares, the Trustees of the Trust
hold options exercisable for an aggregate of 165,000 Shares. The total of such
165,000 Shares and the 1,300,000 Shares covered by the two options represents
approximately 3.3% of the Trust's current outstanding Shares. In 1987 when the
Trust presented to the shareholders an amendment to the Declaration of Trust
which deleted limitations on the Trust's right to issue options arid other
rights to buy securities of the Trust, the Board stated to the shareholders that
it would not grant options or other rights to purchase Shares in favor of
Trustees in excess of an aggregate of 2 1/2% of the Trust's then outstanding
Shares except pursuant to a plan or plans approved by the Trust's shareholders.
Accordingly, the Board in approving such grants of options for 650,000 Shares to
each of Messrs. Newman and Laubich, required that the options be submitted to
the shareholders for their approval.
The two stock options are not exercisable during the first two years.
Thereafter, 30% of the Shares will vest and may be purchased during the third
year, with the available Shares vesting 10% per year thereafter. In the event of
the executive's death, or withdrawal from employment because of disability or
other involuntary termination not for cause, the limitations on exercise will
not apply. Upon exercise, the purchase price may be paid by the optionee's
delivery of his five-year promissory note, which would be similar to the note
provided under the 1991 Plan described below.
<PAGE>
EXHIBIT 5.1
CONSENT OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP
September 29, 1998
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
Re: New Plan Excel Realty Trust, Inc.
Registration Statement on Form S-8:
Registration of up to 3,576,000 shares of Common Stock,
par value $0.01 per share
-------------------------------------------------------
Ladies and Gentlemen:
We have acted as special Maryland corporate counsel to New York Plan Excel
Realty Trust, Inc., a Maryland corporation (the "Company"), in connection with
certain matters arising out of the issuance of up to 3,576,000 shares (the
"Shares") of common stock, par value $.01 per share, of the Company (the "Common
Stock"), covered by the above-referenced Registration Statement filed on or
about September 29, 1998 (the "Registration Statement"), under the Securities
Act of 1933, as amended.
The Shares are to be issued upon the exercise of options (the "Options")
originally granted by New Plan Realty Trust, a Massachusetts business trust
("New Plan"), pursuant to the New Plan Realty Trust 1997 Stock Option Plan, the
New Plan Realty Trust 1991 Stock Option Plan, the Amended and Restated New Plan
Realty Trust 1985 Incentive Stock Option Plan, the March 1991 Stock Option Plan
of New Plan Realty Trust, and certain stock options by New Plan Realty Trust as
originally granted not qualifying as incentive stock options within the meaning
of Section 422 of the Internal Revenue Code of 1986, as amended, and the
transactions related thereto (collectively, the "New Plan Stock Plans"). The
obligation to issue the Shares upon exercise of the Options was assumed by the
Company pursuant to or in connection with the terms of the merger (the "Merger")
and related transactions contemplated by that certain Agreement and Plan of
Merger dated May 14, 1998, as amended, by and between the Company (then known as
Excel Realty Trust, Inc.), ERT Merger Sub, Inc., a Maryland corporation and
wholly-owned subsidiary of the Company, and New Plan. Capitalized terms used but
not defined herein shall have the meanings assigned to them in the Registration
Statement.
<PAGE>
New Plan Excel Realty Trust, Inc.
September 29, 1998
Page 2
In our capacity as special Maryland corporate counsel to the Company and as
a basis for the opinions hereinafter set forth, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of the following
documents:
(i) The charter of the Company (the "Charter"), consisting of Articles of
Incorporation filed with the State Department of Assessments and Taxation of
Maryland (the "Department") on May 13, 1993, Articles of Amended and Restatement
of the Company filed with the Department on July 9, 1993, Articles of Amendment
and Restatement of the Company filed with the Department on May 23, 1995,
Articles of Amendment filed with the Department on September 28, 1998, Articles
Supplementary filed with the Department on February 4, 1997, Articles
Supplementary filed with the Department on June 5, 1998, and Articles
Supplementary filed with the Department on September 28, 1998;
(ii) The Amended and Restated Bylaws of the Company (the "Bylaws") as
adopted effective as of September 28, 1998;
(iii) Resolutions duly adopted by the Board of Directors of the Company by
unanimous written consent on or as of September 28, 1998 (collectively, the
"Directors' Resolutions");
(iv) The New Plan Stock Plans;
(v) The form of certificate representing the Shares (the "Certificate");
(vi) A Certificate of Officer of the Company, dated as of a recent date, to
the effect that, among other things, the copies of the Charter, Bylaws,
Directors' Resolutions, Certificate, and New Plan Stock Plans are true and
correct, have been rescinded or modified and are in full force and effect as of
the date hereof, and that the Directors' Resolutions were duly adopted at a
meeting of directors of the Company duly called and held or by the unanimous
written consent of all incumbent directors, or a committee thereof, as the case
may be, of the Company;
(vii) A status certificate of recent date issued by the Department to the
effect that the Company is duly incorporated and existing under the laws of the
State of Maryland;
(viii) The Registration Statement, including the related form of
prospectus therein, of the Company; and
<PAGE>
New Plan Excel Realty Trust, Inc.
September 29, 1998
Page 3
(ix) Such other documents, corporate and other records of the Company and
certificates of public officials and officers of the Company as we have deemed
necessary or appropriate to provide a basis for the opinions set forth below,
subject to the limitations, assumptions and qualifications noted below.
In reaching the opinions set forth below, we have assumed the following:
(a) each person executing any instrument, document or agreement on behalf
of any party (other than the Company) is duly authorized to do so;
(b) each natural person executing any instrument, document or agreement is
legally competent to do so;
(c) all documents submitted to us as originals are authentic; all documents
submitted to us as certified, facsimile or photostatic copies conform to the
original document; all signatures on all documents submitted to us for
examination are genuine; the form and content of any documents submitted to us
as unexecuted drafts do not and will not differ in any respect relevant to this
opinion from such documents as executed and delivered; and all public records
reviewed are accurate and complete;
(d) none of the Shares will be issued in violation of the provisions of the
Charter of the Company imposing restrictions on ownership and transfer of shares
of stock of the Company; the Shares will be issued against payment of the
consideration set forth in the respective Options; and the issuance of such
Shares will not cause the total number of shares of Common Stock issued and
outstanding to exceed the total number of shares of Common Stock that the
Company is then authorized to issue;
(e) as of September 28, 1998, immediately prior to the effective time of
the Merger, there were Options relating to 3,576,000 shares of beneficial
interest of New Plan duly authorized and validly issued under the New Plan Stock
Plans, and such Options remain validly issued and outstanding and will be
validly issued and outstanding when exercised; and
(f) all certificates received by us are true, correct and complete both
when given and as of the date hereof.
Based on the foregoing, and subject to the assumptions and qualifications
set forth herein, it is our opinion that:
<PAGE>
New Plan Excel Realty Trust, Inc.
September 29, 1998
Page 4
1. The Company is a corporation duly incorporated and existing under and
by virtue of the laws of the State of Maryland and is in good standing with the
SDAT.
2. The Shares have been duly authorized and, upon issuance in accordance
with and subject to the terms of the respective New Plan Stock Plan, and upon
payment of the consideration therefor as provided under the respective Option,
such Shares will be validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and further consent to the filing of this opinion as an exhibit to
applications to the securities commissioners of the various states of the United
States for registration of the Shares. We also consent to the identification of
our firm as Maryland counsel to the Company in the section of the Prospectus
(which is a part of the Registration Statement) entitled "Legal Matters."
This opinion is limited to the present corporate laws of the State of
Maryland and we express no opinion with respect to the laws of any other
jurisdiction. Furthermore, the opinions presented in this letter are limited to
the matters specifically set forth herein and no other opinion shall be inferred
beyond the matters expressly set forth herein.
The opinions set forth in this letter are rendered as of the date hereof
and are necessarily limited to laws now in effect and facts and circumstances
presently existing and brought to our attention. We assume no obligation to
supplement this opinion if any applicable law is changed after the date hereof
or if we become aware of any facts or circumstances which now exist or which
occur or arise in the future and may change the opinions expressed herein after
the date hereof.
This opinion is being furnished to you solely for your benefit.
Accordingly, it may not be relied upon by, quoted in any manner to or delivered
to any other person or entity without, in each instance, our prior written
consent.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll, LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated February 13, 1998, on our audits of the
consolidated financial statements and financial statement schedules of Excel
Realty Trust, Inc. ("Excel") and subsidiaries as of December 31, 1997 and 1996
and for each of the three years in the period ended December 31, 1997, which are
included in the Annual Report on Form 10-K of Excel for the year ended December
31, 1997. We also consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated September 9, 1997, on our audits of
the consolidated financial statements and financial statement schedules of New
Plan Realty Trust (the "Trust") as of July 31, 1997 and 1996 and for each of the
three years in the period ended July 31, 1997, which are included in the Annual
Report on Form 10-K of the Trust for the year ended July 31, 1997. We also
consent to the reference to our firm under the caption "Experts".
/s/ PricewaterhouseCoopers LLP
New York, New York
September 29, 1998
