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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 22, 1996
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------------------
CATELLUS DEVELOPMENT CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 21-0718930
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
201 Mission Street
San Francisco, California 94105
(Address, including zip code, of registrant's principal executive offices)
---------------------------
CATELLUS DEVELOPMENT CORPORATION
1996 PERFORMANCE AWARD PLAN
(Full title of the plan)
---------------------------
Maureen Sullivan, Esq.
Vice President Law, General Counsel and Secretary
Catellus Development Corporation
201 Mission Street
San Francisco, California 94105
(415) 974-4500
(Name, Address, including zip code, and telephone number,
including area code, of registrant's agent for service)
Copy to:
James R. Ukropina, Esq.
O'Melveny & Myers
400 South Hope Street
Los Angeles, California 90071
(213) 669-6000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common
Stock par
value $.01
per share 4,000,000(1) $9.25(2) $37,000,000(2) $12,758.62(2)
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933 (the
"Act"), an indeterminate number of additional shares of Common Stock which
by reason of certain events specified in the 1996 Performance Award Plan
may become subject to the Plan are also being registered hereunder.
(2) The aggregate offering price and the registration fee have been computed
pursuant to Rule 457(h)(i) and Rule 457(c) under the Act on the basis of
the average of the high ($9.375) and low ($9.125) prices of Common Stock
reported on the New York Stock Exchange on May 15, 1996.
<PAGE> 2
Part I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 (plan information and registrant information) will be sent or given to
employees as specified by Securities and Exchange Commission Rule 428(b)(1).
Such documents need not be filed with the Securities and Exchange Commission
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents, which include the statement
of availability required by Item 2 of Form S-8, and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Form S-8 (Part
II hereof), taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act of 1933.
Part II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission are incorporated herein by reference:
(a) Annual Report on Form 10-K for the year ended December 31, 1995 of
Catellus Development Corporation, a Delaware corporation (the
"Company");
(b) Quarterly Report on Form 10-Q for the quarter ended March 31, 1996
of the Company; and
(c) The description of the common stock, par value $.01 per share (the
"Common Stock"), of the Company contained in its Registration
Statement on Form 10 (Commission File Number 0-18694) filed under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
All documents filed by the Company after the date hereof pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained herein
or in a document, all or a portion of which is incorporated or deemed to be
incorporated by reference herein, shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or amended, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
The Common Stock is registered pursuant to Section 12 of the Exchange
Act, and, therefore, the description of securities is incorporated by reference
pursuant to Item 3 herein.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides in general
that a Delaware corporation may indemnify any person who was or is a party or is
threatened to be made a party to any suit or proceeding because such person is
or was a director, officer, employee or agent of the corporation or was serving,
at the request of the corporation, as a director, officer, employee or agent of
another corporation, against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such suit or proceeding if such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. Similar indemnity, but only for expenses (including attorneys'
fees) actually and reasonably incurred, may be provided in connection with an
action or suit by or in the right of a corporation, provided that such person
acted in good faith and in a manner such person believed to be in or not opposed
to the best interests of the corporation and except that no indemnification may
be made in respect of any claim as to which such person has been adjudged to be
liable to the corporation unless and only to the extent that a court shall have
determined, upon application, that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
Section 102(b)(7) of the Delaware General Corporation Law provides
generally that a corporation may include a provision in its certificate of
incorporation which eliminates or limits the personal liability of a director to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision may not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law or (iv) for any
transaction from which the director derived an improper personal benefit. The
Company has included provisions of the foregoing type in Article 5 of its
Certificate of Incorporation.
The Company maintains directors and officers liability insurance
coverage for its directors and officers providing coverage for damages,
judgments, settlements, defense costs, charges and expenses incurred by reason
of any actual or alleged breach of duty, error, misstatement, misleading
statement or omission done or made in their capacities as directors and/or
officers of the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following are filed as exhibits to this Registration Statement:
Exhibits Description
-------- ------------
4.1 1996 Performance Award Plan
4.2 Form of Director Award Agreement
5.1 Opinion of O'Melveny & Myers
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23.1 Consent of O'Melveny & Myers (included in Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
23.3 Consent of Landauer Associates, Inc.
24.1 Powers of Attorneys
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs A(1)(i) and A(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") that
are incorporated by reference in the Registration Statement;
(2) 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
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 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 the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. 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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
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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.
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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 San Francisco, State of California, on this 22nd day
of May, 1996.
CATELLUS DEVELOPMENT CORPORATION
(Registrant)
/s/ Nelson C. Rising
--------------------------------------------
Name: Nelson C. Rising
Title: President and 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>
Principal Executive Officer:
/s/ Nelson C. Rising
- -----------------------------
Nelson C. Rising President and Chief Executive Officer, May 22, 1996
Director
Principal Financial Officer:
/s/ Stephen P. Wallace
- -----------------------------
Stephen P. Wallace Chief Financial Officer May 22, 1996
Principal Accounting Officer:
/s/ Paul A. Lockie
- -----------------------------
Paul A. Lockie Controller May 22, 1996
</TABLE>
S-1
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<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
*
- -----------------------------
Joseph F. Alibrandi Director May 22, 1996
*
- -----------------------------
Daryl J. Carter Director May 22, 1996
*
- -----------------------------
Christine Garvey Director May 22, 1996
*
- -----------------------------
Joseph R. Seiger Chairman and Director May 22, 1996
*
- -----------------------------
Jacqueline R. Slater Director May 22, 1996
*
- -----------------------------
Thomas M. Steinberg Director May 22, 1996
*
- -----------------------------
Tom C. Stickel Director May 22, 1996
*
- -----------------------------
Beverly Benedict Thomas Director May 22, 1996
* By: /s/ Maureen Sullivan May 22, 1996
- -----------------------------
Attorney-in-Fact
</TABLE>
S-2
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Document
- ----------- --------
<S> <C>
4.1 1996 Performance Award Plan
4.2 Form of Director Award Agreement
5.1 Opinion of O'Melveny & Myers
23.1 Consent of O'Melveny & Myers (included in Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
23.3 Consent of Landauer Associates, Inc.
24.1 Powers of Attorneys
</TABLE>
S-3
<PAGE> 1
EXHIBIT 4.1
CATELLUS DEVELOPMENT CORPORATION
1996 Performance Award Plan
<PAGE> 2
TABLE OF CONTENTS
Page
----
SECTION 1. Purpose.................................................. 1
SECTION 2. Definitions; Rules of Construction....................... 1
SECTION 3. Eligibility.............................................. 4
SECTION 4. Awards................................................... 4
SECTION 5. Shares of Stock and Share Units Available Under Plan..... 7
SECTION 6. Award Agreements......................................... 9
SECTION 7. Adjustments; Change of Control; Acquisitions............. 11
SECTION 8. Administration........................................... 15
SECTION 9. Non-Employee Director Options ........................... 16
SECTION 10. Amendment and Termination of this Plan................... 18
SECTION 11. Miscellaneous............................................ 18
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CATELLUS DEVELOPMENT CORPORATION
1996 PERFORMANCE AWARD PLAN
SECTION 1. PURPOSE.
The purpose of this Plan is to benefit the Corporation's stockholders by
encouraging high levels of performance by individuals who contribute to the
success of the Corporation and its Subsidiaries and to enable the Corporation
and its Subsidiaries to attract, motivate, retain and reward talented and
experienced individuals. This Plan is also intended to enable the Corporation to
attract, motivate and retain experienced and knowledgeable independent directors
through the benefits provided under Section 9.
SECTION 2. DEFINITIONS; RULES OF CONSTRUCTION.
(a) DEFINED TERMS. The terms defined in this Section shall have the
following meanings for purposes of this Plan:
"AWARD " means an award granted pursuant to Section 4 or Section 9.
"AWARD AGREEMENT" means an agreement described in Section 6 or Section 9 entered
into between the Corporation and a Participant, setting forth the terms and
conditions of an Award granted to a Participant.
"BENEFICIARY" means a person or persons (including a trust or trusts) validly
designated by a Participant or, in the absence of a valid designation, entitled
by will or the laws of descent and distribution, to receive the benefits
specified in the Award Agreement and under this Plan in the event of a
Participant's death.
"BOARD OF DIRECTORS" or "BOARD" means the Board of Directors of the Corporation.
"CASH-BASED AWARDS" means Awards, as described in Section 4(a)(5), that, if
paid, must be paid in cash and that are neither denominated in nor have a value
derived from the value of, nor an exercise or conversion privilege at a price
related to, shares of Stock.
"CHANGE OF CONTROL" is defined in Section 7(c).
"CODE" means the Internal Revenue Code of 1986, as amended from time to time.
"COMMITTEE" means the Committee described in Section 8.
"CORPORATION" means Catellus Development Corporation.
"EMPLOYEE" means any employee (whether or not also a director) of the
Corporation or any of its Subsidiaries, but excludes, in the case of an
Incentive Stock Option, an Employee of
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any Subsidiary that is not a "subsidiary corporation" of the Corporation as
defined in Code Section 424(f).
"EPS" means earnings per common share on a fully diluted basis determined by
dividing (i) net earnings, less dividends on preferred stock of the Corporation
by (ii) the weighted average number of common shares and common share
equivalents outstanding.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from time
to time.
"EXECUTIVE OFFICER" means executive officer as defined in Rule 3b-7 under the
Exchange Act, provided that, if the Board has designated the executive officers
of the Corporation for purposes of reporting under the Exchange Act, the
designation shall be conclusive for purposes of this Plan.
"FAIR MARKET VALUE" means the average of the closing prices of the relevant
security for the five trading days immediately preceding the applicable date as
reported on the composite tape of New York Stock Exchange issues (or, if the
security is not so listed, the principal national stock exchange on which the
security is then listed or, if the security is not listed on any national stock
exchange, such other reporting system as shall be selected by the Committee).
The Committee shall determine the Fair Market Value of any security that is not
publicly traded using criteria as it shall determine, in its sole discretion, to
be appropriate for the valuation.
"FOR CAUSE" means (i) the continued failure by the Participant to substantially
perform his or her duties with the Corporation or a Subsidiary (other than any
such failure resulting from his or her incapacity due to physical or mental
illness), or (ii) the engaging by the Participant in conduct which is materially
injurious to the Corporation, monetarily or otherwise, in either case as
determined by the Committee.
"INSIDER" means any person who is subject to Section 16(b) of the Exchange Act.
"NET CASH FLOW" means cash and cash equivalents derived from either (i) net cash
flow from operations or (ii) net cash flow from operations, financings and
investing activities, as determined by the Committee at the time an Award is
granted.
"NON-EMPLOYEE DIRECTOR" means a member of the Board of Directors of the
Corporation who is not also an Employee.
"OFFICER" means any officer (whether or not also an employee) of the Corporation
or any of its Subsidiaries, but excludes, in the case of an Incentive Stock
Option, an Officer of any Subsidiary that is not a "subsidiary corporation" of
the Corporation as defined in Code Section 424(f).
"OPTION" means a Nonqualified Stock Option or an Incentive Stock Option, as
described in Section 4(a)(1) or (2).
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"PARTICIPANT" means any Employee, any Officer or any Non-Employee Director who
is granted an Award pursuant to this Plan that remains outstanding.
"PERFORMANCE-BASED AWARDS" is defined in Section 4(b).
"PERFORMANCE GOAL" means EPS or ROE or Net Cash Flow or Total Stockholder
Return, and "PERFORMANCE GOALS" means any combination thereof.
"QDRO" means a qualified domestic relations order as defined in Section 414(p)
of the Code or Title I, Section 206(d)(3) of the Employee Retirement Income
Security Act of 1974, as amended from time to time (to the same extent as if
this Plan was subject thereto), or the applicable rules thereunder.
"ROE" means consolidated net income of the Corporation (less preferred
dividends) divided by the average consolidated common stockholders equity.
"RULE 16B-3" means Rule 16b-3 under Section 16 of the Exchange Act, as amended
from time to time.
"SHARE-BASED AWARDS" means Awards, as described in Sections 4(a)(1) through (4),
that are payable or denominated in or have a value derived from the value of, or
an exercise or conversion privilege at a price related to, shares of Stock.
"SHARE UNITS" means the number of units under a Share-Based Award that is
payable solely in cash or is actually paid in cash, determined by reference to
the number of shares of Stock by which the Share-Based Award is measured.
"STOCK" means shares of Common Stock of the Corporation, par value $.01 per
share, subject to adjustments made under Section 7 or by operation of law.
"STOCK TRADING PRICE" means the average of the closing prices of the relevant
security for 30 consecutive days as reported on the composite tape of New York
Stock Exchange issues (or, if the security is not so listed, the principal
national stock exchange on which the security is then listed or, if the security
is not listed on any national stock exchange, such other reporting system as
shall be selected by the Committee). The Committee shall determine the Stock
Trading Price of any security that is not publicly traded using criteria as it
shall determine, in its sole discretion, to be appropriate for the valuation.
"SUBSIDIARY" means, as to any person, any corporation, association, partnership,
joint venture or other business entity of which 50% or more of the voting stock
or other equity interests (in the case of entities other than corporations) is
owned or controlled (directly or indirectly) by that entity, or by one or more
of the Subsidiaries of that entity, or by a combination thereof.
"TOTAL STOCKHOLDER RETURN" means, with respect to the Corporation or other
entities (if measured on a relative basis), the (i) change in the market price
of its common stock (as
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quoted in the principal market on which it is traded as of the beginning and
ending of the period) plus dividends and other distributions paid, divided by
(ii) the beginning quoted market price, all of which is adjusted for any changes
in equity structure including, but not limited to, stock splits and stock
dividends.
(b) FINANCIAL AND ACCOUNTING TERMS. Except as otherwise expressly
provided or the context otherwise requires, financial and accounting terms,
including terms defined herein as Performance Goals, are used as defined for
purposes of, and shall be determined in accordance with, generally accepted
accounting principles and as derived from the audited consolidated financial
statements of the Corporation, prepared in the ordinary course of business.
(c) RULES OF CONSTRUCTION. For purposes of this Plan and the Award
Agreements, unless otherwise expressly provided or the context otherwise
requires, the terms defined in this Plan include the plural and the singular,
and pronouns of either gender or neuter shall include, as appropriate, the other
pronoun forms.
SECTION 3. ELIGIBILITY.
Any one or more Awards may be granted to any Employee or any Officer who is
designated by the Committee to receive an Award. Non-Employee Directors shall
not be eligible to receive any Awards except for the Nonqualified Stock Options
granted automatically without action of the Committee under the provisions of
Section 9.
SECTION 4. AWARDS.
(a) TYPE OF AWARDS. The Committee may grant any of the following types
of Awards, either singly, in tandem or in combination with other Awards:
(1) Nonqualified Stock Options. A Nonqualified Stock Option is
an Award in the form of an option to purchase Stock that is not intended to
comply with the requirements of Code Section 422. Unless the Committee provides
otherwise, and such provision is reflected in the Award Agreement, the exercise
price of each Nonqualified Stock Option granted under this Plan shall be not
less than the Fair Market Value of the Stock on the date that the Option is
granted. All Nonqualified Stock Options granted at an exercise price not less
than Fair Market Value on the date of grant shall be treated as
Performance-Based Awards subject to the applicable restrictions of Section 4(b).
(2) Incentive Stock Options. An Incentive Stock Option is an
Award in the form of an option to purchase Stock that is intended to comply with
the requirements of Code Section 422 or any successor section of the Code. The
exercise price of each Incentive Stock Option granted under this Plan shall be
not less than the Fair Market Value of the Stock on the date that the Option is
granted; provided, however, that the exercise price of any Incentive Stock
Option granted to a Participant who owns more than 10% of the total combined
voting power of all classes of stock of the Corporation or any Subsidiary shall
not be less than 110% of such Fair Market Value. In addition, the Committee
shall include such
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other terms of any Incentive Stock Option as it deems necessary or desirable to
qualify the Option as an incentive stock option under the provisions of Section
422 of the Code. To the extent that the aggregate "fair market value" of Stock
with respect to which one or more incentive stock options first become
exercisable by a Participant in any calendar year exceeds $100,000, taking into
account both Stock subject to Incentive Stock Options under this Plan and stock
subject to incentive stock options under all other plans of the Corporation or
of other entities referenced in Code Section 422(d)(1), the Options shall be
treated as Nonqualified Stock Options. All Incentive Stock Options granted at an
exercise price not less than Fair Market Value on the date of grant shall be
treated as Performance-Based Awards subject to the applicable restrictions of
Section 4(b).
(3) Stock Appreciation Rights. A Stock Appreciation Right is
an Award in the form of a right to receive, upon surrender of the right, but
without other payment, an amount based on appreciation in the value of Stock
over a base price established in the Award, payable in cash, Stock or such other
form or combination of forms of payout, at times and upon conditions (which may
include a Change of Control), as may be approved by the Committee. Unless the
Committee provides otherwise, and such provision is reflected in the Award
Agreement, the minimum base price of a Stock Appreciation Right granted under
this Plan shall be not less than the lowest of the Fair Market Value of the
underlying Stock on the date the Stock Appreciation Right is granted or, in the
case of a Stock Appreciation Right related to an Option (whether already
outstanding or concurrently granted), the exercise price of the related Option.
All Stock Appreciation Rights granted at a base price not less than Fair Market
Value on the date of grant shall be treated as Performance-Based Awards subject
to the applicable restrictions under Section 4(b).
(4) Other Share-Based Awards. The Committee may from time to
time grant Awards under this Plan that provide Participants with Stock or the
right to purchase Stock, or provide other incentive Awards (including, but not
limited to, phantom stock or units, performance stock or units, bonus stock,
dividend equivalent units, or similar securities or rights) that have a value
derived from the value of, or an exercise or conversion privilege at a price
related to, or that are otherwise payable in shares of Stock. The Awards shall
be in a form determined by the Committee, provided that the Awards shall not be
inconsistent with the other express terms of this Plan. Awards under this
Section 4(a)(4) to Executive Officers that are either granted or become vested,
exercisable or payable based on attainment of one or more of the Performance
Goals shall only be granted as Performance-Based Awards under Section 4(b).
Restricted stock may not be issued under this Plan.
(5) Cash-Based Awards. Cash-Based Awards are Awards that provide
Participants with the opportunity to earn a cash payment based upon the level of
performance of the Corporation relative to one or more Performance Goals
established by the Committee for an award cycle of more than one but not more
than five years. For each award cycle, the Committee shall determine the size of
the Awards, the Performance Goals, the performance targets as to each of the
Performance Goals, the level or levels of achievement necessary for award
payments and the weighting of the Performance Goals, if more than one
Performance Goal is applicable. Cash-Based Awards to Executive Officers that are
either
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granted or become vested, exercisable or payable based on attainment of one or
more Performance Goals shall only be granted as Performance-Based Awards under
Section 4(b).
(b) SPECIAL PERFORMANCE-BASED AWARDS. Without limiting the generality
of the foregoing, any of the type of Awards listed in Section 4(a) may be
granted as awards that satisfy the requirements for "performance-based
compensation" within the meaning of Code Section 162(m) ("PERFORMANCE-BASED
AWARDS"), the grant, vesting, exercisability or payment of which depends on the
degree of achievement of the Performance Goals relative to preestablished
targeted levels for the Corporation on a consolidated basis. Notwithstanding
anything contained in this Section 4(b) to the contrary, any Option or Stock
Appreciation Right with an exercise price or a base price not less than Fair
Market Value on the date of grant shall be subject only to the requirements of
clauses (1) and (3)(A) below in order for such Awards to satisfy the
requirements for Performance-Based Awards under this Section 4(b) (with such
Awards hereinafter referred to as a "QUALIFYING OPTION" or a "QUALIFYING STOCK
APPRECIATION RIGHT", respectively). With the exception of any Qualifying Option
or Qualifying Stock Appreciation Right, an Award that is intended to satisfy the
requirements of this Section 4(b) shall be designated as a Performance-Based
Award at the time of grant.
(1) Eligible Class. The eligible class of persons for Awards
under this Section 4(b) shall be all Employees and Officers.
(2) Performance Goals. The performance goals for any Awards
under this Section 4(b) (other than Qualifying Options and Qualifying Stock
Appreciation Rights) shall be, on an absolute or relative basis, one or more of
the Performance Goals. The specific performance target(s) with respect to
Performance Goal(s) must be established by the Committee in advance of the
deadlines applicable under Code Section 162(m) and while the performance
relating to the Performance Goal(s) remains substantially uncertain.
(3) Individual Limits.
(A) Share-Based Awards. The maximum number of shares of
Stock or Share Units that are issuable under Options, Stock Appreciation Rights
or other Share-Based Awards (described under Section 4(a)(4)) that are granted
as Performance-Based Awards during any calendar year to any Participant under
this Plan shall not exceed 1,000,000, either individually or in the aggregate,
subject to adjustment as provided in Section 7. Awards that are cancelled during
the year shall be counted against this limit to the extent required by Code
Section 162(m).
(B) Cash-Based Awards. The aggregate amount of
compensation to be paid to any Participant under this Plan in respect of
Cash-Based Awards that are granted during any calendar year as Performance-Based
Awards shall not exceed $2,000,000.
(4) Committee Certification. Before any Performance-Based Award
under this Section 4(b) (other than Qualifying Options and Qualifying Stock
Appreciation Rights) is paid, the Committee must certify in writing (by
resolution or otherwise) that the applicable Performance Goal(s) and any other
material terms of the Performance-Based Award were
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satisfied; provided, however, that a Performance-Based Award may be paid without
regard to the satisfaction of the applicable Performance Goal in the event of a
Change of Control as provided in Section 7(b).
(5) Terms and Conditions of Awards; Committee Discretion to
Reduce Performance Awards. The Committee shall have discretion to determine the
conditions, restrictions or other limitations, in accordance with the terms of
this Plan and Code Section 162(m), on the payment of individual
Performance-Based Awards under this Section 4(b). To the extent set forth in an
Award Agreement, the Committee may reserve the right to reduce the amount
payable in accordance with any standards or on any other basis (including the
Committee's discretion), as the Committee may impose.
(6) Adjustments for Material Changes. In the event of (i) a
change in corporate capitalization, a corporate transaction or a complete or
partial corporate liquidation, or (ii) any extraordinary gain or loss or other
event that is treated for accounting purposes as an extraordinary item under
generally accepted accounting principles, or (iii) any material change in
accounting policies or practices affecting the Corporation and/or the
Performance Goals or targets, then, to the extent any of the foregoing events
(or a material effect thereof) was not anticipated at the time the targets were
set, the Committee may make adjustments to the Performance Goals and/or targets,
applied as of the date of the event, and based solely on objective criteria, so
as to neutralize, in the Committee's judgment, the effect of the event on the
applicable Performance-Based Award.
(7) Interpretation. Except as specifically provided in this
Section 4(b), the provisions of this Section 4(b) shall be interpreted and
administered by the Committee in a manner consistent with the requirements for
exemption of Performance-Based Awards granted to Executive Officers as
"performance-based compensation" under Code Section 162(m) and regulations and
other interpretations issued by the Internal Revenue Service thereunder.
(c) MAXIMUM TERM OF AWARDS. No Award that contemplates exercise or
conversion may be exercised or converted to any extent, and no other Award that
defers vesting, shall remain outstanding and unexercised, unconverted or
unvested more than ten years after the date the Award was initially granted.
SECTION 5. SHARES OF STOCK AND SHARE UNITS AVAILABLE UNDER PLAN.
(a) AGGREGATE SHARE LIMIT. The maximum number of shares of Stock that
may be issued pursuant to all Share-Based Awards (including Incentive Stock
Options) is 4,000,000, subject to adjustment as provided in this Section 5 or
Section 7.
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(b) AGGREGATE SHARE UNIT LIMIT. The maximum number of Share Units that
may be paid pursuant to all Share-Based Awards is 4,000,000, subject to
adjustment as provided in this Section 5 or Section 7. Notwithstanding the
foregoing, if a Share-Based Award paid or payable in Share Units satisfies the
requirements for an exclusion from the definition of a derivative security under
Rule 16a-1(c) that does not require that the Award be made under a Rule 16b-3
plan, the Share Units that may be paid under the Award shall not be counted
against the Share Unit limit of this Section 5(b).
(c) REISSUE OF SHARES AND SHARE UNITS. Any unexercised, unconverted or
undistributed portion of any expired, cancelled, terminated or forfeited Award,
or any alternative form of consideration under an Award that is not paid in
connection with the settlement of an Award or any portion of an Award, shall
again be available for Award under Section 5(a) or 5(b), as applicable, whether
or not the Participant has received benefits of ownership (such as dividends or
dividend equivalents or voting rights) during the period in which the
Participant's ownership was restricted or otherwise not vested. Shares of Stock
that are issued pursuant to Awards and subsequently reacquired by the
Corporation pursuant to the terms and conditions of the Awards shall be
available for reissuance under the Plan. If the Corporation withholds shares of
Stock pursuant to Section 5(g), the number of shares that would have been
deliverable with respect to an Award but that are withheld may in effect not be
issued but the aggregate number of shares issuable with respect to the
applicable Award shall be reduced by the number of shares withheld and such
shares shall be available for additional Awards under this Plan.
(d) INTERPRETIVE ISSUES. Additional rules for determining the number
of shares of Stock or Share Units authorized under this Plan may be adopted by
the Committee, as it deems necessary or appropriate.
(e) TREASURY SHARES; NO FRACTIONAL SHARES. The Stock which may be
issued (which term includes Stock reissued or otherwise delivered) pursuant to
an Award under this Plan may be treasury or authorized but unissued Stock or
Stock acquired, subsequently or in anticipation of a transaction under this
Plan, in the open market or in privately negotiated transactions to satisfy the
requirements of this Plan. No fractional shares shall be issued but fractional
interests may be accumulated. The Committee, however, may determine that cash,
other securities, or other property will be paid or transferred in lieu of any
fractional share interests.
(f) CONSIDERATION. The Stock issued under this Plan may be issued
(subject to Section 11(d)) for any lawful form of consideration, the value of
which equals the par value of the Stock or such greater or lesser value as the
Committee, consistent with Sections 11(d), 4(a)(1), 4(a)(2) and 4(a)(3), may
require.
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(g) PURCHASE OR EXERCISE PRICE; WITHHOLDING. The exercise or purchase
price (if any) of the Stock issuable pursuant to any Award and any withholding
obligation under applicable tax laws shall be paid in cash or, subject to the
Committee's express authorization and the restrictions, conditions and
procedures the Committee may impose, any one or combination of (i) cash, (ii) a
check payable to the order of the Corporation, (iii) the delivery of shares of
Stock, provided that any such shares used in payment shall have been owned by
the Participant at least six months prior to the date of exercise, (iv) a
reduction in the amount of Stock or other amounts otherwise issuable or payable
pursuant to such Award, (v) notice and third party payment in such manner as
may be authorized by the Committee, or (vi) the delivery of a promissory note,
or other obligation for the future payment in money, the terms and conditions of
which shall be determined (subject to Section 11(d)) by the Committee. In the
case of a payment by the means described in clause (iii) or (iv) above, the
Stock to be so delivered or offset shall be determined by reference to the Fair
Market Value of the Stock on the date as of which the payment or offset is made.
(h) CASHLESS EXERCISE. The Committee may permit the exercise of the
Award and payment of any applicable withholding tax in respect of an Award by
delivery of written notice, subject to the Corporation's receipt of a third
party payment in full in cash for the exercise price and the applicable
withholding prior to issuance of Stock, in the manner and subject to the
procedures as may be established by the Committee.
SECTION 6. AWARD AGREEMENTS.
Each Award under this Plan shall be evidenced by an Award Agreement in a form
approved by the Committee setting forth, in the case of Share-Based Awards, the
number of shares of Stock or Share Units, as applicable, subject to the Award,
and the price (if any) and term of the Award and, in the case of
Performance-Based Awards, the applicable Performance Goals. The Award Agreement
shall also set forth (or incorporate by reference) other material terms and
conditions applicable to the Award as determined by the Committee consistent
with the limitations of this Plan.
(a) INCORPORATED PROVISIONS. Award Agreements shall be subject to the
terms of this Plan and shall be deemed to include the following terms, unless
the Committee in the Award Agreement otherwise (consistent with applicable legal
considerations) provides:
(1) Nonassignability: The Award shall not be assignable nor
transferable, except (i) by will or by the laws of descent and distribution, or
(ii) pursuant to a QDRO or any other exception to transfer restrictions
expressly permitted by the Committee and set forth in the Award Agreement (or an
amendment thereto) and, in the case of Awards intended to satisfy the conditions
of Rule 16b-3, permitted under Rule 16b-3 (or, in the case of Awards not
intended to satisfy the conditions of Rule 16b-3, as may be not inconsistent
with the issue of Awards under this Plan that do satisfy the conditions of Rule
16b-3) or (iii) in the case of Awards constituting Incentive Stock Options, as
permitted by the Code. The restrictions on exercise and transfer shall not be
deemed to prohibit, to the extent permitted by the Committee, (a) transfers
without consideration for estate and financial planning purposes,
notwithstanding that the inclusion of such transfer authority may render the
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particular Awards ineligible for the benefits of Rule 16b-3, nor, (b) in the
case of Participants who are not Section 16 persons, transfers to such other
persons or in such other circumstances as the Committee may in the Award
Agreement expressly permit. During the lifetime of a Participant the Award shall
be exercised only by such Participant or by his or her guardian or legal
representative, except as expressly otherwise provided consistent with the
foregoing transfer restrictions. The designation of a Beneficiary hereunder
shall not constitute a transfer prohibited by the foregoing provisions.
(2) Rights as Stockholder: A Participant shall have no rights as
a holder of Stock with respect to any unissued securities covered by an Award
until the date the Participant becomes the holder of record of these securities.
Except as provided in Section 7, no adjustment or other provision shall be made
for dividends or other stockholder rights, except to the extent that the Award
Agreement provides for dividend equivalents or similar economic benefits.
(3) Withholding: The Participant shall be responsible for
payment of any taxes or similar charges required by law to be withheld from an
Award or an amount paid in satisfaction of an Award and these obligations shall
be paid by the Participant on or prior to the payment of the Award. In the case
of an Award payable in cash, the withholding obligation shall be satisfied by
withholding the applicable amount and paying the net amount in cash to the
Participant. In the case of an Award paid in shares of Stock, a Participant
shall satisfy the withholding obligation as provided in Section 5(g).
(4) Option Holding Period: Subject to the authority of the
Committee under Section 7, a minimum six-month period shall elapse between the
date of initial grant of any Option and the sale of the underlying shares of
Stock, and the Corporation may impose legend and other restrictions on the Stock
issued on exercise of the Options to enforce this requirement.
(b) OTHER PROVISIONS. Award Agreements may include other terms and
conditions as the Committee shall approve including, but not limited to, the
following:
(1) Termination of Employment: A provision describing the
treatment of an Award in the event of the retirement, disability, death or other
termination of a Participant's employment with or services to the Company,
including any provisions relating to the vesting, exercisability, forfeiture or
cancellation of the Award in these circumstances, subject, in the case of
Performance-Based Awards, to any applicable requirements for "performance-based
compensation" under Code Section 162(m).
(2) Vesting; Effect of Termination; Change of Control: Any
other terms consistent with the terms of this Plan as are necessary and
appropriate to effect the Award to the Participant including, but not limited
to, the vesting provisions, any requirements for continued employment, any other
restrictions or conditions (including performance requirements) of the Award,
and the method by which (consistent with Section 7) the restrictions or
conditions lapse, and the effect on the Award of a Change of Control.
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(3) Replacement and Substitution: Any provisions permitting or
requiring the surrender of outstanding Awards or securities held by the
Participant in whole or in part in order to exercise or realize rights under or
as a condition precedent to other Awards, or in exchange for the grant of new or
amended Awards under similar or different terms.
(4) Reloading. Any provisions for successive or replenished
Awards including, but not limited to, reload Options.
(5) Termination of Benefits. A provision that any and all
unexercised Awards and all rights under this Plan of a Participant who received
such Award (or his or her designated Beneficiary or legal representative) and
the exercise or vesting thereof, shall be forfeited if, prior to the time of
such exercise, the Participant shall (i) be employed by a competitor of, or
shall be engaged in any activity in competition with, the Corporation without
the Corporation's consent, (ii) divulge without the Corporation's consent any
secret or confidential information belonging to the Corporation, (iii) engage in
any other activities which would constitute grounds for termination For Cause or
(iv) be terminated For Cause.
(c) CONTRACT RIGHTS, FORMS AND SIGNATURES. Any obligation of the
Corporation to any Participant with respect to an Award shall be based solely
upon contractual obligations created by this Plan and an Award Agreement. No
Award shall be enforceable until the Award Agreement or a receipt has been
signed by the Participant and on behalf of the Corporation by an Executive
Officer (other than the recipient) or his or her delegate. By executing the
Award Agreement or receipt, a Participant shall be deemed to have accepted and
consented to the terms of this Plan and any action taken in good faith under
this Plan by and within the discretion of the Committee, the Board of Directors
or their delegates. Unless the Award Agreement otherwise expressly provides,
there shall be no third party beneficiaries of the obligations of the
Corporation to the Participant under the Award Agreement.
SECTION 7. ADJUSTMENTS; CHANGE IN CONTROL; ACQUISITIONS.
(a) ADJUSTMENTS. If there shall occur any recapitalization, stock split
(including a stock split in the form of a stock dividend), reverse stock split,
merger, combination, consolidation, or other reorganization or any extraordinary
dividend or other extraordinary distribution in respect of the Stock (whether in
the form of cash, Stock or other property), or any split-up, spin-off,
extraordinary redemption, or exchange of outstanding Stock, or there shall occur
any other similar corporate transaction or event in respect of the Stock, or a
sale of substantially all the assets of the Corporation as an entirety, then the
Committee shall, in the manner and to the extent, if any, as it deems
appropriate and equitable to the Participants and consistent with the terms of
this Plan, and taking into consideration the effect of the event on the holders
of the Stock:
(1) proportionately adjust any or all of
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(A) the number and type of shares of Stock and Share
Units which thereafter may be made the subject of Awards (including the specific
maximum numbers of shares of Stock or Share Units set forth elsewhere in this
Plan),
(B) the number, amount and type of shares of Stock, other
property, Share Units or cash subject to any or all outstanding Awards,
(C) the grant, purchase or exercise price, or conversion
ratio of any or all outstanding Awards, or of the Stock, other property or Share
Units underlying the Awards,
(D) the securities, cash or other property deliverable
upon exercise or conversion of any or all outstanding Awards,
(E) subject to Section 4(b), the performance targets or
standards appropriate to any outstanding Performance-Based Awards, or
(F) any other terms as are affected by the event; or
(2) subject to any applicable limitations in the case of a
transaction to be accounted for as a pooling of interests under generally
accepted accounting principles, provide for
(A) an appropriate and proportionate cash settlement or
distribution, or
(B) the substitution or exchange of any or all
outstanding Awards, or the cash, securities or property deliverable on exercise,
conversion or vesting of the Awards.
Notwithstanding the foregoing, in the case of an Incentive Stock Option, no
adjustment shall be made which would cause this Plan to violate Section 424(a)
of the Code or any successor provisions thereto, without the written consent of
the Participant adversely affected thereby. The Committee may act prior to an
event described in this paragraph (a) (including at the time of an Award by
means of more specific provisions in the Award Agreement) if deemed necessary or
appropriate to permit the Participant to realize the benefits intended to be
conveyed by an Award in respect of the Stock in the case of an event described
in paragraph (a).
(b) CHANGE OF CONTROL. The Committee may, in the Award Agreement,
provide for the effect of a Change of Control on an Award. Such provisions may
include, but are not limited to, any one or more of the following with respect
to any or all Awards: (i) the specific consequences of a Change of Control on
the Awards; (ii) a reservation of the Committee's right to determine in its
discretion at any time that there shall be full acceleration or no acceleration
of benefits under the Awards; (iii) that only certain or limited benefits under
the Awards shall be accelerated; (iv) that the Awards shall be accelerated for a
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limited time only; or (v) that acceleration of the Awards shall be subject to
additional conditions precedent (such as a termination of employment following a
Change of Control).
In addition to any action required or authorized by the terms of an Award, the
Committee may take any other action it deems appropriate to ensure the equitable
treatment of Participants in the event of or in anticipation of a Change of
Control including, but not limited to, any one or more of the following with
respect to any or all Awards: (i) the acceleration or extension of time periods
for purposes of exercising, vesting in, or realizing gain from, the Awards; (ii)
the waiver of conditions on the Awards that were imposed for the benefit of the
Corporation; (iii) provision for the cash settlement of the Awards for their
equivalent cash value, as determined by the Committee, as of the date of the
Change of Control; or (iv) such other modification or adjustment to the Awards
as the Committee deems appropriate to maintain and protect the rights and
interests of Participants upon or following the Change of Control. The Committee
also may accord any Participant a right to refuse any acceleration of
exercisability, vesting or benefits, whether pursuant to the Award Agreement or
otherwise, in such circumstances as the Committee may approve.
Notwithstanding the foregoing provisions of this Section 7(b) or any provision
in an Award Agreement to the contrary, (i) in no event shall the Committee be
deemed to have discretion to accelerate or not accelerate or make other changes
in or to any or all Awards, in respect of a transaction, if such action or
inaction would be inconsistent with or would otherwise frustrate the intended
accounting for a proposed transaction as a pooling of interests under generally
accepted accounting principles; and (ii) if the vesting of any Award to any
Insider is accelerated to a date that is less than six months after the date of
the Award, the Committee may prohibit a sale of the underlying Stock (other than
a sale by operation or law in exchange for or through conversion into other
securities) until the expiration of such six-month period, and the Corporation
may impose legend and other restrictions on the Stock to enforce this
prohibition.
(c) CHANGE OF CONTROL DEFINITION. For purposes of this Plan, a "CHANGE
OF CONTROL" of the Corporation shall be deemed to have occurred upon the
happening of any of the following events:
(1) the acquisition or holding, other than in or as a result
of a transaction approved by the Continuing Directors (as defined in paragraph
(ii) below) of the Corporation, by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (an "ACQUIROR") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 25% or more of the combined voting power of the then
outstanding shares of Stock and other stock of the Corporation entitled to vote
generally in the election of directors, but excluding for this purpose:
(A) any such acquisition (or holding) by the California
Public Employees' Retirement System ("CALPERS"), which as of the date hereof
holds approximately 41% of the issued and outstanding Stock of the Corporation,
or while CalPERS is the beneficial owner of shares having a greater percentage
of such combined voting power than the shares held by the Acquiror;
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(B) any such acquisition (or holding) by the Corporation
or any of its Subsidiaries, or any employee benefit plan (or related trust) of
the Corporation or such Subsidiaries; or
(C) any such acquisition (or holding) by any corporation
with respect to which, following such acquisition, more than 50% of,
respectively, the then outstanding shares of common stock of such corporation
and the combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Stock and other voting securities of the Corporation immediately prior to such
acquisition in substantially the same proportion as their ownership, immediately
prior to such acquisition, of the then outstanding shares of Stock of the
Corporation and of the combined voting power of the then outstanding voting
securities of the Corporation entitled to vote generally in the election of
directors;
(2) individuals who, as of the date hereof, constitute the Board
(the "CONTINUING DIRECTORS") cease for any reason to constitute at least a
majority of the Board, provided that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by the
stockholders of the Corporation, was approved by a vote of at least a majority
of the persons then comprising the Continuing Directors shall be considered a
Continuing Director, but excluding, for this purpose, any such individual whose
initial election as a member of the Board is in connection with an actual or
threatened "election contest" relating to the election of the directors of the
Corporation (as such term is used in Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act); or
(3) approval by the stockholders of the Corporation of (A) a
reorganization, merger or consolidation of the Corporation, with respect to
which in each case all or substantially all of the individuals and entities who
were the respective beneficial owners of the common stock or voting securities
of the Corporation immediately prior to such reorganization, merger or
consolidation will not, immediately following such reorganization, merger or
consolidation, beneficially own, directly and indirectly, more than 50% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors of the corporation or other entity
resulting from such reorganization, merger or consolidation, or (B) a complete
liquidation or dissolution of the Corporation, or (C) the sale or other
disposition of all or substantially all of the assets of the Corporation.
(d) BUSINESS ACQUISITIONS. Awards may be granted under this Plan on the
terms and conditions as the Committee considers appropriate, which may differ
from those otherwise required by this Plan, to the extent necessary to reflect a
substitution for or assumption of stock incentive awards held by employees of
other entities who become employees of the Corporation or a Subsidiary as the
result of a merger of the employing entity with, or the acquisition of the
property or stock of the employing entity by, the Corporation or a Subsidiary,
directly or indirectly.
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SECTION 8. ADMINISTRATION.
(a) COMMITTEE AUTHORITY AND STRUCTURE. This Plan and all Awards granted under
this Plan shall be administered by the Compensation and Benefits Committee of
the Board or such other committee of the Board as may be designated by the Board
and constituted so as to permit this Plan to comply with the disinterested
administration requirements of Rule 16b- 3 under the Exchange Act and the
"outside director" requirement of Code Section 162(m). The members of the
Committee shall be designated by the Board. A majority of the members of the
Committee (but not fewer than two) shall constitute a quorum. The vote of a
majority of a quorum or the unanimous written consent of the Committee shall
constitute action by the Committee.
(b) SELECTION AND GRANT. The Committee shall have the authority to determine the
Employees and Officers (if any) to whom Awards will be granted under this Plan,
the type of Award or Awards to be made, and the nature, amount, pricing,
timing, and other terms of Awards to be made to any one or more of these
individuals, and to establish the installments (if any) in which such Awards
shall become exercisable or shall vest, or determine that no delayed
exercisability or vesting is required, and establish the events of termination
or reversion of such Awards, subject to the terms of this Plan.
(c) CONSTRUCTION AND INTERPRETATION. The Committee shall have the power to
interpret and administer this Plan and Award Agreements, and to adopt, amend and
rescind related rules and procedures. All questions of interpretation and
determinations with respect to this Plan, the number of shares of Stock, Stock
Appreciation Rights, or units or other Awards granted, and the terms of any
Award Agreements, the adjustments required or permitted by Section 7, and other
determinations hereunder shall be made by the Committee and its determination
shall be final and conclusive upon all parties in interest. In the event of any
conflict between an Award Agreement and any non-discretionary provisions of this
Plan, the terms of this Plan shall govern.
(d) EXPRESS AUTHORITY (AND LIMITATIONS ON AUTHORITY) TO CHANGE TERMS OF AWARDS.
Without limiting the Committee's authority under other provisions of this Plan
(including Sections 7 and 10), but subject to any express limitations of this
Plan (including under Sections 7 and 10), the Committee shall have the authority
to accelerate the exercisability or vesting of an Award, to extend the term or
waive early termination provisions of an Award (subject to the maximum ten-year
term under Section 4(b)), to cancel, modify or waive the Corporation's rights
with respect to an Award or restrictive conditions of an Award (including
forfeiture conditions), to modify, discontinue, suspend, or terminate any or all
outstanding Awards held by Employees or Officers, with or without adjusting any
holding period or other terms of the Award, in any case in such circumstances
as the Committee deems appropriate. The Committee may not, however, reduce by
amendment the exercise or purchase price of an outstanding award.
(e) RULE 16B-3 CONDITIONS; BIFURCATION OF PLAN. It is the intent of the
Corporation that this Plan and Share-Based Awards hereunder satisfy and be
interpreted in a manner, that, in the case of Participants who are or may be
Insiders, satisfies any applicable
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requirements of Rule 16b-3, so that these persons will be entitled to the
benefits of Rule 16b-3 or other exemptive rules under Section 16 under the
Exchange Act and will not be subjected to avoidable liability thereunder as to
Awards intended to be entitled to the benefits of Rule 16b-3. Notwithstanding
anything to the contrary in this Plan, the provisions of this Plan may at any
time be bifurcated by the Board or the Committee in any manner so that certain
provisions of this Plan or any Award Agreement intended (or required in order)
to satisfy the applicable requirements of Rule 16b-3 are only applicable to
Insiders and to those Awards to Insiders intended to satisfy the requirements of
Rule 16b-3.
(f) DELEGATION AND RELIANCE. The Committee may delegate to the officers or
employees of the Corporation the authority to execute and deliver those
instruments and documents, to do all acts and things, and to take all other
steps deemed necessary, advisable or convenient for the effective administration
of this Plan in accordance with its terms and purpose, except that the Committee
may not delegate any discretionary authority to grant or amend an Award or with
respect to substantive decisions or functions regarding this Plan or Awards as
these relate to the material terms of Performance-Based Awards to Executive
Officers or to the timing, eligibility, pricing, amount or other material terms
of Awards to Insiders. In making any determination or in taking or not taking
any action under this Plan, the Board and the Committee may obtain and may rely
upon the advice of experts, including professional advisors to the Corporation.
No director, officer, employee or agent of the Corporation shall be liable for
any such action or determination taken or made or omitted in good faith.
(g) EXCULPATION AND INDEMNITY. Neither the Corporation nor any member of the
Board of Directors or of the Committee, nor any other person participating in
any determination of any question under this Plan, or in the interpretation,
administration or application of this Plan, shall have any liability to any
person for any action taken or not taken in good faith under this Plan or for
the failure of an Award (or action in respect of an Award) to satisfy Code
requirements as to incentive stock options or to realize other intended tax
consequences, to qualify for exemption or relief under Rule 16b-3 or to comply
with any other law, compliance with which is not required on the part of the
Corporation.
SECTION 9. NON-EMPLOYEE DIRECTOR OPTIONS.
(a) PARTICIPATION. Awards under this Section 9 shall be nondiscretionary, shall
be made only to Non-Employee Directors and shall be evidenced by Award
Agreements setting forth the terms and conditions in this Section 9 and in
Sections 6(a)(1), 6(a)(2), 6(a)(3), 6(a)(4) and 6(b)(5).
(b) ANNUAL OPTION GRANTS.
(1) Initial Award. After approval of this Plan by the stockholders of the
Corporation, if any person who is not then an officer or employee of the Company
shall become a director of the Corporation, there shall be granted automatically
to such person (without any action by the Board or Committee) a Nonqualified
Stock Option (the date of
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grant of which shall be the date such person takes office) to purchase 5,000
shares of Stock.
(2) Subsequent Annual Awards. Immediately following the
annual stockholders meeting in each year during the term of this Plan there
shall be granted automatically (without any action by the Committee or the
Board) a Nonqualified Stock Option (the date of grant of which shall be such
date) to each Non-Employee Director then continuing in office to purchase 5,000
shares of Stock.
(3) Maximum Number of Shares. A Non-Employee Director shall
not receive more than one Nonqualified Stock Option under this Section 9 in any
calendar year.
(c) OPTION PRICE. The purchase price per share of the Stock covered by each
Option granted under this Section 9 shall be 100% of the Fair Market Value of
the Stock on the date of grant. The exercise or purchase price of the Stock
issuable pursuant to any Option granted under this Section and any withholding
obligation under applicable tax laws shall be paid in cash or any one or
combination of (i) cash, (ii) a check payable to the order of the Corporation,
(iii) the delivery of shares of Stock, provided that any such shares used in
payment shall have been owned by the Participant at least six months prior to
the date of exercise or (iv) notice and third party payment to the Corporation
prior to any issue of Stock and otherwise in accordance with all applicable
legal requirements in such manner as may be authorized by the Committee for all
Participants. In the case of a payment by the means described in clause (iii)
above, the Stock to be so delivered shall be determined by reference to the
Fair Market Value of the Stock on the date as of which the payment is made.
(d) OPTION PERIOD AND EXERCISABILITY. Each Option granted under this Section 9
and all rights or obligations thereunder shall expire ten years after the date
of grant and shall be subject to earlier termination as provided below. Each
Option granted under this Section 9 shall become exercisable as to 25% of the
Option shares when the Stock Trading Price of the Stock equals 125% or more of
the exercise price, as to 50% of the Option shares when the Stock Trading Price
of the Stock equals 150% or more of the exercise price, as to 75% of the Option
shares when the Stock Trading Price of the Stock equals 175% or more of the
exercise price, and as to the entire Option when the Stock Trading Price of the
Stock equals 200% or more of the exercise price. Notwithstanding the foregoing,
the entire Option shall become exercisable on the eighth anniversary of the date
of grant.
(e) TERMINATION OF DIRECTORSHIP. If a Non-Employee Director's services as a
member of the Board of Directors terminate by reason of death, disability (the
inability of the Non-Employee Director to continue to perform his or her duties
as determined by the Committee) or retirement, an Option granted pursuant to
this Section held by such Participant shall immediately become and shall remain
fully exercisable for one year after the date of such termination or until the
expiration of the stated term of such Option, whichever first occurs. If a
Non-Employee Director's services as a member of the Board of Directors terminate
for any other reason, any portion of an Option granted pursuant to this Section
9 which is not then exercisable shall terminate and any portion of such Option
which is then
17
<PAGE> 20
exercisable may be exercised for three months after the date of such termination
or until the expiration of the stated term whichever first occurs.
(f) ADJUSTMENTS. Options granted under this Section 9 shall be subject to
adjustment as provided in Section 7, but only to the extent that (i) such
adjustment and the Committee's actions in respect thereof satisfy applicable
criteria under Rule 16b-3 in respect of the disinterested administration of this
Plan, (ii) such adjustment in the case of a Change of Control is effected
pursuant to the terms of a reorganization agreement approved by stockholders of
the Corporation, and (iii) such adjustment is consistent with adjustments to
Options held by persons other than Executive Officers or directors of the
Corporation.
(g) ACCELERATION UPON A CHANGE OF CONTROL. Upon the occurrence of a Change of
Control, each Option granted under this Section 9 shall become and shall remain
fully exercisable for one year after the date of such Change of Control or until
the expiration of the stated term of such Option, whichever first occurs;
provided, however, that none of the Options granted under this Section 9 shall
be accelerated to a date that is less than six months after the date of grant of
such Option. To the extent that any Option granted under this Section 9 is not
exercised prior to (i) a dissolution of the Corporation or (ii) a merger or
other corporate event that the Corporation does not survive, and no provision is
(or consistent with the provisions of this Section 9 can be) made for the
assumption, conversion, substitution or exchange of the Option, the Option shall
terminate upon the occurrence of such event.
(h) LIMITATIONS ON AMENDMENTS. The provisions of this Section 9 with respect to
the amount, purchase price and timing of Options and the eligibility
requirements shall not be amended more than once every six months (other than as
may be necessary to conform to any applicable changes in the Code or the rules
thereunder), unless such amendment would be consistent with the provisions of
Rule 16b-3(c)(2)(ii)(or any successor provision).
SECTION 10. AMENDMENT AND TERMINATION OF THIS PLAN.
The Board of Directors may at any time amend, suspend or discontinue this Plan,
subject to any stockholder approval that may be required under applicable law.
The Committee may at any time alter or amend any or all Award Agreements under
this Plan in any manner that would be authorized for a new Award under this Plan
including, but not limited to, any manner set forth in Section 8(d) (subject to
any applicable limitations thereunder). Notwithstanding the foregoing, no such
action by the Board or the Committee shall, in any manner adverse to a
Participant other than as expressly permitted by the terms of an Award
Agreement, affect any Award then outstanding and evidenced by an Award Agreement
without the consent in writing of the Participant or a Beneficiary who has
become entitled to an Award.
SECTION 11. MISCELLANEOUS.
(a) UNFUNDED PLANS. This Plan shall be unfunded. Neither the Corporation nor the
Board of Directors nor the Committee shall be required to segregate any assets
that may
18
<PAGE> 21
at any time be represented by Awards made pursuant to this Plan. Neither the
Corporation, the Committee, nor the Board of Directors shall be deemed to be a
trustee of any amounts to be paid or securities to be issued under this Plan. To
the extent that a Participant, Beneficiary or other person acquires a right to
receive payment pursuant to any Award hereunder, such right shall be no greater
than the right of any unsecured general creditor of the Corporation.
(b) RIGHTS OF EMPLOYEES.
(1) No Right to an Award. Status as an Employee or an Officer shall not be
construed as a commitment that any one or more Awards will be made under this
Plan to an Employee or Officer or to Employees or Officers generally. Status as
a Participant shall not entitle the Participant to any additional Award.
(2) No Assurance of Employment. Nothing contained in this Plan (or in any
other documents related to this Plan or to any Award) shall confer upon any
Employee or Participant any right to continue in the employ or other service of
the Corporation or any Subsidiary or constitute any contract (of employment or
otherwise) or limit in any way the right of the Corporation or any Subsidiary to
change a person's compensation or other benefits or to terminate the employment
of a person with or without cause, but, nothing contained in this Plan or any
document related hereto shall adversely affect any independent contractual right
of such person without his or her consent thereto.
(c) EFFECTIVE DATE; DURATION. This Plan has been adopted by the Board of
Directors of the Corporation. This Plan shall become effective upon and shall be
subject to the approval of the stockholders of the Corporation. This Plan shall
remain in effect until any and all Awards under this Plan have been exercised,
converted or terminated under the terms of this Plan and applicable Award
Agreements. Notwithstanding the foregoing, no Award may be granted under this
Plan after March 19, 2006. Any Award granted prior to such date may be amended
after such date in any manner that would have been permitted prior to such date,
except that no such amendment shall increase the number of shares subject to,
comprising or referenced in such Award.
(d) COMPLIANCE WITH LAWS. This Plan, Award Agreements, and the grant, exercise,
conversion, operation and vesting of Awards, and the issuance and delivery of
shares of Stock and/or other securities or property or the payment of cash under
this Plan, Awards or Award Agreements, are subject to compliance with all
applicable federal and state laws, rules and regulations (including, but not
limited to, state and federal insider trading, registration, reporting and other
securities laws and federal margin requirements) and to such approvals by any
listing, regulatory or governmental authority as may, in the opinion of counsel
for the Corporation, be necessary or advisable in connection therewith. Any
securities delivered under this Plan shall be subject to such restrictions (and
the person acquiring such securities shall, if requested by the Corporation,
provide such evidence, assurance and representations to the Corporation as to
compliance with any thereof) as the Corporation may deem necessary or desirable
to assure compliance with all applicable legal requirements.
19
<PAGE> 22
(e) APPLICABLE LAW. This Plan, Award Agreements and any related documents
and matters shall be governed in accordance with the laws of the State of
California, except as to matters of Federal law.
(f) NONEXCLUSIVITY OF PLAN. Nothing in this Plan shall limit or be deemed to
limit the authority of the Corporation, the Board or the Committee to grant
awards or authorize any other compensation, with or without reference to the
Stock, under any other plan or authority.
(g) SEVERABILITY. In case any provision in this Plan shall be invalid, illegal
or unenforceable in any jurisdiction, the validity, legality and enforceability
of the remaining provisions, or of such provision in any other jurisdiction,
shall not in any way be affected or impaired thereby.
(h) RULE 16B-3 TRANSITION PERIOD PROVISIONS. During the transition period in
respect of Rule 16b-3, any derivative security the grant of which is intended to
be exempt from Rule 16b-3 shall not be transferable other than as permitted by
former Rule 16b- 3(d)(ii); the exercise price or other consideration for any
exempt grant or Award shall conform to any additional time and price limitations
under former Rule 16b-3; and, except with respect to nondiscretionary Awards to
Non-Employee Directors under Section 9, no member of the Board of Directors who
is not an Employee or Officer of the Corporation shall be eligible for any Award
under this Plan.
20
<PAGE> 1
EXHIBIT 4.2
CATELLUS DEVELOPMENT CORPORATION
1996 PERFORMANCE AWARD PLAN
NONQUALIFIED STOCK OPTION AWARD AGREEMENT
(Director)
This Award Agreement ("Agreement") is entered into as of Date~
(the "Date of Grant") between Catellus Development Corporation, a Delaware
corporation ("Catellus"), and
Name~
a director of Catellus (the "Director").
Catellus has adopted and the stockholders of Catellus have
approved the 1996 Performance Award Plan (the "Plan"). Pursuant to Section 9 of
the Plan, Catellus has granted an option to the Director upon the terms and
conditions evidenced hereby, as required by the Plan.
In consideration of the services rendered and to be rendered
by the Director, Catellus and the Director hereby agree to the terms and
conditions set forth herein as required by the terms of the Plan:
1. NUMBER OF OPTION SHARES. This Agreement evidences the
grant by Catellus to the Director of a nonqualified stock option (the "Option")
to purchase, from time to time, an aggregate of
Number~
shares (the "Option Shares") of the Common Stock, par value $0.01 per share (the
"Common Stock"), under Section 9 of the Plan, subject to the terms and
conditions and to adjustment as set forth herein or in the Plan.
2. OPTION PURCHASE PRICE. Upon exercise, the Director shall
pay to Catellus Price~ per Option Share (the "Option Purchase Price").
3. OPTION EXPIRATION DATE. Unless terminated sooner in
accordance with the provisions of the Plan or this Agreement, the right to
exercise the Option shall expire on Expire~ (the "Expiration Date").
1
<PAGE> 2
4. VESTING REDUCTIONS. Subject to the provisions of Section 5
of this Agreement and to adjustment pursuant to Section 7 of the Plan, the
Option shall become exercisable (a) as to the entire number of the Option Shares
on and after the eighth anniversary of the Date of Grant or (b) if earlier, in
the amounts indicated below:
(i) The Option may be exercised as to up to
25% of the Option Shares provided that the Stock Trading Price
is at least 125% of the Exercise Price.
(ii) The Option may be exercised as to up to
50% of the Option Shares provided that the Stock Trading Price
is at least 150% of the Exercise Price.
(iii) The Option may be exercised as to up to
75% of the Option Shares provided that the Stock Trading Price
is at least 175% of the Exercise Price.
(iv) The Option may be exercised as to up to
the entire number of the Option Shares provided that the Stock
Trading Price is at least 200% of the Exercise Price.
For purposes of this Section 4, the term "Stock Trading Price"
means the average of the closing prices of the Common Stock for 30 consecutive
trading days as reported on the composite tape of New York Stock Exchange issues
(or, if the Common Stock is not so listed, the principal national stock exchange
on which the Common Stock is then listed or, if the Common Stock in not listed
on any national stock exchange, such other reporting system as shall be selected
by the Committee (as defined in the Plan)).
5. EFFECT OF CERTAIN EVENTS ON VESTING AND EXERCISE.
a. TERMINATION OF SERVICE.
(i) General. If the Director's services
as a member of the Board of Directors terminate for any
reason, any portion of the Option that (A) has not vested as
of such termination of service, or (B) is vested as of such
termination or becomes vested as a result of such termination
in accordance with Section 5a(ii) and is not exercised within
the period specified in Section 5d, shall be forfeited.
(ii) Termination as a Result of Death,
Disability or Retirement. In the event the Director ceases to
be a director by reason of death, disability (the inability of
the Director to continue to perform his or her duties as
determined by the Committee) or retirement, the Option shall
vest immediately as to the entire number of Option Shares.
2
<PAGE> 3
b. CHANGE OF CONTROL. Upon the occurrence
of a Change of Control, the Option shall vest immediately as to the entire
number of Option Shares; provided, however, that the exercisability of the
Option shall not be accelerated to a date that is less than six months after the
Date of Grant. For purposes of this Agreement, a "Change of Control" of Catellus
shall be deemed to have occurred upon the happening of any of the following
events:
(i) the acquisition or holding, other
than in or as a result of a transaction approved by the
Continuing Directors (as defined in paragraph (ii) below) of
Catellus, 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) (an "Acquiror") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934) of 25% or more of the
combined voting power of the then outstanding shares of Common
Stock and other stock of Catellus entitled to vote generally
in the election of directors, but excluding for this purpose:
(A) any such acquisition (or holding) by
the California Public Employees' Retirement System
("CalPERS"), which as of the date hereof holds
approximately 41% of the issued and outstanding
Common Stock of Catellus, or while CalPERS is the
beneficial owner of shares having a greater
percentage of such combined voting power than the
shares held by the Acquiror;
(B) any such acquisition (or holding) by
Catellus or any of its subsidiaries, or any employee
benefit plan (or related trust) of Catellus or such
subsidiaries; or
(C) any such acquisition (or holding) by
any corporation with respect to which, following such
acquisition, more than 50% of, respectively, the then
outstanding shares of common stock of such
corporation and the combined voting power of the then
outstanding voting securities of such corporation
entitled to vote generally in the election of
directors is then beneficially owned, directly or
indirectly, by all or substantially all of the
individuals and entities who were the beneficial
owners, respectively, of the Common Stock and other
voting securities of Catellus immediately prior to
such acquisition in substantially the same proportion
as their ownership, immediately prior to such
acquisition, of the then outstanding shares of Common
Stock of Catellus and of the combined voting power of
the then outstanding voting securities of Catellus
entitled to vote generally in the election of
directors;
(ii) individuals who, as of the date
hereof, constitute the Board (the "Continuing Directors")
cease for any reason to
3
<PAGE> 4
constitute at least a majority of the Board, provided that any
individual becoming a director subsequent to the date hereof
whose election, or nomination for election by the stockholders
of Catellus, was approved by a vote of at least a majority of
the persons then comprising the Continuing Directors, shall be
considered a Continuing Director, but excluding, for this
purpose, any such individual whose initial election as a
member of the Board is in connection with an actual or
threatened "election contest" relating to the election of the
directors of Catellus (as such term is used in Rule 14a-11 of
Regulation 14A promulgated under the Securities Exchange Act
of 1934); or
(iii) approval by the stockholders of
Catellus of (A) a reorganization, merger or consolidation of
Catellus, with respect to which in each case all or
substantially all of the individuals and entities who were the
respective beneficial owners of the common stock and other
voting securities of Catellus immediately prior to such
reorganization, merger or consolidation will not, immediately
following such reorganization, merger or consolidation,
beneficially own, directly and indirectly, more than 50% of,
respectively, the then outstanding shares of common stock and
the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of
directors of the corporation or other entity resulting from
such reorganization, merger or consolidation, or (B) a
complete liquidation or dissolution of Catellus, or (C) the
sale or other disposition of all or substantially all of the
assets of Catellus.
c. FORFEITURE. Notwithstanding any other
provision herein, any unexercised portion of the Option and all rights under the
Plan, whether vested or unvested, shall be forfeited if, prior to the time of
exercise, the Director (i) is employed by a competitor of, or engaged in any
activity in competition with, Catellus without Catellus' consent, (ii) divulges
without Catellus' consent any secret or confidential information belonging to
Catellus, (iii) is engaged in any other activities which would constitute
grounds for termination For Cause (as defined in the Plan) or is terminated For
Cause.
d. EXERCISE PERIOD FOLLOWING TERMINATION OF
SERVICE OR CHANGE OF CONTROL.
(i) In the event the Director ceases to be a
director by reason of death, disability or retirement any
unexercised portion of the Option that is or becomes vested
upon such termination of service in accordance with Section
5a(ii) of this Agreement (unless such unexercised portion is
forfeited in accordance with Section 5c of this Agreement) may
be exercised by the Director or by the Director's personal
representative or by the person or persons to whom the Option
shall have been transferred by will or the laws of descent and
distribution at any time within one year following the
occurrence of such termination of service, but in no event
after the Expiration Date.
4
<PAGE> 5
(ii) In the event the Director ceases to be
a director for any other reason any unexercised portion of the
Option that is vested (unless such unexercised portion is
forfeited in accordance with Section 5c of this Agreement) may
be exercised by the Director or by the Director's personal
representative or by the person or persons to whom the Option
shall have been transferred by will or the laws of descent and
distribution at any time within three months following the
occurrence of such termination of service, but in no event
after the Expiration Date.
(iii) In the event of a Change of Control
any unexercised portion of the Option that is or becomes
vested upon such Change of Control in accordance with Section
5b of this Agreement (unless such unexercised portion is
forfeited in accordance with Section 5c of this Agreement) may
be exercised by the Director or by the Director's personal
representative or by the person or persons to whom the Option
shall have been transferred by will or the laws of descent and
distribution at any time within one year following the
occurrence of such Change of Control, but in no event after
the Expiration Date.
6. EXERCISE OF OPTION.
a. All or a portion of the Option may be exercised
in accordance with procedures (including requisite holding periods) established
from time to time by the Committee.
b. The Director agrees that Catellus may withhold
any federal, state or local taxes upon the exercise of the Option, at such time
and upon such terms and conditions as required by law, or, if no payments are
due to the Director upon the exercise of the Option, the Director shall satisfy
the withholding obligation as provided in the Plan.
c. Subject to adjustment pursuant to Section 7, a
minimum of six months shall elapse between the Date of Grant and the sale of any
of the Option Shares. No shares of Common Stock shall be issued or transferred
upon exercise of the Option unless and until all legal requirements applicable
to the issuance or transfer of such Common Stock have been complied with to the
satisfaction of the Committee.
7. NO ASSIGNABILITY. The Option is not assignable or
transferable by the Director, except (a) by will or by the laws of descent and
distribution, or (b) pursuant to a qualified domestic relations order (as
defined in the Internal Revenue Code of 1986, as amended, or Title I of the
Employee Retirement Income Security Act of 1974, or the rules thereunder).
During the lifetime of the Director the Option may be exercised only by the
Director or by his or her guardian or legal representative or applicable rules
thereunder.
8. GENERAL TERMS. The Option and this Agreement are subject
to, and Catellus and the Director agree to be bound by, the provisions of the
Plan that apply to the Option. Suck provisions are incorporated herein by this
reference. The Director acknowledges
5
<PAGE> 6
receipt of a copy of the Plan. In the event of a conflict between the terms of
this Agreement and the Plan, the Plan shall be the controlling document.
Capitalized terms used but not defined herein shall have the respective meanings
ascribed to them in the Plan.
9. OTHER PROVISIONS.
a. Neither the Director nor any other person
entitled to exercise the Option shall have any rights as a stockholder with
respect to any Option Shares until the date the Director or such other person
becomes the holder of record of such Option Shares.
b. The Director acknowledges that Catellus has the
right to terminate, modify or amend the Plan at any time, but that no such
termination, modification or amendment may, without the Director's consent,
adversely affect the rights of the Director under the Option.
c. In the event that any provision of this Agreement
is held to be invalid, void or unenforceable, the same shall not affect, in any
respect whatsoever, the validity of any other provision of this Agreement.
d. The rights and obligations under this Agreement
shall inure to the benefit of, and shall be binding upon, Catellus, the Director
and the Director's representatives and beneficiaries.
e. Any communication under this Agreement shall be
in writing and addressed to Catellus at 201 Mission Street, San Francisco,
California 94105, Attention: Secretary and to the Director at the address given
beneath the Director's signature, or at such other address as either party may
hereafter designate in writing to the other.
f. The interpretation, performance and enforcement
of the Option and this Agreement shall be governed by the laws of the State of
California.
6
<PAGE> 7
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
"CATELLUS"
CATELLUS DEVELOPMENT CORPORATION
By:
-------------------------------------
Nelson C. Rising,
President and Chief Executive Officer
ATTEST:
- -----------------------------
Secretary
"DIRECTOR"
------------------------------------
Print Name:
------------------------
Address
---------------------------
---------------------------
7
<PAGE> 1
EXHIBIT 5.1
May
22nd
1 9 9 6
143,379-5
Catellus Development Corporation
201 Mission Street
San Francisco, California 94105
Ladies and Gentlemen:
You have advised us that you propose to file a Registration
Statement on Form S-8 with the Securities and Exchange Commission in connection
with the registration under the Securities Act of 1933, as amended, of 4,000,000
shares of the Common Stock, par value $.01 per share (the "Shares"), of Catellus
Development Corporation, a Delaware corporation (the "Company"), to be issued
pursuant to the Company's 1996 Performance Award Plan (the "Plan").
At your request, we have reviewed the corporate proceedings
heretofore taken and to be taken in connection with the authorization of the
Plan and the Shares to be issued pursuant to and in accordance with the Plan. In
addition, we have examined the originals or copies of those corporate and other
records and documents we have considered appropriate.
On the basis of such examination and our consideration of
those questions of law we consider relevant, we are of the opinion that the
Shares have been duly authorized by all necessary corporation action on the part
of the Company and, when issued in accordance with such authorization and the
provisions of the Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the
Commission as Exhibit 5.1 to the Registration Statement.
Respectfully submitted,
/s/ O'MELVENY & MYERS
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated February 12, 1996, which
appears on page F-2 of Catellus Development Corporation's Annual Report on Form
10-K for the year ended December 31, 1995. We also consent to the incorporation
by reference of our report on the Financial Statement Schedules, which appears
on page S-1 of such Annual Report on Form 10-K.
Price Waterhouse LLP
San Francisco, California
May 22, 1996
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT REAL ESTATE APPRAISERS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report, dated March 12, 1996,
appearing as Exhibit 99.1 of the Annual Report on Form 10-K for the year ended
December 31, 1995 of Catellus Development Corporation.
LANDAUER ASSOCIATES, INC.
Real Estate Counselors
/s/ James C. Kafes /s/ John F. Brengelman
- ------------------------------- ----------------------------
James C. Kafes, MAI, CRE John F. Brengelman
Managing Director Senior Vice President
New York, NY
May 22, 1996
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY
The undersigned hereby authorizes Nelson C. Rising, Stephen P. Wallace
and Maureen Sullivan, or any of them, with full power of substitution, to sign
on his or her behalf, in the capacity stated below, the Registration Statement
on Form S-8 (the "Registration Statement") of Catellus Development Corporation
(the "Company") relating to the registration of the Company's common stock, par
value $0.01 per share, to be issued in connection with the Catellus Development
Corporation 1996 Performance Award Plan, and to file the Registration Statement,
together with exhibits thereto, and any post-effective amendment to the
Registration Statement and other documents in connection therewith, with the
Securities and Exchange Commission.
Dated: March 20, 1996 /s/ Joseph F. Alibrandi
-----------------------
Joseph F. Alibrandi
Director
<PAGE> 2
POWER OF ATTORNEY
The undersigned hereby authorizes Nelson C. Rising, Stephen P. Wallace
and Maureen Sullivan, or any of them, with full power of substitution, to sign
on his or her behalf, in the capacity stated below, the Registration Statement
on Form S-8 (the "Registration Statement") of Catellus Development Corporation
(the "Company") relating to the registration of the Company's common stock, par
value $0.01 per share, to be issued in connection with the Catellus Development
Corporation 1996 Performance Award Plan, and to file the Registration Statement,
together with exhibits thereto, and any post-effective amendment to the
Registration Statement and other documents in connection therewith, with the
Securities and Exchange Commission.
Dated: March 20, 1996 /s/ Daryl J. Carter
-------------------
Daryl J. Carter
Director
<PAGE> 3
POWER OF ATTORNEY
The undersigned hereby authorizes Nelson C. Rising, Stephen P. Wallace
and Maureen Sullivan, or any of them, with full power of substitution, to sign
on his or her behalf, in the capacity stated below, the Registration Statement
on Form S-8 (the "Registration Statement") of Catellus Development Corporation
(the "Company") relating to the registration of the Company's common stock, par
value $0.01 per share, to be issued in connection with the Catellus Development
Corporation 1996 Performance Award Plan, and to file the Registration Statement,
together with exhibits thereto, and any post-effective amendment to the
Registration Statement and other documents in connection therewith, with the
Securities and Exchange Commission.
Dated: March 20, 1996 /s/ Christine Garvey
--------------------
Christine Garvey
Director
<PAGE> 4
POWER OF ATTORNEY
The undersigned hereby authorizes Nelson C. Rising, Stephen P. Wallace
and Maureen Sullivan, or any of them, with full power of substitution, to sign
on his or her behalf, in the capacity stated below, the Registration Statement
on Form S-8 (the "Registration Statement") of Catellus Development Corporation
(the "Company") relating to the registration of the Company's common stock, par
value $0.01 per share, to be issued in connection with the Catellus Development
Corporation 1996 Performance Award Plan, and to file the Registration Statement,
together with exhibits thereto, and any post-effective amendment to the
Registration Statement and other documents in connection therewith, with the
Securities and Exchange Commission.
Dated: March 20, 1996 /s/ Joseph R. Seiger
--------------------
Joseph R. Seiger
Director
<PAGE> 5
POWER OF ATTORNEY
The undersigned hereby authorizes Nelson C. Rising, Stephen P. Wallace
and Maureen Sullivan, or any of them, with full power of substitution, to sign
on his or her behalf, in the capacity stated below, the Registration Statement
on Form S-8 (the "Registration Statement") of Catellus Development Corporation
(the "Company") relating to the registration of the Company's common stock, par
value $0.01 per share, to be issued in connection with the Catellus Development
Corporation 1996 Performance Award Plan, and to file the Registration Statement,
together with exhibits thereto, and any post-effective amendment to the
Registration Statement and other documents in connection therewith, with the
Securities and Exchange Commission.
Dated: March 20, 1996 /s/ Jacqueline R. Slater
------------------------
Jacqueline R. Slater
Director
<PAGE> 6
POWER OF ATTORNEY
The undersigned hereby authorizes Nelson C. Rising, Stephen P. Wallace
and Maureen Sullivan, or any of them, with full power of substitution, to sign
on his or her behalf, in the capacity stated below, the Registration Statement
on Form S-8 (the "Registration Statement") of Catellus Development Corporation
(the "Company") relating to the registration of the Company's common stock, par
value $0.01 per share, to be issued in connection with the Catellus Development
Corporation 1996 Performance Award Plan, and to file the Registration Statement,
together with exhibits thereto, and any post-effective amendment to the
Registration Statement and other documents in connection therewith, with the
Securities and Exchange Commission.
Dated: March 20, 1996 /s/ Thomas M. Steinberg
-----------------------
Thomas M. Steinberg
Director
<PAGE> 7
POWER OF ATTORNEY
The undersigned hereby authorizes Nelson C. Rising, Stephen P. Wallace
and Maureen Sullivan, or any of them, with full power of substitution, to sign
on his or her behalf, in the capacity stated below, the Registration Statement
on Form S-8 (the "Registration Statement") of Catellus Development Corporation
(the "Company") relating to the registration of the Company's common stock, par
value $0.01 per share, to be issued in connection with the Catellus Development
Corporation 1996 Performance Award Plan, and to file the Registration Statement,
together with exhibits thereto, and any post-effective amendment to the
Registration Statement and other documents in connection therewith, with the
Securities and Exchange Commission.
Dated: March 20, 1996 /s/ Tom C. Stickel
------------------
Tom C. Stickel
Director
<PAGE> 8
POWER OF ATTORNEY
The undersigned hereby authorizes Nelson C. Rising, Stephen P. Wallace
and Maureen Sullivan, or any of them, with full power of substitution, to sign
on his or her behalf, in the capacity stated below, the Registration Statement
on Form S-8 (the "Registration Statement") of Catellus Development Corporation
(the "Company") relating to the registration of the Company's common stock, par
value $0.01 per share, to be issued in connection with the Catellus Development
Corporation 1996 Performance Award Plan, and to file the Registration Statement,
together with exhibits thereto, and any post-effective amendment to the
Registration Statement and other documents in connection therewith, with the
Securities and Exchange Commission.
Dated: March 20, 1996 /s/ Beverly Benedict Thomas
---------------------------
Beverly Benedict Thomas
Director
