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EXHIBIT 10.2
AMENDMENT NO. 1
TO
JDN REALTY CORPORATION
1993 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
THIS AMENDMENT NO. 1 TO JDN REALTY CORPORATION 1993 NON-EMPLOYEE
DIRECTOR STOCK OPTION PLAN (the "Amendment") is made and entered into as of the
1st day of October, 1999, by JDN Realty Corporation, a Maryland corporation (the
"Company").
WHEREAS, effective December 17, 1993, as amended and restated
effective November 24, 1998, the Company established the JDN Realty Corporation
Non-Employee Director Stock Option Plan (the "Plan"); and
WHEREAS, the Company desires to amend the Plan in accordance
with Section 9.5 of the Plan as set forth herein.
NOW, THEREFORE, the Company hereby amends the Plan, effective
as of the date first written above, as follows:
1. Amendment to Plan. Section 4.3 of the Plan is deleted in
its entirety and replaced with the following:
4.3 Stock Award. Stock Awards shall be made automatically
to each Participant on each Grant Date. The number of shares
to be awarded shall be calculated as the number of whole
shares that is equal to $10,000 less the amount of "Director
Compensation" (as defined in the JDN Realty Corporation
Deferred Director Compensation Plan) each Participant has
deferred under the JDN Realty Corporation Deferred Director
Compensation Plan for the fiscal quarter beginning on the
Grant Date, divided by the Fair Market Value of the Stock per
share as determined on the Grant Date, rounded to the nearest
whole share. Shares awarded under this Section shall not be
transferable for a period of six months after the Grant Date.
2. Definitions. Unless otherwise defined herein, terms shall
have the meanings ascribed to them in the Plan.
3. Governing Law. The Amendment shall be construed in
accordance with, and governed by, the laws of the State of Maryland.
4. Other Provisions. Except as amended hereby, the Plan shall
remain unmodified and in full force and effect.
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IN WITNESS WHEREOF, the undersigned have hereunto signed this
Amendment No. 1 to JDN Realty Corporation 1993 Non-Employee Director Stock
Option Plan on the day and year first above written.
JDN REALTY CORPORATION
By: /s/ J. Donald Nichols
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Title: Chairman and CEO
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JDN REALTY CORPORATION
1993 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
EFFECTIVE DECEMBER 17, 1993
AMENDED AND RESTATED
NOVEMBER 24, 1998
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JDN REALTY CORPORATION
1993 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
PREAMBLE
WHEREAS, effective December 17, 1993, JDN Realty Corporation (the
"Company") has established the JDN Realty Corporation 1993 Non-Employee Director
Stock Option Plan which provides for the automatic grant of options to purchase
the common stock, $.01 par value, of the Company ("Stock") to members of the
board of directors of the Company who are not employees of the Company;
WHEREAS, the Company also provides cash compensation to its directors
for services rendered to the Company in such capacity, and desires to provide
compensation for such services in the form of Stock in lieu of cash
compensation;
WHEREAS, the Company desires to amend and restate the JDN Realty
Corporation 1993 Non-Employee Director Stock Option Plan to, among other things,
provide for the automatic grant of Stock Awards (as hereinafter defined)
hereunder; and
WHEREAS, the Company intends that the JDN Realty Corporation 1993
Non-Employee Director Stock Option Plan, as amended and restated (the "Plan"),
and the awards granted hereunder will conform to the provisions of Securities
and Exchange Commission Rule 16b-3, as amended through the date hereof, and that
the references to a quantity of shares of Stock will reflect the effect of the
Company's three-for-two Stock split that occurred prior to the effective date of
this restatement;
NOW, THEREFORE, the Company hereby amends and restates the Plan,
effective November 24, 1998:
ARTICLE I. DEFINITIONS
1.1 Affiliate. A "parent corporation," as defined in section 424(e) of
the Code, or "subsidiary corporation," as defined in section 424(f) of the Code,
of the Company.
1.2 Agreement. A written agreement (including any amendment or
supplement thereto) between the Company or an Affiliate and a Participant
specifying the terms and conditions of an Award granted to such Participant.
1.3 Award. A right that is granted under the Plan to a Participant by
the Company, including Options and Stock Awards.
1.4 Board. The board of directors of the Company.
1.5 Code. The Internal Revenue Code of 1986, as amended.
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1.6 Committee. A committee composed of at least two individuals (or
such other number that satisfies Rule 16b-3 of the Exchange Act) who are members
of the Board and are not employees of the Company or an Affiliate, and who are
designated by the Board as the "Compensation Committee" or are otherwise
designated to administer the Plan. In the absence of a designation of a
Committee by the Board, the Board shall be the Committee.
1.7 Company. JDN Realty Corporation and its successors.
1.8 Exchange Act. The Securities Exchange Act of 1934, as amended.
1.9 Fair Market Value. On any given date, Fair Market Value shall be
the applicable description below (unless, where appropriate, the Committee
determines in good faith the fair market value of the Stock to be otherwise):
(a) If the Stock is traded on the New York Stock Exchange or the
American Stock Exchange, the closing price of the Stock on
such exchange on which such Stock is traded on the trading day
immediately preceding the date as of which Fair Market Value
is being determined, or on the next preceding day on which
such Stock is traded if no Stock was traded on such trading
day;
(b) If the Stock is not traded on the New York Stock Exchange or
the American Stock Exchange, but is reported on the Nasdaq
National Market or another Nasdaq automated quotation system
and market information is published on a regular basis, then
Fair Market Value shall be the closing price of the Stock, as
so published, on the trading day immediately preceding the
date as of which Fair Market Value is being determined, or the
closing price on the next preceding trading day on which such
prices were published if no Stock was traded on such trading
day;
(c) If market information is not so published on a regular basis,
then Fair Market Value shall be the average of the high bid
and low asked prices of the Stock in the over-the-counter
market over a period of trading days that is reasonably
representative of the normal trading of the Stock immediately
preceding the date on which Fair Market Value is being
determined, as reported by a generally accepted reporting
service; or
(d) If the Stock is not publicly traded, Fair Market Value shall
be the value determined in good faith by the Committee. Such
determination shall not, however, take into account any
restriction on the Stock, except for a restriction which by
its terms will never lapse.
1.10 Grant Date. With respect to Options, each January 1 during the
term of the Plan. With respect to Stock Awards, the first day of each calendar
quarter during the term of the Plan.
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1.11 Option. The right that is granted hereunder to a Participant to
purchase from the Company a stated number of shares of Stock at the price set
forth in an Agreement.
1.12 Participant. Each Board member who, on a respective Grant Date, is
not an employee of the Company or any of its Affiliates and who otherwise
satisfies the requirements of Article IV to receive an Award.
1.13 Plan. The JDN Realty Corporation 1993 Non-Employee Director Stock
Option Plan, as amended and restated.
1.14 Stock Award. A grant of Stock that is described in Section 4.3.
1.15 Stock. The common stock, $.01 par value, of the Company.
ARTICLE II. PURPOSE OF PLAN
The purpose of this Plan is to provide a performance incentive and to
encourage Stock ownership by the Participants, and to align the interests of
such individuals with those of the Company, its Affiliates and its stockholders.
It is intended that Participants may acquire or increase their proprietary
interests in the Company and be encouraged to remain as directors of the
Company. Any proceeds received by the Company from the sale of Stock pursuant to
this Plan may be used for general corporate purposes.
ARTICLE III. ADMINISTRATION
3.1 Administration of Plan. This Plan shall be administered by the
Committee. The express grant in this Plan of any specific power to the Committee
shall not be construed as limiting any power or authority of the Committee. Any
decision made or action taken by the Committee to administer this Plan shall be
final and conclusive. No member of the Committee shall be liable for any act
done in good faith with respect to this Plan or any Agreement or Award. The
Company shall bear all expenses of Plan administration. In addition to all other
authority vested with the Committee under this Plan, the Committee shall have
complete authority to:
(a) Interpret all provisions of this Plan;
(b) Prescribe the form of any Agreement and notice and manner for
executing or giving the same;
(c) Make amendments to all Agreements;
(d) Adopt, amend, and rescind rules for Plan administration; and
(e) Make all determinations it deems advisable for the
administration of this Plan.
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3.2 Authority to Issue Awards. The Committee shall have the authority
to issue Awards upon such terms as the Committee deems appropriate and that are
not inconsistent with the provisions of this Plan.
3.3 Persons Subject to Section 16(b). Notwithstanding anything herein
to the contrary, the Committee, in its absolute discretion, may bifurcate this
Plan so as to restrict, limit or condition the use of any provision of this Plan
to Participants who are subject to section 16(b) of the Exchange Act, without so
restricting, limiting or conditioning the Plan with respect to other
Participants.
ARTICLE IV. ELIGIBILITY AND LIMITATIONS ON GRANTS
4.1 Participation. Awards shall be granted hereunder to Participants
who qualify therefor on each Grant Date. At the determination of the Committee,
Awards may be evidenced by Agreements which shall be subject to applicable
provisions of this Plan or such other provisions as the Committee may adopt that
are not inconsistent herewith. Such provisions may include, by way of example
and not limitation, provisions for cash or other compensation to be paid in
combination with Awards. An Award may be deemed to be granted prior to the
approval of this Plan by the stockholders of the Company and prior to the time
that an Agreement is executed by the Participant and the Company.
4.2 Grant of Options. Options shall be granted automatically to each
Participant on each Grant Date. Notwithstanding anything herein to the contrary,
the Board may revoke on or before a Grant Date the grant of Options that is
otherwise provided for herein if no options have been granted to employees since
the preceding Grant Date under the Company's 1993 Incentive Stock Plan or any
other employee stock option plan of the Company. All Options granted hereunder
shall be subject to the following terms and conditions:
(a) Number. Each Participant shall receive an Option to purchase
15,000 shares of Stock (as adjusted pursuant to Article VII).
However, if fewer than 15,000 shares of Stock (as adjusted
pursuant to Article VII), multiplied by the number of
Participants, remain available for issuance under the Plan on
any Grant Date, Options shall be awarded by allocating the
remaining shares of Stock pro rata thereto.
(b) Price. Stock may be purchased through an Option by payment of
the Fair Market Value of the Stock as determined on the Grant
Date thereof.
(c) Option Period. Each Option shall expire ten years after the
Grant Date thereof (the "Option Period"), unless the Option is
terminated sooner pursuant to Section 4.2(d) below.
(d) Termination of Service, Death, Etc. Options that have not yet
expired pursuant to Section 4.2(c) will sooner terminate if
the Participant ceases to be a member of the Board under any
of the conditions described in this Section. In no event shall
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the Option Period described in Section 4.2(c) be extended by
any of the events described below:
(i) All outstanding Options shall immediately terminate
if Board membership terminates due to fraud,
dishonesty or other acts detrimental to the interests
of the Company, its Affiliates, or any direct or
indirect majority-owned subsidiary or business entity
of the Company.
(ii) Options that have not otherwise terminated will
terminate twelve months following the death of a
Participant. After death, the Option may be exercised
by the executor or administrator of the estate of
Participant, or by any persons who have acquired the
Option by bequest or inheritance.
(iii) All outstanding Options will terminate three months
after the date that a Participant ceases to be a
member of the Board for any reason that is not
described in paragraphs (i) and (ii) of this Section.
(e) Vesting Dates. Each Option shall become exercisable with
respect to one-third of the shares subject to the Option
beginning six months after the Grant Date, and with respect to
two-thirds of such shares beginning 18 months after the Grant
Date, and will become fully exercisable 30 months after the
Grant Date; provided, however, that the Participant's vested
right to exercise Options shall not be increased under this
Section at the time the Participant is no longer a member of
the Board.
(f) Transferability. Generally, any Option granted under this Plan
shall not be transferable except by will or by the laws of
descent and distribution, and shall be exercisable during the
lifetime of the Participant only by the Participant. An Option
may be transferable, however, to the extent provided in the
Agreement. No right or interest of a Participant in any Award
shall be liable for, or subject to, any lien, obligation or
liability of such Participant.
4.3 Stock Award. Stock Awards shall be made automatically to each
Participant on each Grant Date. An award of Stock shall be made on each Grant
Date to each Participant. The number of shares to be awarded shall be calculated
as the number of whole shares that is equal to $10,000 divided by the Fair
Market Value of Stock per share on the Grant Date, rounded to the nearest whole
share. Shares awarded under this Section shall not be transferable for a period
of six months after the Grant Date.
ARTICLE V. STOCK SUBJECT TO PLAN
5.1 Source of Shares. Upon the exercise of an Option or the grant of a
Stock Award, the Company shall deliver to the Participant authorized but
unissued Stock.
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5.2 Maximum Number of Shares. The maximum aggregate number of shares of
Stock that may be issued pursuant to the exercise of Awards is 450,000, subject
to increases and adjustments as provided in Article VII.
5.3 Forfeitures. If any Option granted hereunder expires or terminates
for any reason without having been exercised in full, the shares of Stock
subject thereto shall again be available for issuance of an Award under this
Plan.
ARTICLE VI. EXERCISE OF OPTIONS
6.1 Exercise. Subject to the limitations described in this Plan, an
Option may be exercised in whole or in part at such times and in compliance with
such requirements as the Committee shall determine. An Option shall be treated
as exercised hereunder on the date that the Company accepts tender of the
exercise price of an Option.
6.2 Method of Payment. Unless otherwise provided by the Agreement,
payment of the Option price shall be made in cash or, to the extent approved by
the Committee, Stock that was acquired prior to the exercise of the Option,
other consideration acceptable to the Committee, or a combination thereof.
6.3 Federal Withholding Tax Requirements. Upon exercise of an Option or
receipt of a Stock Award, a Participant shall, upon notification of the amount
due and prior to or concurrently with the delivery of the shares, pay to the
Company amounts necessary to satisfy applicable federal, state and local
withholding tax requirements or shall otherwise make arrangements satisfactory
to the Company for such requirements.
6.4 Stockholder Rights. No Participant shall have any rights as a
stockholder with respect to shares subject to Options prior to the exercise
thereof and payment of the Option price therefor. Participants shall have all
rights as stockholders through the grant of a Stock Award on the date that the
shares of Stock are transferred to the Participant, subject to the restrictions
on transferability set forth in Section 4.2.
6.5 Issuance and Delivery of Shares. Shares of Stock issued pursuant to
Stock Awards or the exercise of Options hereunder shall be delivered to
Participants by the Company (or its transfer agent) as soon as administratively
feasible after a Participant exercises an Option hereunder, or is granted a
Stock Award, and executes any applicable stockholder agreement or agreement
described in Section 8.2 that the Company requires at the time of exercise.
ARTICLE VII. ADJUSTMENT UPON CORPORATE CHANGES
7.1 Adjustments to Shares. The maximum number of shares of Stock with
respect to which Awards hereunder may be granted and which are the subject of
outstanding Awards, and the exercise price of Options granted hereunder, shall
be adjusted as the Committee determines in its sole discretion to be
appropriate, in the event that:
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(a) the Company or an Affiliate effects one or more stock
dividends, stock splits, reverse stock splits, subdivisions,
consolidations or other similar events;
(b) the Company or an Affiliate engages in a transaction to which
section 424 of the Code applies; or
(c) there occurs any other event which in the judgment of the
Committee necessitates such action;
provided, however, that if an event described in paragraph (a) or (b) occurs,
the Committee shall make adjustments to the limits on Awards specified in
Article IV that are proportionate to the modifications of the Stock that are on
account of such corporate changes. Notwithstanding the foregoing, the Committee
may not modify the Plan or the terms of any Awards then outstanding or to be
granted hereunder to provide for the issuance under the Plan of a different
class of stock or kind of securities.
7.2 Substitution of Awards on Merger or Acquisition. The Committee may
grant Awards in substitution for stock awards, stock options, stock appreciation
rights or similar awards held by an individual who becomes an employee of the
Company or an Affiliate in connection with a transaction to which section 424(a)
of the Code applies. The terms of such substituted Awards shall be determined by
the Committee in its sole discretion, subject only to the express limitations on
Awards contained herein.
7.3 Effect of Certain Transactions. Upon a merger, consolidation,
acquisition of property or stock, separation, reorganization or liquidation of
the Company, as a result of which the stockholders of the Company receive cash,
stock or other property in exchange for their shares of Stock (but not a public
offering of Stock by the Company), and the Company is not the surviving entity
(even though it may survive as a subsidiary corporation), any Option granted
hereunder shall terminate, provided that the Participant shall have the right
immediately prior to any such merger, consolidation, acquisition of property or
stock, separation, reorganization or liquidation to exercise his or her Options
in whole or in part, without regard to any vesting requirements and provided
further that such Options shall not terminate if the Committee elects to convert
all Options hereunder into stock incentive awards of an acquiring corporation.
Notwithstanding the foregoing, a portion of the acceleration of exercisability
of Options shall not occur with respect to any holder to the extent that such
portion of acceleration would cause the Participant or holder of such Option to
be liable for the payment of taxes pursuant to section 4999 of the Code. If the
Committee elects to convert the Options, the amount and price of such converted
options shall be determined by adjusting the amount and price of the Options
granted hereunder in the same proportion as used for determining the number of
shares of stock of the acquiring corporation the holders of the Stock receive in
such merger, consolidation, acquisition of property or stock, separation or
reorganization.
7.4 No Adjustment Upon Certain Transactions. The issuance by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, for cash or property, or for labor or services rendered,
either upon direct sale or upon the exercise of rights
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or warrants to subscribe therefor, or upon conversion of shares or obligations
of the Company convertible into such shares or other securities, shall not
affect, and no adjustment by reason thereof shall be made with respect to,
outstanding Awards.
7.5 Fractional Shares. Only whole shares of Stock may be acquired
through an Award. Any amounts tendered in the exercise of an Option remaining
after the maximum number of whole shares have been purchased will be returned to
the Participant.
ARTICLE VIII. COMPLIANCE WITH LAW AND REGULATORY APPROVAL
8.1 General. No Award shall be exercisable, no Stock shall be issued,
no certificates for shares of Stock shall be delivered, and no payment shall be
made under this Plan except in compliance with all federal or state laws and
regulations (including, without limitation, withholding tax requirements),
federal and state securities laws and regulations and the rules of all
securities exchanges on which the Company's securities may be listed, or
national securities associations through which the Company's securities may be
quoted, and until the Company has obtained such consent or approval as the
Committee may deem advisable from any regulatory bodies having jurisdiction over
such matters. The Company shall have the right to rely on an opinion of its
counsel as to such compliance. Any certificate issued to evidence shares of
Stock pursuant to an Award may bear such legends and statements as the Committee
upon advice of counsel may deem advisable to assure compliance with federal or
state laws and regulations.
8.2 Representations by Participants. As a condition to the issuance of
a Stock Award or the exercise of an Option, the Company may require a
Participant to represent and warrant at the time of any such exercise that the
shares are being purchased only for investment and without any present intention
to sell or distribute such shares, if, in the opinion of counsel for the
Company, such representation is required by any relevant provision of the laws
referred to in Section 8.1. At the option of the Company, a stop transfer order
against any shares of Stock may be placed on the official Stock books and
records of the Company, and a legend indicating that the Stock may not be
pledged, sold or otherwise transferred unless an opinion of counsel was provided
(concurred in by counsel for the Company) and stating that such transfer is not
in violation of any applicable law or regulation may be stamped on the
certificate evidencing such Stock in order to assure exemption from
registration. The Committee may also require such other action or agreement by
the Participants as may from time to time be necessary to comply with federal or
state securities laws. This provision shall not obligate the Company or any
Affiliate to undertake registration of Options or Stock hereunder.
ARTICLE IX. GENERAL PROVISIONS
9.1 Unfunded Plan. This Plan, insofar as it provides for grants, shall
be unfunded, and the Company shall not be required to segregate any assets that
may at any time be represented by grants under this Plan. Any liability of the
Company to any person with respect to any grant under this Plan shall be based
solely upon contractual obligations that may be created hereunder. No such
obligation of the Company shall be deemed to be secured by any pledge of, or
other encumbrance on, any property of the Company.
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9.2 Rules of Construction. Headings are given to the articles and
sections of this Plan solely as a convenience to facilitate reference. The
masculine gender when used herein refers to both masculine and feminine. The
reference to any statute, regulation or other provision of law shall be
construed to refer to any amendment to or successor of such provision of law.
9.3 Governing Law. The internal laws of the State of Maryland shall
apply to all matters arising under this Plan, except to the extent that Maryland
law is preempted by federal law.
9.4 Compliance With Section 16 of the Exchange Act. With respect to
persons subject to liability under section 16 of the Exchange Act, transactions
under this Plan are intended to comply with all applicable conditions of Rule
16b-3 (or successor provisions) under the Exchange Act. To the extent any
provision of this Plan or action by Committee fails to so comply, it shall be
deemed null and void to the extent permitted by law and deemed advisable by the
Committee.
9.5 Amendment; Termination. The Board may amend or terminate this Plan
at any time; provided, however, an amendment that would have a material adverse
effect on the rights of a Participant under an outstanding Award is not valid
with respect to such Award without the Participant's consent, and provided,
further, that the stockholders of the Company must approve, in general meeting
before the effective date thereof, any amendment that changes the number of
shares in the aggregate which may be issued pursuant to Awards granted under
this Plan, except pursuant to Article VII. Generally, stockholder approval shall
not be required for amendments to this Plan pursuant to Section 3.1 hereof
intended to benefit the administration of this Plan, for amendments necessitated
by changes in legislation or administrative rules governing this Plan, or for
amendments that the Board deems necessary to obtain or maintain favorable tax,
securities exchange or regulatory treatment of this Plan for future
Participants.
9.6 Effective Date of Plan. The JDN Realty Corporation 1993
Non-Employee Director Stock Option Plan was originally effective December 17,
1993, and was approved by the stockholders of the Company thereafter. This
amendment and restatement shall be effective on January 1, 1999. Awards may be
granted hereunder at any time after the adoption of this or any other amendment
to the Plan which increases the number of shares of Stock available for Awards.
IN WITNESS WHEREOF, the undersigned officer of the Company has executed
this instrument, pursuant to authorization of the Board, on this the 24th day of
November, 1998, but to be effective as provided in Section 9.6.
JDN REALTY CORPORATION
By: /s/ William J. Kerley
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Its: Chief Financial Officer
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