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Exhibit 10.2
STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of February 23, 2000, is made by and between
New Plan Excel Realty Trust, Inc., a Maryland corporation, hereinafter referred
to as "Company," and Xxxxx X. Xxxxxxx, an employee of the Company or a
Subsidiary of the Company, hereinafter referred to as "Employee":
WHEREAS, the Company wishes to afford the Employee the opportunity to
purchase shares of its $0.01 par value Common Stock; and
WHEREAS, the Board has determined that it would be to the advantage
and best interest of the Company and its shareholders to grant the Non-Qualified
Option provided for herein to the Employee as an inducement to remain in the
service of the Company or its Subsidiaries and as an incentive for increased
efforts during such service, and has instructed the undersigned officers to
issue the Option.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall
have the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter and the
singular the plural, where the context so indicates.
SECTION 1.1 - BOARD
"Board" shall mean the Board of Directors of the Company.
SECTION 1.2 - CAUSE
"Cause" shall mean Cause as defined in the Employment Agreement.
SECTION 1.3 - CHANGE IN CONTROL
"Change in Control" shall mean the consummation of a merger,
consolidation, share exchange or similar form of transaction involving the
Company or any of its subsidiaries, or the sale of all or substantially all of
the Company's assets (a "Business Transaction"), unless immediately following
such Business Transaction (i) more than 50% of the total voting power of the
entity resulting from such Business Transaction or the entity acquiring the
Company's assets in
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such Business Transaction (the "Surviving Corporation") is beneficially owned,
directly or indirectly, by the Company's shareholders immediately prior to any
such Business Transaction, and (ii) no person (other than (1) the Company or any
majority-owned entity (provided, that this exclusion applies solely to the
ownership levels of the Company or the majority-owned entity), (2) any
tax-qualified, broad-based employee benefit plan sponsored or maintained by the
Company or any majority-owned entity, or (3) any underwriter temporarily holding
securities pursuant to an offering of such securities), or any tax-qualified,
broad-based employee benefit plan of the Surviving Corporation or its Affiliates
beneficially owns, directly or indirectly, 30% or more of the total voting power
of the Surviving Corporation.
SECTION 1.4 - CODE
"Code" shall mean the Internal Revenue Code of 1986, as amended.
SECTION 1.5 - COMMITTEE
"Committee" shall mean the Executive Compensation and Stock Option
Committee of the Board.
SECTION 1.6 - COMPANY
"Company" shall mean New Plan Excel Realty Trust, Inc. In addition,
"Company" shall mean any corporation assuming, or issuing a new stock option in
substitution for, the Option in a transaction to which Section 424(a) of the
Code applies.
SECTION 1.7 - DIRECTOR
"Director" shall mean a member of the Board.
SECTION 1.8 - DISABILITY
"Disability" shall mean Disability as defined in the Employment
Agreement.
SECTION 1.9 - EFFECTIVE DATE
"Effective Date" shall mean the effective date of the Employment
Agreement.
SECTION 1.10 - EMPLOYMENT AGREEMENT
"Employment Agreement" shall mean the Employment Agreement by and
between New Plan Excel Realty Trust, Inc., a Maryland corporation, and Xxxxx X.
Xxxxxxx dated February 23, 2000.
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SECTION 1.11 - EMPLOYMENT PERIOD
"Employment Period" shall mean Employment Period as defined in the
Employment Agreement.
SECTION 1.12 - EXCHANGE ACT
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
SECTION 1.13 - GOOD REASON
"Good Reason" shall mean Good Reason as defined in the Employment
Agreement.
SECTION 1.14 - OPTION
"Option" shall mean the option to purchase Common Stock of the Company
granted under this Agreement.
SECTION 1.15 - SECRETARY
"Secretary" shall mean the Secretary of the Company.
SECTION 1.16 - SECURITIES ACT
"Securities Act" shall mean the Securities Act of 1933, as amended.
SECTION 1.17 - SUBSIDIARY
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one (1) of the other corporations in such chain. To the extent not
inconsistent with the requirements of Section 422 of the Code, "corporation" in
the preceding sentence shall include entities other than corporations,
including, without limitation, partnerships and trusts.
SECTION 1.18 - TERMINATION OF EMPLOYMENT
"Termination of Employment" shall mean the time when the
employee-employer relationship between the Employee and the Company or a
Subsidiary is terminated for any reason, with or without Cause, including, but
not by way of limitation, a termination by resignation with
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or without Good Reason, discharge, death or retirement, but excluding any
termination where there is a simultaneous reemployment by the Company or a
Subsidiary.
ARTICLE II
GRANT OF OPTION
SECTION 2.1 - GRANT OF OPTION
For good and valuable consideration, on the date hereof the Company
irrevocably grants to the Employee the option to purchase any part or all of an
aggregate of Four Hundred Sixty Thousand Nine Hundred and Seventy-Six (460,976)
shares of its $0.01 par value Common Stock upon the terms and conditions set
forth in this Agreement.
SECTION 2.2 - PURCHASE PRICE
The purchase price of the shares of stock covered by the Option shall
be Twelve and Thirteen Sixteenths Dollars ($12.8125) per share without
commission or other charge.
SECTION 2.3 - ADJUSTMENTS IN OPTION
In the event that the outstanding shares of the stock subject to the
Option are changed into or exchanged for a different number or kind of shares of
the Company or other securities of the Company by reason of merger,
consolidation, recapitalization, reclassification, stock split up, stock
dividend or combination of shares, the Committee shall make an appropriate and
equitable adjustment in the number and kind of shares as to which the Option, or
portions thereof then unexercised, shall be exercisable, to the end that after
such event the Employee's proportionate interest shall be maintained as before
the occurrence of such event. Such adjustment in the Option shall be made
without change in the total price applicable to the unexercised portion of the
Option (except for any change in the aggregate price resulting from rounding-off
of share quantities or prices) and with any necessary corresponding adjustment
in the Option price per share. Any such adjustment made by the Committee shall
be final and binding upon the Employee, the Company and all other interested
persons.
ARTICLE III
PERIOD OF EXERCISABILITY
SECTION 3.1 - COMMENCEMENT OF EXERCISABILITY
(a) The Option shall become exercisable as provided in Schedule "A"
attached to this Agreement and hereby incorporated by reference.
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(b) No portion of the Option which is unexercisable at Termination of
Employment shall thereafter become exercisable.
SECTION 3.2 - DURATION OF EXERCISABILITY
Each installment which becomes exercisable pursuant to Section 3.1
shall remain exercisable until it becomes unexercisable under Section 3.3.
SECTION 3.3 - EXPIRATION OF OPTION
The Option may not be exercised to any extent by anyone after the first
to occur of the following events:
(a) The expiration of ten (10) years from the date the Option was
granted; or
(b) The expiration of ninety (90) days from the date of the
Employee's Termination of Employment on a full-time basis for any
reason other than death of Disability; or
(c) The expiration of one (1) year from the date of the
Employee's Termination of Employment by reason of death or Disability;
or
(d) The effective date of either the merger or consolidation
of the Company with or into another corporation, or the acquisition by
another corporation or person of all or substantially all of the
Company's assets or eighty percent (80%) or more of the Company's then
outstanding voting stock, or the liquidation or dissolution of the
Company, unless the Committee waives this provision in connection with
such transaction. At least ten (10) days prior to the effective date
of such merger, consolidation, acquisition, liquidation or
dissolution, the Committee shall give the Employee notice of such
event if the Option has then neither been exercised nor become
unexercisable under this Section 3.3.
SECTION 3.4 - MERGER, CONSOLIDATION, ACQUISITION OR DISSOLUTION OF THE COMPANY
In the event of the merger or consolidation of the Company with or
into another corporation, or the acquisition by another corporation or person of
all or substantially all of the Company's assets or eighty percent (80%) or more
of the Company's then outstanding voting stock, or the liquidation or
dissolution of the Company, the Committee may, in its absolute discretion and
upon such terms and conditions as it deems appropriate, provide by resolution,
adopted prior to such event and incorporated in the notice referred to in
Section 3.3(d), that at some time prior to the effective date of such event this
Option shall be exercisable as to all the
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shares covered hereby, notwithstanding that this Option may not yet have become
fully exercisable under Section 3.1(a).
ARTICLE IV
EXERCISE OF OPTION
SECTION 4.1 - PERSON ELIGIBLE TO EXERCISE
During the lifetime of the Employee, only he may exercise the Option
or any portion thereof. After the death of the Employee, any exercisable portion
of the Option may, prior to the time when the Option becomes unexercisable under
Section 3.3, be exercised by his personal representative or by any person
empowered to do so under the Employee's will or under the then applicable laws
of descent and distribution.
SECTION 4.2 - PARTIAL EXERCISE
Any exercisable portion of the Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.3; provided, however, that each partial exercise shall be for whole shares
only.
SECTION 4.3 - MANNER OF EXERCISE
The Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Secretary or his office of all of the following prior
to the time when the Option or such portion becomes unexercisable under Section
3.3:
(a) Notice in writing signed by the Employee or the other
person then entitled to exercise the Option or portion, stating that
the Option or portion is thereby exercised, such notice complying with
all applicable rules established by the Committee; and
(b) (1) Full payment (in cash or by check) for the shares
with respect to which such Option or portion is exercised; or
(2) With the consent of the Committee, (A) shares
of the Company's Common Stock owned by the Employee duly
endorsed for transfer to the Company or (B) shares of the
Company's Common Stock issuable to the Employee upon exercise of
the Option, with a fair market value (as determined by
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the Committee) on the date of Option exercise equal to the
aggregate Option price of the shares with respect to which such
Option or portion is exercised; or
(3) With the consent of the Committee, a recourse,
nonrecourse or limited recourse promissory note bearing interest
(at no less than such rate as shall then preclude the imputation
of interest under the Code or successor provision) and payable
upon such terms as may be prescribed by the Committee. The
Committee may also prescribe the form of such note and the
security to be given for such note. The Option may not be
exercised, however, by delivery of a promissory note or by a
loan from the Company when or where such loan or other extension
of credit is prohibited by law; or
(4) With the consent of the Committee, any combination
of the consideration provided in the foregoing subparagraphs
(1), (2) and (3); and
(c) A bona fide written representation and agreement, in a
form satisfactory to the Committee, signed by the Employee or other
person then entitled to exercise such Option or portion, stating that
the shares of stock are being acquired for his own account, for
investment and without any present intention of distributing or
reselling said shares or any of them except as may be permitted under
the Securities Act and then applicable rules and regulations thereunder,
and that the Employee or other person then entitled to exercise such
Option or portion will indemnify the Company against and hold it free
and harmless from any loss, damage, expense or liability resulting to
the Company if any sale or distribution of the shares by such person is
contrary to the representation and agreement referred to above. The
Committee may, in its absolute discretion, take whatever additional
actions it deems appropriate to insure the observance and performance of
such representation and agreement and to effect compliance with the
Securities Act and any other federal or state securities laws or
regulations. Without limiting the generality of the foregoing, the
Committee may require an opinion of counsel acceptable to it to the
effect that any subsequent transfer of shares acquired on an Option
exercise does not violate the Securities Act, and may issue
stop-transfer orders covering such shares. Share certificates evidencing
stock issued on exercise of this Option shall bear an appropriate legend
referring to the provisions of this subsection (c) and the
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agreements herein. The written representation and agreement referred to
in the first sentence of this subsection (c) shall, however, not be
required if the shares to be issued pursuant to such exercise have been
registered under the Securities Act, and such registration is then
effective in respect of such shares; and
(d) Full payment to the Company (or other employer
corporation) of all amounts which, under federal, state or local tax
law, it is required to withhold upon exercise of the Option; with the
consent of the Committee, (i) shares of the Company's Common Stock owned
by the Employee duly endorsed for transfer, or (ii) shares of the
Company's Common Stock issuable to the Employee upon exercise of the
Option, valued by the Committee at the date of Option exercise, may be
used to make all or part of such payment; and
(e) In the event the Option or portion shall be exercised
pursuant to Section 4.1 by any person or persons other than the
Employee, appropriate proof of the right of such person or persons to
exercise the Option.
SECTION 4.4 - CERTAIN TIMING REQUIREMENTS
Shares of the Company's Common Stock, whether or not issuable to the
Employee upon exercise of the Option, may be used to satisfy the Option price or
the tax withholding consequences of such exercise in accordance with procedures
set forth by the Committee.
SECTION 4.5 - CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES
The shares of stock deliverable upon the exercise of the Option, or any
portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to the fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other
qualification of such shares under any state or federal law or under
rulings or regulations of the Securities and Exchange Commission or of
any other governmental regulatory body, which the Committee shall, in
its absolute discretion, deem necessary or advisable; and
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(c) The obtaining of any approval or other clearance from
any state or federal governmental agency which the Committee shall, in
its absolute discretion, determine to be necessary or advisable; and
(d) The payment to the Company (or other employer
corporation) of all amounts which, under federal, state or local tax
law, it is required to withhold upon exercise of the Option; and
(e) The lapse of such reasonable period of time following
the exercise of the Option as the Committee may from time to time
establish for reasons of administrative convenience.
SECTION 4.6 - NO RIGHTS AS SHAREHOLDER
The holder of the Option shall not be, nor have any of the rights or
privileges of, a shareholder of the Company in respect of any shares purchasable
upon the exercise of any part of the Option unless and until certificates
representing such shares shall have been issued by the Company to such holder.
ARTICLE V
OTHER PROVISIONS
SECTION 5.1 - ADMINISTRATION
The Committee shall have the power to interpret this Agreement. All
actions taken and all interpretations and determinations made by the Committee
in good faith shall be final and binding upon the Employee, the Company and all
other interested persons. No member of the Committee shall be personally liable
for any action, determination or interpretation made in good faith with respect
to the Option.
SECTION 5.2 - OPTION NOT TRANSFERABLE
Neither the Option nor any interest or right therein or part thereof
shall be liable for the debts, contracts or engagements of the Employee or his
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this Section 5.2
shall not prevent transfers by will or by the applicable laws of descent and
distribution.
SECTION 5.3 - SHARES TO BE RESERVED
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The Company shall at all times during the term of the Option reserve and
keep available such number of shares of stock as will be sufficient to satisfy
the requirements of this Agreement.
SECTION 5.4 - NOTICES
Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Secretary, and any notice to be
given to the Employee shall be addressed to him at the address given beneath his
signature hereto. By a notice given pursuant to this Section 5.4, either party
may hereafter designate a different address for notices to be given to him. Any
notice which is required to be given to the Employee shall, if the Employee is
then deceased, be given to the Employee's personal representative if such
representative has previously informed the Company of his status and address by
written notice under this Section 5.4. Any notice shall be deemed duly given
when enclosed in a properly sealed envelope or wrapper addressed as aforesaid,
deposited (with postage prepaid) in a post office or branch post office
regularly maintained by the United States Postal Service.
SECTION 5.5 - NO RIGHT TO EMPLOYMENT
Nothing in this Agreement shall confer upon the Employee any right to
continue in the employ of the Company or any Subsidiary or shall interfere with
or restrict in any way the rights of the Company and its Subsidiaries, which are
hereby expressly reserved, to discharge the Employee at any time for any reason
whatsoever, with or without cause.
SECTION 5.6 - TITLES
Titles are provided herein for convenience only and are not to serve as
a basis for interpretation or construction of this Agreement.
SECTION 5.7 - CONFORMITY TO SECURITIES LAWS
The Employee acknowledges that the Option is granted and may be
exercised only in such a manner as to conform to the extent necessary with all
provisions of the Securities Act and the Exchange Act and any and all
regulations and rules promulgated by the Securities and Exchange Commission
thereunder. Notwithstanding anything herein to the contrary, the Option is
granted and may be exercised only in such a manner as to conform to such laws,
rules and regulations. To the extent permitted by applicable law, this Agreement
shall be deemed amended to the extent necessary to conform to such laws, rules
and regulations.
SECTION 5.8 - AMENDMENT
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The Committee may amend the Option at any time or from time to time. No
amendment shall, without the consent of the holder of the Option, impair the
rights or obligations under the Option.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto.
NEW PLAN EXCEL REALTY TRUST, INC.
By /s/ Xxxxx XxXxxxx
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Executive Vice President
By /s/ Xxxxxx X. Xxxxxx
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Secretary
/s/ Xxxxx Xxxxxxx
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Employee
---------------------------------
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Address
Employee's Taxpayer
Identification Number:
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SCHEDULE "A"
OPTION EXERCISABILITY SCHEDULE
The Option shall be exercisable in installments as follows:
OPTION EXERCISABLE WITH RESPECT
TIME TO NUMBER OF SHARES
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On or after February 23, 2001 92,195
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On or after February 23, 2002 184,390
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On or after February 23, 2003 276,585
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On or after February 23, 2004 368,780
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On or after February 23, 2005 460,976
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Notwithstanding the foregoing, the Option shall become exercisable if
the Employee is terminated during the Employment Period, by the Company without
Cause or by the Employee for Good Reason. In the event a definitive agreement is
entered into providing for the occurrence of an event which, if consummated,
would result in a Change in Control of the Company (a "Merger Event"), then the
Option shall become fully exercisable but only on a provisional basis, for the
sole purpose of enabling the Employee to exercise the Option as necessary to
permit the Employee to participate in the Merger Event on the same basis as all
other stockholders. If the Merger Event is consummated, such accelerated
exercise shall no longer be provisional. If the Merger Event is not consummated,
the Employee shall continue to have the same ability to exercise his Option as
he had without regard to the provisional exercise terms included herein.
In addition, if the Employee dies or the Employee's employment is
terminated because of Disability during the Employment Period, fifty percent
(50%) of the Option which was not exercisable immediately prior to the
Employee's death or Disability shall become exercisable on the date of his death
or Disability.
