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Exhibit 10.3
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 Company wishes to carry out the Plan (the terms of which
are hereby incorporated by reference and made a part of this Agreement); and
WHEREAS, the Committee, appointed to administer the Plan, has determined
that it would be to the advantage and best interest of the Company and its
shareholders to grant the Incentive Stock Option (or to the extent not
qualifying under Section 422 of the Code, 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 advised the Company thereof and 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
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"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 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 taxqualified, broadbased 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, appointed as provided in the Plan.
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.
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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.
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 - PLAN
"Plan" shall mean the 1993 Stock Option Plan of New Plan Excel Realty
Trust, Inc., as amended from time to time.
SECTION 1.16 - SECRETARY
"Secretary" shall mean the Secretary of the Company.
SECTION 1.17 - SECURITIES ACT
"Securities Act" shall mean the Securities Act of 1933, as amended.
SECTION 1.18 - 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
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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 1.19 - 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 or without Good
Reason, discharge, death or retirement, but excluding any termination where
there is a simultaneous reemployment by the Company or a Subsidiary. A leave of
absence shall constitute a Termination of Employment if, and to the extent that,
such leave of absence interrupts employment for purposes of Section 422(a)(2) of
the Code and the then applicable regulations and revenue rulings under said
Section.
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 Thirty-Nine Thousand and Twenty-Four (39,024) 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
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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; provided, however, that, in the case of the
Incentive Stock Option, each such adjustment shall be made in such manner as not
to constitute a "modification" within the meaning of Section 424(h)(3) of the
Code to the extent deemed appropriate by the Committee. 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.
(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) If the Employee owned (within the meaning of Section
424(d) of the Code), at the time the Option was granted, more than ten
percent (10%) of the total combined voting power of all classes of stock
of the Company, any Subsidiary or any parent corporation, the expiration
of five (5) years from the date the Option was granted; or
(c) 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
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(d) The expiration of one (1) year from the date of the
Employee's Termination of Employment by reason of death or Disability;
or
(e) 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 fully 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(e), that at some time prior to the effective date of such event this Option
shall be exercisable as to all the shares covered hereby, notwithstanding that
this Option may not yet have become fully exercisable under Section 3.1 (a).
SECTION 3.5 - SPECIAL TAX CONSEQUENCES
The Employee acknowledges that, to the extent that the aggregate fair
market value of stock with respect to which "incentive stock options" (within
the meaning of Section 422 of the Code, but without regard to Section 422(d) of
the Code), including the Option, are exercisable for the first time by the
Employee during any calendar year (under the Plan and all other incentive stock
option plans of the Company, any Subsidiary and any parent corporation) exceeds
$100,000, such options shall be treated as not qualifying under Section 422 of
the Code but rather shall be taxed as non-qualified options. The Employee
further acknowledges that the rule set forth in the preceding sentence shall be
applied by taking options into account in the order in which they were granted.
For purposes of these rules, the fair market value of stock shall be determined
as of the time the option with respect to such stock is granted.
ARTICLE IV
EXERCISE OF OPTION
SECTION 4.1 - PERSON ELIGIBLE TO EXERCISE
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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 under Section 4.2(b) of the
Plan) 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
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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 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
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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 in accordance with Section 4.2(b) of the Plan 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
(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
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(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 the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke
any such rules. 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 Plan or the Option. The
Board shall have no right to exercise any of the rights or duties of the
Committee under the Plan and this Agreement.
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
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
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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 OF EMPLOYMENT
Nothing in this Agreement or in the Plan 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 - NOTIFICATION OF DISPOSITION
The Employee shall give prompt notice to the Company of any disposition
or other transfer of any shares of stock acquired under this Agreement if such
disposition or transfer is made (a) within two (2) years from the date of
granting the Option with respect to such shares or (b) within one (1) year after
the transfer of such shares to him. Such notice shall specify the date of such
disposition or other transfer and the amount realized, in cash, other property,
assumption of indebtedness or other consideration, by the Employee in such
disposition or other transfer.
SECTION 5.8 - CONFORMITY TO SECURITIES LAWS
The Employee acknowledges that the Plan is intended to conform to the
extent necessary with all provisions of the Securities Act and the Exchange Act
and any and all regulations and rules promulgated by the Securities and Exchange
Commission thereunder. Notwithstanding anything herein to the contrary, the Plan
shall be administered, and 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, the Plan and this Agreement shall be deemed amended
to the extent necessary to conform to such laws, rules and regulations.
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SECTION 5.9 - AMENDMENT
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 7,805
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On or after February 23, 2002 15,610
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On or after February 23, 2003 23,415
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On or after February 23, 2004 31,220
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On or after February 23, 2005 39,024
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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.
