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Exhibit 10.5
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 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 the Non-Qualified Option ("Option") to purchase shares
subject to the restrictions set forth below ("Restricted Shares"), 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.
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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 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, 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 - CUMULATIVE FOUR YEAR ROI
"Cumulative Four Year ROI" shall mean the annualized return on
investment on a share from the Effective Date through the fourth anniversary of
the Effective Date (determined in good faith by the Committee based upon
dividends paid and appreciation in share price during such period).
SECTION 1.8 - CUMULATIVE FIVE YEAR ROI
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"Cumulative Five Year ROI" shall mean the annualized return on
investment of a share from the Effective Date through the fifth anniversary of
the Effective Date (determined in good faith by the Committee based upon
dividends paid and appreciation in share price during such period).
SECTION 1.9 - DIRECTOR
"Director" shall mean a member of the Board.
SECTION 1.10 - DISABILITY
"Disability" shall mean Disability as defined in the Employment
Agreement.
SECTION 1.11 - EFFECTIVE DATE
"Effective Date" shall mean the effective date of the Employment
Agreement.
SECTION 1.12 - 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 1.13 - EMPLOYMENT PERIOD
"Employment Period" shall mean Employment Period as defined in the
Employment Agreement.
SECTION 1.14 - EXCHANGE ACT
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
SECTION 1.15 - GOOD REASON
"Good Reason" shall mean Good Reason as defined in the Employment
Agreement.
SECTION 1.16 - OPTION
"Option" shall mean the option to purchase Common Stock of the Company
granted under this Agreement.
SECTION 1.17 - PLAN
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"Plan" shall mean the 1993 Stock Option Plan of New Plan Excel Realty
Trust, Inc., as amended from time to time.
SECTION 1.18 - SECRETARY
"Secretary" shall mean the Secretary of the Company.
SECTION 1.19 - SECURITIES ACT
"Securities Act" shall mean the Securities Act of 1933, as amended.
SECTION 1.20 - 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 1.21 - 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.
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 an aggregate of Five
Hundred Fifteen Thousand One Hundred and Twenty-One (515,121) shares of its
$0.01 par value Common Stock upon the terms and conditions set forth in this
Agreement.
SECTION 2.2 - PURCHASE PRICE
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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
The Option shall become exercisable on the Effective Date.
SECTION 3.2 - DURATION OF EXERCISABILITY
The Option 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 Option may not be exercised to any extent by anyone
after the expiration of six months from the Effective Date; or
(b) 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
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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(b), that at some time prior to the effective date of such event this Option
shall be exercisable as to all the shares covered hereby.
ARTICLE IV
EXERCISE OF OPTION
SECTION 4.1 - PERSON ELIGIBLE TO EXERCISE
During the lifetime of the Employee, only he may exercise the Option.
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.
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SECTION 4.2 - PARTIAL EXERCISE
The Option is exercisable only for the full number of Restricted Shares.
SECTION 4.3 - MANNER OF EXERCISE
The Option may be exercised solely by delivery to the Secretary or his
office of all of the following prior to the time when the Option becomes
unexercisable under Section 3.3:
(a) Notice in writing signed by the Employee or the
other person then entitled to exercise the Option, stating that the
Option is thereby exercised, such notice complying with all applicable
rules established by the Committee; and
(b) (1) Full payment in cash;
(2) by certified check; or
(3) by a combination of four hundred thousand
dollars ($400,000) in cash or by certified check and two
promissory notes: (1) a promissory recourse note to the Company
for five hundred ninety thousand dollars ($590,000) and (2) a
promissory limited recourse note to the Company for five million
six hundred ten thousand dollars ($5,610,000) on such terms as
set forth in the Employment Agreement.
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 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 prior to the fulfillment of all of the following conditions:
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(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
(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
ADDITIONAL RESTRICTIONS ON SHARES
ISSUED PURSUANT TO THIS AGREEMENT
SECTION 5.1 - VESTING OF RESTRICTED SHARES
(a) Of the Restricted Shares, a number of Restricted Shares equal to
the total number of Restricted Shares less sixty thousand (60,000) ("Time Vested
Restricted Shares") shall vest at the rate of one-fifth of the number of such
Time Vested Restricted Shares on each anniversary of the Effective Date. All
remaining unvested Time Vested Restricted Shares shall vest upon termination of
the Employee's employment by the Company without Cause or by the Employee with
Good Reason, or in the event of a Change in Control. If the Employee should die
or his
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employment is terminated because of Disability during the Employment Period, 50%
of the unvested Time Vested Restricted Shares shall vest upon his death or
Disability.
(b) Of the Restricted Shares, sixty thousand (60,000) Restricted
Shares ("Performance Restricted Shares") shall vest on the eighth anniversary of
the Effective Date provided Employee is a full-time employee of the Company at
such time or may vest earlier on the basis of performance as herein described.
(i) Performance Restricted Shares for thirty thousand
(30,000) shares shall vest on the fourth anniversary of the Effective
Date if Cumulative Four Year ROI is at least 16%. If Cumulative Four
Year ROI is not greater than 14%, no Performance Restricted Shares shall
vest on the fourth anniversary of the Effective Date. To the extent
Cumulative Four Year ROI is greater than 14% but not at least 16%,
Performance Restricted Shares for one hundred fifty (150) shares shall
become vested on the fourth anniversary of the Effective Date for each
.01% by which Cumulative Four Year ROI exceeds 14%.
(ii) All Performance Restricted Shares which have not
previously vested shall vest on the fifth anniversary of the Effective
Date if Cumulative Five Year ROI is at least 16%. If Cumulative Five
Year ROI is not greater than 14%, no additional Performance Restricted
Shares shall vest on the fifth anniversary of the Effective Date. To the
extent Cumulative Five Year ROI is greater than 14% but not at least
16%, for each .01% by which Cumulative Five Year ROI exceeds 14%,
additional Performance Restricted Shares shall become vested for a
number of shares equal to the quotient of (A) the difference between
sixty thousand (60,000) and the number of Performance Restricted Shares
which became vested on the fourth anniversary of the Effective Date and
(B) two hundred (200).
(iii) Notwithstanding the foregoing, Performance Restricted
Shares shall become vested if the Employee's employment with the Company
is terminated by the Company without Cause or by the Employee with Good
Reason. If the Employee dies or the Employee's employment is terminated
because of Disability during the Employment Period prior to the fourth
anniversary of the Effective Date, Performance Restricted Shares for
thirty thousand (30,000) shares shall vest if the cumulative return on
investment from the Effective Date through the date of death or
Disability is at least 16% or Performance Restricted Shares for one
hundred fifty (150) shares for each .01% by which the cumulative return
on investment from the Effective Date through the date of death or
Disability exceeds 14% (up to 16%) shall vest (such determinations to be
made in a manner consistent with the Cumulative Four Year ROI
calculations).
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(c) 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 equity interests granted or
acquired pursuant to this Agreement shall become fully vested but only on a
provisional basis, for the sole purpose of enabling the Employee to tender such
equity interests 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 vesting shall no longer be provisional. If the
Merger Event is not consummated, the Employee shall continue to have the same
vested status in his equity interests as he had without regard to the
provisional vesting terms included herein.
SECTION 5.2 - VOTING RIGHTS
Subject to the restrictions contained in this Agreement and in Sections
3(b) and 5(h) of the Employment Agreement, Employee shall have full voting
rights with respect to the Restricted Shares and shall be entitled to receive
all dividends paid with respect to Restricted Shares, whether or not vested.
ARTICLE VI
OTHER PROVISIONS
SECTION 6.1 - 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 6.2 - 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 6.2
shall not prevent transfers by will or by the applicable laws of descent and
distribution.
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SECTION 6.3 - 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 6.4 - 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 6.4, 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 6.4. 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 6.5 - NO RIGHT TO 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 6.6 - TITLES
Titles are provided herein for convenience only and are not to serve as
a basis for interpretation or construction of this Agreement.
SECTION 6.7 - 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.
SECTION 6.8 - 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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