WEINGARTEN REALTY INVESTORS
1999 EMPLOYEE SHARE PURCHASE PLAN
1. Purpose
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The primary purpose of this Plan is to encourage Share ownership by each
Eligible Employee and each Eligible Trust Manager in the belief that such Share
ownership will increase his or her interest in the success of Weingarten Realty
Investors, a Texas real estate investment trust (the "Company").
2. Definitions
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2.1. The term "Account" shall mean the separate bookkeeping account
established and maintained by the Plan Administrator for each Participant for
each Purchase Period to record the contributions made on his or her behalf to
purchase Shares under this Plan.
2.2. The term "Beneficiary" shall mean the person designated as such in
accordance with Section 8.
2.3. The term "Board" shall mean the Board of Trust Managers of the
Company.
2.4. The term "Closing Price" (a) for the first business day of any
Purchase Period shall mean the closing price for a share of Share as reported
for such day in The Wall Street Journal or in any successor to The Wall Street
Journal or, if there is no such successor, in any publication selected by the
Committee or, if no such closing price is so reported for such day, the first
such closing price which is so reported after such day or, if no such closing
price is so reported during the two week period which begins on the first day of
such Purchase Period, the fair market value of a Share as determined on the
first day of such Purchase Period by the Committee and (b) for the last business
day of a Purchase Period shall mean the closing price for a Share as reported
for such day in The Wall Street Journal or in any successor to The Wall Street
Journal or, if there is no such successor, in any publication selected by the
Committee or, if no such closing price is so reported for such day, the last
such closing price which is so reported before such day or, if no such closing
price is so reported during the two week period which ends on the last day of
such Purchase Period, the fair market value of a Share as determined as of the
last day of such Purchase Period by the Committee.
2.5. The term "Committee" shall mean the Compensation Committee of the
Board.
2.6. The term "Company" shall mean Weingarten Realty Investors, a Texas
real estate investment trust.
2.7. The term "Election Form" shall mean the form which an Eligible
Employee or Eligible Trust Manager shall be required to properly complete in
writing and timely file at least 15 days prior to the commencement of any
Purchase Period in order to make any of the elections available to an Eligible
Employee or Eligible Trust Manager under this Plan.
2.8. The term "Eligible Trust Manager" shall mean a person who is a
member of the Board.
2.9. The term "Eligible Employee" shall mean each officer or employee
of a Participating Employer who is shown on the payroll records of a
Participating Employer as a "benefits eligible" employee.
2.10. The term "Participant" shall mean (a) for each Purchase Period an
Eligible Employee or Eligible Trust Manager who has elected to purchase Shares
in accordance with Section 4 in such Purchase Period and (b) any person for whom
Shares are held pending delivery under Section 7.
2.11. The term "Participating Employer" shall mean the Company and any
affiliated entity which is designated as such by the Committee.
2.12. The term "Pay" means (i) in the case of an Eligible Employee, all
cash compensation paid to him or her for services to the Participating Employer,
including regular straight time earnings or draw, overtime, commissions and
bonuses, but excluding amounts paid as living allowance or reimbursement of
expenses and other similar payments; and (ii) in the case of an Eligible Trust
Manager, all retainers and meeting and other service fees paid to him or her by
the Participating Employer.
2.13. The term "Pay Day" means the day as of which Pay is paid to a
Participant.
2.14. The term "Plan" shall mean this Weingarten Realty Investors 1999
Share Purchase Plan, effective as of April 1, 1999, and as thereafter amended
from time to time.
2.15. The term "Plan Administrator" shall mean the Company or the
Company's delegate.
2.16. The term "Purchase Period" shall mean a period set by the
Committee. Unless changed by the Committee, each Purchase Period shall begin on
the first day of a calendar quarter and end on the last day of such calendar
quarter. The first Purchase Period shall commence on January 1, 1999 and
terminate on March 31, 1999.
2.17. The term "Purchase Price" for each Purchase Period shall mean 85%
of the lesser of: (a) the Closing Price for a Share on the last day of such
Purchase Period and (b) the greater of: (i) the Closing Price for a Share on
the first day of such Purchase Period and (ii) the average Closing Price for a
Share for all of the business days in the Purchase Period.
2.18. The term "Rule 16b-3" shall mean Rule 16b-3 promulgated under
Section 16(b) of the Securities Exchange Act of 1934, as amended, or any
successor to such rule.
2.19. The term "Share" shall mean the common shares of beneficial
interest, par value $.03 per share, of the Company. The aggregate number of
Shares available for grant under this Plan shall not exceed 250,000 subject to
adjustment pursuant to Section 17 hereof plus any Shares acquired by the Plan
Administrator in the open market for the Accounts of the Participants. Shares
subject to the Plan may be either authorized but unissued Shares, or Shares
hereafter acquired by the Company.
3. Administration
Except for the exercise of those powers expressly granted to the Committee
to determine the Closing Price, who is a Participating Employer and to set the
Purchase Period, the Plan Administrator shall be responsible for the
administration of this Plan and shall have the power in connection with such
administration to interpret the Plan and to take such other action in connection
with such administration as the Plan Administrator deems necessary or equitable
under the circumstances. The Plan Administrator also shall have the power to
delegate the duty to perform such administrative functions as the Plan
Administrator deems appropriate under the circumstances. Any person to whom the
duty to perform an administrative function is delegated shall act on behalf of
and shall be responsible to the Plan Administrator for such function. Any
action or inaction by or on behalf of the Plan Administrator under this Plan
shall be final and binding on each Eligible Employee, each Eligible Trust
Manager, each Participant and on each other person who makes a claim under this
Plan based on the rights, if any, of such Eligible Employee, Eligible Trust
Manager or Participant under this Plan.
4. Participation
4.1. Each person who is an Eligible Employee or an Eligible Trust
Manager shall be a Participant in this Plan for the related Purchase Period if
he or she properly completes and timely files an Election Form with the Plan
Administrator to elect to participate in this Plan. An Election Form may
require an Eligible Employee or Eligible Trust Manager to provide such
information and to agree to take such action (in addition to the action required
under Section 5) as the Plan Administrator deems necessary or appropriate in
light of the purpose of this Plan or for the orderly administration of this
Plan.
4.2. Notwithstanding anything herein to the contrary, no person shall
be deemed to be an Eligible Employee or an Eligible Trust Manager:
(a) if immediately after such participation, Participant would own
Shares, and/or hold outstanding options to purchase Shares, possessing 5% or
more of the total combined voting power or value of all classes of Shares of the
Company (for purposes of this paragraph, the rules of Section 424(d) of the
Internal Revenue Code of 1986, as amended, shall apply in determining Share
ownership of any Participant); or
(b) if such Participant's rights to purchase Shares under all employee
share purchase plans of the Company accrues at a rate which exceeds $25,000 in
fair market value of the Shares (determined at the time of Plan enrollment) for
each calendar year in which such purchase right is outstanding.
5. Contributions
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5.1. Each Participant's Election Form under Section 4 shall specify the
contributions that he or she proposes to make for the related Purchase Period.
Such contributions shall be expressed as a specific dollar amount that
Participant proposes to contribute in cash or a percentage of the Participant's
Pay that his or her Participant Employer is authorized to deduct from his or her
Pay each Pay Day during the Purchase Period (or as a combination of such cash
and such payroll deduction contributions); provided, however:
(a) the minimum payroll deduction for a Participant for each Pay Day
for purposes under this Plan shall be $10.00, and
(b) the maximum contribution which a Participant may make for purposes
under this Plan for any calendar year shall be $25,000.
5.2. A Participant shall have the right to amend his or her Election
Form at any time to reduce or to stop his or her contributions, and such
election shall be effective immediately for cash contributions and as soon as
practicable after the Plan Administrator actually receives such amended Election
Form for payroll deductions. A withdrawal shall be deducted from the
participant's Account as of the date the Plan Administrator receives such
amended Election Form, and the actual withdrawal shall be effected by the Plan
Administrator as soon as practicable after such date. Participants who stop or
withhold contributions for any Purchase Period may not participate again for at
least six months.
5.3. All payroll deductions made for a Participant shall be credited to
his or her Account as of the Pay Day as of which the deduction is made. All
contributions made by a Participant under this Plan, whether in cash or through
payroll deductions, shall be held by the Company or by such Participant's
Participating Employer, as agent for the Company. All such contributions shall
be held as part of the general assets of the Company and shall not be held in
trust or otherwise segregated from the Company's general assets. No interest
shall be paid or accrued on any such contributions. Each Participant's right to
the contributions credited to his or her Account shall be that of a general and
unsecured creditor of the Company. Each Participating Employer shall have the
right to make such provisions as it deems necessary or appropriate to satisfy
any tax laws with respect to purchases of Shares made under this Plan.
5.4. The balance credited to the Account of an Eligible Employee
automatically shall be refunded in full (without interest) if his or her status
as an employee of all Participating Employers terminates for any reason
whatsoever during a Purchase Period and the balance credited to the Account of
an Eligible Trust Manager automatically shall be refunded in full (without
interest) if his or her status as a member of the Board terminates for any
reason whatsoever during a Purchase Period. Such refunds shall be made as soon
as practicable after the Plan Administrator has actual notice of any such
termination.
6. Purchase of Shares
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6.1. If a Participant is an Eligible Employee or an Eligible Trust
Manager through the end of a Purchase Period, the balance which remains credited
to his or her Account at the end of such Purchase Period automatically shall be
applied to purchase Shares at the Purchase Price for such Shares for such
Purchase Period. Such Shares shall be purchased on behalf of the Participant by
operation of this Plan in whole and fractional Shares.
6.2. Except as specifically provided herein, the Participants shall
have the same rights and privileges under the Plan. All rules and
determinations of the Board in the administration of the Plan shall be uniformly
and consistently applied to all persons in similar circumstances.
6.3. If the total Shares to be purchased on any date in accordance with
Section 6(a) exceeds the Shares then available under the Plan (after deduction
of all Shares that have been purchased under Section 6(a)), the Plan
Administrator shall make a pro rata allocation of the Shares remaining available
in as neatly a uniform manner as shall be practical and as it shall determine to
be equitable.
7. Delivery
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A book-entry record of the Shares purchased by each Participant shall be
maintained by the Company's transfer agent and no certificates shall be issued
for such Shares except to the extent that a Participant specifically so
requests. Notwithstanding the foregoing, when a refund is made to a participant
pursuant to Section 5.4, certificates shall be delivered to him or her for all
Shares then held for the Participant under the Plan. A Share certificate
delivered to a Participant shall be registered in his or her name or, if the
Participant so elects and is permissible under applicable law, in the names of
the Participant and one such other person as may be designated by the
Participant, as joint tenants with rights of survivorship. However, (a) no
Share certificate representing a fractional share of Share shall be delivered to
a Participant or to a Participant and any other person, (b) cash which the Plan
Administrator deems representative of the value of a Participant's fractional
share shall be distributed (when a participant requests a distribution of
certificates for all of the shares of Share held for him or her) in lieu of such
fractional share unless a Participant in light of Rule 16b-3 waives his or her
right to such cash payment and (c) the Plan Administrator shall have the right
to charge a participant for registering Share in the name of the Participant and
any other person. No Participant (or any person who makes a claim for, on behalf
of or in place of a participant) shall have any interest in any Share under this
Plan until they have been reflected in the book-entry record maintained by the
transfer agent or the certificate for such Share has been delivered to such
person.
8. Designation of Beneficiary
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A Participant may designate on his or her Election Form a Beneficiary (a)
who shall receive the balance credited to his or her Account if the Participant
dies before the end of a Purchase Period and (b) who shall receive the Share, if
any, purchased for the Participant under this Plan if the Participant dies after
the end of a Purchase Period but before either the certificate representing such
Shares has been delivered to the Participant or before such Shares have been
credited to a brokerage account maintained for the Participant. Such
designation may be revised in writing at any time by the Participant by filing
an amended Election Form, and his or her revised designation shall be effective
at such time as the Plan Administrator receives such amended Election Form. If a
deceased Participant fails to designate a Beneficiary or, if no person so
designated survives a Participant or, if after checking his or her last known
mailing address, the whereabouts of the person so designated survives a
Participant or, if after checking his or her last known mailing address, the
whereabouts of the person so designated are unknown, then the Participant's
estate shall be treated as his or her designated Beneficiary under this Section
8.
9. Transferability and Dispositions
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9.1. Neither the balance credited to a Participant's Account nor any
rights to receive Shares under this Plan may be assigned, encumbered, alienated,
transferred, pledged or otherwise disposed of in any way by a Participant during
his or her lifetime or by his or her Beneficiary or by any other person during
his or her lifetime, and any attempt to do so shall be without effect.
9.2. Except as provided in the last sentence of this Section 9.2 or in
Section 7, no sale, transfer or other disposition may be made of any Shares
purchased under the Plan until the second anniversary of such purchase. If a
Participant violates the foregoing restriction, he or she shall remit to the
Company an amount of cash equal to the difference between the amount he or she
paid for such Shares and the Closing price of such Shares on the date they were
purchased. The amount to be remitted for purposes of the foregoing shall be
computed by the Plan Administrator, in its discretion, using a last-in-first-out
basis of accounting in the event that Shares for more than one Purchase Period
are involved. Notwithstanding the foregoing, if a Participant who owns Shares
subject to the foregoing restriction is determined by the Plan Administrator in
its discretion to have a serious financial need for the proceeds of the sale of
such Shares, then upon application made by the Participant, the Plan
Administrator shall consent to a sale of such Shares to the extent necessary to
satisfy the serious financial need, and the Participant will not be required to
make the remittance to the Company described in this Section 9.2.
10. Securities Registration
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If the Company shall deem it necessary to register under the Securities Act
of 1933, as amended, or any other applicable statute any Shares purchased under
this Plan or to qualify any such Shares for an exemption from any such statutes,
the Company shall take such action at its own expense. If Shares are listed on
any national securities exchange at the time any Shares are purchased hereunder,
the Company shall make prompt application for the listing on such national
securities exchange of such Shares, at its own expense. Purchases of Shares
hereunder shall be postponed as necessary pending any such action.
11. Compliance with Rule 16b-3
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All elections and transactions under this Plan by persons subject to Rule
16b-3 are intended to comply with at least one of the exemptive conditions under
Rule 16b-3. The Plan Administrator shall establish such administrative
guidelines to facilitate compliance with at least one such exemptive condition
under Rule 16b-3 as the Plan Administrator may deem necessary or appropriate.
If any provision of this Plan or such administrative guidelines or any act or
omission with respect to this Plan (including any act or omission by an Eligible
Employee or an Eligible Trust Manager) fails to satisfy such exemptive condition
under Rule 16b-3 or otherwise is inconsistent with such condition, such
provision, guidelines or act or omission shall be deemed null and void.
12. Amendment or Termination
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This Plan may be amended by the Board from time to time to the extent that
the Board deems necessary or appropriate, and any such amendment shall be
subject to the approval of the Company's shareholders to the extent such
approval is required under the laws of the State of Texas, federal tax laws or
to the extent such approval is required to meet the security holder approval
requirements under Rule 16b-3; provided, however, no amendment shall be
retroactive unless the Board in its discretion determines that such amendment is
in the best interest of the Company or such amendment is required by applicable
law to be retroactive. The Board also may terminate this Plan and any Purchase
Period at any time (together with any related contribution election) or may
terminate any Purchase Period (together with any related contribution elections)
at any time; provided, however, no such termination shall be retroactive unless
the Board determines that applicable law requires a retroactive termination.
13. Notices
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All Election Forms and other communications from a Participant to the Plan
Administrator under, or in connection with, this Plan shall be deemed to have
been filed with the Plan Administrator when actually received in the form
specified by the Plan Administrator at the location, or by the person,
designated by the Plan Administrator for the receipt of any such Election Form
and communications.
14. Employment
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The right to elect to participate in this Plan shall not constitute an
offer of employment or membership on the Board, and no election to participate
in this Plan shall constitute an employment agreement for an Eligible Employee
or an agreement with respect to Board membership for an Eligible Trust Manager.
Any such right or election shall have no bearing whatsoever on the employment
relationship between an Eligible Employee and any other person or on an Eligible
Trust Manager's status as a member of the Board. Finally, no Eligible Employee
shall be induced to participate in this Plan, or shall participate in this Plan,
with the expectation that such participation will lead to employment or
continued employment, and no Eligible Trust Manager shall be induced to
participate in this Plan, or shall participate in this Plan, with the
expectation that such participation will lead to continued membership on the
Board.
15. Changes in Capital Structure
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15.1. In the event that the outstanding Shares of the Company are
hereafter increased or decreased or changed into or exchanged for a different
number or kind of Shares or other securities of the Company or of another
corporation, by reason of any reorganization, merger, consolidation,
recapitalization, reclassification, Share split-up, combination of Shares or
dividend payable in Shares, appropriate adjustment shall be made by the Board in
the number or kind of Shares as to which a right granted under this Plan shall
be exercisable, to the end that the right holder's proportionate interest shall
be maintained as before the occurrence of such event. Any such adjustment made
by the Board shall be conclusive.
15.2. If the Company is not the surviving or resulting corporation in
any reorganization, merger, consolidation or recapitalization, this Plan, and
the Company's rights, duties and obligations hereunder, shall be assumed by the
surviving or resulting corporation and the rights of a Participant to purchase
Shares shall continue in full force and effect.
16. Headings, References and Construction
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The headings to sections in this Plan have been included for convenience of
reference only. This Plan shall be interpreted and construed in accordance with
the laws of the State of Texas.
17. Shareholder Approval
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17.1. This Plan is intended to be a "Qualified Plan" within the meaning
of Section 423 of the Internal Revenue Code of 1986, as amended. Accordingly,
the Company will seek shareholder approval of the Plan at the next annual
meeting of the Company's shareholders. If shareholder approval is not obtained,
the Board of Trust Managers may terminate the Plan in its sole discretion.