EXHIBIT 4.3
NEW PLAN REALTY TRUST
1997 STOCK OPTION PLAN
1. Purpose. The purpose of this New Plan Realty Trust 1997
Stock Option Plan ("Plan") is to attract and retain outstanding individuals
as employees and members of the Board of Trustees ("Trustees") of New Plan
Realty Trust (the "Company") and its affiliates (the Company and its
affiliates, collectively or individually, "Employer"), and to provide
incentives for such employees and Trustees to achieve the objectives and
promote the business success of Employer by providing to such individuals
opportunities to acquire common shares of beneficial interest of the Company
("Shares") through the exercise of stock options and thereby provide such
individuals with a greater proprietary interest in and closer identity with
Employer and its financial success. Options granted under this Plan may be
either nonqualified stock options or incentive stock options ("Incentive
Options"). (Nonqualified stock options and Incentive Options, collectively or
individually, "Options"). Options granted under this Plan and designated as
Incentive Options by the Committee (as herein defined) are intended to be
"incentive stock options" within the meaning of that term in section 422 of
the Internal Revenue Code of 1986, as amended ("Code"). To the extent deemed
appropriate by the Committee, the provisions of this Plan with respect to
Incentive Options and of each Incentive Option granted hereunder shall be
interpreted in a manner consistent with that section and all valid
regulations issued thereunder. Incentive Options may not be granted under
the Plan to Trustees, except to those Trustees who are also employees of
Employer at the time of the Option grant.
2. Administration. This Plan will be administered by the Board
of Trustees of the Company (the "Board") or a committee or committees
designated by the Board. (The Board or such committee or committees
hereinafter, collectively or individually, the "Committee"). The Committee
shall interpret the Plan and shall prescribe, amend and rescind rules and
regulations relating thereto and make all other determinations necessary or
advisable for the administration of the Plan. Any such action by the
Committee shall be final and conclusive on all persons having any interest in
the Options or Shares to which such action relates. A majority of the
disinterested members of the Committee shall constitute a quorum and all
determinations of the Committee shall be made by a majority of its
disinterested members. For purposes of this Section, a Committee member is
treated as disinterested if the Committee member is not exercising discretion
at such time with respect to the grant of Options under this Plan to himself
or herself. Any determination of the Committee under this Plan may be made
without notice of meeting of the Committee by a writing signed by a majority
of the disinterested Committee members. Whenever the Committee shall consist
of not more than two disinterested Trustees, all determinations shall be made
by both members either at a meeting or by a writing signed by both members.
The Committee shall determine, within the limits of the express
provisions of this Plan, those employees and Trustees to whom, and the time
or times at which, Options shall be granted to such employees or Trustees.
The Committee shall determine the number of Shares to be subject to each
Option, whether an Option will be a nonqualified stock option or an Incentive
Option, the duration of each Option, the time or times within which (during
the term of the Option) all or portions of each Option may be exercised,
whether or not the exercise schedule will be accelerated, the restrictions
applicable to each Option, and whether cash, Shares, or other property may be
accepted in full or partial payment upon exercise of an Option. In making
such determinations, the Committee may take into account the nature of the
services rendered by the Participants (hereinafter defined), their present
and potential contributions to the Employer's success and such other factors
as the Committee in its discretion shall deem relevant.
3. Participants. The "Participants" in the Plan will consist of
such employees and Trustees of Employer as the Committee in its sole
discretion from time to time designates within the limits of the express
provisions of this Plan. The Committee's designation of a Participant at any
time shall not require the Committee to designate such person at any other
time. The Committee shall consider such factors as it deems pertinent in
selecting Participants and in determining the terms of their respective
Options, including without limitation: (i) the financial condition of
Employer, (ii) anticipated profits of the current or future years, (iii)
contributions of Participants to the profitability and development of
Employer, both present and future, and (iv) other compensation provided to
Participants.
4. Terms and Conditions of Options. The Options granted under
this Plan shall be in such form and upon such terms and conditions as the
Committee shall from time to time determine, subject to the provisions of
this Plan, including the following:
(a) Option Price
The Option exercise price for each Option shall be
established by the Committee; provided that in the case of
Incentive Options, the Option exercise price shall in no event be
less than 100% of the fair market value of the Shares subject to
such Option at the time such Option is granted. In the case of an
Incentive Option granted to a Participant who at the time of grant
owns (directly or indirectly) shares aggregating more than 10% of
the total combined voting powers of all classes of shares of the
Company or any parent or subsidiary corporation ("10% Owner"), the
Option exercise price shall be at least 110% of such fair market
value of the Shares subject to such Incentive Option at the time
such Incentive Option is granted.
(b) Option Term
(i) Each Option granted under this Plan shall be for
such period as the Committee shall determine, which period may include,
without limitation, early termination of the Option upon the
Participant's termination of employment or cessation as a Trustee. For
purposes of this Section 4, termination of employment of a Participant
who is a Trustee shall mean the later of the Participant's termination
of employment with the Employer or termination of service as a Trustee.
(ii) Unless the terms of the Option provide otherwise or
the Committee determines otherwise, the following provisions apply:
a) Disability. In the event of termination of
employment of the Participant by reason of the Participant's
disability, the Participant shall have the right to exercise
all unexercised Options, to the extent exercisable as of the
last day of employment under the terms of the Option, at any
time within one year after such termination, subject to the
expiration of such Options pursuant to the terms of the
Options. Any such Options not so exercised shall terminate.
b) Death. In the event of termination of employment of
the Participant by reason of the Participant's death, any
person who acquires any unexercised Options by will or the
laws of descent and distribution from the Participant shall
have the right to exercise all unexercised Options held by the
Participant which were exercisable on the day of the
Participant's death under the terms of the Option, at any time
within one year after the Participant's death, subject to the
expiration of such Options pursuant to the terms of the
Options. Any such Options not so exercised shall terminate.
c) Other Terminations. In the event of the termination
of employment of a Participant for reasons other than those
described in Sections 4(b)(ii)(a) and 4(b)(ii)(b), any
unexercised Options granted to the Participant hereunder shall
be deemed canceled and terminated, except that such
Participant may, within thirty (30) days after such
termination of employment, exercise such Options which as of
the last day of such Participant's employment were exercisable
under the terms of the Option (after taking into account the
acceleration of exercisability pursuant to Section 8(c)
hereof), subject to the expiration of such Options pursuant to
the terms of the Options.
(iii) No Incentive Option, however, may be for a period
more than ten (10) years from the date the Incentive Option is granted;
provided, however, for a 10% Owner, no Incentive Option may be for a
period more than five (5) years from the date the Incentive Option is
granted. To the extent required by law, but subject to any earlier
cancellation and termination of the Option as provided in the Plan or
the Option, a Participant who ceases to be employed by Employer for any
reason other than death or disability shall not have the right to
exercise his or her Incentive Options at any time after three (3) months
after such cessation of employment and continue to have such Options
treated as Incentive Options. To the extent required by law, a
Participant who ceases to be employed by Employer because of disability
shall have no more than one (1) year after such cessation of employment
to exercise his or her Incentive Options and continue to have such
Options treated as Incentive Options. To the extent a Trustee more than
3 months after the Trustee ceased to be an employee of the Employer
exercises Options granted as Incentive Options and to the extent
required by law, such Options granted as Incentive Options shall be
treated as nonqualified stock options.
(c) Method of Exercise
Options may be exercised by giving written notice to the
Treasurer of the Company, stating the number of Shares with respect
to which the Option is being exercised and tendering payment
therefor. In the discretion of the Committee, made at the time the
Option is exercised, payment for Shares may be made in cash, other
Shares (by either actual delivery of Shares or by attestation),
retention of Shares which would otherwise be issued upon Option
exercise, "cashless exercise" through a third party, a combination
of the foregoing, or by any other means which the Committee
determines. It shall be a condition to the performance of the
Company's obligation to issue or transfer Shares upon exercise of
an Option that the person exercising the Option pay, or make
provision satisfactory to Employer for the payment of, any taxes
(other than stock transfer taxes) which Employer is obligated to
collect with respect to the issue or transfer of Shares upon such
exercise.
To the extent permitted by the Committee and the Employer, in
their sole discretion, Participants in the Plan may borrow funds on
a recourse basis from the Employer with which to purchase Shares
pursuant to the exercise of an Option. Eligibility of any
Participant for such borrowing will be determined solely at the
discretion of the Committee. Any such loan may bear interest at a
rate determined by the Committee.
The Committee may determine to grant additional options to
those Participants in the Plan who exercise their Options with
Shares.
(d) Value of Shares
The aggregate fair market value (determined at the time the
Incentive Options are granted) of the Shares with respect to which
Incentive Options are exercisable for the first time by a
Participant during any calendar year shall not exceed one hundred
thousand dollars ($100,000).
The award of any Options may be subject to other provisions (whether or
not applicable to the Option awarded to any other Participant) as the
Committee, in its sole discretion determines appropriate, including, without
limitation, restrictions on resale or other disposition, installment exercise
limitations, such provisions as may be appropriate to comply with federal or
state securities laws and stock exchange requirements, and undertakings or
conditions as to the Participant's employment in addition to those
specifically provided for under this Plan.
5. Shares. The total number of Shares allocated to this Plan and
available to designated Participants under this Plan is two million five
hundred thousand (2,500,000) Shares, except as such number of Shares shall be
adjusted in accordance with the provisions of Section 8. The maximum number
of Shares available to any one Participant under this Plan through Options
granted in any one calendar year is two hundred fifty thousand (250,000)
Shares. Each Option when granted shall state the number of Shares to which
it pertains. If any Option granted under this Plan expires unexercised, or
is terminated or ceases to be exercisable for any other reason without having
been fully exercised prior to the end of the period during which Options may
be granted under this Plan, or if any Option is canceled, the Shares
theretofore subject to such Option or to the unexercised portion of such
Option shall again become available for new Options to be granted under this
Plan to any eligible person (including the holder of such former Option).
6. Option Notices. Options granted pursuant to this Plan shall
be authorized by the Committee and shall be evidenced by notices ("Option
Notices") in such form as the Committee shall from time to time determine.
Such Option Notices shall state: (i) the number of Shares with respect to
which the Option is granted, (ii) the type of Option - nonqualified stock
option or Incentive Option, (iii) the Option exercise price, (iv) the Option
exercise schedule, (v) the Option term and (vi) such other information as the
Committee deems appropriate. The terms and conditions of each Option Notice
must be consistent with the provisions of this Plan and will be applicable
only to the grant that it announces.
7. Limitations on Transferability. No Incentive Option granted
to a Participant shall be transferable by the Participant except by will or
by the laws of descent and distribution. The Committee in its sole
discretion may permit a Participant to transfer Options, other than Incentive
Options, subject to any conditions or limitations specified by the Committee
such as classifications or categories of permissible transferees.
8. Adjustments.
(a) Capital Adjustments
If the Shares should, as a result of any stock dividend, stock
split, other subdivision or combination of Shares, or any
reclassification, recapitalization or otherwise, be increased or
decreased, the number of Shares covered by each outstanding Option,
the Option exercise price under each outstanding Option, and the
total number of Shares reserved for issuance under this Plan shall
be adjusted as determined by the Committee to reflect such action.
Any new Shares or other securities issued with respect to Shares
shall be deemed Shares.
(b) Sale or Reorganization
Subject to Section 8(c), in the event the Company is
merged or consolidated with another corporation, or in the event
the property or Shares of the Company are acquired by another
corporation, or in the event of a reorganization or liquidation of
Employer, or in the event of any extraordinary transaction, the
board of trustees or directors of any trust or corporation,
respectively, assuming the obligations of the Company hereunder or
the Committee, as applicable, shall have the right to provide for
the continuation of Options granted under the Plan or for other
equitable adjustments as determined by the board of trustees or
directors of such trust or corporation, respectively, assuming the
obligations of the Company hereunder or the Committee, as
applicable (by means, such as, for example, cash payment in an
amount equal to the difference between the Share price and the
Option price, conversion into other property or securities, or
giving written notice to holders of Options that their Options will
become immediately exercisable, notwithstanding any waiting period
otherwise prescribed by the Committee, as applicable, and that such
Options must be exercised within a specified period of days of such
notice or they will be terminated).
(c) Change of Control
Upon a "Change of Control" all Options shall become
immediately exercisable in full notwithstanding the terms of the
Option grant to the contrary. For purposes of this Plan, a Change
of Control means:
(i) The ownership by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) ("Beneficial Ownership") of, or the Beneficial
Ownership by any Person of, 25% or more of either (i) the then-
outstanding shares of beneficial interest of the Company (the
"Outstanding Company Common Shares") or (ii) the combined voting power
of the then-outstanding voting securities of the Company entitled to
vote generally in the election of Trustees (the "Outstanding Company
Voting Securities"); or
(ii) Individuals who, as of the effective date of this
Plan, are members of the Board (the "Incumbent Board Members") cease for
any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a Trustee subsequent to the
effective date of this Plan whose election, or nomination for election
by the Company's shareholders, was approved by a vote of at least a
majority of the Trustees then comprising the Incumbent Board Members
shall be considered as though such individual were an Incumbent Board
Member, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or removal of
Trustees or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(iii) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all
of the assets of the Company (a "Business Combination") unless,
following such Business Combination,
a) All or substantially all of the individuals and
entities who were the beneficial owners of the
Outstanding Company Common Shares and Outstanding Company
Voting Securities immediately prior to such Business
Combination beneficially own more than 50% of the then-
outstanding shares of beneficial interest and the
combined voting power of the then-outstanding voting
securities entitled to vote generally in the election of
trustees or directors of the trust or corporation,
respectively, resulting from the Business Combination
(including, without limitation, a corporation which as a
result of such transaction owns the Company or all or
substantially all of the Company's assets either directly
or through one or more subsidiaries) in substantially the
same proportions as their ownership, immediately prior to
the Business Combination, of the Outstanding Company
Common Shares and Outstanding Company Voting Securities,
as the case may be;
b) No Person (excluding any trust or corporation
resulting from such Business Combination) beneficially
owns, directly or indirectly, 25% or more of the then-
outstanding shares of beneficial interest or common stock
of the trust or corporation, respectively, resulting from
the Business Combination, or the combined voting power of
the then-outstanding voting securities of that trust or
corporation except to the extent that such ownership
existed prior to the Business Combination; and
c) At least a majority of the members of the board
of trustees or directors of the trust or corporation,
respectively, resulting from the Business Combination
were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of
the Board, providing for the Business Combination; or
(iv) Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
9. Legal and Other Requirements. Each Option granted under this
Plan shall be subject to the requirement that if at any time the Committee
shall determine, in its discretion, that the listing, registration or
qualification of the Shares issuable or transferable upon the exercise of the
Option upon any securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with the granting of such
Option, or the issuance, transfer or purchase of Shares thereunder, such
Option may not be exercised in whole or in part unless such listing,
registration, qualification, consent, or approval shall have been effected or
obtained free of any conditions not acceptable to the Committee. The Company
shall not be obligated to sell or issue any Shares in any manner in
contravention of the Securities Act of 1933, as amended, or any state
securities law. No adjustment with respect to any Shares covered by Options
other than pursuant to Section 8 hereof shall be made for dividends or other
rights for which the record date is prior to the date such stock certificate
is delivered.
10. Notice of Sale of Shares. A Participant shall provide prompt
notice of the disposition of any Shares acquired by the Participant upon
exercise of an Incentive Option granted hereunder within two years from the
date such Incentive Option was granted or within one year after the transfer
of such Shares to the Participant; provided, however, that a transfer to a
trustee, receiver, or other fiduciary in any insolvency proceeding, as
described in section 422(c)(3) of the Code, shall not be deemed to be such a
disposition.
11. Tax Withholding. Employer shall comply with the obligations
imposed on Employer under applicable tax withholding laws, if any, with
respect to Options granted hereunder, Shares transferred upon exercise
thereof, and the disposition of such Shares thereafter, and shall be entitled
to do any act or thing to effectuate any such required compliance, including,
without limitation, withholding from amounts payable by Employer to a
Participant and making demand on a Participant for the amounts required to be
withheld.
If the Committee so permits, a Participant, or upon the
Participant's death, the Participant's beneficiary, may satisfy, in whole or
in part, the obligation to pay Employer any amount required to be withheld
under the applicable federal, state and local income tax laws in connection
with exercise of an Option under this Plan by: (i) having Employer withhold
from the Shares to be acquired upon the exercise of the Option, (ii)
delivering to Employer either previously acquired Shares or Shares acquired
upon the exercise of the Option which the Participant or beneficiary was
unconditionally obligated to deliver to Employer or (iii) any other means
which the Committee determines. The fair market value of Shares shall be
determined in accordance with procedures established by the Committee. Any
amounts required to be withheld in excess of the value of Shares withheld or
delivered shall be paid in cash or withheld from other compensation paid by
Employer.
12. No Contract of Employment. Neither the adoption of this Plan
nor the grant of any Options, nor ownership of Shares shall be deemed to
obligate Employer to continue the appointment, employment, or engagement of
any Participant for any particular period.
13. Indemnification of Committee. The members of the Committee
shall be indemnified by the Company to the fullest extent permitted by the
law governing unincorporated Massachusetts business trusts and the governing
instruments of the Company.
14. Amendment and Termination of Plan. The Trustees of the
Company may amend this Plan from time to time or terminate this Plan at any
time, but no such action shall reduce the number of Shares subject to the
then outstanding Options granted to any Participant or adversely to the
Participant change the terms and conditions of outstanding Options without
the Participant's consent. No Option may be granted after ten (10) years
from the original effective date of adoption of this Plan.
15. Massachusetts Law to Govern. This Plan shall be governed by
and construed in accordance with the laws of the Commonwealth of
Massachusetts.
16. Effective Date of Plan. The effective date of this Plan is
September 8, 1997. Designation of Options as Incentive Options shall be
subject to the approval of this Plan by a majority of the votes cast at a
meeting of shareholders and having the right to vote thereon.