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EXHIBIT 10.8
EXCEL REALTY TRUST, INC.
DIRECTORS' 1994 STOCK OPTION PLAN
(AMENDED AND RESTATED MAY 10, 1996)
(SUBMITTED FOR STOCKHOLDER APPROVAL MAY 10, 1996)
1. PURPOSE OF THE PLAN. Under this Amended Directors' 1994 Stock
Option Plan (the "Plan") of EXCEL REALTY TRUST, INC. (the "Company"), options
shall be granted to directors of the Company to purchase shares of the Company's
capital stock. The Plan is designed to enable the Company to attract and retain
directors of the highest caliber and experience.
2. STOCK SUBJECT TO PLAN. The maximum number of shares of stock for
which options granted hereunder may be exercised shall be 240,000 shares of the
Company's Common Stock, par value $.01 per share, subject to the adjustments
provided in Section 7. Shares of stock subject to the unexercised portions of
any options granted under this Plan which expire or terminate or are cancelled
may again be subject to options under the Plan.
3. PARTICIPATING DIRECTORS. The directors of the Company who shall
participate in this Plan are each of the current and future directors who have
been duly elected and qualified.
4. ADMINISTRATION.
(a) The Plan shall be administered by a committee (the
"Committee") which shall consist of two or more directors, appointed by
and holding office at the pleasure of the Board, each of whom is a
"disinterested person" as defined by Rule 16b-3 and an "outside
director" within the meaning of Section 162(m)(4)(C)(ii) of the Internal
Revenue Code of 1986, as amended (the "Code"). Appointment of Committee
members shall be effective upon acceptance of appointment. Committee
members may resign at any time by delivering written notice to the
Board. Vacancies in the Committee shall be filled by the Board.
(b) It shall be the duty of the Committee to conduct the
general administration of the Plan in accordance with its provisions.
The Committee shall have the power to interpret the Plan and the options
and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret,
amend or revoke any such rules. The Board shall have no right to
exercise any of the rights or duties of the Committee under the Plan.
(c) The Committee shall act by a majority of its members in
office. The Committee may act either by vote at a meeting or by a
memorandum or other written instrument signed by a majority of the
Committee.
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(d) Members of the Committee shall receive such compensation
for their services as members as may be determined by the Board. All
expenses and liabilities incurred by members of the Committee in
connection with the administration of the Plan shall be borne by the
Company. The Committee may employ attorneys, consultants, accountants,
appraisers, brokers or other persons. The Committee, the Company and its
officers and directors shall be entitled to rely upon the advice,
opinions or valuations of any such persons. All actions taken and all
interpretations and determinations made by the Committee in good faith
shall be final and binding upon all option holders, 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 options, and all members of the
Committee shall be fully protected by the Company in respect to any such
action, determination or interpretation.
5. GRANT OF OPTIONS. Each participating director shall be granted
an option for 3,000 shares of stock (subject to the adjustments provided in
Section 7) on the date on which the amended Plan is approved by the stockholders
of the Company. On each anniversary date of such stockholder approval on which
he or she continues to serve as a director of the Company (these annual dates of
grant are collectively referred to herein as the "date of grant") each Director
then in office (which would include current and continuing Directors as well as
any Director who later joins the Board) shall receive an option exercisable for
a number of shares determined pursuant to the following formula:
Number of option shares = 3,000 + (250 multiplied by the number of years
of continuous service beginning in 1997, including any portion of any
fiscal year of service as a full year)
The number of shares subject to options allocated under the revised
formula escalates each year as a result of being based on years of service as a
director. Any additional or replacement Director shall, pursuant to the revised
formula, receive on first occurring anniversary of the stockholder's approval of
this amendment, an option for 3,000 shares, which option shall increase by 250
shares during each year of service thereafter. Notwithstanding any other
provision of this Plan, no option hereunder shall be granted unless 3,000 shares
(subject to said upward adjustments) are then available therefor under Sections
2 and 7. In consideration of the granting of the option, the option holder shall
be deemed to have agreed to remain as a director of the Company for a period of
at least one year after the date of grant. Nothing in this Plan shall, however,
confer upon any option holder any right to continue as a director of the Company
or shall interfere with or restrict in any way the rights of the Company or the
Company's stockholders, which are hereby expressly reserved, to remove any
option holder at any time for any reason whatsoever, with or without cause, to
the extent permitted by the Company's bylaws and applicable law.
6. OPTION PROVISIONS. Each option granted under the Plan shall be
evidenced by an agreement between the Company and the participating director and
shall contain such terms and provisions as the Committee may authorize,
including in any event the following:
(a) The exercise price of each option shall be equal to the
aggregate fair market value of the shares of stock optioned on the date
of grant of such option. For this
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purpose, the fair market value of a share of the Company's Common Stock
as of a given date shall be (i) the closing price of a share of the
Company's Common Stock on the principal exchange on which shares of the
Company's Common Stock are then trading, if any, on the trading day
previous to such date, or, if shares were not traded on the day previous
to such date, then on the next preceding trading day during which a sale
occurred; or (ii) if such Common Stock is not traded on an exchange but
is quoted on Nasdaq or a successor quotation system, (1) the last sales
price (if the Company's Common Stock is then listed as a National Market
Issue under the NASD National Market System) or (2) the mean between the
closing representative bid and asked prices (in all other cases) for the
Company's Common Stock on the trading day previous to such date as
reported by Nasdaq or such successor quotation system; or (iii) if such
Common Stock is not publicly traded on an exchange and not quoted on
Nasdaq or a successor quotation system, the mean between the closing bid
and asked prices for the Company's Common Stock, on the trading day
previous to such date, as determined in good faith by the Committee; or
(iv) if the Company's Common Stock is not publicly traded, the fair
market value established by the Committee acting in good faith.
(b) Payment for stock purchased upon any exercise of the
option shall be made in full in cash concurrently with such exercise.
However, at the discretion of the Board, the terms of the option may:
(i) subject to the timing requirements of paragraph 6(j), allow payment,
in whole or in part, through the surrender of shares of Common Stock
then issuable upon exercise of the option having a Fair Market Value on
the date of option exercise equal to the aggregate exercise price of the
option or exercised portion thereof; (ii) allow payment, in whole or in
part, through the delivery of a promissory note bearing interest (at no
less than such rate as shall then preclude the imputation of interest
under the Code) and payable upon such terms as may be prescribed by the
Board, or (iii) allow payment through any combination of the
consideration provided in the foregoing subparagraphs (i) and (ii). In
the case of a promissory note, the Board 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.
(c) In the case of options which are granted to directors
who are employees of the Company, such directors shall reimburse the
Company in cash for all amounts which the Company is required to
withhold under federal, state or local law in connection with the
exercise of the Option.
(d) The option shall become immediately exercisable.
(e) Any option holder who ceases to be a director, whether
because of death, resignation, removal, expiration of his or her term of
office or any other reason, shall have the right to exercise the option
for thirty (30) days after such event (but not after the expiration date
of the option), at which time the option shall terminate and may no
longer be exercised, except that (i) in the event of the death of an
option holder (x) who is at the time of his or her death a director of
the Company and who has served as a director since
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the date of grant of the option, the option may be exercised at any time
within one year following the date of death (but not after the
expiration date of the option), by the option holder's estate or by a
person who acquired the right to exercise the option by bequest or
inheritance, or (y) within thirty (30) days after the termination of the
option holder's status as a director of the Company, the option may be
exercised at any time within six (6) months after the date of death (but
in no event after the expiration date of the option) by the option
holder's estate or by a person who acquired the right to exercise the
option by bequest or inheritance, and (ii) upon the option holder's
ceasing to be a director by reason of disability he or she (or his or
her guardian) shall have the right to exercise the option within one
year after the date the option holder ceased to be a director (but not
after the expiration date of the option.
(f) Notwithstanding any other provision herein, such option
may not be exercised prior to approval of this Plan by the Company's
stockholders having a majority of the voting power of the outstanding
stock; nor prior to the admission of the shares of stock issuable on
exercise of the option to listing on notice of issuance on any stock
exchange on which shares of the same class are then listed; nor unless
and until such securities may be issued and delivered without causing
the Company to be in violation of or incur any liability under any
federal, state or other securities law, any requirement of any
securities exchange listing agreement to which the Company may be a
party, or any other requirement of law or of any regulatory body having
jurisdiction over the Company.
(g) The option shall not be transferable by the option
holder other than by will or the laws of descent and distribution, may
not be pledged or hypothecated, and shall be exercisable during the
option holder's lifetime only by the option holder or by his or her
guardian or legal representative.
(h) The term of each option shall be ten (10) years from the
date of grant thereof or such shorter term as may be provided by the
Committee.
(i) Options granted under the Plan are not intended to
qualify, and shall not be designated, as "incentive stock options" under
Section 422 of the Code.
(j) At the discretion of the Board, shares of Common Stock
issuable to the optionee upon exercise of the option may be used to
satisfy the option exercise price or the tax withholding consequences of
such exercise, in the case of persons subject to Section 16 of the
Exchange Act, only (i) during the period beginning on the third business
day following the date of release of the quarterly or annual summary
statement of sales and earnings of the Company and ending on the twelfth
business day following such date or (ii) pursuant to an irrevocable
written election by the optionee to use shares of Common Stock issuable
to the optionee upon exercise of the option to pay all or part of the
option price or the withholding taxes made at least six months prior to
the payment of such option price or withholding taxes.
7. ADJUSTMENTS. Subject to any required action by the stockholders
of the Company, the number of shares of
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Common Stock covered by each outstanding option, and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no options have yet been granted or which have been returned to the Plan
upon cancellation or expiration of an option, as well as the price per share of
Common Stock covered by each such outstanding option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without receipt
of consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the
Committee, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Common Stock subject to an option.
8. CORPORATE REORGANIZATIONS. In the event of the proposed
dissolution or liquidation of the Company, the option will terminate immediately
prior to the consummation of such proposed action, unless otherwise provided by
the Committee. The Committee may, in the exercise of its sole discretion in such
instances, declare that any option shall terminate as of a date fixed by the
Committee. In the event of a proposed sale of all or substantially all of the
assets of the Company, or the merger of the Company with or into another
corporation, the option shall be assumed or an equivalent option shall be
substituted by such successor corporation or a parent or subsidiary of such
successor corporation, unless the Committee determines, in the exercise of its
sole discretion and in lieu of such assumption or substitution, that the option
holder shall have the right to exercise the option as to all of the optioned
shares, including shares as to which the option would not otherwise be
exercisable. If the Committee makes an option fully exercisable in lieu of
assumption or substitution in the event of a merger or sale of assets, the
Committee shall notify the option holder that the option shall be fully
exercisable for a period of fifteen (15) days from the date of such notice, and
the option will terminate upon the expiration of such period.
9. DURATION, TERMINATION AND AMENDMENT OF PLAN. This Plan shall
become effective upon its approval by the stockholders of the Company and shall
expire on May 15, 2004, so that no option may be granted hereunder after that
date although any option outstanding on that date may thereafter be exercised in
accordance with its terms. The Board of Directors may alter, amend, suspend or
terminate this Plan, provided that no such action shall deprive an option
holder, without his or her consent, of any option previously granted pursuant to
this Plan or of any of the option holder's rights under such option. Except as
herein provided, no such action of the Board of Directors, unless taken with the
approval of the stockholders of the Company, may make any amendment to the Plan
as to which approval by stockholders is necessary for continued applicability of
Rule 16b-3 of the Securities and Exchange Commission. Notwithstanding anything
to the contrary contained herein, the Board of Directors with respect to the
Plan or any option shall not amend or modify any provision concerning the
amount, price or timing of any option (including, without limitation the
provisions of Sections 2, 5 and 6(a) of the Plan) more than once every six
months other than to comply with changes in the Internal Revenue Code of 1986,
as amended, the Employee Retirement Income Security Act of 1974, as amended, or
the respective rules and regulations thereunder.
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