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Exhibit 10.45
1993 SHARE OPTION PLAN
OF
CORPORATE PROPERTY INVESTORS
1. Adoption and Purpose of the Plan. Corporate Property Investors
("CPI") hereby adopts this share option plan (the "Plan") to provide for the
grant of share options to Trustees and employees of CPI. The general purpose of
the Plan is to promote the interests of CPI by providing to Trustees and
employees additional incentives to continue and increase their efforts with
respect to, and (in the case of employees) to remain in the employ of, CPI.
2. Stock Subject to the Plan. There will be reserved for issuance
upon the exercise of options to be granted from time to time under the Plan an
aggregate of 1,000,000 Series A Common Shares of Beneficial Interest of CPI
("Common Shares"). Such shares may be in whole or in part, as the Board of
Trustees of CPI (the "Board") shall from time to time determine, authorized and
unissued Common Shares or issued Common Shares that shall have been reacquired
by CPI. If any option granted under the Plan shall expire or terminate for any
reason without having been exercised in full, the unpurchased Common Shares
subject thereto shall again be available for the purposes of the Plan.
3. Administration. The Plan shall be administered by the
Compensation Committee of the Board (the "Committee"). Subject to the express
provisions of the Plan, the Committee shall have plenary authority, in its
discretion, to determine the terms of all options granted under the Plan (which
need not be identical) including, without limitation, the purchase price of the
Common Shares covered by each option, the individuals to whom, and the time or
times at which, options shall be granted, the number of Common Shares to be
subject to each option, when an option can be exercised and whether in whole or
in installments. In making such determinations, the Committee may take into
account the nature of the services rendered by the respective individuals, their
present and potential contributions to CPI's success and such other factors as
the Committee in its discretion shall deem relevant; provided, however, that
each time options are granted to non-employee Trustees of CPI, all such Trustees
shall be offered options for the same number of Common Shares and with the same
terms
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and provisions. Subject to the express provisions of the Plan, the Committee
shall have plenary authority to interpret the Plan, to prescribe, amend and
rescind the rules and regulations relating to it and to make all other
determinations deemed necessary or advisable for the administration of the Plan.
The determinations of the Committee on the matters referred to in this section 3
shall be conclusive. No officer or former officer of CPI who is a Trustee shall
serve as a member of the Committee.
The Committee shall select one of its members as Chairman of the
Committee, and the Committee shall hold its meetings at such times and places as
it shall deem advisable. A majority of its members shall constitute a quorum and
all determinations shall be made by a majority of its members. Any determination
reduced to writing and signed by a majority of the members shall be fully as
effective as if it had been made by a majority vote at a meeting duly called and
held.
4. Eligibility and Types of Options. Options may be granted only to
Trustees (whether or not employees), officers and other salaried employees of
CPI. A Trustee, officer or employee who has been granted an option may be
granted an additional option or options. The eligibility of non-employee
Trustees to receive options shall be subject to the approval of the shareholders
of CPI at the 1994 Annual Meeting; if such approval is not received, then any
option theretofore granted to a non-employee Trustee shall terminate. Any
options granted to non-employee Trustees prior to the 1994 Annual Meeting shall
not be exercisable until after the date of such Meeting.
Nothing contained in the Plan shall be construed to limit the right
of CPI to grant options otherwise than under the Plan in connection with the
acquisition by purchase, lease, consolidation or otherwise of the business and
assets of any corporation, firm or association, including options granted to
employees thereof who become employees of CPI, or for other proper purposes.
In no event shall an option be granted to any person who, if such
option were exercised in full immediately after the grant thereof, would own
Common Shares such that CPI would not qualify as a real estate investment trust
under the Internal Revenue Code of 1986, as amended from time to time (the
"Code").
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All options granted under the Plan shall be non-qualified stock
options unless the Committee shall determine with respect to any particular
option grant that it shall be an "incentive stock option" within the meaning of
Section 422(b) of the Code. No incentive stock option may be granted to a
non-employee Trustee or to an employee who owns more than 10% of the combined
voting power of all classes of shares of CPI. Each incentive stock option shall
not be exercisable in any one calendar year for Common Shares having a value
greater than the $100,000 limitation prescribed by Section 422(d) of the Code,
such value to be determined on the basis of the Fair Market Value of a Common
Share (as defined in section 5) on the date of grant of the option, and shall
otherwise have such terms and provisions as are provided in the Plan. The
exercise of an incentive stock option shall be subject to the approval of the
right to grant incentive stock options by the shareholders of CPI at the 1994
Annual Meeting; if such approval is not received, then any incentive stock
option granted by the Committee prior to such meeting shall continue unchanged,
except that it shall be a nonqualified stock option and shall not contain any
provisions stated in the Plan to be applicable to incentive stock options. Any
incentive stock option granted prior to the 1994 Annual Meeting shall not be
exercisable until after the date of such Meeting.
5. Option Prices. The purchase price of the Common Shares under each
option shall be equal to the Fair Market Value of a Common Share on the date of
grant of the option. The "Fair Market Value of a Common Share" as used in the
Plan shall be at any time (i) the then most recent net asset value per Common
Share as adjusted to appropriately reflect the assumed conversion into Common
Shares of any outstanding convertible securities of CPI that have a conversion
price for Common Shares less than the net asset value otherwise determined
hereunder, plus an amount equal to (x) the equity in Corporate Realty
Consultants, Inc. ("CRC"), available with respect to the Common Shares
(including Common Shares subject to options) divided by (y) the adjusted number
of Common Shares used in determining such net asset value per Common Share, all
as most recently determined by Landauer Associates, Inc. (or such successor or
other independent firm as shall at the time be retained by the Trustees of CPI
to appraise the net asset value of CPI), or (ii) if since the date of such most
recent appraisal there has been a sale or issuance in one or more closely
related transactions of at least $1,000,000 worth of Common Shares and related
interests in CRC at a different
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price, the most recent such different price; provided, however, that such sale
or issuance must be an arms-length transaction (or series of transactions)
between unaffiliated parties, must involve two United States parties or
non-United States parties under circumstances having substantially the same tax
consequences as would be the case if United States parties were involved, and,
if CPI is not a party to the transaction (or series of transactions), at least
one of the parties must notify CPI of the price by written notice addressed to
the Secretary of CPI.
6. Term of Options. The term of each option shall be for such period
as the Committee shall determine, but not more than 10 years from the date of
granting thereof or such shorter period as is prescribed in sections 7, 10 and
11.
7. Exercise of Options. Subject to sections 10 and 11 and this
section 7, unless the Committee otherwise determines, an option granted under
the Plan shall become exercisable in annual installments of 25% of the aggregate
number of shares covered by the option on each of the first four anniversaries
of the date of grant, such installments to be cumulative. In no case may an
option be exercised at any time for less than 50 Common Shares (or the remaining
Common Shares covered by the option if less than 50).
An option may be exercised by written notice to CPI. Such notice
shall state that the holder of the option elects to exercise the option, the
number of Common Shares in respect of which it is being exercised and the manner
of payment for such Common Shares; the notice shall include any representations
required pursuant to section 9 and shall either (i) be accompanied by payment of
the full purchase price of such Common Shares or (ii) fix a date (not more
than 10 business days from the date of exercise) for the payment of the full
purchase price of such Common Shares.
Payment shall be made in cash or, unless otherwise provided in the
option agreement, in Common Shares which have been owned by the holder of the
option for more than six months (or, in the case of Common Shares being used for
payment on the exercise of an incentive stock option, such Common Shares shall
meet any longer holding period requirement set forth in Section 422(a)(1) of the
Code or any successor provision) or partly in cash and partly in such Common
Shares. Cash payments shall be made by cash or check payable to the order of
CPI. Payments in Common
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Shares (valued at the Fair Market Value of a Common Share on the date of
exercise) shall be made by delivery of share certificates in negotiable form. If
certificates representing Common Shares are used to pay all or part of the
purchase price under an option, a separate certificate which shall bear legends
reflecting any restrictions imposed upon the Common Shares surrendered (as well
as the legend required under section 9(d)) shall be delivered by CPI
representing the same number of Common Shares as each certificate so used, and
an additional certificate shall be delivered representing the additional Common
Shares to which the holder of the option is entitled as a result of the exercise
of the option. Except as provided in sections 10 and 11 and for options granted
to non-employee Trustees, no option may be exercised at any time unless the
person to whom such option was originally granted is then an employee of CPI.
The holder of an option shall have none of the rights of a shareholder with
respect to the Common Shares subject to the option until such Common Shares
shall be transferred to the holder upon exercise of the option.
Notwithstanding any contrary waiting period, installment period or
other limitation or restriction in any option agreement or in the Plan, each
outstanding option granted under the Plan shall become exercisable in full for
the aggregate number of Common Shares covered thereby in the event the Board
(or, if approval of the Board is not required as a matter of law, the
shareholders of CPI) shall approve (i) any consolidation or merger of CPI in
which CPI will not be the continuing or surviving corporation or pursuant to
which Common Shares would be converted into cash, securities or other property,
other than a merger of CPI in which the holders of Common Shares immediately
prior to the merger have the same proportionate ownership of the common shares
of the surviving corporation immediately after the merger, (ii) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, the assets of CPI, (iii) the
adoption of any plan or proposal for the liquidation or dissolution of CPI or
(iv) the acquisition by one or more related entities of securities representing
50% or more of the combined voting power of CPI's outstanding securities having
the right to vote in the election of trustees, adjusted to appropriately reflect
the assumed conversion into Common Shares of any outstanding convertible
securities of CPI.
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Notwithstanding any other provision of the Plan, CPI shall loan the
funds needed to exercise an option to the holder of such option if such holder
simultaneously exercises such option and exercises the option holder's rights
under section 9(d) to sell all the Common Shares purchased under such option.
The interest rate, the maturity date, any installments, any security and all
other terms and conditions of each such loan shall be determined from time to
time by the Committee, in its sole discretion; provided, however, that no
installments shall be due on any such loan, nor shall any such loan mature,
until the Next Determination Date (as defined in section 9) following the option
holder's exercise of such holder's rights under section 9(d).
With respect to each Common Share issued upon the exercise of an
option, CPI shall deliver to the trustee of the trust in which substantially all
the outstanding shares of Common Stock of CRC have been deposited for the
benefit of holders of the Common Shares an amount equal to the amount with
respect to CRC (the "CRC Equity") included in the purchase price per Common
Share set forth in such option pursuant to clauses (x) and (y) of the definition
of Fair Market Value of a Common Share in section 5 or which would have been
included in the purchase price per Common Share if the purchase price had been
determined under clause (i) of section 5 rather than under clause (ii) of that
section; such amount shall be used by such trustee to purchase, at a price of 10
times the CRC Equity, for deposit in such trust, a number of shares of CRC
Common Stock equal to 1/10 of the number of Common Shares issued upon exercise
of such option.
8. Transferability of Options. No option granted under the Plan
shall be transferable otherwise than by will or the laws of descent and
distribution, except that an option holder may transfer a nonqualified stock
option to his or her spouse or children, a trust or trusts for the benefit of
such option holder or his or her spouse or children or a corporation or
partnership all the equity interests in which are owned by such option holder or
his or her spouse or children; provided, however, that any such transferee shall
be required to acknowledge and agree that the option so transferred shall remain
subject to this section 8 and will not be transferable except as permitted by
this section 8. The designation of a beneficiary by an option holder shall not
constitute a transfer. An option may be exercised, during the lifetime of the
holder thereof
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(whether the optionee or a permitted transferee under this section 8), only by
such holder.
9. Restrictions on Options and Optioned Shares. (a) No options shall
be granted under the Plan, and no Common Shares shall be issued and delivered
upon the exercise of options granted under the Plan, unless and until any
applicable Federal or state registration, listing and qualification requirements
and any other requirements of law or of any regulatory agencies having
jurisdiction shall have been fully complied with.
(b) The Committee in its discretion may, as a condition to the
exercise of any option granted under the Plan, require the holder of such option
(i) to represent in writing that the Common Shares received upon exercise of
such option are being acquired for investment and not with a view to
distribution and (ii) to make such other representations and warranties as are
deemed appropriate by CPI.
(c) All Common Shares purchased by any option holder on exercise of
an option granted under the Plan shall be transferable to any party only with
the consent of CPI (which may not be unreasonably withheld), except that no such
consent shall be required for any transfer of Common Shares (i) in accordance
with section 9(d) or (ii) to such option holder's spouse or children, a trust or
trusts for the benefit of such option holder or his or her spouse or children or
a corporation or partnership all the equity interests in which are owned by such
option holder or his or her spouse or children but, in the event of any such
transfer under clause (ii), the transferee shall be required to acknowledge and
agree that the Common Shares so transferred will remain subject to the
provisions of this section 9. If pursuant to the preceding sentence any holder
of Common Shares shall give notice to CPI seeking CPI's consent to the transfer
of any of or all such Common Shares to an entity that is not an existing
shareholder of CPI, then CPI may elect in its sole discretion, to be exercised
by giving a written election to the person who delivered such notice within ten
business days of CPI's receipt of such notice, to purchase all but not less than
all the Common Shares specified in such notice at a price per Common Share equal
to the then Fair Market Value of a Common Share as set forth in section 5, such
purchase to be completed by CPI not later than five business days after it so
elects to purchase such Common Shares.
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(d) Each option agreement shall provide that, for so long as the
option holder or any permitted transferee under section 8 or this section 9
shall continue to hold the Common Shares acquired on exercise of the option, the
option holder or such transferee, respectively, may at his or her election at
any time notify CPI in writing of his or her intent to sell a specified number
of such Common Shares and shall state in such notice that CPI shall either (as
such option holder or transferee shall elect in such notice):
(i) use its best efforts to have the Common Shares specified therein
purchased by other CPI shareholders or third parties, subject to CPI's
customary restrictions on transfer and other limitations, at a price per
Common Share not less than the then Fair Market Value of a Common Share as
set forth in section 5; if by the later of six months after the receipt of
such notice by CPI and the date of the next written determination of an
appraisal of the net asset value of CPI as described in section 5 (the
"Next Determination Date") all the Common Shares covered by such notice
have not been purchased by other CPI shareholders or third parties, then
on the later of such dates CPI shall notify such option holder or
transferee that it will buy all such unsold Common Shares at a price per
Common Share equal to the Fair Market Value of a Common Share as set forth
in section 5 as of such later date, and such option holder or transferee
shall then have ten business days to advise CPI if he or she still wishes
to sell; or
(ii) if such notice is delivered to CPI on or before July 1 in any
year, use its best efforts to have the Common Shares purchased as
described in clause (1) above; and, if by the Next Determination Date such
Common Shares shall not have been so purchased, purchase from such option
holder or transferee the Common Shares specified in such notice at a price
per Common Share equal to the Fair Market Value of a Common Share as of
the Next Determination Date; provided, however, that CPI, not later than
the last business day of such year, shall purchase such Common Shares from
such option holder or transferee and shall pay a price per Common Share
equal to the then Fair Market Value of a Common Share as set forth in
section 5, and thereafter, promptly following such Next Determination
Date, CPI shall pay such option holder or transferee, or such option
holder or transferee shall pay CPI, as
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the case may be, an amount per share so purchased by CPI equal to the
difference between such Fair Market Values.
(e) Stock certificates representing Common Shares acquired upon the
exercise of options shall bear substantially the following legend or such other
legend that may be required:
"THE TRANSFER OF SHARES COVERED HEREBY AND CERTAIN OTHER MATTERS
WITH RESPECT TO SUCH SHARES ARE GOVERNED BY AND SUBJECT TO THE
PROVISIONS OF AN OPTION AGREEMENT BETWEEN CORPORATE PROPERTY
INVESTORS AND THE OPTIONEE OF THE OPTION UNDER WHICH SUCH SHARES
WERE ISSUED, AND NO TRANSFER OF SUCH SHARES SHALL BE VALID OR
EFFECTIVE WITHOUT COMPLIANCE THEREWITH. A COPY OF SUCH AGREEMENT MAY
BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF THIS CERTIFICATE TO THE SECRETARY OF CORPORATE PROPERTY
INVESTORS."
10. Termination of Trusteeship or Employment. In the event that an
option holder ceases to be a Trustee or an employee of CPI otherwise than by
reason of death or total disability (as defined in section 11), such option may
be exercised (to the extent of the number of Common Shares covered by the option
which were purchasable by the option holder immediately prior to the termination
of his or her Trusteeship or employment) at any time (i) within one year (three
months in the case of an incentive stock option or, in any case, such shorter
period as may be specified in the option agreement) after termination due to
Retirement (as defined below) or (ii) within three months (or such shorter
period as may be specified in the option agreement) after termination for any
other reason; provided, however, that if the Trustee or employee shall die
during such three-month period, the option may be exercised within one year
after termination. In no event may an option be exercised after the expiration
of its original term. Retirement shall mean, in the case of a non-employee
Trustee, termination of service as a Trustee on or after the date on which such
Trustee has reached 70 years of age or has served as a Trustee for more than 10
years and, in the case of an employee, the termination of employment on or after
the date on which such employee has reached 62 years of age.
In the case of employees, options granted under the Plan shall not
be affected by any change of employment
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so long as the optionee continues to be an employee of CPI. Nothing in the Plan
or in any option granted pursuant to the Plan shall confer on any individual any
right to continue as a Trustee or in the employ of CPI or interfere in any way
with the right of CPI to terminate his or her Trusteeship or employment at any
time, with or without cause, notwithstanding the possibility that the number of
Common Shares purchasable by a Trustee or employee (or by a permitted transferee
under section 8) under an option may thereby be reduced or eliminated.
11. Death or Total Disability of an Option Holder. In the event of
(i) the death of an option holder while he or she is a Trustee of or employed by
CPI or (ii) an option holder becoming disabled within the meaning of Section
422(c)(6) of the Code ("total disability"), such option may be exercised in full
for the maximum number of Common Shares covered by the option by a legatee or
legatees of such option holder under his or her last will, or by his or her
personal representatives or distributees, or by such disabled option holder, or,
if such option has been transferred by such option holder pursuant to section 8,
by such transferee, at any time within a period of three years after death or
total disability (one year after total disability in the case of an incentive
stock option), but not after expiration of the original term of the option.
12. Adjustments upon Changes in Capitalization. The Committee, whose
determination shall be conclusive, shall determine appropriate adjustments of
the number and class of shares subject to each outstanding option and its option
price in the event of any change in the outstanding shares of beneficial
interest of CPI or the capital stock of CRC by reason of any stock dividend,
stock split, recapitalization, combination, exchange of shares, merger,
consolidation, liquidation, split-up, split-off, spin-off or other similar
change in capitalization, any distribution to common shareholders, including a
rights offering, other than regular cash dividends (i.e., dividends payable out
of operating cash flow), or any like change, or any acquisition of property or
stock, separation, reorganization, liquidation or the like. In the event of any
such event, the aggregate number and class of shares available under the Plan
shall also be appropriately adjusted by the Committee, whose determination shall
be conclusive.
13. Termination and Amendment. Unless the Plan shall theretofore
have been terminated as hereinafter
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provided, the Plan shall terminate on, and no option shall be granted after,
February 4, 1998 (or December 1, 1998 if the shareholders of CPI shall approve
such later date at the 1994 Annual Meeting). The Plan may be terminated,
modified or amended by the shareholders of CPI. The Board may at any time
terminate, modify or amend the Plan in such respects as it shall deem advisable;
provided, however, that the Board may not, without approval by the holders of a
majority of the outstanding shares of voting stock of CPI present and voting at
a duly held meeting at which a quorum is present or acting by their written
consent:
(i) increase (except as provided in section 12) the maximum number
of Common Shares as to which options may be granted under the Plan;
(ii) change the persons eligible to receive options;
(iii) change the manner of determining the option prices other than
to change the manner of determining the Fair Market Value of a Common
Share as stated in section 5;
(iv) increase the periods during which options may be granted or
exercised; or
(v) provide for the administration of the Plan otherwise than by a
Committee consisting of Trustees of CPI.
No termination, modification or amendment of the Plan may, without the consent
of the individual to whom an option shall theretofore have been granted, or, if
the option has theretofore been transferred pursuant to section 8, without the
consent of such transferee, adversely affect the rights of such individual or
transferee under such option.
14. Effectiveness of the Plan. The Plan became effective as of
February 4, 1993, since it thereafter received the approval of the holders of a
majority of the outstanding Common Shares present and voting at the 1993 Annual
Meeting of Shareholders of CPI.
15. Time of Granting of Options. For all purposes of the Plan, the
date of grant of an option shall be the date on which the Committee approves the
granting of such option or any later date selected by the Committee as
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the date of grant. Each grantee of an option shall be notified promptly of the
grant of the option, and a written agreement shall promptly be executed and
delivered by or on behalf of CPI and the grantee.
16. Tax Withholding. In connection with the issuance of Common
Shares as a result of the exercise of an option, CPI shall have the right to
retain, or to demand surrender of, Common Shares in value sufficient to cover
any withholding tax (that is, any tax, including any Federal, state or local
income tax, required by any governmental entity to be withheld of otherwise
deducted and paid with respect to such issuance), and to make payment (or to
reimburse itself for payment made) to the appropriate taxing authority of an
amount in cash equal to the amount of such withholding tax, remitting any
balance to the person exercising the option. For purposes of this section, the
value of Common Shares so retained or surrendered shall be the Fair Market Value
of a Common Share (determined as provided in section 5) on the date that the
amount of the withholding tax is to be determined (the "Tax Date").
Notwithstanding the foregoing, the person exercising an option shall
be entitled to satisfy the obligation to pay any withholding tax, in whole or in
part, by providing CPI with funds sufficient to enable CPI to pay such
withholding tax.