-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IO8skMYKsEKfZusU+w/mBNuzE7Qhpw8GyFcv8tZ8XJ9sSJh7LOVwBt21lFFFmEdp JW7xbImDLMll1W27d6mXCQ== 0000910643-98-000010.txt : 19980212 0000910643-98-000010.hdr.sgml : 19980212 ACCESSION NUMBER: 0000910643-98-000010 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19980211 EFFECTIVENESS DATE: 19980211 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEW PLAN REALTY TRUST CENTRAL INDEX KEY: 0000071519 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 131995781 STATE OF INCORPORATION: MA FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-46041 FILM NUMBER: 98530703 BUSINESS ADDRESS: STREET 1: 1120 AVE OF THE AMERICAS CITY: NEW YORK STATE: NY ZIP: 10036 BUSINESS PHONE: 2128693000 MAIL ADDRESS: STREET 1: 1120 AVENUE OF THE AMERICAS STREET 2: 1120 AVENUE OF THE AMERICAS CITY: NEW YORK STATE: NY ZIP: 10036 S-8 1 As filed with the Securities and Exchange Commission on February 11, 1998 Registration No. 333- ============================================================================= SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 __________________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 NEW PLAN REALTY TRUST (Exact name of issuer as specified in its charter) Massachusetts 13-1995781 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1120 Avenue of the Americas New York, New York 10036 (Address of principal executive offices) (Zip Code) New Plan Realty Trust 1997 Stock Option Plan (Full title of the plan) William Newman Chief Executive Officer New Plan Realty Trust 1120 Avenue of the Americas New York, New York 10036 (212) 869-3000 (Name, address and telephone number of agent for service) Approximate date of proposed sale to the public: From time to time after the effective date of this Registration Statement. CALCULATION OF REGISTRATION FEE Title of Each Class Proposed Maximum Proposed Maximum Amount of of Securities Amount to be Offering Price Aggregate Offering Registration to be RegisteredRegistered Per Share(1) Price(1) Fee Common Shares of Beneficial Interest without par value 2,500,000(2) $25.65625 $64,140,625 $19,437 (1) Estimated solely for purposes of calculating the registration fee. Pursuant to Rules 457(c) and (h), the Proposed Maximum Offering Price Per Share and the Proposed Maximum Aggregate Offering Price are computed on the basis of the average of the high and low prices for such security on February 5, 1998, as reported on the New York Stock Exchange. (2) The shares covered by this Registration Statement represent the underlying shares for the stock options to be granted by registrant under its 1997 Stock Option Plan. PART I ------ INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Items 1 and 2. Plan Information; Registrant Information and Employee Plan Annual Information. The documents containing the information specified in the instructions to Part I of the Form S-8 will be sent or given to participants in the 1997 Stock Option Plan as specified by Rule 428(b)(1). In addition, the statement required to be made pursuant to Item 2 of Part I to the Form S- 8 shall be contained in the Section 10(a) prospectus. PART II ------- INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed by New Plan Realty Trust, a Massachusetts business trust (the "Company"), with the Securities and Exchange Commission (the "Commission") are incorporated in this Registration Statement by reference: 1. Annual Report on Form 10-K for the fiscal year ended July 31, 1997, filed with the Commission on October 10, 1997. 2. Quarterly Report on Form 10-Q for the quarter ended October 31, 1997, filed with the Commission on December 9, 1997. 3. Current Report on Form 8-K filed with the Commission on July 31, 1997. 4. Current Report on Form 8-K/A filed with the Commission on September 19, 1997. 5. Current Report on Form 8-K filed with the Commission on January 23, 1998. 6. The description of the Company's Shares of Beneficial Interest contained in Item 1 of the Company's registration statement on Form 8-A, as amended, and the documents incorporated therein by reference, filed with the Commission on May 19, 1986. All documents filed subsequent to the filing date of this Registration Statement with the Commission by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a post-effective amendment which indicates that all securities offered by this Registration Statement have been sold or which de-registers all such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is, or is deemed to be, incorporated by reference herein, modifies or supersedes such prior statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement, except as indicated herein. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. The Amended and Restated Declaration of Trust of the Company, dated as of January 15, 1996 (the "Declaration of Trust"), provides in substance that no Trustee or officer is liable to the Company, to a shareholder or to third persons except for his own bad faith, willful misconduct, gross negligence or reckless disregard of his duties or for his failure to act in good faith in the reasonable belief that his action was in the best interests of the Company. The Declaration of Trust further provides in substance that, with the exceptions stated above, a Trustee or officer is entitled to be indemnified against all liability incurred in connection with the affairs of the Company. The Declaration of Trust also provides that no Trustee will be personally liable to the Trust or its shareholders for monetary damages for breach of fiduciary duty as a Trustee notwithstanding any provision of law imposing such liability, except for liability (i) for any breach of the Trustee's duty of loyalty to the Company or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for obtaining an improper benefit, or (iv) for paying a dividend or making a distribution to shareholders or a loan to officers or Trustees which is illegal under the Massachusetts Business Corporation Law. In addition, the Declaration of Trust authorizes the Trustees to purchase and pay for liability insurance to indemnify the Trustees and officers against certain claims and liabilities. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "Securities Act"), may be permitted to Trustees, officers, or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a Trustee, officer or controlling person of the Trust in the successful defense of any action, suit or proceeding) is asserted by such Trustee, officer or controlling person in connection with the securities being registered, the Company, unless in the opinion of its counsel the matter has been settled by controlling precedent, will submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. 4.1 Amended and Restated Declaration Trust of New Plan Realty Trust filed as Exhibit 99.3 to the Company's Form 8-K dated May 24, 1996. 4.2 Specimen Certificate for Shares of Beneficial Interest filed as Exhibit 4.1 to the Company's Form 10-K for the fiscal year ended July 31, 1997. 4.3 New Plan Realty Trust 1997 Stock Option Plan. 5.1 Opinion of Goodwin, Procter & Hoar LLP, Massachusetts counsel to the Company, as to the legality of the Shares of Beneficial Interest being registered. 23.1 Consent of Coopers & Lybrand L.L.P. 23.2 Consent of Eichler, Bergsman & Co., LLP. 23.3 Consent of Goodwin, Procter & Hoar LLP (included as part of Exhibit 5.1). 24.1 Power of Attorney (included on signature page of this Registration Statement). Item 9. Undertakings. 1. The undersigned registrant hereby undertakes: (a) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) will not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 2. The undersigned registrant hereby further undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to trustees, officers and controlling persons of the registrant pursuant to the foregoing provisions described under Item 6 above, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a trustee, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such trustee, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on this 30th day of January, 1998. NEW PLAN REALTY TRUST By:/s/ William Newman ------------------------------------------ - - William Newman Chairman and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint William Newman and Arnold Laubich, and each or any of them, as his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including, without limitation, post-effective amendments and documents in connection therewith) to this Registration Statement, and to file the same with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or either of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated. Name Title Date ---- ----- ---- /s/ William Newman Chairman, Chief Executive January 30, 1998 Officer - ----------------------- (Principal Executive Officer) (William Newman) and Trustee /s/ Arnold Laubich President, Chief Operating January 30, 1998 - ----------------------- Officer and Trustee (Arnold Laubich) /s/ Michael Brown Chief Financial and Accounting January 30, 1998 - ----------------------- Officer (Principal Financial and (Michael Brown) Accounting Officer), Controller /s/ James M. Steuterman Executive Vice President and January 30, 1998 - ----------------------- Trustee (James M. Steuterman) /s/ Dean Bernstein Vice President-Administration January 30, 1998 - ----------------------- and Finance and Trustee (Dean Bernstein) /s/ Melvin D. Newman Trustee January 30, 1998 - ------------------------ (Melvin D. Newman) EXHIBIT INDEX No. Document Page 4.1 Amended and Restated Declaration Trust of New Plan Realty Trust filed as Exhibit 99.3 to the Company's Form 8-K dated May 24, 1996. 4.2 Specimen Certificate for Shares of Beneficial Interest filed as Exhibit 4.1 to the Company's Form 10-K for the fiscal year ended July 31, 1997. 4.3 New Plan Realty Trust 1997 Stock Option Plan. 5.1 Opinion of Goodwin, Procter & Hoar LLP, Massachusetts counsel to the Company, as to the legality of the Shares of Beneficial Interest being registered. 23.1 Consent of Coopers & Lybrand L.L.P. 23.2 Consent of Eichler, Bergsman & Co., LLP. 23.3 Consent of Goodwin, Procter & Hoar LLP (included as part of Exhibit 5.1). 24.1 Power of Attorney (included on signature page of this Registration Statement). EX-4.3 2 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. EX-5.1 3 EXHIBIT 5.1 GOODWIN, PROCTER & HOAR LLP EXCHANGE PLACE BOSTON, MASSACHUSETTS 10104 January 28, 1998 New Plan Realty Trust 1120 Avenue of the Americas New York, New York 10036 Ladies and Gentlemen: We refer to the Registration Statement on Form S-8 (the "Registration Statement") to be filed by New Plan Realty Trust, a Massachusetts business trust (the "Company"), on or shortly after the date hereof with the Securities and Exchange Commission (the "Commission") in connection with the registration under the Securities Act of 1933, as amended (the "Securities Act"), of 2,500,000 shares of the Company's common shares of beneficial interest without par value (the "Common Shares"), reserved for issuance pursuant to the terms of the Company's 1997 Stock Option Plan (the "1997 Plan"). We have examined the Amended and Restated Declaration of Trust of the Company and a certificate of the Secretary of the Company setting forth the text of the 1997 Plan, of resolutions adopted by the Company's Board of Trustees and of actions by the Company's shareholders approving the 1997 Plan with respect to incentive stock options. While not involved in the preparation of the Registration Statement, we have also examined the text of the Registration Statement in the form which you have advised us is substantially the same as is to be filed with the Commission. Based upon the foregoing, we are of the opinion that the 2,500,000 Common Shares reserved for issuance pursuant to the terms of the 1997 Plan have been duly authorized and, when issued in accordance with the terms of the 1997 Plan and in accordance with Options that have been or may be granted under and in conformity with the 1997 Plan ("Options") and upon payment of the purchase price provided for in such Options, will be validly issued, fully paid and nonassessable by the Company. We hereby consent to the use of this opinion in the Registration Statement. In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission thereunder. Very truly yours, GOODWIN, PROCTER & HOAR LLP EX-23.1 4 EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated September 11, 1997, on our audits of the consolidated financial statements and financial statement schedules of New Plan Realty Trust (the "Trust") as of July 31, 1997 and 1996 and for each of the three years in the period ended July 31, 1997, which are included in the Annual Report on Form 10-K of the Trust for the year ended July 31, 1997. COOPERS & LYBRAND LLP New York, New York January 28, 1998 EX-23.2 5 EXHIBIT 23.2 CONSENT OF EICHLER, BERGSMAN & CO., LLP We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated July 21, 1997 and November 26, 1997 on our audit of the Historical Summary of Combined Revenues and Certain Operating Expenses of certain properties acquired by New Plan Realty Trust (the "Trust") for the years ended May 31, 1997 and April 30, 1997, respectively, which are included in the Current Report on Form 8-K of the Trust dated January 23, 1998. EICHLER, BERGSMAN & CO., LLP New York, New York January 27, 1998 -----END PRIVACY-ENHANCED MESSAGE-----