EXHIBIT 10.12
CRESCENT REAL ESTATE EQUITIES LIMITED PARTNERSHIP
UNIT OPTION AGREEMENT
This Unit Option Agreement (this "Agreement") is being made and entered
as of March 5, 2001, by and between Crescent Real Estate Equities Limited
Partnership, a Delaware limited partnership ("CREELP"), and Xxxxxx X. Xxxxxxx
("Xxxxxxx").
RECITALS
Xxxxxxx is a valued officer of Crescent Real Estate Equities, Ltd. (the
"General Partner"), the sole general partner of CREELP, and in that capacity
serves the interests of CREELP. The General Partner wishes for CREELP to
encourage Xxxxxxx to carry out his duties as an officer of the General Partner
with vigor in the future.
Section 4.7.A of the Second Amended and Restated Agreement of Limited
Partnership of CREELP (as amended, the "Partnership Agreement"), authorizes
CREELP to adopt a compensation plan for its employees pursuant to which CREELP
may grant "Limited Partnership Interests" and "Units" (as defined therein) or
options to acquire Limited Partnership Interests and Units, to one or more of
its employees, upon such terms and conditions as might be deemed necessary or
appropriate by the General Partner. The General Partner believes that this
Agreement comes within the scope of that authorization.
CREELP's affiliate, Crescent Real Estate Equities Company ("Crescent"),
is a publicly held company. Because of his position as an executive officer of
the General Partner and an executive officer of Crescent, Xxxxxxx is subject to
the reporting requirements of Section 16(a) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"); consequently Xxxxxxx is ineligible to
participate in the 1995 Crescent Real Estate Equities Limited Partnership Unit
Incentive Plan, as the Plan's coverage is limited to employees, advisors and
consultants who are not "Reporting Persons" under Section 16(a) of the Exchange
Act.
To induce Xxxxxxx to continue his involvement with, and enthusiastic
and productive efforts for, the benefit of CREELP, CREELP, acting within the
authority and power granted by Section 4.7.A of the Partnership Agreement, has
offered to issue to him a unit option on the terms and subject to the conditions
set forth in this Agreement.
CREELP believes that the granting of a unit option pursuant to this
Agreement will provide Xxxxxxx with an effective and reasonable personal
incentive to perform with excellence and vigor all duties, assignments and
responsibilities he will have for the benefit of CREELP.
All capitalized terms used in this Agreement but not defined herein
have the meanings ascribed to those terms in the Partnership Agreement.
In consideration of the foregoing recitals and mutual promises and
covenants made herein, the parties hereby agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions hereof, CREELP
awards and grants to Xxxxxxx an option (the "Option") to purchase from CREELP
all or any part of a total of one hundred and fifty thousand (150,000) Units at
a price of $43.68 per Unit on March 5, 2001. The number of Units to be
associated with Xxxxxxx' Limited Partnership Interest when he is admitted to
CREELP as an "Employee Limited Partner" (as defined in the Partnership
Agreement) as a result of having exercised the Option shall be equal to the
number of Units subject to the Option. Xxxxxxx' Limited Partnership Interest
shall be calculated in accordance with the provisions of the Partnership
Agreement based upon the number of Units, determined as set forth in the
preceding sentence, to be associated with such Limited Partnership Interest.
2. CHARACTER OF OPTION. The Option is not an "incentive stock option"
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
3. TERM OF OPTION. The Option shall expire at 6:00 p.m., Fort Worth,
Texas time, 10 years after the date on which the Option is granted, and Xxxxxxx
shall have no further rights under the Option after that date.
4. VESTING. The Option shall become fully vested on the first day
during the term of the Option (the "Vesting Day") after the date that the
trailing 10 trading day average Fair Market Value of a Share (as defined
in Section 5 hereof) reaches $25.00, provided that Xxxxxxx is still employed on
the Vesting Day by the General Partner, CREELP or Crescent.
Notwithstanding the foregoing provisions of this Section, CREELP may accelerate
the vesting of the Option in whole or in part at any time and, in addition, the
following special provisions shall apply:
(a) Mergers and Reorganizations. If, prior to the Vesting Day,
Crescent or its shareholders enter into an agreement to dispose of all
or substantially all of the assets of Crescent by means of a sale,
merger or other reorganization, liquidation or otherwise in a
transaction in which Crescent is not the surviving entity, the Option
shall become fully vested during the period commencing as of the date
hereof to dispose of all or substantially all of the assets of Crescent
and ending when the disposition of assets contemplated by that
agreement is consummated or the Option otherwise terminates in
accordance with its provisions or the provisions hereof, whichever
occurs first; provided that the Option shall not become fully vested
under this paragraph on account of any agreement of merger or other
reorganization when the shareholders of Crescent immediately before the
consummation of the transaction will own at least 50% of the total
combined voting power of all classes of securities entitled to vote of
the surviving entity immediately after the consummation of the
transaction. The Option shall not become immediately exercisable if the
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transaction contemplated in the agreement is a merger or reorganization
in which Crescent will survive.
(b) Change in Control. Prior to the Vesting Day, the Option
shall become fully vested in the event of the voluntary termination of
Xxxxxxx for Good Reason, within twenty-four (24) months following a
Change in Control. For purposes of this paragraph:
(i) "Good Reason" shall mean (A) a reduction in the
amount of Xxxxxxx' aggregate cash compensation (including base
salary and any bonus) payable within any twelve-month period
following such change in control below the amount of such
aggregate cash compensation paid to, or accrued by the General
Partner with respect to, Xxxxxxx in the twelve-month period
immediately preceding the change in control; (B) the
assignment of Xxxxxxx to any employment status other than a
position comparable to his position immediately prior to
the Change in Control and having duties comparable to those
exercised by Xxxxxxx immediately before the Change in Control,
or (C) a geographical relocation or attempted relocation of
Xxxxxxx to an officer more than fifty (50) miles distance from
Fort Worth, Texas, without Xxxxxxx' consent.
(ii) "Change in Control" shall mean the acquisition
of 15% or more of the voting securities of Crescent by any
person or by persons acting as a group within the meaning of
Section 13(d)(3) of the Exchange Act (other than an
acquisition by a person or group meeting the requirements of
clauses (i) and (ii) of Rule 13d-1(b)(1) promulgated under the
Exchange Act, or by any employee pension benefit plan (within
the meaning of Section 3(2) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) of Crescent or of
its subsidiaries, including a trust established pursuant to
such plan); provided that no change in control or threatened
change in control shall be deemed to have
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occurred (A) if before the acquisition of, or offer to
acquire, 15% or more of the voting securities of Crescent, the
full Board of Directors of Crescent (the "Board") has adopted
by not less than two-thirds vote a resolution specifically
approving such acquisition or offer or (B) from (I) a transfer
of Crescent's voting securities by Xxxxxxx X. Xxxxxxxxx
("Rainwater") to (a) a member of Rainwater's immediate family
(within the meaning of Rule 16a-1(e) of the Exchange Act)
either during Rainwater's lifetime or by will or the laws of
descent and distribution; (b) any trust as to which Rainwater
or a member (or members) of his immediate family (within the
meaning of Rule 16a-1(e) of the Exchange Act) is the
beneficiary; (c) any trust as to which Rainwater is the
settlor with sole power to revoke; (d) any entity over which
Rainwater has the power, directly or indirectly, to direct or
cause the direction of the management and policies of the
entity, whether through the ownership of voting securities, by
contract or otherwise; or (e) any charitable trust, foundation
or corporation under Section 501(c)(3) of the Code that is
funded by Rainwater; or (II) the acquisition of voting
securities of Crescent by either (a) Rainwater or (b) a
person, trust or other entity described in the foregoing
clauses (I)(a)-(e) of this subparagraph. The term "person"
shall mean an individual or a corporation, partnership, trust,
association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization or any other form
of entity not specifically listed herein.
(c) Retirement. If prior to the Vesting Day, the Option shall
become fully vested in the event of Xxxxxxx' Retirement. "Retirement"
shall be deemed to occur if Xxxxxxx' employment terminates on or after
the date on which he attains age 70.
(d) Disability. If prior to the Vesting Day, the Option shall
become fully vested in the event of Xxxxxxx' death or Disability.
"Disability" shall mean the absence of Xxxxxxx from Xxxxxxx' duties
with the Operating Partnership, General Partner and Crescent on a
full-time basis for 180 consecutive business days as a result of
incapacity due to mental or physical illness or injury which renders
Xxxxxxx unable to perform all of the material and substantial duties of
his employment, as it existed immediately prior to such illness or
injury, and which is reasonably expected to be permanent.
5. METHOD OF EXERCISE. The Option shall be exercisable only to the
extent that it is vested. The Option may not be exercised for a fraction of a
Unit. The purchase price of any Units purchased shall be paid at the time of
exercise of the Option either (i) in cash, (ii) by certified or cashier's check,
(iii) by Units held by Xxxxxxx at the time of exercise, (iv) by a promissory
note, such note to provide for the right to repay the note partially or wholly
with Units and to bear interest at a rate at least equal to the applicable
Federal rate (within the meaning of Section 7872(f)(2) of the Code), and
otherwise to have such terms as shall be specified by the Committee, or (v) by
delivery of a copy of irrevocable instructions from Xxxxxxx to a broker or
dealer, reasonably acceptable to the General Partner, to sell certain of the
common shares of beneficial interest, par value $.01 per share, of the Company
("Shares") acquired upon exercise of the Option and the exercise of "Exchange
Rights" (as defined in the Partnership Agreement) or to pledge them as
collateral for a loan and promptly deliver to Crescent the amount of sale or
loan proceeds necessary to pay such purchase price. Subject to the limitations
in clause (iv), the Committee may amend or revise the terms of a note issued
pursuant to clause
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(iv), or replace it with a new note, provided that no such amendment or revision
that could have an adverse effect on Xxxxxxx shall be effective without his
consent. If any portion of the purchase price or a note given at the time of
exercise is paid in Units, those Units shall be valued at the then Fair Market
Value. "Fair Market Value" shall mean such value as will be determined by the
General Partner on the basis of such factors as it deems appropriate; provided,
however, that if Shares are traded on a national securities exchange, such value
will be determined by the General Partner on the basis of the last sale price
for the Shares on the date for which such determination is relevant, as reported
on the New York Stock Exchange. If Shares are traded on more than one exchange,
such value will be determined on the basis of the exchange trading the greatest
volume of Shares on such date. In no event shall Fair Market Value be less than
the par value of a Share. The Option shall be deemed to be exercised when
written notice of exercise has been received by CREELP at its principal office
from the person entitled to exercise the Option and payment for the Units with
respect to which the Option is exercised has been received by CREELP in
accordance with this Section 5.
6. RIGHTS ON TERMINATION OF EMPLOYMENT. The Option shall be forfeited
and returned to CREELP in the event Xxxxxxx ceases to be an employee of all of
CREELP, the General Partner and Crescent, to the extent that it is not
exercisable and vested at that time. To the extent that it is exercisable and
vested at that time, it shall remain exercisable during the remaining initial
term of the Option. If Xxxxxxx dies while serving as an employee of either
CREELP, the General Partner or Crescent, the Option may be exercised, to the
extent that it remains unexercised on the date of death, by his personal
representative or by the distributees to whom Xxxxxxx' rights under the Option
shall pass by will or by the laws of descent and distribution.
7. TRANSFERABILITY. The Option shall not be transferable other than by
will or by the laws of descent and distribution and may be exercised during the
lifetime of Xxxxxxx only by Xxxxxxx or by his legally authorized representative.
8. COMPLIANCE WITH SECURITIES LAWS. Units shall not be issued upon the
exercise of the Option unless the issuance and delivery of the Units (and the
exercise of the Option) complies with all relevant provisions of federal and
state law, including without limitation the Securities Act of 1933, as amended,
the rules and regulations promulgated thereunder and the requirements of any
stock exchange upon which the Shares might then be listed, and shall be further
subject to the approval of counsel for Crescent with respect to such compliance.
The General Partner may also require Xxxxxxx to furnish evidence satisfactory to
the General Partner and Crescent, including, without limitation, a written and
signed representation letter and consent to be bound by any transfer
restrictions imposed by law, legend, condition or otherwise, and a
representation that the Units are being acquired only for investment and without
any present intention to sell or distribute the Units in violation of any
federal or state law, rule or regulation. Further, Xxxxxxx shall consent to the
imposition of a legend on the certificate representing the Units issued pursuant
to an Award and Shares issued upon the exchange therefore restricting their
transferability as required by law or by this Section.
9. COMPLIANCE WITH PARTNERSHIP AGREEMENT. All Units and Exchange Rights
issued upon the exercise of the Option are governed by, and subject to each of
the terms and
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conditions of, the Partnership Agreement. Upon exercising the Option, Xxxxxxx
shall be admitted to CREELP as an Employee Limited Partner pursuant to Section
4.7 of the Partnership Agreement in accordance with the terms of the Partnership
Agreement and the procedures established by the General Partner for the
admission of an Employee Limited Partner thereunder, and shall be deemed to have
accepted and agreed to be bound by all the terms and conditions of the
Partnership Agreement. The General Partner, in its sole and absolute discretion,
may make the exercise of the Option subject to such further terms and
conditions, including, without limitation, such additional terms and conditions
for admission to CREELP or the exercise of Exchange Rights, as the General
Partner may deem necessary, advisable or appropriate at the time of the
exercise. Such additional terms and conditions may be set forth in resolutions
adopted by the Board of Directors of the General Partner and/or Crescent, or in
such other manner or document as the General Partner, in its sole and absolute
discretion, deems necessary, advisable or appropriate.
10. EXCHANGE RIGHTS. The Units issued upon the exercise of the Option
shall have the Exchange Rights associated with the Limited Partnership Interest
represented by the Units. Xxxxxxx acknowledges that, upon exercise of the
Exchange Rights, Crescent pursuant to the Partnership Agreement has the option
in its sole discretion to deliver cash or Shares in exchange for Units as to
which Xxxxxxx exercises Exchange Rights. Crescent will deliver cash in exchange
for the Units as to which Xxxxxxx has exercised Exchange Rights in lieu of the
issuance or delivery of any certificate for the Shares upon the exercise of
Exchange Rights unless:
(a) the shareholders of the Company have approved the Exchange
Rights applicable to the Units that may be acquired upon exercise of
the Option;
(b) the Shares have been admitted to listing on all stock
exchanges on which Shares are then listed, unless the General Partner
determines in its sole discretion that such listing is neither
necessary nor advisable;
(c) all required registration or other qualification
of the sale of the Shares under any federal or state law or under the
rulings or regulations of the Securities and Exchange Commission or any
other governmental regulatory body that the General Partner in its sole
discretion deems necessary or advisable has been obtained; and
(d) all approvals or other clearances from federal or state
governmental agencies that the General Partner in its sole discretion
determines to be necessary or advisable have been obtained.
11. RESERVATION OF SHARES. Crescent shall at all times reserve and keep
available such number of Shares as might be necessary to satisfy the
requirements of Section 10 hereof and the number of Units as to which the Option
is granted. In addition, Crescent shall from time to time, as is necessary to
accomplish the purposes of this Agreement, use its best efforts to obtain from
any regulatory agency having jurisdiction any requisite authority necessary to
issue Shares upon the exercise of Exchange Rights related to the Units as to
which the Option is granted. The inability of Crescent to obtain from any
regulatory agency having jurisdiction the authority deemed by Crescent's counsel
to be necessary for the lawful issuance of any Shares
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shall relieve Crescent of any liability in respect of the nonissuance of Shares
as to which the requisite authority has not been obtained.
12. TAX WITHHOLDING.
(a) Condition Precedent. The issuance of Units upon the
exercise of the Option is subject to the condition that if at any time
the General Partner determines, in its discretion, that the
satisfaction of withholding tax or other withholding liabilities under
any federal, state or local law is necessary or desirable as a
condition of, or in connection with such issuances, then the issuances
shall not be effective unless the withholding has been effected or
obtained in a manner acceptable to the General Partner.
(b) Manner of Satisfying Withholding Obligation. If Xxxxxxx is
required to pay to CREELP or the General Partner an amount required to
be withheld under applicable income tax laws in connection with the
exercise of the Option, such payment may be made (i) in cash, (ii) by
check, (iii) by delivery to CREELP or the General Partner of Units
already owned by Xxxxxxx having a Fair Market Value on the date the
amount of tax to be withheld is to be determined (the "Tax Date") equal
to the amount required to be withheld, (iv) through the withholding by
CREELP ("Partnership Withholding") of a portion of the Units acquired
upon the exercise of the Option or (v) in any other form of valid
consideration, as permitted by the General Partner in its discretion.
13. ADMINISTRATION.
(a) General Partner. This Agreement shall be administered by
the General Partner. Subject to the provisions of this Agreement, the
General Partner shall have the discretion and authority to prescribe,
amend and rescind any reasonable rules and regulations necessary or
appropriate for the administration of this Agreement; to modify or
amend this Agreement or waive any conditions or restrictions applicable
to the Option (or the exercise thereof); and to make all other
determinations as advisable for the administration of this Agreement;
provided, however, that any amendment or modification of this Agreement
shall require the consent of Xxxxxxx which may be given or withheld in
his discretion, with any such amendment to be made effective only by an
instrument in writing signed by both the Operating Partnership and
Xxxxxxx.
(b) Committee. The General Partner may delegate its authority
under paragraph (a) of this Section to a Committee appointed by the
General Partner, in which case all references herein to the General
Partner that relate to the administration of this Agreement shall be
deemed to be references to the Committee. As used herein, "Committee"
shall mean a committee consisting of two or more members of the Board,
each of whom shall be an "outside director" as defined in Section
162(m) of the Code. A majority of the members of the Committee shall
constitute a quorum, and any action taken by a majority present at a
meeting at which a quorum is present or any action taken without a
meeting evidenced by a writing executed by all members of the Committee
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shall constitute the action of the Committee. Meetings of the Committee
may take place by telephone conference call.
(c) Assistance. CREELP shall supply full and timely
information to the General Partner and/or the Committee on all matters
relating to Xxxxxxx, his employment, death, retirement, Disability or
other termination of employment, and such other pertinent facts as the
General Partner or the Committee might require. CREELP shall furnish
the General Partner and the Committee with such clerical and other
assistance as is necessary to the performance of its duties.
14. ACKNOWLEDGEMENTS BY XXXXXXX. Xxxxxxx acknowledges that this
Agreement does not grant him any right of continued employment with CREELP, the
General Partner or Crescent. Accordingly, he may be removed as an officer of
CREELP, the General Partner or Crescent in accordance with applicable law; if
such event occurs while the Option is not fully vested, Section 6 hereof shall
work a full or partial forfeiture of the Option. Xxxxxxx agrees that no duty of
good faith or fair dealing shall be read into this Agreement against CREELP.
Xxxxxxx understands and intends that this Agreement does not create a
partnership, joint venture, or fiduciary relationship between Xxxxxxx and
CREELP.
15. MISCELLANEOUS. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware, and shall be binding upon and
inure to the benefit of any successor or assign of CREELP and any executor,
administrator, trustee, guarantor or other legal representative of Xxxxxxx.
Headings of Sections and paragraphs of this Agreement are inserted for
convenience of reference and constitute no part of this Agreement. CREELP shall
request Crescent to furnish to Xxxxxxx copies of annual reports, proxy
statements and all other reports sent to Crescent's shareholders and, upon
Xxxxxxx' written request, a copy of its most recent Annual Report on Form 10-K
and each quarterly report to shareholders issued since the end of Crescent's
most recent fiscal year. If the outstanding Shares are increased, decreased,
changed into or exchanged for a different number or kind of shares or securities
through merger, consolidation, combination, exchange of shares, other
reorganization, recapitalization, reclassification, stock dividend, stock split
or reverse stock split, an appropriate and proportionate adjustment shall be
made to the Option. Any such adjustment shall be made without change in the
aggregate purchase price applicable to the unexercised portion of the Option,
but with a corresponding adjustment in the price for each Unit purchasable under
the Option. The foregoing adjustments and the manner of application of the
foregoing provisions shall be determined solely by the General Partner, and any
such adjustment may provide for the elimination of fractional share interests.
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Executed as of the day and year first written above.
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP
By: Crescent Real Estate Equities, Ltd.
its General Partner
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx, Chief Executive Officer
/s/ Xxxxxx X. Xxxxxxx
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XXXXXX X. XXXXXXX
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Social Security Number of Xxxxxxx
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