Exhibit 10.7
SHARE PURCHASE OPTION AGREEMENT
This Share Purchase Option Agreement ("Agreement") is entered into as of
the ______ day of __________, 200__ between Great Lakes REIT, ("GLR"), a
Maryland real estate investment trust whose principal place of business is Oak
Brook, Illinois, and Xxxx Xxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, on __________________ the Compensation Committee of the Board of
Trustees acting on behalf of the Board of Trustees approved the grant of share
purchase options to certain GLR employees; and
WHEREAS, certain share purchase options granted pursuant to the Incentive
Plan are intended to qualify as "Incentive Stock Options"; and
WHEREAS, GLR desires to compensate Employee by granting an option under
the Incentive Plan to purchase certain GLR common shares of beneficial
interest in order to provide Employee with an added incentive to increase the
financial well being of GLR; and
WHEREAS, Employee is a key employee of GLR or one of its subsidiaries;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the parties agree as follows:
1. GRANT OF OPTION. GLR hereby grants to Employee an option ("Option") to
purchase up to ________ common shares of beneficial interest, $.01 par value
("Common Shares"), to be issued as fully paid and non-assessable upon the
exercise hereof and payment therefor, during the following periods and subject
to the following conditions:
(a) During the period commencing _____________ (twelve months from
the date of grant) and terminating ___________ (ten years from the date of
the grant), Employee may exercise the Option to purchase up to _______ (one
third) of the Common Shares covered by the Option;
(b) During the period commencing _________ (twenty-four months from
the date of the grant) and terminating ______________ (ten years from the
date of the grant), Employee may exercise the Option to purchase up to an
additional _______ (one third) of the Common Shares covered by the Option; and
(c) During the period commencing __________ (thirty-six months from
the date of the grant) and terminating ___________ (ten years from the date
of the grant), Employee may exercise the Option to purchase up to an
additional ______ (one third) of the Common Shares covered by the Option; and
(d) Of the ______ Common Shares identified in paragraph 1(a) ______
of such shares shall be treated as subject to an Incentive Stock Option, and
no shares shall be subject to a non-qualified option. Of the _____ Common
Shares identified in paragraph 1(b) ______ shares shall be treated as subject
to an Incentive Stock Option, and no Common Shares shall be subject to a
non-qualified option. Of the _____ Common Shares identified in paragraph 1(c)
_____ shares shall be treated as subject to an Incentive Stock Option, and no
Common Shares shall be subject to a non-qualified option.
Notwithstanding anything herein to the contrary, and except as provided
in paragraph 4 hereof, the Option and all rights granted herein shall
terminate and become null and void upon the expiration of ten years from the
date of the grant (such period is hereinafter referred to as the "Term").
2. EXERCISE OF OPTION. The Option may be exercised by written notice
delivered to the Secretary of GLR at the GLR principal offices, stating that
Employee desires to exercise the Option and stating further the number of
Common Shares with respect to which the Option is being exercised. In no
case may the Option be exercised for a fraction of a Common Share. The
purchase price of the Common Shares with respect to which the Option is being
exercised shall be paid (i) in cash, or (ii) at the discretion of GLR, by
delivering Common Shares already owned by Employee, or (iii) a combination of
(i) and (ii), and shall be paid in full within three (3) business days after
delivery of the Notice of Exercise. Promptly after receipt of the Notice of
Exercise and payment, GLR, or its transfer agent, shall deliver to Employee a
certificate representing the Common Shares purchased. If any law or
regulation requires GLR to take any action with respect to the Common Shares,
then the date for the delivery of such Common Shares shall be extended for
the period necessary to take such action.
3. OPTION PRICE. The option price of the Common Shares shall be
$______ per share, which price is not less than 100% of the fair market value
of GLR's Common Shares on the date of the grant.
4. CONDITIONS UPON RIGHT TO EXERCISE.
(a) EMPLOYMENT AT TIME OF EXERCISE. Except as provided in
paragraph 4(b), below, at the time of any exercise of the Option, Employee
must be an employee of GLR or its subsidiary.
(b) TERMINATION OF EMPLOYMENT.
(i) GENERAL. All of the unexercised rights of Employee under
the Option shall lapse if Employee's employment with GLR or a subsidiary is
terminated for any reason, except for leaves of absence approved in writing
by the President of GLR, or if such employment is terminated by reason of
Employee's permanent total disability, retirement or death, as described
below. If Employee's employment is terminated for any reason other than
Employee's permanent total disability, retirement or death, the vested
portion of the Option
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which may be exercised pursuant to Section 1 hereof may be exercised by
Employee at any time or times in whole or in part during the three-month
period after such termination to the extent such three-month period is
included in the remainder of the Term.
(ii) DISABILITY. If the employment of Employee with GLR or a
subsidiary is terminated by reason of Employee's permanent total disability
and Employee has been in the employ of either GLR or a subsidiary
continuously from the date hereof until such termination (except for leaves
of absence approved in writing by the President of GLR), the vested portion
of the Option pursuant to Section 1 hereof may be exercised by Employee at
any time or times in whole or in part during the one year period after such
termination, to the extent such one year period is included in the remainder
of the Term.
(iii) RETIREMENT. If the employment of Employee with GLR or
a subsidiary is terminated by reason of Employee's retirement and Employee
has been in the employ of either GLR or a subsidiary continuously from the
date hereof until such retirement (except for leaves of absence approved in
writing by the President of GLR), the vested portion of the Option pursuant
to Section 1 hereof may be exercised by Employee at any time or times in
whole or in part during the three-month period after such retirement to the
extent that such three-month period is included in the remainder of the Term.
(iv) DEATH. If the employment of Employee with GLR or a
subsidiary is terminated by reason of Employee's death and Employee has been
in the employ of either GLR or a subsidiary continuously from the date hereof
until Employee's death (except for leaves of absence approved in writing by
the President of GLR), the vested portion of the Option pursuant to Section 1
hereof may be exercised by the legal representative of Employee, or by such
of his/her heirs, legatees or beneficiaries to whom the Option devolves, at
any time or times in whole or in part during the one year period from the
date of death of Employee, to the extent that such one year period is
included in the remainder of the Term.
(c) CHANGE IN CONTROL. In the event of a change in control of
GLR, as defined herein, Employee shall have the right to exercise this Option
to purchase all of the Common Shares subject to this Option Agreement
immediately, notwithstanding the provisions of paragraph 1. For purposes of
this Agreement, a change in control of GLR shall mean any of the following
events:
(i) GLR is merged or consolidated or reorganized into or with
another corporation or other legal person, and as a result of such merger,
consolidation or reorganization less than a majority of the combined voting
power of the then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate by the holders
of GLR Common Shares (as defined in the Incentive Plan) immediately prior to
such transaction;
(ii) GLR sells or otherwise transfers all or substantially
all of its assets to any other corporation or other legal person, and less
than a majority of the combined voting power of the then-outstanding
securities of such corporation or person immediately after such
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sale or transfer is held in the aggregate by the holders of GLR Common Shares
immediately prior to such sale or transfer;
(iii) There is a report filed on Schedule 13D or Schedule
14D-1 (or any successor schedule, form or report), each as promulgated
pursuant to the Securities Exchange Act of 1934, as amended, disclosing that
any person (as the term "Person" is used in Section 13(d)(3) or Section
14(d)(2) of the Securities Exchange Act of 1934, as amended) has become the
beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3
or any successor rule or regulation promulgated under the Securities Exchange
Act of 1934, as amended) of securities representing 20% or more of the Voting
Power (as defined in the Incentive Plan);
(iv) GLR files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934, as amended, disclosing in response to Form 8-K or Schedule 14A (or any
successor schedule, form or report or item therein) that a change in control
of GLR has or may have occurred or will or may occur in the future pursuant
to any then-existing contract or transaction; or
(v) If during any period of two consecutive years,
individuals who at the beginning of any such period constitute the Trustees
of GLR cease for any reason to constitute at least a majority thereof, unless
the election, or the nomination for election by GLR's shareholders, of each
Trustee of GLR first elected during such period was approved by a vote of at
least two-thirds of the Trustees of GLR then still in office who were
Trustees of GLR at the beginning of any such period.
5. ADDITIONAL LIMITS ON RIGHT TO EXERCISE. If at any time the Board of
Trustees of GLR shall determine, in its discretion, that the listing,
registration or qualification of the Option or the Common Shares issuable or
transferable upon exercise of the Option upon any securities exchange or
under any state or federal law, or that the consent or approval of any
governmental regulatory body is necessary or desirable as a condition of, or
in connection with, the granting of the Option or in connection with the
issuance or transfer of Common Shares thereunder, the 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 Board of Trustees of GLR. Unless at
the time of any exercise of the Option there is, in the opinion of GLR's
counsel, a valid and effective registration statement under the Securities
Act of 1933, as amended, and an appropriate qualification and registration
under applicable state securities law, relating to the Common Shares,
Employee hereby agrees, upon exercise of the Option, to give a representation
that he/she is acquiring the Common Shares for his/her own account for
investment and not with a view to, or for sale in connection with, the resale
or distribution of any such Common Shares and shall give such other
representations and covenants to GLR as may, in the opinion of its counsel,
be required. In the event that any Common Shares issued are not registered,
then Employee hereby agrees that until such time as the Common Shares are
registered the certificate representing the Common Shares shall bear the
following restrictive legend:
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 ("ACT") AND MAY NOT BE SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED OR OFFERED FOR SALE IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THEM UNDER THE
ACT OR A WRITTEN OPINION OF COUNSEL FOR THE COMPANY THAT REGISTRATION IS
NOT REQUIRED.
6. NON-TRANSFERABILITY OF OPTION. The Option shall not be transferable
except, (i) to one or more trusts established solely for the benefit of one
or more members of the Employee's family or to one or more partnerships in
which the only partners are members of the Employee's family or to another
entity established by Employee for estate planning purposes, or (ii) by will
or the laws of descent and distribution. Employee or his/her assignee shall
provide the Company written notice of any such transfer, and any such
transfer shall not effect the conditions of the exercise of the Option except
as otherwise noted herein. During the lifetime of Employee the Option may be
exercised only by Employee or his/her legal representative if the Employee is
disabled.
7. SHAREHOLDER RIGHTS AND ADJUSTMENTS TO COMMON SHARES. Employee shall
have no rights as a shareholder with respect to any Common Shares issuable or
transferable upon exercise of the Option until the date GLR and GLR's
transfer agent record such issuance on the GLR shareholder register. Except
as hereinafter provided, no adjustment shall be made for dividends (ordinary
or extraordinary, whether in cash, securities or other property) or
distributions or other rights for which the record date is prior to such
date, and all adjustments to the Common Shares by reason of a stock/share
dividend, merger, consolidation or otherwise, shall be made in accordance
with the terms of the Incentive Plan.
This Agreement shall not affect in any way the right or power of GLR to
make adjustments, reclassifications, reorganizations or changes of its
capital or business structure or to merge, consolidate, dissolve, liquidate,
sell or transfer all or any part of its business or assets. As noted in the
Incentive Plan, in the event the Company completes such a transaction to
merge, consolidate, dissolve, liquidate, sell or transfer all or any part of
its business or assets the Board of Trustees of GLR may, in its sole
discretion, provide adjustments to the number or kind of shares covered by
the Options granted hereunder.
8. TAX WITHHOLDING. GLR shall have the power to withhold, or require an
Employee or other person or entity receiving Common Shares under this
Agreement to remit to GLR an amount sufficient to satisfy federal, state, and
local withholding tax requirements on any Common Shares issued under this
Agreement, and GLR may defer issuance of Common Shares until such
requirements are satisfied. The Employee may elect (i) to have Common Shares
otherwise issuable under this Agreement withheld by GLR, or (ii) to deliver
to GLR previously acquired Common Shares, in each case have a Fair Market
Value sufficient to satisfy all or part of the Employee's (or other Common
Shares recipient's) estimated total federal, state and local tax obligation
associated with the transaction.
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9. PREMATURE DISPOSITION. If Employee disposes of Common Shares
acquired on the exercise of the Incentive Stock Options by sale or exchange
either within two (2) years after the date of the grant, or within one (1)
year after the acquisition of such Common Shares, Employee shall notify GLR
of such disposition and of the amount realized upon such disposition.
10. SUCCESSORS AND ASSIGNS. The Option shall be binding in accordance
with its terms upon any successors of GLR and upon the heirs, executors,
administrators and successors of Employee.
11. GOVERNING LAW. This Agreement and the Option shall be governed by
and construed in accordance with the laws of the State of Illinois relating
to contracts made and to be performed in that State.
IN WITNESS WHEREOF, GLR and Employee have executed this Agreement as of
the day and year first above written.
GREAT LAKES REIT
By:
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Xxxxxxx X. Xxxxxx, Executive Vice President and Secretary
EMPLOYEE
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