EXHIBIT 10.05
UNIT OPTION AGREEMENT
This Unit Option Agreement (this "Agreement") is being made and entered
as of February 19, 2002, by and between Crescent Real Estate Equities Limited
Partnership, a Delaware limited partnership (the "Operating Partnership", or
"Employer"), and Xxxxxx X. Xxxxxxx ("Employee").
RECITALS
As part of Employer's goals to provide long term incentives to retain
the valuable skills of Employee, the Operating Partnership, acting through its
General Partner, wishes to provide Employee the ability to earn the right to
purchase units of the Operating Partnership in order to encourage Employee to
carry out his duties with vigor.
Section 4.7.A of the Second Amended and Restated Agreement of Limited
Partnership of the Operating Partnership (as amended, the "Partnership
Agreement"), authorizes the Operating Partnership to adopt a compensation plan
for its employees pursuant to which the Operating Partnership 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.
The right to earn the options described herein is intended to
compensate Employee for services performed by Employee for Operating Partnership
from and after February 19, 2002 and thereafter for the postemployment
obligations of Employee, including confidentiality and noncompetition.
Employee's ability to earn the Options hereunder shall be prospective only and
shall be earned while the Employee's employment with the Operating Partnership
and the General Partner continues.
Crescent Real Estate Equities Company ("Crescent") and Employer has
previously discussed these matters with Employee, and Employee desires to
continue his employment on such terms.
In order to induce Employee to make enthusiastic and productive efforts
for the benefit of the Operating Partnership, the Compensation Committee of the
Board of Directors of the General Partner has recommended that Employee be
provided the right to earn unit options on the terms and subject to the
conditions set forth in this Agreement.
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. OPTION. Subject to the terms and conditions hereof, the Employee
has the right to earn an option (the "Option") to purchase from the Operating
Partnership all or any part of a
total of 500,000 Units at a price of $35.02 per Unit. Accordingly, the number of
Units to be associated with Employee's Limited Partnership Interest when he is
admitted to the Operating Partnership 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. Employee's 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. Subject to earlier termination as provided herein,
the Option shall expire at 6:00 p.m., Fort Worth, Texas time, ten (10) years
after the date on which the Option is granted, and Employee shall have no
further rights under the Option after that date.
4. VESTING. The earning of the Option and its vesting is contingent on
the continuation of Employee's employment relationship with Crescent and is
intended to retain Employee as an employee of the Operating Partnership. The
right to exercise options in the future may be earned by Employee from and after
the date of this Agreement on a year-by-year basis, in accordance with the terms
of this Agreement and in consideration of his future services to be provided by
Employee after the date of the this Agreement. Furthermore, Employee's ability
to earn Options hereunder shall be prospective only. The Option shall be earned
and become vested according to the following schedule:
Number of Units
With Respect to Which Option is
Earned and Vested Date Earned, Vested and Exercisable
------------------------------- -----------------------------------
100,000 February 19, 2003
100,000 February 19, 2004
100,000 February 19, 2005
100,000 February 19, 2006
100,000 February 19, 2007
If Employee ceases to serve as an employee of all of the Operating Partnership,
the General Partner and
Crescent Real Estate Equities Company ("Crescent"),
further vesting under the Option shall cease. Notwithstanding the foregoing
provisions of this Section, the following special provisions shall apply:
(a) Mergers and Reorganizations. If 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 agreed 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
-2-
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 transaction contemplated in the
agreement is a merger or reorganization in which Crescent will survive.
(b) Change in Control. The Option shall become fully vested in
the event of the voluntary resignation by Employee from employment with
the Operating Partnership, the General Partner and Crescent, for Good
Reason within 24 months following a Change in Control ("Resignation for
Good Reason"). For purposes of this paragraph:
(i) "Good Reason" shall mean (A) a reduction in the
amount of Employee's aggregate cash compensation (including
base salary and any bonus) payable within any twelve-month
period following a Change in Control below the amount of such
aggregate cash compensation paid to, or accrued by the General
Partner with respect to, Employee in the twelve-month period
immediately preceding the change in control; (B) the
assignment of Employee to any employment status other than a
position reasonably equivalent to the position held by the
Employee immediately before the Change in Control and having
duties comparable to those exercised by Employee immediately
before the Change in Control, or (C) a geographical relocation
or attempted relocation of Employee to an office more than
fifty (50) miles distant from Fort Worth, Texas, without
Employee's 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 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 ("Xxxxxxxxx") 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
-3-
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. The Option shall become fully vested in the
event of Employee's Retirement. "Retirement" shall be deemed to occur
if Employee's employment terminates on or after the date on which he
attains age 70.
Death or Disability. The Option shall become fully vested in
the event of Employee's death or Disability. "Disability" shall mean
the absence of the Employee from the Employee's 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 Employee 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 delivery to the Operating Partnership (either directly or by
attestation) of Units already owned (for at least six months) by Employee,
valued at the then Fair Market Value, (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 Employee 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
(iv), or replace it with a new note, provided that no such amendment or revision
that could have an adverse effect on Employee 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. The Option
shall be deemed to be exercised when written notice of exercise has been
received by the Operating Partnership at its principal office from the person
entitled to exercise the Option
-4-
and payment for the Units with respect to which the Option is exercised has been
received by the Operating Partnership in accordance with this Section 5.
6. 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 Employee only by Employee or by his legally authorized
representative.
7. 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 Employee 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, Employee shall consent to the
imposition of a legend on the certificate representing the Units issued upon the
exercise of the Option and Shares issued upon the exchange therefore restricting
their transferability as required by law or by this Section.
8. 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 conditions of, the Partnership Agreement. Upon exercising the
Option, Employee shall be admitted to the Operating Partnership 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 the Operating
Partnership 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.
9. 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. Employee 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 Employee exercises Exchange Rights. Crescent will deliver cash in exchange
for the Units as to which the Employee has exercised Exchange Rights in lieu of
the issuance or delivery of any certificate for the Shares upon the exercise of
Exchange Rights unless:
-5-
(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 agency that the General Partner in its sole discretion
determines to be necessary or advisable have been obtained.
10. 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 shall relieve Crescent of
any liability in respect of the nonissuance of Shares as to which the requisite
authority has not been obtained.
11. 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 Employee
is required to pay to the Operating Partnership 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 the Operating Partnership or the General
Partner of Units already owned by Employee 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 the Operating Partnership ("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.
-6-
12. 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 the Employee 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 Employee.
(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.
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 shall constitute the
action of the Committee. Meetings of the Committee may take place by
telephone conference call.
(c) Assistance. The Operating Partnership shall supply full
and timely information to the General Partner and/or the Committee on
all matters relating to Employee, his employment, death, retirement,
Disability or other termination of employment, and such other pertinent
facts as the General Partner or the Committee might require. The
Operating Partnership shall furnish the General Partner and the
Committee with such clerical and other assistance as is necessary to
the performance of its duties, and Employee as the Chief Executive
Officer of the Operating Partnership, shall in now way interfere with
or restrain the ability of the Operating Partnership in this regard.
13. ACKNOWLEDGEMENTS BY EMPLOYEE. Employee acknowledges he may be
removed as an officer of the Operating Partnership, the General Partner or
Crescent in accordance with applicable law; if such event occurs while the
Option is not fully vested, Section 6 herein shall govern the full or partial
forfeiture of the Option. Employee agrees that no duty of good faith or fair
dealing shall be read into this Agreement against the Operating Partnership, the
General Partner or Crescent. Employee understands and intends that this
Agreement does not create a partnership or joint venture between Employee and
the Operating Partnership.
14. MISCELLANEOUS.
(a) Construction. This Agreement shall be construed in
accordance with the laws of the State of
Delaware, and shall be binding
upon and inure to the benefit of any
-7-
successor or assign of the Operating Partnership and any executor,
administrator, trustee, guarantor or other legal representative of
Employee.
(b) Choice of Forum. The parties hereto agree that should any
suit, action or proceeding arising out of this Agreement be instituted
by any party hereto (other than a suit, action or proceeding to enforce
or realize upon any final court judgment arising out of this
Agreement), such suit, action or proceeding shall be instituted only in
a state or federal court in Tarrant County, Texas. Each of the parties
hereto consents to the in personam jurisdiction of any such state or
federal court in Tarrant County, Texas and waives any objection to the
venue of any suit, action or proceeding. The parties recognize that
courts outside Tarrant County, Texas may also have jurisdiction over
suits, actions or proceedings arising out of this Agreement, and in the
event that any party hereto shall institute a proceeding involving this
Agreement in a jurisdiction outside Tarrant County, Texas, the party
instituting such proceeding shall indemnify any other party hereto for
any losses and expenses that may result from the breach of the
foregoing covenant to institute such proceeding only in a state or
federal court in Tarrant County, Texas, including without limitation
additional expenses incurred as a result of litigating in another
jurisdiction, such as reasonable fees and expenses of local counsel and
travel and lodging expenses for parties, witnesses, experts and support
personnel.
(c) Headings. Headings of Sections and paragraphs of this
Agreement are inserted for convenience of reference and constitute no
part of this Agreement.
(d) Crescent Reports. The Operating Partnership shall request
Crescent to furnish to Employee copies of annual reports, proxy
statements and all other reports sent to Crescent's shareholders and,
upon Employee's 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.
(e) Change in Capitalization. If the outstanding Units or
Shares are increased, decreased, changed into or exchanged for a
different number or kind of units, shares or securities through merger,
consolidation, combination, exchange, other reorganization,
recapitalization, reclassification, dividend, split or reverse 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.
-8-
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
------------------------------------
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------
----------------------------------------
Social Security Number of
--------------
-9-
