EXHIBIT 10.11
[FORM AGREEMENT FOR 2004 PLAN - EXECUTIVE OFFICERS]
[INCENTIVE STOCK OPTION GRANT]
STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of the ____ day of ______ ______, by and
between DEVELOPERS DIVERSIFIED REALTY CORPORATION, an Ohio corporation (the
"Company"), and _____________________________, an individual (the "Holder").
W I T N E S S E T H:
WHEREAS, the Company desires to provide the Holder with an option to
purchase _______________ Common Shares, without par value, of the Company
("Shares"), pursuant to the Company's 2004 Equity-Based Award Plan (the "Plan");
and
WHEREAS, the Holder desires to accept such option;
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the parties hereto hereby agree as follows:
1. Grant of Option. The Company does hereby irrevocably grant to the
Holder, and the Holder does hereby accept, the right and option (the "Option")
to purchase, at the option of the Holder, ______________ Shares at the exercise
price per Share of $ ________ and upon and subject to the other terms and
conditions hereof and the Plan.
2. Term of the Option; Vesting. The Option is exercisable, in whole
or in part, once vested, in accordance with the following schedule. If the
Holder is then employed by the Company, the Option shall vest as follows:
Date No. of Shares Vesting
_____________ _____________
_____________ _____________
_____________ _____________
Shares for which the Option has become exercisable shall be referred to herein
as "Vested Shares," and Shares for which the Option has not become exercisable
shall be referred to herein as "Unvested Shares." The Option shall terminate on
the tenth anniversary of the date hereof and must be exercised, if at all and to
the extent exercisable, on or before such date and shall not thereafter be
exercisable, notwithstanding anything herein to the contrary. Notwithstanding
anything contained herein to the contrary, it shall be a condition to the
Holder's right to exercise the Option with respect to any Vested Shares that
there shall have been filed with the Securities and Exchange Commission an
effective registration statement on Form S-8 (or such other form as the Company
shall deem necessary) with respect to the Shares to be received upon exercise.
3. Exercise. Subject to the other terms and conditions hereof, the
Option shall be exercisable from time to time by written notice to the Company
(in the form required by the Company) which shall:
(a) state that the Option is thereby being exercised, the number of
Shares with respect to which the Option is being exercised, each
person in whose name any certificates for the Shares should be
registered and such person's address and social security number;
(b) be signed by the person or persons entitled to exercise the
Option and, if the Option is being exercised by anyone other than
the Holder, be accompanied by proof satisfactory to counsel for the
Company of the right of such person or persons to exercise the
Option under the Plan and all applicable laws and regulations; and
(c) be accompanied by such representations, warranties or agreements
with respect to the investment intent of such person or persons
exercising the Option as the Company may reasonably request, in form
and substance satisfactory to counsel for the Company.
As conditions to the exercise of the Option and the obligation of the Company to
issue Shares upon the exercise thereof, the proposed recipient of the Shares
shall make any representation or warranty to comply with any applicable law or
regulation or to confirm any factual matters reasonably requested by the Company
or its counsel.
Upon exercise of the Option and the satisfaction of all conditions thereto, the
Company shall deliver a certificate or certificates for Shares to the specified
person or persons at the specified time upon receipt of the aggregate exercise
price for such Shares by any method of payment authorized by the Plan.
4. Termination of Option. Upon termination of the Holder's
employment with the Company, the Option will be governed by Section 5(b)(6) of
the Plan.
5. Transferability. The Option and the Holder's rights therein are
not transferable by the Holder other than by will or the laws of descent and
distribution or pursuant to a qualified domestic relations order (as defined in
the Internal Revenue Code or the Employment Retirement Income Security Act of
1974, as amended). The transferee of any Option will be subject to all
restrictions, terms and conditions applicable to the Option prior to its
transfer.
6. Taxes. The Holder hereby agrees to pay to the Company, in
accordance with the terms of the Plan, any federal, state or local taxes of any
kind required by law to be withheld and remitted by the Company with respect to
an exercise of the Option. The Holder may satisfy such tax obligation, in whole
or in part, by (i) electing to have the Company withhold a portion of the Shares
otherwise to be delivered upon exercise of (or the lapse of restrictions
relating to) the Option with a Fair Market Value equal to the amount of such
taxes or (ii) delivering to the Company Shares other than Shares issuable upon
exercise of (or the lapse of restrictions relating to) the Option with a Fair
Market Value equal to the amount of such taxes. The election, if any, must be
made on or before the date that the amount of tax to be withheld is determined.
If the Holder does not make such payment to the Company, the Company shall have
the right to withhold from any payment of any kind otherwise due to the Holder
from the Company, any federal, state or local taxes of any kind required by law
to be withheld with respect to an exercise of the Option or the Shares which are
the subject of such Option.
7. Deferral. The Holder may, upon exercise of the Option, and in his
or her sole discretion, elect to defer the receipt of any Shares to be received
as a result of the exercise of the Option. Subject to any exceptions adopted by
the Committee, such request must generally be made at least one year prior to
exercise of the Option.
8. Subject to the Plan. This Agreement is made and the Option
evidenced hereby is granted under and pursuant to, and they are expressly made
subject to all of the terms and conditions of, the Plan, notwithstanding
anything herein to the contrary. The Holder hereby acknowledges receipt of a
copy of the Plan and that the Holder has read and understands the terms and
conditions of the Plan.
9. Intent. The Option is intended to be treated as an Incentive
Stock Option within the meaning of Section 422 of the Internal Revenue Code (an
"Incentive Stock Option"). The Option shall be construed and exercised
consistent with such intention. It is acknowledged that the United States
Treasury Department may amend or modify from time to time its regulations
governing Incentive Stock Options. Accordingly, it is understood and agreed by
the Holder that the Company may amend or modify the Plan and this Agreement in
any respect deemed by the Company to be necessary or desirable to comply with
such regulations, as amended or modified from time to time or to meet the
requirements for an Incentive Stock Option.
10. Securities Law Compliance. Notwithstanding any provision of this
Agreement to the contrary, the Option shall not be exercisable unless, at the
time the Holder attempts to exercise the Option, in the opinion of counsel for
the Company, all applicable securities laws, rules and regulations have been
complied with. The Holder agrees that the Company may impose such restrictions
on the Shares as are deemed advisable by the Company, including, without
limitation, restrictions relating to listing or trading requirements. The Holder
further agrees that certificates representing the Shares may bear such legends
and statements as the Company shall deem appropriate or advisable to assure,
among other things, compliance with applicable securities laws, rules and
regulations.
11. Investment Representation. The Holder agrees that any Shares
which the Holder may acquire by virtue of the Option may not be transferred,
sold, assigned, pledged, hypothecated or otherwise disposed of by the Holder
unless (i) a registration statement or post-effective amendment to a
registration statement under the Securities Act of 1933, as amended, with
respect to such Shares has become effective so as to permit the sale or other
disposition of such Shares by the Holder; or (ii) there is presented to the
Company an opinion of counsel satisfactory to the Company to the effect that the
sale or other proposed disposition of such Shares by the Holder may lawfully be
made otherwise than pursuant to an effective registration statement or
post-effective amendment to a registration statement relating to the such Shares
under the Securities Act of 1933, as amended.
12. Rights of the Holder. The granting of the Option shall in and of
itself not confer any right on the Holder to continue in the employ of the
Company and shall not interfere in any way with the right of the Company to
terminate the Holder's employment at any time, subject to the terms of any
employment agreement between the Company and the Holder. The Holder shall have
no dividend, voting or other rights of a stockholder with respect to the Shares
which are subject to the Option prior to the purchase of such Shares upon
exercise of the Option and the execution and delivery of all other documents and
instruments deemed necessary or desirable by the Company.
13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Ohio, except to the extent otherwise
governed by Federal law.
IN WITNESS WHEREOF, the parties have subscribed their names hereto
as of the date first above written.
DEVELOPERS DIVERSIFIED REALTY
CORPORATION, an Ohio corporation
By: _______________________________
Name: _________________________
Title: ________________________
___________________________________
___________________
