EXHIBIT (4)(f)
FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS
1999 AMENDED AND RESTATED
LONG TERM INCENTIVE PERFORMANCE PLAN
STOCK OPTION AGREEMENT
This Agreement dated as of May 28, 1999 (the "Agreement") between
First Union Real Estate Equity and Mortgage Investments (the "Trust") and
[ ] ("Executive").
WHEREAS, under the terms of a certain Employment Agreement (the
"Employment Agreement") dated November 2, 1998 (the "Effective Date")
between the Trust and the Executive, the Board of Trustees and shareholders
have authorized the granting to Executive of options to purchase shares of
beneficial interest, $1.00 par value per share, of the Trust (the "Shares")
pursuant to the Trust's 1999 Amended and Restated Long Term Incentive
Performance Plan (the "Plan") and upon the terms and conditions hereinafter
stated.
WHEREAS, pursuant to the terms of the Employment Agreement, Executive
is entitled to receive options to purchase in the aggregate [ ]
Shares, at a purchase price of $4.00 per share, in connection with the
completion by the Trust of its Rights Offering, which has been completed as
of the date hereof.
NOW, THEREFORE, in consideration of the covenants set forth herein and
in the Employment Agreement, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
agree as follows:
1. Shares and Price. The Trust grants to Executive, in accordance
with the provisions of Section 4(c)(vi) of the Employment
Agreement, the right to purchase, upon and subject to the terms
and conditions herein stated and the terms and conditions of the
Plan, [ ] Shares, at the purchase price of $4.00 per
share (the "Share Option"). The purchase price for the exercise
of the Share Option is subject to adjustment in accordance with
the provisions of Section 4(c)(v) and 4(c)(vi) of the Employment
Agreement. The purchase price for the exercise of the Share
Option is payable in accordance with Paragraph 5 hereof.
2. Term of the Share Option. The Share Option shall expire ten (10)
years from the Effective Date, subject to the provisions of
Section 4(c)(v) of the Employment Agreement.
3. Exercisability. The Share Option shall be exercisable in
accordance with the provisions of Section 4(c)(v) of the
Employment Agreement.
4. Partial Exercise. Subject to the provisions hereof, the Share
Option may be exercised in whole or in part in accordance with
Paragraph 5 hereof at any time after becoming exercisable, but
not later than the date the Share Option expires.
5. Exercise and Payment of Exercise Price. The Share Option may be
exercised by delivery to the Trust of a written notice of
exercise, in form acceptable to the Trust, stating the number of
Shares then being purchased hereunder and the delivery of payment
of the exercise price in accordance with Section 7 of the Plan.
6. Trust Call Option. With respect to certain of the Share Option,
the Trust shall have the right to require the Executive to
transfer such options to the Trust in the events and to the
extent provided in Section 4(c)(v) of the Employment Agreement.
7. ISO's. Any Share Options granted hereunder shall be "incentive
stock options" under Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"), to the maximum extent possible
under the Code, subject to Executive satisfying the applicable
employment and holding period requirements under the Code.
8. Transferability. The Share Option shall be subject to the
restrictions on transfer set forth in Section 4(c)(v) of the
Employment Agreement.
9. No Rights as Stockholders. Executive shall have no rights as a
stockholder with respect to the Shares covered by the Share
Option until the date of the issuance of stock certificates
representing the Shares acquired pursuant to the exercise of the
Option. No adjustment will be made for dividends or other rights
for which the record date is prior to the date such stock
certificates are issued pursuant to the exercise of the Option.
10. Modification and Termination. The rights of Executive with
respect to the Share Option are subject to modification and
termination in certain events as provided in the Employment
Agreement and in the Plan.
11. Shares Purchased for Investment. Executive represents and agrees
that if Executive exercises the Share Option in whole or in part,
Executive shall acquire the Shares upon such exercise for the
purpose of investment and not with a view to their resale or
distribution. The Trust reserves the right to include a legend on
each certificate representing shares subject to the Share Option
stating in effect that such Shares have not been registered under
the Securities Act of 1933 (the "Act"), as amended, and may not
be transferred without registration under the Act or an exemption
therefrom.
12. This Agreement Subject to Employment Agreement and Plan.
Executive acknowledges that Executive has read and understands
the Employment Agreement and the Plan. This Agreement is made
subject to the provisions of the Employment Agreement and the
Plan and is intended, and shall be interpreted in a manner, to
comply therewith. Any provision hereof inconsistent with the
Employment Agreement or the Plan shall be superseded and governed
by the Employment Agreement or the Plan, respectively. In the
event of a conflict between the provisions of the Employment
Agreement and the Plan, the provisions of the Employment
Agreement shall govern. The provisions of the Employment
Agreement and Plan are incorporated herein by this reference.
13. Governing Law. To the extent not preempted by Federal law, this
Agreement shall be construed in accordance with and shall be
governed by the laws of the State of Ohio.
14. Notices. Any notices or other communication required or permitted
hereunder shall be sufficiently given if delivered personally or
sent by registered or certified mail, postage prepaid, to the
Trust at its corporate headquarters, and to the Executive at the
last address maintained for such person in the records of the
Trust, or to such other address as shall be furnished in writing
by either party to the other party, and shall be deemed to have
been given as of the date so delivered or deposited in the United
States mail, as the case may be.
15. Notwithstanding anything contained in this Stock Option Agreement
or the Plan to the contrary, this Agreement is made and executed
by the Trust, a business trust organized under the laws of the
State of Ohio, by its officer on behalf of the Trustees thereof,
and none of the Trustees or any additional or successor Trustee
hereafter appointed, or any beneficiary, officer, employee or
agent of the Trust shall have any liability in his personal or
individual capacity, but instead, all parties shall look solely
to the property and assets of the Trust for satisfaction of
claims of any nature arising under or in connection with this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed the Agreement
effective as of the date first written above.
FIRST UNION REAL ESTATE EQUITY
AND MORTGAGE INVESTMENTS
(the "Trust")
By:
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Xxxxxxx X. Xxxxxx, Chairman
("Executive")
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Executive Name
