THE PRICE ENTERPRISES DIRECTORS' 1995 STOCK OPTION PLAN
AMENDED AND RESTATED NON-QUALIFIED
STOCK OPTION AGREEMENT
This Amended and Restated Agreement is between Price Enterprises, Inc., a
Maryland corporation (the "Company"), and _________________________ (the
"Optionee"), and is made as of August 17, 1998.
RECITALS
A) The Company and the Optionee are parties to a Price Enterprises, Inc.
Non-qualified Stock Option Agreement (the "Option Agreement") (Grant # ______)
granted _________________________ (the "Grant Date").
B) Pursuant to the Option Agreement, the Optionee was granted an option to
purchase ___________ shares of Price Enterprises, Inc. common stock par value
$.0001 (the "Common Stock"), which currently represents the right (when vested)
to purchase ______________________ shares of Common Stock at a price of
$__________ per share (the "Exercise Price"). Each portion of the option
representing the right to purchase one share of Common Stock shall be referred
to below as an "Unexercised Option."
C) The Company distributed 8 3/4% Series A Cumulative Redeemable Preferred
Stock (the "Series A Preferred Stock") to its shareholders on August 17, 1998
(the "Distribution").
D) As a result of the Distribution, the option granted pursuant to the
Option Agreement is to be adjusted as follows: one share of Series A Preferred
Stock will be issued upon the issuance of each share of Common Stock issued upon
exercise of the option.
E) This Amendment and Restatement reflects on those stock options which
have not been exercised by the Optionee as of August 17, 1998.
NOW, THEREFORE, the Option Agreement is amended and restated in its
entirety as follows:
1. Grant of Option
Pursuant to The Price Enterprises Directors' 1995 Stock Option Plan, as
amended (the "Plan"), the Company hereby amends and restates the grant to the
Optionee, as of the date of grant set forth above, as follows: for each of the
Unexercised Options exercised at the Exercise Price the Company will issue one
share of Common Stock and one share of Series A Preferred Stock, together the
"Option Shares," upon the terms and conditions hereinafter stated (the
"Option"), to all of which the Optionee, by the acceptance hereof, assents. It
is intended that the Option shall not constitute an Incentive Stock Option under
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
2. Option Period
The Option shall expire at the close of business on the first day following
the sixth (6th) anniversary of the Date of Grant (the "Option Period").
The Option shall become exercisable to purchase twenty percent (20%) of the
Option Shares (with Common Stock and Series A Preferred Stock vesting in equal
amounts) on each anniversary of the Date of Grant, commencing on the first (1st)
anniversary of the Date of Grant. The Option shall not be exercisable with
respect to fractional Option Shares. Each Unexercised Option represents the
option to purchase one share of Common Stock and one share of Series A Preferred
Stock together, and shall not be exercisable with respect to either Common Stock
or Series A Preferred Stock, individually. The Option shall vest as follows:
Vested Shares Vested Shares of
Vesting Date of Common Stock Series A Preferred Stock
------------ --------------- ------------------------
----------- ----------- --------------
----------- ----------- --------------
----------- ----------- --------------
----------- ----------- --------------
----------- ----------- --------------
Total:
----------- --------------
3. Effect of Termination of Directorship
When the Optionee ceases to be a director of the Company, whether because
of death, resignation, removal, expiration of his or her term of office or any
other reason, the Option shall terminate ninety (90) days after the date the
Optionee ceases to be a director of the Company and may thereafter no longer be
exercised; except that (i) upon the Optionee's death his or her legal
representative(s) or the person(s) entitled to do so under the Optionee's last
will and testament or under applicable intestate laws shall have the right to
exercise the Option within one (1) year after the date of death (but not beyond
the Option Period), but only for the number of shares as to which the Optionee
was entitled to exercise the Option on the date of his or her death and (ii)
upon the Optionee's ceasing to be a director by reason of disability he or she
(or his or her guardian) shall have the right to exercise the Option within one
(1) year after the date the Optionee ceased to be a director (but not beyond the
Option Period), but only for the number of shares as to which the Optionee was
entitled to exercise the Option on the date of his or her ceasing to be a
director.
1. Manner of Exercise
The Option shall be exercised by giving written notice using the form
prescribed from time to time by the Company. Payment must be made in full in:
(a) Cash, or
(b) In the discretion of the Committee (as such term is defined in the
Plan), by delivering Common Stock or Series A Preferred Stock of the
Company already owned by the Optionee, or
(c) In the discretion of the Committee, a combination of cash, Common Stock
and/or Series A Preferred Stock already owned by the Optionee.
For purposes of exercising the Option, Common Stock or Series A Preferred Stock
delivered to the Company in payment of the exercise price shall be valued at the
publicly reported price for the last sale of the Common Stock or Series A
Preferred Stock, or the average of the publicly reported closing bid and asked
prices of the Common Stock or Series A Preferred Stock, as applicable, on the
last business day preceding the date upon which the Company receives written
notice of exercise, or, if there are no publicly reported prices of the
Company's Common Stock or Series A Preferred Stock, at the fair market value of
the Common Stock or Series A Preferred Stock, as determined in good faith by the
Board.
5. Withholding
Prior to the delivery of any Option Shares purchased upon exercise of the
Option, the Company shall determine the amount of the federal and state income
tax, if any, required to be withheld under applicable law and shall collect from
the Optionee the amount of any such tax to the extent not previously withheld.
6. Adjustments
The number of Option Shares subject to the Option shall be adjusted in
accordance with Section 7 of the Plan.
7. Limitation on Exercisability
Notwithstanding any other provision herein, the Option may not be exercised
prior to approval of the Plan by the Company's stockholders having a majority of
the voting power of the outstanding stock; nor prior to the admission of the
shares of Common Stock or Series A Preferred Stock issuable on exercise of the
Option to listing on notice of issuance on any stock exchange on which shares of
the same class are then listed; nor unless and until, in the opinion of counsel
for the Company, such securities may be issued and delivered without causing the
Company to be in violation of or incur any liability under any federal, state or
other securities law, any requirement of any securities exchange listing
agreement to which the Company may be a party, or any other requirement of law
or of any regulatory body having jurisdiction over the Company.
8. Non-transferability of Option
The Option shall not be transferable by the Optionee other than by will or
the laws of descent and distribution, may not be pledged or hypothecated, and
shall be exercisable during the Optionee's lifetime only by the Optionee or by
his or her guardian or legal representative.
9. Other Provisions
(a) In consideration of the granting of the Option, the Optionee agrees to
remain as a director of the Company for a period of at least one (1)
year after the Date of Grant. Nothing in the Plan or in this
Agreement, however, confers upon the Optionee any right to continue as
a director of the Company or interferes with or restricts in any way
the rights of the Company or the Company's stockholders, which are
hereby expressly reserved, to remove the Optionee at any time for any
reason whatsoever, with or without cause, to the extent permitted by
the Company's bylaws and applicable law.
(b) The holder of the Option shall not be entitled to any rights of a
stockholder of the Company with respect to any Option Shares until
such Option Shares have been paid for in full and issued upon exercise
of the Option.
(c) This Agreement shall be governed by and construed in accordance with
the laws of the State of Maryland.
(d) As a material part of this Agreement, the Optionee and the Company
agree that in the event of any dispute between the Optionee and the
Company, the dispute shall be resolved by binding arbitration in San
Diego, California, under the Commercial Rules of the American
Arbitration Association.
(e) Upon exercise of the rights granted under this Agreement, the Optionee
agrees that the Optionee will not transfer any shares acquired
hereunder so as to result in a distribution in violation of the
applicable federal and state securities laws.
10. Incorporation of Plan by Reference
The Option is subject to all of the terms and provisions of the Plan, a
copy of which is available upon request, as the same may be amended from time to
time, and such terms and provisions are hereby incorporated herein and made a
part hereof as if set forth at length herein.
11. Consent to Amendment and Adjustment
The Optionee hereby consents to the equitable adjustments made to the
Option (as indicated in this amended and restated Agreement) to reflect the
Company's pro rata distribution of Series A Preferred Stock and the effects of
such distribution on the Common Stock.
PRICE ENTERPRISES, INC.,
a Maryland corporation
By ________________________________
Xxxx XxXxxxx
President and CEO
_____________________________________
Director Signature
_____________________________________
Date of Signature
_____________________________________
Director Social Security Number
