EXHIBIT 10.17
NONQUALIFIED STOCK OPTION AGREEMENT (this "agreement") dated as of the
Date of Grant (as defined below) between BEDFORD PROPERTY INVESTORS,
INC., a Maryland corporation (the "Company"), and the other party
signatory hereto (the "Participant").
WHEREAS, the Participant is currently an employee or consultant of the
Company and, pursuant to the Company's Amended and Restated Employee
Stock Plan (the "Plan") and upon the terms and subject to the
conditions hereinafter set forth, the Company desires to provide the
Participant with an incentive to remain in its service and to increase
his or her interest in the success of the Company by granting to the
Participant a nonqualified stock option (the "Stock Option") to
purchase shares of common stock, par value $0.02 per share, of the
Company (the "Common Stock");
NOW, THEREFORE, in consideration of the covenants and agreements
herein contained, the parties hereto agree as follows:
1. Definitions; Incorporation of Plan Terms. Capitalized terms used
herein without definition shall have the meanings assigned to them in
the Plan, a copy of which is attached hereto. This Agreement and the
Stock Option shall be subject to the Plan, the terms of which are
hereby incorporated herein by reference, and in the event of any
conflict or inconsistency between the Plan and this Agreement, the
Plan shall govern. The date of grant of the Stock Option shall be the
date specified at the foot of the signature page hereof.
2. Grant of Stock Option. Subject to the terms and conditions
contained herein and in the Plan, the Company hereby grants the Stock
Option to the Participant. The Stock Option granted hereunder is not
intended to qualify as, and shall not be treated as, an "incentive
stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"). Set forth at the foot
of the signature hereof are (i) the number of shares of Common Stock
underlying the Stock Option, (ii) the per share exercise price of the
Stock Option and (iii) the date of grant of the Stock Option (the
"Date of Grant").
3. Terms and Conditions of Stock Option. The Stock Option evidenced
hereby is subject to the following terms and conditions:
(a) Vesting. The Stock Option awarded hereunder shall vest and
become exercisable as follows:
Anniversary of
Date of Grant
Amount Vesting on
Anniversary Date
Cumulative Amount
Vested as of
Anniversary Date
First
25%
25%
Second
25%
50%
Third
25%
75%
Fourth
25%
100%
(b) Stock Option Period. The Stock Option shall expire ten
years from the Date of Grant, subject to earlier termination as
pro vided herein and in the Plan.
(c) Exercise Following Death of Participant.
(i) Upon termination of the Participant's employment or
consulting relationship with the Company by reason of the
Participant's death, the Stock Option, to the extent exercisable
at such time, may be exercised by the Participant's Beneficiary
at any time within one year after the date of such termination
of employment, subject to the earlier expiration of the Stock
Option as provided for in Section 3(b); provided, that any
portion of the Stock Option not exercised within such one-year
period shall expire at the end of such period. Any portion of
the Stock Option that is not exercisable at the date of
termination of employment shall expire on such date.
(ii) In the event of the Participant's death during the first
three months of the period during which the Participant may
exercise the Stock Option following his or her termination of
employment or consulting relationship as provided in Sections
3(d) and 3(e) (the "Post-Termination Exercise Period"), the
Stock Option, to the extent exercisable at such time, may be
exercised by the Participant's Beneficiary at any time within
one year after the Participant's death, subject to the earlier
expiration of such Stock Option as provided for in Section 3(b);
provided, that any portion of the Stock Option not exercised
within such one-year period shall expire at the end of such
period.
(d) Exercise Following Termination Due to Disability. Upon
termination of the Participant's employment or consulting
relationship with the Company by reason of a condition that
entitles the Participant to benefits under the Company's long-
term disability plan (a "Disability"), the Stock Option, to the
extent exercisable at such time, may be exercised by the
Participant at any time within one year after the date of such
termination of employment or consulting relationship, subject to
the earlier expiration of such Stock Option as provided for in
Section 3(b); provided, that any portion of the Stock Option not
exercised within such one-year period shall expire at the end of
such period. Any portion of the Stock Option that is not
exercisable at the date of termination of employment shall
expire on such date.
(e) Exercise Following Other Terminations. Upon termination of
the Participant's employment or consulting relationship with the
Company other than by reason of the Participant's death or
Disability or the termination of the Participant's employment or
consulting relationship for Cause, the Stock Option, to the
extent exercisable at such time, may be exercised by the
Participant at any time within three months after the date of
such termination of employment, subject to the earlier
expiration of such Stock Option as provided for in Section 3(b);
provided, that any portion of the Stock Option not exercised
within such three-month period shall expire at the end of such
period. Any portion of the Stock Option that is not exercisable
at the date of termination of employment shall expire on such
date.
(f) Termination for Cause. Upon termination of the
Participant's employment or consulting relationship with the
Company for Cause, the entire Stock Option, whether vested or
unvested, shall immediately expire and be forfeited. For
purposes of this Agreement, ACause@ shall mean a willful act by
the Participant in contravention of the interests of the Company
as determined in the sole discretion of the Committee.
(g) Notice of Exercise. Subject to the other terms and
conditions hereof and in the Plan, the Participant may exercise
the Stock Option, to the extent vested and exercisable, by
giving written notice of exercise to the Company; provided,
however, that in no event shall the Stock Option be exercisable
for a fractional share.
(h) Method of Exercise. The exercise price of a Stock Option
may be paid (i) by personal check, bank draft or postal or
express money order (such modes of payment are collectively
referred to as "cash") payable to the order of the Company in
U.S. dollars, (ii) by delivery of previously owned shares of
Common Stock and (iii) by a combination thereof. Payment of the
exercise price in shares of Common Stock shall be made (i) by
delivering to the Company the share certificate(s) representing
the required number of shares, with the Participant signing his
or her name on the back or by attaching executed stock powers
(the signature of the Participant must be guaranteed in either
case) or (ii) attesting to ownership of a sufficient number of
shares of Common Stock. In addition to the exercise methods
described above, the Participant may exercise a Stock
Option through a procedure whereby the Participant delivers to
the Company an irrevocable notice of exercise in exchange for
the Company issuing the shares of Common Stock subject to the
Stock Option to a broker previously designated or approved by
the Company, subject to such rules and procedures as the
Committee may determine (for purposes of such a transaction the
value of shares of the Common Stock shall be deemed to equal the
Fair Market Value of the Common Stock on the date of exercise of
the Stock Option).
(i) Limitation on Exercise. The Stock Option shall not be
exercisable unless the Common Stock subject thereto has been
registered under the Securities Act and qualified under
applicable state "blue sky" laws in connection with the offer
and sale thereof, or the Company has determined that an
exemption from registration under the Securities Act and from
qualification under such state "blue sky" laws is available.
(j) Stockholder Rights. The Participant shall have no rights as
a stockholder with respect to any shares of Common Stock
issuable upon exercise of the Stock Option until a certificate
evidencing such shares shall have been issued to the
Participant, and no adjustment shall be made for dividends or
distributions or other rights in respect of any share for which
the record date is prior to the date upon which the Participant
shall become the holder of record thereof.
(k) Deferral of Profit Shares. The Participant may elect to
defer receipt of the shares of Common Stock otherwise
deliverable upon exercise of the Stock Option. An election to
defer such delivery shall be irrevocable and shall be made in
writing on a stock option deferral election form prescribed by
the Committee at least six months prior to exercise. If the
Participant exercises the Stock Option at any time after
delivery of the stock option deferral election form by tendering
previously-owned shares of Common Stock, a deferred compensation
account established by the Company for the Participant will be
credited with a number of phantom stock units equal to the
number of shares of Common Stock for which delivery is deferred.
Phantom stock units shall be paid by delivery of one share of
Common Stock for each phantom stock unit in accordance with the
timing and manner of payment elected by the Participant on his or her
stock option deferral election form filed with the Company in
connection with the Participant's first such deferral. In the event
of a Change in Control, phantom stock units credited to the Participant's
deferred compensation account shall be paid to the Participant by
delivery of shares of Common Stock on or prior to the date of the
Change in Control. Dividend equivalents will be paid on the phantom
stock units by crediting the Participant's deferred compensation
account with additional phantom stock units in accordance with such
rules as the Committee shall adopt from time to time.
(l) Issuance of Shares. Subject to the foregoing conditions and
the terms of the Plan, as soon as reasonably practicable after
its receipt of a proper notice of exercise and payment of the
exercise price of the Stock Option for the number of shares with
respect to which the Stock Option is exercised, the Company
shall deliver to the Participant (or following the Participant's
death, the Beneficiary entitled to exercise the Stock Option),
at the principal office of the Company or at such other location
as may be acceptable to the Company and the Participant (or such
Beneficiary), one or more stock certificates for the appropriate
number of shares of Common Stock issued in connection with such
exercise.
(m) Transferability. The Stock Option may, with the approval of
the Committee, be transferred to one or more members of the
Participant's immediate family (as defined in the Plan) or to
one or more trusts or partnerships established in whole or in
part for the benefit of one or more of such immediate family
members (collectively, "Permitted Transferees"), subject to such
rules and procedures as may from time to time be adopted or
imposed by the Committee. If the Stock Option is transferred to
a Permitted Transferee, it shall be further transferable only by
will or the laws of descent and distribution or, for no
consideration, to another Permitted Transferee of the
Participant. The Participant shall notify the Company in writing
prior to any proposed transfer of the Stock Option to a
Permitted Transferee and shall furnish the Company, upon
request, with information concerning such Permitted Transferee's
financial condition and investment experience.
(n) Tax Withholding. Upon the exercise of the Stock Option, the
Participant shall remit an amount sufficient to satisfy all
federal, state and local withholding and employment tax
requirements relating to such exercise. The Participant may
elect to have the Company withhold from the Common Stock to be
delivered upon the exercise of the Stock Option, or to elect to
deliver to the Company from shares of Common Stock owned
separately by the Participant, a sufficient number of such
shares of Common Stock to satisfy the federal, state and local
withholding tax obligations relating to the Participant's
exercise of the Stock Option (and the Company's withholding
obligations) to the extent permitted under rules and regulations
adopted by the Committee and in effect at the time of such
exercise. The Common Stock withheld or the Common Stock
surrendered will be valued at the Fair Market Value on the date
of exercise determined in accordance with the Plan.
4. Accelerated Vesting.
(a) Change in Control. In the event of a Change in Control of
the Company, the Stock Option, if not yet vested and exercisable
on such date, shall become fully vested and exercisable;
provided, however, that if the Committee shall receive an
opinion from a nationally recognized firm of accountants to the
Company that the accelerated vesting of the Stock Option will
prohibit the utilization of "pooling of interests" accounting in
connection with the transaction resulting in the Change in
Control of the Company, then the Stock Option shall not become
fully vested and exercisable upon the Change in Control.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, the Stock Option will
vest and become exercisable on a date prior to the consummation
of the proposed action that is reasonably sufficient to enable
the Participant to exercise the Stock Option.
5. No Restriction on Right of Company to Effect Corporate Changes.
This Agreement shall not affect or restrict in any way the right or
power of the Company or the stockholders of the Company to make or
authorize any adjustment, recapitalization, reorganization or other
change in the Company's capital structure or its business, any merger
or consolidation of the Company, any issuance of stock or of stock
options, warrants or rights to purchase stock or of bonds, debentures,
preferred or prior preference stocks whose rights are superior to or
affect the Common Stock or the rights thereof or which are convertible
into or exchangeable for Common Stock, or the dissolution or
liquidation of the Company, or any sale or transfer of all or any part
of its assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise.
6. Survival; Assignment. Reference in this Agreement to either
party shall be deemed to include the heirs and permitted successors
and assigns of such party; and all agreements herein by or on behalf
of the Participant shall bind and inure to the benefit of the heirs
and permitted successors and assigns of such parties hereto. The
Participant agrees to cause any future spouse of his or hers to
deliver to the Company a consent in the form of the consent set forth
in Exhibit A hereto validly executed by such spouse promptly after any
such person becomes his or her spouse.
7. No Right to Employment. Nothing herein shall confer upon the
Participant any right to continued employment or a continued
consulting relationship with the Company, or interfere with the right
of the Company to terminate the employment or consulting relationship
of the Participant at any time and for any reason.
8. Notices. All notices and other communications provided for
herein shall be in writing and shall be delivered by hand or sent by
certified or registered mail, return receipt requested, postage
prepaid, addressed, if to the Participant, to his or her attention at
the mailing address set forth at the foot of the signature page of
this Agreement (or to such other address as the Participant shall have
specified to the Company in writing) and, if to the Company, to
Bedford Property Investors, Inc., 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Secretary. All such notices shall be
conclusively deemed to be received and shall be effective, if sent by
hand delivery, upon receipt, or if sent by registered or certified
mail, on the fifth day after the day on which such notice is mailed.
9. Waiver. The waiver by either party of compliance with any
provision of this Agreement by the other party shall not operate or be
construed as a waiver of any other provision of this Agreement, or of
any subsequent breach by such party of a provision of this Agreement.
10. Headings. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same
agreement. The headings of sections and subsections herein are
included solely for convenience of reference and shall not affect the
meaning of any of the provisions of this Agreement.
11. Governing Law. This Agreement shall shall be governed by and
construed in accordance with the laws of the Maryland without giving
effect to conflicts of law principles.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Participant has
executed this Agreement, both as of the day and year first above
written.
BEDFORD PROPERTY INVESTORS, INC.
By:
Name:
Title:
PARTICIPANT
Name:
Address:
Number of Shares
Underlying Stock Option:
Exercise Price: $
Date of Grant:
EXHIBIT A
Consent of Spouse
The undersigned, as the spouse of the Participant who is the signatory
to the foregoing Agreement, (a) hereby consents to, confirms and
ratifies any sale by such Participant of any Stock Option or shares of
Common Stock acquired upon exercise of any such Stock Option
contemplated by the foregoing Agreement and for purposes of any
community property laws and all other laws conveys all of his or her
right, title and interest in and to such Stock Option and such shares
of Common Stock to the purchaser of such Stock Option and such shares
of Common Stock and (b) agrees to be bound by all of the Participant's
obligations under the foregoing Agreement.
