ALEXANDER’S, INC. OMNIBUS STOCK PLAN STOCK OPTION AGREEMENT
Exhibit 10.61
ALEXANDER’S, INC. OMNIBUS STOCK PLAN
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT made as of date set forth on Schedule A hereto between
Alexander’s, Inc., a Delaware corporation (the “Company”), and the employee of the Company
or one of its affiliates listed on Schedule A (the “Employee”).
RECITALS
A. In accordance with the Alexander’s, Inc. Omnibus Stock Plan (the “Plan”), the
Company desires in connection with the employment of the Employee, to provide the Employee with an
opportunity to acquire shares of the Company’s common shares of beneficial interest, par value
$1.00 per share (the “Common Shares”), and thereby provide additional incentive for the
Employee to promote the progress and success of the business of the company and its subsidiaries.
B. Schedule A hereto sets forth certain significant details of the option grant herein
and is incorporated herein by reference. Capitalized terms used herein and not otherwise defined
have the meanings provided on Schedule A.
NOW, THEREFORE, the Company and the Employee hereby agree as follows:
AGREEMENT
1. GRANT OF OPTIONS: On the terms and conditions set forth below, as well as the
terms and conditions of the Plan and subject to adjustment as provided in Section 8 hereof, the
Company hereby grants to the Employee the right to purchase (the “Option”) an aggregate of
such number of Common Shares as is set forth on Schedule A at a purchase price per Common
Share equal to the Exercise Price set forth on Schedule A. The Option is intended to be an
“incentive stock option” within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the “Code”) to the extent set forth on Schedule A.
2. TERM OF OPTION: The term of the Option shall be the time period indicated on
Schedule A from the date of grant referred to on Schedule A, subject to earlier
termination or cancellation as provided in this Agreement.
Except as otherwise permitted under Section 7 hereof, the Option shall not be exercisable
unless the Employee shall, at the time of exercise, be an employee of the Company.
3. NON-TRANSFERABILITY OF OPTION: The Option shall not be transferable otherwise than
by will or by the laws of descent and distribution, and the Option may be exercised during the
Employee’s lifetime only by the Employee. More particularly, but without limiting the generality
of the foregoing, the Option may not be assigned, transferred (except as provided in the preceding
sentence), pledged, or hypothecated in any way (whether by operation of law or otherwise), and
shall not be subject to execution, attachment or similar process. Any attempted assignment,
transfer, pledge, hypothecation or other disposition of the Option contrary to the provisions of
the
Plan or this Agreement, and any levy of any attachment or similar process upon the Option,
shall be null and void and without effect, and the Compensation Committee of the Company (the
“Committee”) may, in its discretion, upon the happening of any such event, terminate the
Option forthwith.
4. EXERCISE OF OPTION: Unless terminated pursuant to Section 7 hereof, the Option may
be exercised as to not more than the Annual Option Vesting Amount (as defined on Schedule
A) of the aggregate number of Common Shares originally subject thereto commencing on the first
Annual Vesting Date (as defined on Schedule A) following the date of grant. Thereafter, on
each Annual Vesting Date and until the expiration of the term of this Agreement (unless earlier
terminated or canceled as provided in this Agreement), the Option may be exercised for an
additional Annual Option Vesting Amount. To the extent that Schedule A provides for
amounts or schedules of vesting that conflict with the provisions of this paragraph, the provisions
of Schedule A will govern.
The right to purchase Common Shares pursuant to the Option shall be cumulative. If the full
number of Common Shares available for purchase under the Option, to the extent the Option is
vested, has not been purchased, the balance may be purchased at any time or from time to time
thereafter, but prior to the termination of such Option. The Option shall not, however, be
exercisable after the expiration thereof; and except as provided in Section 7 hereof, the Option
shall not be exercisable unless the Employee is an employee of the Company at the time of exercise.
The holder of the Option shall not have any rights to dividends or any other rights of a
stockholder with respect to the Common Shares subject to the Option until such Common Shares shall
have been issued to him (as evidenced by the appropriate entry on the books of a duly authorized
transfer agent of the Company), upon the purchase of such Common Shares through exercise of the
Option.
Notwithstanding the foregoing or anything to the contrary set forth herein, upon the
occurrence of a Change in Control of the Company, the Option shall become vested and immediately
exercisable in full. For purposes of this Agreement, a “Change in Control” of the Company
means the occurrence of one of the following events:
(i) individuals who, on the date hereof, constitute the Board of Directors of the
Company (the “Incumbent Directors”) cease for any reason to constitute at least a
majority of the Board of Directors (the “Board”), provided that any person
becoming a trustee subsequent to the date hereof whose election or nomination for election
was approved by a vote of at least two-thirds of the Incumbent Directors then on the Board
(either by a specific vote or by approval of the proxy statement of the Company in which
such person is named as a nominee for director, without objection to such nomination) shall
be an Incumbent Director; provided, however, that no individual initially
elected or nominated as a director of the Company as a result of an actual or threatened
election contest with respect to directors or as a result of any other actual or threatened
solicitation of proxies by or on behalf of any person other than the Board shall be an
Incumbent Director;
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(ii) any “person” (as such term is defined in Section 3(a)(9) of the Securities
Exchange Act of 1934 (the “Exchange Act”) and as used in Sections 13(d)(3) and
14(d)(2) of the Exchange Act) is or becomes, after the date hereof, a “beneficial owner”
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Company representing 30% or more of the combined voting power of the Company’s then
outstanding securities eligible to vote for the election of the Board (the “Company
Voting Securities”); provided, however, that an event described in this
paragraph (ii) shall not be deemed to be a Change in Control if any of following becomes
such a beneficial owner: (A) the Company or any majority-owned subsidiary of the Company
(provided that this exclusion applies solely to the ownership levels of the Company
or the majority-owned subsidiary), (B) any tax-qualified, broad-based employee benefit plan
sponsored or maintained by the Company or any such majority-owned subsidiary, (C) any
underwriter temporarily holding securities pursuant to an offering of such securities, (D)
any person pursuant to a Non-Qualifying Transaction (as defined in paragraph (iii)), (E)
(a) Vornado Realty Trust together with its subsidiaries and affiliates (“Vornado”)
or any of the partners (as of the date hereof) in Interstate Properties
(“Interstate”) including immediate family members and family trusts or family-only
partnerships and any charitable foundations of such partners (the “Interstate
Partners”), (b) any entities the majority of the voting interests of which are
beneficially owned by Vornado or the Interstate Partners, or (c) any “group” (as described
in Rule 13d-5(b)(1) under the Exchange Act) including the Interstate Partners,
provided that Vornado or the Interstate Partners beneficially own a majority of the
Company Voting Securities beneficially owned by such group (the persons in (a), (b) and (c)
shall be individually and collectively referred to herein as, “Vornado or Interstate
Holders”);
(iii) the consummation of a merger, consolidation, share exchange or similar form of
transaction involving the Company or any of its subsidiaries, or the sale of all or
substantially all of the Company’s assets (a “Business Transaction”), unless
immediately following such Business Transaction (a) more than 50% of the total voting power
of the entity resulting from such Business Transaction or the entity acquiring the
Company’s assets in such Business Transaction (the “Surviving Corporation”) is
beneficially owned, directly or indirectly, by the Vornado or Interstate Holders or the
Company’s stockholders immediately prior to any such Business Transaction, and (b) no
person (other than the persons set forth in clauses (A), (B), (C), or (E) of paragraph (ii)
above or any tax-qualified, broad-based employee benefit plan of the Surviving Corporation
or its affiliates) beneficially owns, directly or indirectly, 30% or more of the total
voting power of the Surviving Corporation (a “Non-Qualifying Transaction”); or
(iv) Board approval of a liquidation or dissolution of the Company, unless the voting
common equity interests of an ongoing entity (other than a liquidating trust) are
beneficially owned, directly or indirectly, by the Company’s stockholders in substantially
the same proportions as such stockholders owned the Company’s outstanding voting common
equity interests immediately prior to such
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liquidation and such ongoing entity assumes all existing obligations of the Company to
Employee under this Agreement.
5. METHOD OF EXERCISE: The Option shall be exercisable by written notice specifying
the number of Common Shares purchased and accompanied by payment in full in cash or by certified or
bank cashier’s check payable to the order of the Company, by tender of Common Shares owned by the
employee valued at fair market value as of the date of exercise or by a combination of cash and
Common Shares. Upon delivery, by hand or by registered mail directed to the Company at its
executive offices (currently at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 Attn: Stock Option
Administrator) the Company shall issue the number of Common Shares purchased, which issuance shall,
in the event of a hand delivery of the exercise price, occur immediately upon such delivery,
provided the holder of the Option shall have given two business days’ advance notice of such
delivery. In no case may a fraction of a Common Share be purchased or issued pursuant to the
exercise of an Option. The Option shall be deemed to have been exercised with respect to any
particular Common Shares, if, and only if, the provisions of this Agreement shall have been
complied with, in which event the Option shall be deemed to have been exercised on the date on
which the notice described above shall have been delivered to the Company. The certificate or
certificates of Common Shares as to which the Options shall be exercised shall be registered in the
name of the person or persons exercising the Option.
6. RESTRICTIONS ON COMMON SHARES: Common Shares issued upon the exercise of the
Option shall be issued only to the holder of the Option. Any restrictions upon transfer of Common
Shares issued upon the exercise of the Option, which in the opinion of the Company’s counsel are
required by the Securities Act of 1933, as amended, shall be noted on the certificate thereof by
appropriate legend.
7. TERMINATION OF EMPLOYMENT: Any Options held by the Employee upon termination of
employment shall remain exercisable as follows:
(I) If the Employee’s termination of employment is due to death, all unvested Options
shall become immediately exercisable in full and shall be exercisable by the Employee’s
designated beneficiary, or, if none, the person(s) to whom such Optionee’s rights under the
Option are transferred by will or the laws of descent and distribution for the Applicable
Option Exercise Period (as defined on Schedule A) following the date of death (but
in no event beyond the term of the Option), and shall thereafter terminate;
(II) If the Employee’s termination of employment is due to disability (as defined in
Section 22(e)(3) of the Code, or Section 422(c)(6) of the Code if this Option is intended
to be an incentive stock option), all unvested Options shall become immediately exercisable
in full and shall be exercisable for the Applicable Option Exercise Period following such
termination of employment (but in no event beyond the term of the Option), and shall
thereafter terminate;
(III) If the Employee’s termination of employment is due to retirement on or after
the attainment of age 65, all unvested Options shall become immediately
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exercisable in full and shall be exercisable for the Applicable Option Exercise Period
following such retirement (but in no event beyond the term of the Option), and shall
thereafter terminate;
(IV) If the Employee’s termination of employment is for Cause, all Options, to the
extent not vested, shall terminate on the date of termination and, all other Options, to
the extent exercisable as of the date of termination, shall be exercisable for the
Applicable Option Exercise Period, if any, following such termination of employment (but in
no event beyond the term of the Option), and shall thereafter terminate; and
(V) If the Employee’s termination of employment is for any reason (other than as set
forth in clause in (I), (II), (III) or (IV) of this Section 7), all unvested Options shall
terminate on the date of termination and, all other Options, to the extent exercisable as
of the date of termination, shall be exercisable for the Applicable Option Exercise Period
following such termination of employment (but in no event beyond the term of the Option),
and shall thereafter terminate. An Employee’s status as an employee shall not be
considered terminated in the case of a leave of absence agreed to in writing by the Company
(including, but not limited to, military and sick leave); provided, that, such leave is for
a period of not more than one year or re-employment upon expiration of such leave is
guaranteed by contract or statute.
For the purposes of this Section, “Cause” will mean with respect to the Employee, the
Employee’s: (a) conviction of, or plea of guilty or nolo contendre to, a felony pertaining or
otherwise relating to his or her employment with the Company; or (b) willful misconduct that is
materially economically injurious to the Company or any of its affiliates, in each case as
determined in the Company’s sole discretion.
8. RECLASSIFICATION, CONSOLIDATION OR MERGER: In the event of any change in the
outstanding Common Shares by reason of any share dividend or split, recapitalization, merger,
consolidation, spin-off combination or exchange of Common Shares or other corporate change, or any
distributions to common stockholders other than regular cash dividends, the Committee shall make
such substitution or adjustment, if any, as it deems to be equitable, as to the Exercise Price and
the number or kind of Common Shares issued or reserved for issuance pursuant to the Plan and to
outstanding awards or make such other cash or other distribution as is equitable. If the Company
is reorganized or consolidated or merged with another corporation, the Employee shall be entitled
to receive options covering shares of such reorganized, consolidated or merged company in the same
proportion, at an equivalent price, and subject to the same conditions. For purposes of the
preceding sentence the excess of the aggregate fair market value of the shares subject to the
Option immediately after the reorganization, consolidation or merger over the aggregate option
price of such shares shall not be more than the excess of the aggregate fair market value of all
shares subject to the Option immediately before the reorganization, consolidation or merger over
the aggregate option price of the shares, and the new Option or assumption of the old Option
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shall not give the Employee additional benefits which he did not have under the old Option.
9. APPROVAL OF COUNSEL: The issuance and delivery of Common Shares pursuant to the
Option shall be subject to the reasonable approval by the Company’s counsel with respect to
compliance with the requirements of the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder, and the requirements of any
national securities exchange upon which the Common Shares may then be listed as in compliance with
any other law or regulation, including, but not limited to, Section 856 of the Code.
10. NO RIGHT TO EMPLOYMENT: Nothing herein contained shall affect the right of the
Company or any subsidiary to terminate the Employee’s services, responsibilities and duties at any
time for any reason whatsoever.
11. GOVERNING LAW: This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware, without references to principles of conflict of
laws.
12. SEVERABILITY: If, for any reason, any provision of this Agreement is held
invalid, such invalidity shall not affect any other provision of this Agreement not so held
invalid, and each such other provision shall to the full extent consistent with law continue in
full force and effect. If any provision of this Agreement shall be held invalid in part, such
invalidity shall in no way affect the rest of such provision not held so invalid, and the rest of
such provision, together with all other provisions of this Agreement, shall to the full extent
consistent with law continue in full force and effect.
13. HEADINGS: The headings of paragraphs hereof are included solely for convenience
of reference and shall not control the meaning or interpretation of any of the provisions of this
Agreement.
14. COUNTERPARTS: This Agreement may be executed in multiple counterparts with the
same effect as if each of the signing parties had signed the same document. All counterparts shall
be construed together and constitute the same instrument.
15. BENEFITS OF AGREEMENT: This Agreement shall inure to the benefit of and be
binding upon each successor of the Company. All obligations imposed upon the Employee and all
rights granted to the Company under this Agreement shall be binding upon the Employee’s heirs,
legal representatives and successors. The Agreement shall be the sole and exclusive source of any
and all rights which the Employee, his heirs, legal representatives or successors may have in
respect to the Plan or any Option or Common Shares granted or issued thereunder whether to himself
or any other person and may not be amended except in writing signed by the Company and the
Employee.
16. CONFLICT WITH EMPLOYMENT AGREEMENT. If (and only if) the Employee and the Company
or its affiliates have entered into an employment agreement, in the event of any conflict between
any of the provisions of this Agreement
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and any such employment agreement (in particular, but without limitation, with respect to the
definition of “Cause”) the provisions of such employment agreement will govern. As further
provided in Section 10, nothing herein shall imply that any employment agreement exists between the
Employee and the Company or its affiliates.
17. TAX WITHHOLDING. The Company has the right to withhold from other compensation
payable to the Employee any and all applicable income and employment taxes due and owing with
respect to the Options to the extent such amount is required to be paid by the Company (the
“Withholding Amount”), and/or to delay delivery of Common Shares until appropriate
arrangements have been made for payment of such withholding. In the alternative, the Company has
the right to retain and cancel, or sell or otherwise dispose of such number of Common Shares
underlying Options as have a market value (determined at date the Withholding Amount becomes
payable) approximately equal to the Withholding Amount with any excess proceeds being paid to
Employee.
[signature page follows]
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the date and
year first above written.
| ALEXANDER’S, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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SCHEDULE A TO OPTION AGREEMENT
(Terms being defined are in quotation marks.)
Date of Option Agreement: |
||
Name of Employee: |
||
Number of Common Shares Subject to Grant: |
||
“Exercise Price”: |
||
Date of Grant: |
||
Incentive and/or Non-Qualified Options:
|
Number of: | |
| [ ] Incentive Stock Options (ISO) | ||
| [ ] Non-Qualified Stock Options (NQ) | ||
Term of Option from Date of Grant:
|
(Check the applicable box to indicate term of Option) | |
| [ ] Ten years | ||
| [ ] Five years | ||
| [ ] | ||
Vesting Period: |
||
“Annual Option Vesting Amount”
Insert the number of Options that vest each year or other applicable vesting schedule. |
||
“Annual Vesting Date” (or if such date is not a business day, on the next succeeding business day): |
[Date] (or the next business day) | |
Insert the calendar date of each year on
which Options will vest or other
appropriate vesting schedule. |
||
“Applicable Option Exercise Period”: |
||
Insert the period following termination
for which an Option may still be
exercised for each event referenced and
as cross-referenced to the applicable
Section of the Agreement.
|
Death (Section 7(I)): Disability (Section 7(II)): Retirement (Section 7(III)): Cause (Section 7(IV)): Other Termination (Section 7(V)): |
Initials of Company representative:
Initials of Employee:
Initials of Employee:
