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EXHIBIT 10.18
STOCK OPTION AGREEMENT
(INCENTIVE STOCK OPTION)
PURSUANT TO THE
AMERICAN SPECTRUM REALTY, INC.
2000 OMNIBUS STOCK INCENTIVE PLAN
AGREEMENT, dated as of ______________, ____ by and between
American Spectrum Realty, Inc. (the "Company") and _______________________ (the
"Participant").
PRELIMINARY STATEMENT
The Participant has been granted, subject to execution of this
agreement, under the American Spectrum Realty, Inc. Equity Award Plan (the
"Plan"), an incentive stock option (the "Option") on ____________, ____ (the
"Grant Date") to purchase the number of shares of the Company's common stock,
par value $.01 per share (the "Common Stock") set forth below to the
Participant, as an Eligible Employee of the Company. Unless otherwise indicated,
any capitalized term used but not defined herein shall have the meaning ascribed
to such term in the Plan. A copy of the Plan has been delivered to the
Participant. By signing and returning this Agreement, the Participant
acknowledges having received and read a copy of the Plan and agrees to comply
with it, this Agreement and all applicable laws and regulations.
Accordingly, the parties hereto agree as follows:
1. TAX MATTERS. The Option granted hereby is intended to
qualify as an "incentive stock option" under Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"). Notwithstanding the foregoing, the Option
will not qualify as an "incentive stock option," if among other events, (i) the
Participant disposes of the Common Stock acquired pursuant to the Option at any
time during the two-year period following the date of this Agreement or the
one-year period following the date on which the Option is exercised or (ii)
except in the case of a Termination of employment as a result of death, the
Participant is not employed by the Company, any Subsidiary or Parent at all
times during the period beginning on the date of this Agreement and ending on
the day three months (one-year in the case of the Participant's Disability
(within the meaning of Section 22(e)(3) of the Code)) before the date of
exercise of the Option. To the extent that the Option does not qualify as an
"incentive stock option," it shall constitute a separate non-qualified stock
option.
2. GRANT OF OPTION. Subject in all respects to the Plan and
the terms and conditions set forth herein and therein, the Participant is hereby
granted an Option to purchase from the Company _______________ shares of Common
Stock, at a price per share of $ _______ (the "Option Price").
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3. EXERCISE.
(a) The Option shall become exercisable in installments on the
dates provided below, which shall be cumulative; provided that the Participant
has not incurred a Termination of employment with the Company prior to that
date. To the extent that the Option has become vested and exercisable with
respect to a percentage of shares of Common Stock granted as provided below, the
Option may thereafter be exercised by the Participant, in whole or in part, at
any time or from time to time prior to the expiration of the Option as provided
herein and in accordance with Section 7.2( ) of the Plan, including, without
limitation, the filing of such written form of exercise notice, if any, as may
be required by the Plan Administrator and payment in full of the Option Price
multiplied by the number of shares of Common Stock so exercised. Upon expiration
of the Option, the Option shall be canceled and no longer exercisable. The
following table indicates the dates (the "Vesting Dates") upon which the
Participant shall be entitled to exercise the Option with respect to the total
number of shares granted as indicated beside that date:
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VESTING DATE TOTAL PERCENT VESTED
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Grant Date (25%)
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1st anniversary of Grant (50%)
Date
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2nd anniversary of Grant (75%)
Date
------------------------------------------------------------
3rd anniversary of Grant (100%)
Date
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There shall be no proportionate or partial vesting in the
periods prior to each Vesting Date and all vesting shall occur only on the
appropriate Vesting Date.
(b) Notwithstanding any other provision to the contrary, to
the extent this Option is not vested upon the Participant's Termination of
employment, the Option shall, upon such Termination of employment, be
non-exercisable and shall be canceled; provided that if such termination is by
the Company in breach of an employment agreement or by the Participant for "Good
Reason" (as defined in an employment agreement to which Participant is a party),
then the option shall be immediately vested and exercisable.
4. OPTION TERM. The term of each Option shall be 10 years
after the Grant Date, subject to earlier termination in the event of the
Participant's termination of employment as specified in Section 5 below.
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5. TERMINATION.
(a) Subject to Section 4 above and the terms of the Plan, the
Option, to the extent vested at the time of the Participant's Termination of
employment, shall remain exercisable as follows:
(i) In the event of the Participant's termination of
employment by reason of death or disability, until the earlier of (x) one (1)
year from the date of such termination of employment or (y) the expiration of
the stated term of the Option pursuant to Section 4 hereof.
(ii) In the event of the Participant's termination of
employment by reason of involuntary termination of employment without Cause or
voluntary termination of employment for any reason (other than as set forth in
subparagraph (iii) below), until the earlier of (x) sixty (60) days from the
date of such termination of employment or one year from the date of such
termination of employment if such termination is by the Company in breach of an
employment agreement or by the Participant for "Good Reason" (as defined in an
employment agreement with the Participant) or (y) the expiration of the stated
term of the Option pursuant to Section 4 hereof.
(iii) In the event of the Participant's termination of
employment for Cause or in the event of the Participant's voluntary termination
of employment at any time after an event that would be grounds for a termination
of employment for Cause, the Participant's entire Option (whether or not vested)
shall be forfeited and canceled in its entirety upon such termination of
employment.
6. RESTRICTION ON TRANSFER OF OPTION. The Option granted
hereby shall not be transferable other than by will or by the laws of descent
and distribution and during the lifetime of the Participant, may be exercised
only by the Participant or the Participant's guardian or legal representative.
In addition, the Option shall not be assigned, negotiated, pledged or
hypothecated in any way (whether by operation of law or otherwise), and the
Option shall not be subject to execution, attachment or similar process. Upon
any attempt to transfer, assign, negotiate, pledge or hypothecate the Option or
in the event of any levy upon the Option by reason of any execution, attachment
or similar process contrary to the provisions hereof, the Option shall
immediately become null and void.
7. SECURITIES REPRESENTATIONS. By exercising the Option, the
Participant is hereby deemed to be making the following representations and
warranties and any issuances of shares of Common Stock by the Company shall be
made in reliance upon the following express representations and warranties of
the Participant.
Upon exercise of the Option at a time when the Common Stock
covered by the Options is not registered under the Securities Act of 1933 (the
"Act"), the Participant is thereby deemed to acknowledge, represent and warrant
that:
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(a) shares of the Common Stock are being acquired for the
Participant's own account and not with a view to, or for sale in connection
with, the distribution thereof, nor with any present intention of distributing
or selling any of such shares of Common Stock;
(b) the Participant has been advised that the shares of
Common Stock have not been registered under the Act on the ground that no
distribution or public offering of the shares of Common Stock is to be effected
(it being understood, however, that the shares of Common Stock are being issued
and sold in reliance on the exemption provided under Rule 701 or Section 4(2)
under the Act), and in this connection the Company is relying in part on the
Participant's representations set forth in this Section;
(c) in the event that the Participant is permitted to
sell, transfer, pledge, hypothecate, assign or otherwise dispose of the shares
of Common Stock, the Participant may only do so pursuant to a registration
statement under the Act and qualification under applicable state securities laws
or pursuant to an opinion of counsel satisfactory to the Company that such
registration and qualification are not required, and that the transaction (if it
involves a sale in the over-the-counter market or on a securities exchange) does
not violate the provisions of Rule 144 under the Act. A stop-transfer order will
be placed on the books of the Company respecting the certificates evidencing the
shares of Common Stock, and such certificates shall bear any required legends,
until such time as the shares of Common Stock evidenced by such certificates
shall have been registered under the Act or shall have been transferred in
accordance with an opinion of counsel for the Company that such registration is
not required;
(d) the transfer of the shares of Common Stock have not
been registered under the Act, and the shares of Common Stock must be held
indefinitely unless subsequently registered under the Act or an exemption from
such registration is available and the Company is under no obligation to
register the shares of Common Stock;
(e) the Participant understands that the shares of Common
Stock acquired upon exercise of the Option are restricted securities within the
meaning of Rule 144 promulgated under the Act; that the exemption form
registration under Rule 144 will not be available unless (i) a public trading
market then exists for the common stock of the Company, (ii) adequate
information concerning the Company is then available to the public, and (iii)
other terms and conditions of Rule 144 or any exemption therefrom are complied
with; and that any sale of the shares of Common Stock may be made only in
limited amounts in accordance with such terms and conditions;
(f) the Participant is capable of evaluating the merits
and risks of this investment, has the ability to protect Participant's own
interest in this transaction and is financially capable of bearing a total loss
of his investment; and
(g) Participant is fully aware of (i) the speculative
nature of the investment in Common Stock, (ii) the financial hazards involved,
and (iii) the level of liquidity of the shares being issued and the restrictions
on transferability of the shares.
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8. RIGHTS AS A STOCKHOLDER. The Participant shall have no
rights as a stockholder with respect to any shares covered by the Option unless
and until the Participant has become the holder of record of the shares, and no
adjustments shall be made for dividends in cash or other property, distributions
or other rights in respect of any such shares, except as otherwise specifically
provided for in the Plan.
9. LOCK UP. Participant agrees that in connection with any
registration of the Company's securities that, upon request of the Company or
the underwriter managing any public offering of the Company's securities,
Participant will not sell or otherwise dispose of any shares of Common Stock
without the prior written consent of the Company or such underwriter, as the
case may be, for a period of time (not to exceed one (1) year) from the
effective date of such registration as the Company or the underwriter may
specify for persons of Participant's status, provided that to the extent an
Option would otherwise expire during such period because of a termination of
employment (but not because of Section 4), it shall be extended until thirty
(30) days after the earlier of (i) the expiration of such period or (ii) the
waiver of the condition by the Company or the underwriter.
10. PROVISIONS OF PLAN CONTROL. This Agreement is subject to
all the terms, conditions and provisions of the Plan, including, without
limitation, the amendment provisions thereof, and to such rules, regulations and
interpretations relating to the Plan as may be adopted by the Plan Administrator
and as may be in effect from time to time. The Plan is incorporated herein by
reference. If and to the extent that this Agreement conflicts or is inconsistent
with the terms, conditions and provisions of the Plan, the Plan shall control,
and this Agreement shall be deemed to be modified accordingly.
11. NOTICES. Any notice or communication given hereunder shall
be in writing and shall be deemed to have been duly given when delivered in
person, or by United States mail, to the appropriate party at the address set
forth below (or such other address as the party shall from time to time
specify):
If to the Company, to:
American Spectrum Realty, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Corporate Secretary
If to the Participant, to:
The address indicated after the Participant's signature at the
end of this Agreement.
12. NO OBLIGATION TO CONTINUE EMPLOYMENT. This Agreement is
not an agreement of employment or any other relationship. This Agreement does
not guarantee that the Company will employ or otherwise retain the Participant
for any specific time period, nor does it
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modify in any respect the Company's right to terminate or modify the
Participant's employment relationship or compensation at any time.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date and year first above written.
AMERICAN SPECTRUM REALTY, INC.
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[Participant's Name]
By:
Social Security No. ----------------------------------------
------------- Authorized Officer
Home Address:
------------------
Street
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City State Zip Code
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