EXHIBIT 10.9
XXXXXXXXX HARVARD REIT I, INC.
2002 EMPLOYEE STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Behringer Harvard REIT I, Inc., a Maryland corporation (the "Company"), hereby
grants to the optionee named below ("Optionee") an option (this "Option") to
purchase the total number of shares shown below of Common Stock of the Company
("Shares") at the exercise price per share set forth below (the "Exercise
Price"), subject to all of the terms and conditions on the reverse side of this
Stock Option Agreement and the Behringer Harvard REIT I, Inc. 2002 Employee
Stock Option Plan (the "Plan"). Unless otherwise defined herein, capitalized
terms used herein shall have the meanings ascribed to them in the Plan. The
terms and conditions set forth on the reverse side hereof and the terms and
conditions of the Plan are incorporated herein by reference.
Shares Subject to Option:
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Exercise Price Per Share:
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Term of Option: TEN (10) YEARS
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Vesting:
Shares subject to issuance under this Option shall be eligible for
exercise according to the vesting schedule described in Section 10
on the reverse of this Stock Option Agreement.
IN WITNESS WHEREOF, this Stock Option Agreement has been executed by the
Company by a duly authorized officer as of the date specified hereon.
XXXXXXXXX HARVARD REIT I, INC.
By:
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Grant Date:
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Type of Stock Option:
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Incentive Stock Option (ISO)
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Non-Qualified Stock Option (NQSO)
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Optionee hereby acknowledges receipt of a copy of the Plan, represents that
Optionee has read and understands the terms and provisions of the Plan, and
accepts this Option subject to all the terms and conditions of the Plan and this
Stock Option Agreement. Optionee acknowledges that there may be adverse tax
consequences upon exercise of this Option or disposition of Shares purchased by
exercise of this Option, and that Optionee should consult a tax adviser prior to
such exercise or disposition.
______________________________________________________________________________
[Name of Optionee]
1. EXERCISE PERIOD OF OPTION. Subject to the terms and conditions of this Stock
Option Agreement and the Plan, and unless otherwise modified in writing signed
by the Company and Optionee, this Option may be exercised with respect to all of
the Shares subject to this Option, but only according to the vesting schedule
described in Section 10 below, prior to the date which is the last day of the
Term set forth on the face hereof following the Grant Date (hereinafter
"Expiration Date").
2. RESTRICTIONS ON EXERCISE. This Option may not be exercised, unless such
exercise is in compliance with the Securities Act of 1933 and all applicable
state securities laws, as they are in effect on the date of exercise, and the
requirements of any stock exchange or national market system on which the
Company's Shares may be listed at the time of exercise. Optionee understands
that the Company is under no obligation to register, qualify or list the Shares
subject to this Option with the Securities and Exchange Commission ("SEC"), any
state securities commission or any stock exchange to effect such compliance.
3. TERMINATION OF OPTION. Except as provided below in this Section, this Option
shall be immediately forfeited and may not be exercised after the date that is
ninety (90) days after Optionee ceases to perform services for the Company or
any Parent or Subsidiary. "Parent" means any corporation (other than the
corporation employing a Participant) in an unbroken chain of corporations ending
with the corporation employing a Participant if, at the time of the granting of
the option and thereafter through such date of determination, each of the
corporations other than the corporation employing the Participant owns stock
possessing fifty percent (50%) or more of the total combined voting power of all
classes of stock in one of the other corporation in such chain. "Subsidiary"
means any corporation (other than the corporation employing such Participant) in
an unbroken chain of corporations beginning with the corporation employing such
Participant if, at the time of the granting of the option and thereafter through
such date of determination, each of the corporations other than the last
corporation in the unbroken chain owns stock possessing fifty percent (50%) or
more of the total combined voting power of all classes of stock in one of the
other corporations in such chain. Optionee shall be considered to perform
services for the Company, or any Parent or Subsidiary, for all purposes under
this Section and Section 10 hereof, if Optionee is an officer or full-time
employee of the Company, or any Parent or Subsidiary, or if the Board determines
that Optionee is rendering substantial services as a part-time employee,
consultant, contractor or advisor to the Company, or any Parent or Subsidiary.
The Board shall have discretion to determine whether Optionee has ceased to
perform services for the Company, or any Parent or Subsidiary, and may determine
that a material reduction or decrease in responsibilities is a cessation of the
performance of services. The effective date on which services are determined by
the Board to have ceased is the "Termination Date."
(a) Termination for Cause. If Optionee ceases to perform services for the
Company, or any Parent or Subsidiary, for Cause, this Option shall immediately
be forfeited, along with any and all rights or subsequent rights attached
thereto, as of the Termination Date, but in no event later than the Expiration
Date. For this purpose, "Cause" shall be defined as set forth in the written
employment agreement between the Optionee and the Company, or, if no such
written agreement exists or if "Cause" is not defined in such written employment
agreement, "Cause" shall be defined as set forth in the Plan, or, if not defined
in the Plan, "Cause" shall mean actions or omissions harmful to the Company as
determined by the Board in its sole and absolute discretion.
(b) Death. If Optionee ceases to perform services for the Company, or any
Parent or Subsidiary, as a result of the death of Optionee, this Option, to the
extent (and only to the extent) that it would have been exercisable by Optionee
on the Termination Date, may be exercised by Optionee's legal representative
within one (1) year after the Termination Date, but in no event later than the
Expiration Date.
(c) Disability. If Optionee ceases to perform services for the Company, or
any Parent or Subsidiary, as a result of the disability (within the meaning of
Code Section 22(e)(3)) of Optionee (as determined by the Board in its sole
discretion), this Option, to the extent (and only to the extent) that it would
have been exercisable by Optionee on the Termination Date, may be exercised by
Optionee within one (1) year after the Termination Date, but in no event later
than the Expiration Date.
(d) No Right to Employment or Other Relationship. Nothing in the Plan or
this Stock Option Agreement shall confer on Optionee any right to continue in
the employ of, or other relationship with, the Company, or any Parent or
Subsidiary, or limit in any way the right of the Company, or any Parent or
Subsidiary, to terminate Optionee's employment or other relationship at any
time, with or without cause.
4. MANNER OF EXERCISE.
(a) Exercise Agreement. This Option shall be exercisable by delivery to the
Company of an executed Exercise and Shareholder Agreement ("Exercise Agreement")
in such form as may be approved or accepted by the Company, which shall set
forth Optionee's election to exercise this Option with respect to some or all of
the Shares subject to this Option, the number of Shares subject to this Option
being purchased, and any restrictions imposed on the Shares subject to this
Option (including, without limitation, vesting or performance-based
restrictions, rights of the Company to re-purchase Shares acquired pursuant to
the exercise of an Option, voting restrictions, investment intent restrictions,
restrictions on transfer, "first refusal" rights of the Company to purchase
Shares acquired pursuant to the exercise of an Option prior to their sale to any
other person, "drag along" rights requiring the sale of shares to a third party
purchaser in certain circumstances, "lock up" type restrictions in the case of
an initial public offering of the Company's stock, restrictions or limitations
that would be applied to shareholders under any applicable restriction agreement
among the shareholders, and restrictions under applicable federal securities
laws, under the requirements of any stock exchange or market upon which such
Shares are then listed and/or traded, and/or under any blue sky or state
securities laws applicable to such Shares). The Company may modify the required
Exercise Agreement at any time for any reason consistent with the Plan.
(b) Exercise Price. Such Exercise Agreement shall be accompanied by full
payment of the Exercise Price for the Shares being purchased. Payment for the
Shares being purchased may be made in U.S. dollars in cash (by check), or by
delivery to the Company of a number of Shares which have been owned and
completely paid for by the holder for at least six (6) months prior to the date
of exercise (i.e., "mature shares" for accounting purposes) having an aggregate
fair market value equal to the amount to be tendered, or a combination thereof.
In addition, this Option may be exercised through a brokerage transaction
following registration of the Shares under Section 12 of the Securities Exchange
Act of 1934 as permitted under the provisions of Regulation T promulgated by the
Federal Reserve Board applicable to cashless exercises.
(c) Withholding Taxes. Prior to the issuance of Shares upon exercise of
this Option, Optionee must pay, or make adequate provision for, any applicable
federal or state withholding obligations of the Company. Optionee may provide
for payment of withholding taxes upon exercise of the Option by requesting that
the Company retain Shares with a Fair Market Value equal to the minimum amount
of taxes required to be withheld. In such case, the Company shall issue the net
number of Shares to Optionee by deducting the Shares retained from the Shares
exercised.
(d) Issuance of Shares. Provided that such Exercise Agreement and payment
are in form and substance satisfactory to counsel for the Company, the Company
shall cause the Shares purchased to be issued in the name of Optionee or
Optionee's legal representative. Optionee shall not be considered a Shareholder
until such time as Shares have been issued as noted on the books of the Company.
5. NOTICE OF DISQUALIFYING DISPOSITION OF ISO SHARES. If this Option is an ISO,
and if Optionee sells or otherwise disposes of any of the Shares acquired
pursuant to this ISO on or before the later of (a) the date two (2) years after
the Grant Date, or (b) the date one (1) year after exercise of the ISO, with
respect to the Shares to be sold or disposed, Optionee shall and hereby agrees
to immediately notify the Company in writing of such sale or disposition.
Optionee acknowledges and agrees that Optionee may be subject to income tax
withholding by the Company on the compensation income recognized by Optionee
from any such early disposition by payment in cash or out of the current wages
or earnings payable to Optionee, and Optionee agrees to remit same to Company
upon request. Optionee also hereby agrees that Optionee shall include the
compensation from such early disposition in the Optionee's gross income for
federal tax purposes.
6. NONTRANSFERABILITY OF OPTION. This Option may not be transferred in any
manner, other than by will or by the laws of descent and distribution, and may
be exercised during Optionee's lifetime only by Optionee. The terms of this
Option shall be binding upon the executor, administrators, successors and
assigns of Optionee. However, if this Option is a NQSO, it may be transferred to
the extent allowed by the Plan.
7. TAX CONSEQUENCES. OPTIONEE UNDERSTANDS THAT THE GRANT AND EXERCISE OF THIS
OPTION, AND THE SALE OF SHARES OBTAINED THROUGH THE EXERCISE OF THIS OPTION, MAY
HAVE TAX IMPLICATIONS THAT COULD RESULT IN ADVERSE TAX CONSEQUENCES TO OPTIONEE.
OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED WITH, OR WILL CONSULT WITH, HIS
OR HER TAX ADVISOR; OPTIONEE FURTHER ACKNOWLEDGES THAT OPTIONEE IS NOT RELYING
ON THE COMPANY FOR ANY TAX, FINANCIAL OR LEGAL ADVICE; AND IT IS SPECIFICALLY
UNDERSTOOD BY THE OPTIONEE THAT NO REPRESENTATIONS ARE MADE AS TO THE
QUALIFICATION OF THIS OPTION AS AN ISO OR AS TO ANY PARTICULAR TAX TREATMENT
WITH RESPECT TO THE OPTION. OPTIONEE ALSO ACKNOWLEDGES THAT EXERCISE OF AN ISO
OPTION MUST GENERALLY OCCUR WITHIN NINETY (90) DAYS OF TERMINATION OF
EMPLOYMENT, REGARDLESS OF ANY LONGER PERIOD ALLOWED BY THIS STOCK OPTION
AGREEMENT.
8. INTERPRETATION. Any dispute regarding the interpretation of this
Stock Option Agreement shall be submitted to the Board or the Committee, which
shall review such dispute in accordance with the Plan. The resolution of such a
dispute by the Board or Committee shall be final and binding on the Company and
Optionee.
9. ENTIRE AGREEMENT AND OTHER MATTERS. The Plan and the Exercise
Agreement are incorporated herein by this reference. Optionee acknowledges and
agrees that the granting of this Option constitutes a full accord, satisfaction
and release of all obligations or commitments made to Optionee by the Company or
any of its officers, directors, shareholders or affiliates with respect to the
issuance of any securities, or rights to acquire securities, of the Company or
any of its affiliates. This Stock Option Agreement, the Plan and the Exercise
Agreement constitute the entire agreement of the parties hereto, and supersede
all prior understandings and agreements with respect to the subject matter
hereof. This Stock Option Agreement and the underlying Option are void ab initio
unless this Certificate has been executed by the Optionee and the Optionee has
agreed to all terms and provisions hereof.
10. VESTING AND EXERCISE OF SHARES. Subject to the terms of the Plan, this Stock
Option Agreement and the Exercise Agreement, the Optionee shall be entitled to
purchase, pursuant to the exercise of this Option, the percentage of the Shares
subject to this Option shown below based upon the Continuous Service of the
Optionee from the Grant Date of this Option (as noted hereon) at the time of
exercise:
VESTING SCHEDULE:
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PERCENTAGE VESTED: CONTINUOUS SERVICE:
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For purposes of this Stock Option Agreement, "Continuous Service" means a period
of continuous performance of services by Optionee for the Company, a Parent, or
a Subsidiary, as determined by the Board in its sole and absolute discretion.
