EQUITY ONE, INC. Non-Qualified Stock Option Agreement Under the Amended and Restated
Exhibit
10.3
EQUITY
ONE, INC.
Under
the Amended and Restated
2000
Executive Incentive Compensation Plan
For
[Insert
name of Optionee]
This
STOCK
OPTION AGREEMENT (this
“Agreement”) is
made and entered into effective as of _______ __, 200_, by and between EQUITY
ONE, INC., a Maryland corporation (the “Company”), and
____________________ (the “Optionee”).
W
I T N E S S E T H:
WHEREAS, the
Company has adopted the Amended and Restated 2000 Executive Incentive
Compensation Plan (the “Plan”;
capitalized terms not otherwise defined in this Agreement shall have the
meanings given thereto in the Plan) to assist it and its Subsidiaries in
attracting, motivating, retaining and rewarding high-quality employees,
officers, directors and independent contractors;
WHEREAS, the
Plan authorizes the Board or the Committee to grant Awards, including Options,
to the Plan’s participants; and
WHEREAS, the
Board or the Committee has
determined that it is in the best interest of the Company to grant the Optionee
an Option, on the
terms and subject to the conditions provided in the Plan and this Agreement;
NOW,
THEREFORE, for and
in consideration of the mutual premises, covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto (the
“parties”),
intending to be legally bound, hereby agree as follows:
Section 1. Grant
of Option. Subject
to the terms and conditions of the Plan and this Agreement, the Company hereby
grants, as of _______ __, 200_ (the “Grant
Date”), to
Optionee, an Option to purchase up to _____________ shares of the Company’s
Common Stock, par value $0.01 per share (the “Shares”), at an
exercise price per share equal to $_______. The Option is granted pursuant to
the Plan, which is incorporated herein for all purposes. The Option is a
nonqualified stock option, and not an Incentive Stock Option. The Optionee
hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all
of the terms and conditions hereof and thereof and all applicable laws and
regulations.
1
Section 2. Exercise
Schedule.
[ALTERNATIVE #1 - Except as otherwise provided in Sections 5 [or 8] of this
Agreement, or as otherwise provided in the Plan, the Option is exercisable in
installments as provided below, which shall be cumulative. To the extent that
the Option has become exercisable with respect to a percentage of Shares as
provided below, the Option may thereafter be exercised by the Optionee, in whole
or in part, at any time or from time to time prior to the expiration of the
Option as provided herein. Subject to the acceleration and termination
provisions below, the following table indicates each date (the “Vesting
Date”) upon
which the Optionee shall be entitled to exercise the Option with respect to the
percentage of Shares granted as indicated beside the date:
|
Percentage
of Shares
|
Vesting
Date
|
|
__% |
______
__, 200_ |
|
__% |
______
__, 200_ |
|
__% |
______
__, 200_ |
|
__% |
______
__, 200_ |
Except as otherwise specifically provided herein, 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.]
[ALTERNATIVE
#2 - The Option shall vest and become exercisable immediately. Subject to
Section 5, the Option may be exercised by the Optionee, in whole or in part, at
any time or from time to time prior to the expiration of the Option as provided
herein.]
Section 3. Method
of Exercise. [The
vested portion of this Option][This Option] shall be exercisable in whole or in
part by written notice which shall state the election to exercise the Option,
the number of Shares in respect of which the Option is being exercised, and such
other representations and agreements as may be required by the Company pursuant
to the provisions of the Plan. Such written notice shall be signed by the
Optionee and shall be delivered in person or by certified mail to the Chief
Financial Officer of the Company. The written notice shall be accompanied by
payment of the exercise price. This Option shall be deemed to be exercised after
both (a) receipt by the Company of such written notice accompanied by the
exercise price and (b) arrangements that are satisfactory to the Committee or
the Board in its sole discretion have been made for Optionee’s payment to the
Company of the amount that is necessary to be withheld in accordance with
applicable federal, state or local withholding requirements. No Shares will be
issued pursuant to the Option unless and until such issuance and such exercise
shall comply with all relevant provisions of applicable law, including the
requirements of any stock exchange upon which the Shares then may be
traded.
Section 4. Method
of Payment. Payment
of the exercise price shall be by any of the following, or a combination
thereof, at the election of the Optionee: (a) cash; (b) check; (c) with Shares
that have been held by the Optionee for at least 6 months (or such other Shares
as the Company determines will not cause the Company to recognize for financial
accounting purposes a charge for compensation expense), or (d) such other
consideration or in such other manner as may be determined by the Board or the
Committee in its absolute discretion.
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Section 5. Termination
of Option.
(a) Unless
the Board or Committee shall determine otherwise, in its sole discretion, or
unless any written agreement between the Optionee and the Company provides to
the contrary, any unexercised portion of the Option shall automatically and
without notice terminate and become null and void at the time of the earliest to
occur of the following:
(i) three
months after the date on which the Optionee’s employment with the Company or any
of its Subsidiaries is terminated or the Optionee ceases to perform services for
the Company or its Subsidiaries, for any reason other than by reason of (A)
“Cause,” which,
solely for purposes of this Agreement, shall mean the termination of the
Optionee’s continued employment or service by reason of the Optionee’s willful
misconduct or gross negligence, (B) a mental or physical disability (within the
meaning of Section 22(e) of the Internal Revenue Code) of the Optionee as
determined by a medical doctor satisfactory to the Committee or the Board, or
(C) death;
(ii) immediately
upon the termination of employment or cessation of services of the Optionee with
the Company and its Subsidiaries for Cause;
(iii) [twelve]
months after the date on which the Optionee’s employment with the Company or its
Subsidiaries is terminated or the Optionee ceases to perform services for the
Company or its Subsidiaries by reason of a mental or physical disability (within
the meaning of Section 22(e) of the Internal Revenue Code) as determined by a
medical doctor satisfactory to the Committee or the Board; or
(iv) [twelve]
months after the date on which the Optionee’s employment with the Company or its
Subsidiaries is terminated or the Optionee ceases to perform services for the
Company or its Subsidiaries by reason of the death of the Optionee (or three
months after the date on which the Optionee shall die if such death shall occur
during the one year period specified in paragraph (iii) of this Section
5);
(b) The
Committee or the Board may, in its sole discretion, by giving written notice
(the “cancellation
notice”)
cancel, effective upon the date of the consummation of any reorganization,
merger, consolidation or other transaction in which the Company does not survive
or the Shares are converted into or exchanged for securities issued by another
entity, unless the successor or acquiring entity, or an affiliate thereof,
assumes the Option or substitutes an equivalent option or right, the Option (or
portion thereof) that remains unexercised on such date. Such cancellation notice
shall be given a reasonable period of time prior to the proposed date of such
cancellation and may be given either before or after approval of such corporate
transaction.
(c) Notwithstanding
anything in this Agreement to the contrary, the Option shall terminate on the
tenth anniversary of the Grant Date if not exercised or otherwise terminated
prior to that date.
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Section 6. Transferability. The
Option granted hereby is not transferable otherwise than by will or under the
applicable laws of descent and distribution, and during the lifetime of the
Optionee the Option shall be exercisable only by the Optionee, or the Optionee’s
guardian or legal representative. In addition, the Option shall not be assigned,
negotiated, pledged or hypothecated (each a “transfer”) 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 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.
Section 7. No
Rights of Stockholders. Neither
the Optionee nor any personal representative (or beneficiary) shall be, or shall
have any of the rights and privileges of, a stockholder of the Company with
respect to any shares of Stock purchasable or issuable upon the exercise of the
Option, in whole or in part, prior to the date of exercise of the
Option.
Section 8. Acceleration
of Exercisability of Option.
Notwithstanding anything in this Agreement to the contrary, the Option shall
become exercisable at the time(s) and in the manner as provided under the terms
of any written employment agreement, offer letter or other similar agreement
between the Company and the Optionee, the terms of which shall govern and
control the terms hereof.
Section 9. Amendment,
Modification and Assignment; Non-Transferability. This
Agreement may only be modified or amended in a writing signed by the parties
hereto. No promises, assurances, commitments, agreements, undertakings or
representations, whether oral, written, electronic or otherwise, and whether
express or implied, with respect to the subject matter hereof, have been made by
either party which are not set forth expressly in this Agreement. Unless
otherwise consented to in writing by the Company, in its sole discretion, this
Agreement (and Optionee’s rights hereunder) may not be assigned, and the
obligations of Optionee hereunder may not be delegated, in whole or in part. The
rights and obligations created hereunder shall be binding on the Optionee and
his heirs and legal representatives and on the successors and assigns of the
Company.
Section 10. Complete
Agreement. This
Agreement (together with the Plan and those agreements and documents expressly
referred to herein, for the purposes referred to herein) embody the complete and
entire agreement and understanding between the parties with respect to the
subject matter hereof, and supersede any and all prior promises, assurances,
commitments, agreements, undertakings or representations, whether oral, written,
electronic or otherwise, and whether express or implied, which may relate to the
subject matter hereof in any way.
Section 11. No
Right to (Continued) Employment or Service. Neither
the Option nor this Agreement shall confer, or be construed to confer, upon the
Optionee any right to employment or service, or continued employment or service,
with the Company.
Section 12. No
Limit on Other Compensation Arrangements. Nothing
contained in this Agreement shall preclude the Company from adopting or
continuing in effect other or additional compensation plans, agreements or
arrangements, and any such plans, agreements and arrangements may be either
generally applicable or applicable only in specific cases or to specific
persons.
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Section 13. Severability. If any
term or provision of this Agreement is or becomes or is deemed to be invalid,
illegal or unenforceable in any jurisdiction or under any applicable law, rule
or regulation, then such provision shall be construed or deemed amended to
conform to applicable law (or if such provision cannot be so construed or deemed
amended without materially altering the purpose or intent of this Agreement and
the grant of the Option hereunder, such provision shall be stricken as to such
jurisdiction and the remainder of this Agreement and the award hereunder shall
remain in full force and effect).
Section 14. No
Trust or Fund Created. Neither
this Agreement nor the grant of the Option hereunder shall create or be
construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company and the Optionee or any other person. To the
extent that the Optionee or any other person acquires a right to receive
payments from the Company pursuant to this Agreement, such right shall be no
greater than the right of any unsecured general creditor of the
Company.
Section 15. Law
Governing. This
Agreement shall be governed in accordance with and governed by the internal laws
of the State of Florida (without reference to the conflict of laws rules or
principles thereof).
Section 16. Effect
of the Plan. This
Agreement and the Option are 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 adopted
by the Committee or the Board as may be in effect from time to time. 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. The Optionee accepts the
Option subject to all the terms and provisions of the Plan and this Agreement.
The undersigned Optionee hereby accepts as binding, conclusive and final all
decisions or interpretations of the Committee or the Board upon any questions
arising under the Plan and this Agreement.
Section 17. Interpretation.
The
Optionee accepts the Option subject to all the terms, provisions and
restrictions of this Agreement. The undersigned Optionee hereby accepts as
binding, conclusive and final all decisions or interpretations of the Board of
the Company upon any questions arising under this Agreement or under the Plan.
Section 18. Headings.
Section, paragraph and other headings and captions are provided solely as a
convenience to facilitate reference. Such headings and captions shall not be
deemed in any way material or relevant to the construction, meaning or
interpretation of this Agreement or any term or provision hereof.
Section 19. Notices. Any
notice under this Agreement shall be in writing and shall be deemed to have been
duly given when delivered personally or when deposited in the United States
mail, registered, postage prepaid, and addressed, in the case of the Company, to
the Company’s Chief Financial Officer at ▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, or if the Company should move its principal office,
to such principal office, and, in the case of the Optionee, to the Optionee’s
last permanent address as shown on the Company’s records, subject to the right
of either party to designate some other address at any time hereafter in a
notice satisfying the requirements of this Section.
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Section 20. Non-Waiver
of Breach. The
waiver by any party hereto of the other party’s prompt and complete performance,
or breach or violation, of any term or provision of this Agreement shall be
effected solely in a writing signed by such party, and shall not operate nor be
construed as a waiver of any subsequent breach or violation, and the waiver by
any party hereto to exercise any right or remedy which he or it may possess
shall not operate nor be construed as the waiver of such right or remedy by such
party, or as a bar to the exercise of such right or remedy by such party, upon
the occurrence of any subsequent breach or violation.
Section 21. Counterparts. This
Agreement may be executed in two or more separate counterparts, each of which
shall be an original, and all of which together shall constitute one and the
same agreement.
[Remainder
of this page intentionally left blank]
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IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Agreement as of the date first written above.
EQUITY ONE,
INC.
By:______________________________
Name:
Title:
Optionee
acknowledges receipt of a copy of the Plan and represents that he or she is
familiar with the terms and provisions thereof, and hereby accepts this Option
subject to all of the terms and provisions thereof. Optionee has reviewed the
Plan and this Option in their entirety, has had an opportunity to obtain the
advice of counsel prior to executing this Option, and fully understands all
provisions of the Option.
Agreed
and Accepted on this
__ day of
_______, 200__:
OPTIONEE:
_________________________________
[ ]