BEHRINGER HARVARD OPPORTUNITY REIT I, INC. AMENDEDAND RESTATED 2004 INCENTIVE AWARD PLAN STOCK OPTION AGREEMENT
EXHIBIT 10.6
BEHRINGER HARVARD OPPORTUNITY REIT I, INC.
AMENDEDAND RESTATED 2004 INCENTIVE AWARD PLAN
STOCK OPTION AGREEMENT
Behringer Harvard Opportunity 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 Opportunity REIT I, Inc. Amended and Restated 2004 Incentive Award 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: |
IN WITNESS WHEREOF, this Stock Option Agreement has been executed by the Company by a duly authorized officer as of the date specified hereon. BEHRINGER HARVARD OPPORTUNITY REIT I, INC. By: ____________________________________ |
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. | |||
| Exercise Price Per Share:* | |||||
| Term of Option:* |
TEN (10) YEARS | ||||
| Vesting: |
Grant Date: |
||||
| 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 Type of Stock Option Intended: Option Agreement. | |||||
|
Type of Stock Option Intended: |
__________________________________ | ||||
|
[Name of Optionee] | |||||
|
|
Incentive Stock Option (ISO) |
||||
|
Non-Qualified Stock Option (NQSO) |
|||||
*If this Option is intended to be an ISO, then the Exercise Price Per Share must be at least equal to the Fair Market Value per share (or 110% of such Fair Market Value if the Optionee owns 10% or more of the Company) and the Term of Option may not exceed 10 years (5 years in the case of an Optionee who owns more than 10% of the Company).
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 occurs on the last day of the Term of Option 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. Also, this Option may not be exercised
within the first six (6) months of the Grant Date noted hereon (except in
situations otherwise allowed by this Option and Section 7(e)(8)(B) of the FLSA)
if the Optionee is currently, at the time of exercise, or has been at any time
within the two (2) year period immediately preceding exercise, a non-exempt (as
defined in the Fair Labor Standards Act) employee of the Company.
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 which is ninety (90) days after Optionee
ceases to perform services for the Company, or any Parent or Subsidiary.
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 §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 Stockholder 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 stockholders under any applicable restriction agreement among the
stockholders, 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. If the Optionee
receives a hardship distribution from a Code §401(k) plan of the Company, or any
Parent or Subsidiary, this Option may not be exercised during the six (6) month
period following the hardship withdrawal (unless the Company determines that
such exercise would not jeopardize the tax-qualification of such Code §401(k)
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 Stockholder until such time as Shares have been issued
as noted on the stockholder register 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. In addition, except as expressly permitted under
the Plan for NQSOs, during Optionee's lifetime, this Option may only be
exercised 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 or assurances 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, stockholders 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: | |
|
Percentage
Vested: |
Continuous
Service: |
If the
above calculation of Shares available for purchase through exercise of this
Option would result in a fraction, any fraction will be rounded to zero. 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.
11.
Special
California Provisions. Anything
contained in this Stock Option Grant Certificate or the Plan to the contrary
notwithstanding, in order for the grant or exercise of this Option to be exempt
from the securities laws of the State of California, the following provisions
apply in the event that the Optionee is a resident of State of California: (i)
the total number of shares issuable upon exercise of all outstanding Stock
Incentives under the Plan plus the total number of shares issuable under any
other stock option, stock bonus or similar plan of the Company shall not exceed
thirty percent (30%) of the then outstanding shares of capital stock of the
Company, measured on an as converted to common basis, unless a percentage higher
than thirty percent (30%) is approved by at least two-thirds of the Company’s
outstanding capital stock; (ii) the Company hereby represents that the Exercise
Price of this Option is at least 85% of the Fair Market Value of a share of
Common Stock (110% of Fair Market Value of a share of Common Stock if the
Participant owns more than 10% of the combined voting power of all classes of
stock of the Company); (iii) Optionee shall receive the annual financial
statements of the Company in accordance with Section 260.140.46 of Title 10 of
the California Code of Regulations; and (iv) Optionee shall be delivered a copy
of the Plan with this Stock Option Grant
Certificate.