INLAND RETAIL REAL ESTATE TRUST, INC.
INDEPENDENT DIRECTOR STOCK OPTION PLAN
OPTION AGREEMENT
AGREEMENT NO.
THIS OPTION AGREEMENT (the "Agreement" or the "Option") made and
entered into as of the ______ day of ________________, (the
"Grant Date"), by and between INLAND RETAIL REAL ESTATE TRUST,
INC., a Maryland corporation (the "Company"), and
_________________________________ (the "Optionee") under and
pursuant to the Inland Retail Real Estate Trust, Inc. Independent
Director Stock Option Plan (the "Plan").
Except where the context otherwise requires, all capitalized
terms which are not defined in this Agreement shall have the
meaning set forth in the Plan.
The parties agree as follows:
1. Grant of Option. In consideration of the services
rendered and to be rendered to the Company by the Optionee as an
Independent Director of the Company and upon the determination
made by the Board of Directors of the Company (the "Board") that
the Optionee is eligible to receive an Option under the Plan, the
Company hereby grants to the Optionee an Option (the "Option") to
purchase a total of up to Three Thousand (3,000) shares of the
Common Stock, par value $0.01 per share, of the Company (each
share of such Common Stock, a "Share" and collectively, the
"Shares"). The purchase price of a Share (the "Option Price")
purchased upon exercise of the Option granted by this Agreement
shall be $9.05 per Share, upon and subject to the terms and
conditions set forth in this Agreement. Shares which may be
purchased upon the exercise of the Option are hereafter referred
to as "Option Shares."
2. Acknowledgment by Optionee. The Optionee hereby
acknowledges:
(i) that he or she has had an opportunity to review a copy of
the Plan, a copy of all available reports on Forms 8-K, 10-Q and
10-K, if any, and the registration statement on Form S-11, filed
by the Company with the Securities and Exchange Commission, and
the Company's prospectus dated February 11, 1999 used in
connection with its initial public offering of Shares (which
prospectus contains a summary of the Plan under the caption
"Management - Independent Director Stock Option Plan"), as well
all supplements to that prospectus; and
(ii) that any questions pertaining to the Plan, to the Option and
to the Option Shares have been answered by the Company to his or
her satisfaction; and
(iii) that he or she understands that the Plan is
incorporated in this Agreement by reference and is made a part of
this Agreement as if fully set forth in this Agreement; and
(iv) that the Plan shall control in the event that there is any
conflict between the Plan and this Agreement, and also with
respect to any matter not addressed in this Agreement.
3. Time of Exercise.
(a) Subject to the provisions of this Section 3 and the
restrictions imposed in the Plan, the Option may be exercised in
accordance with the provisions of Section 4 below, in whole or in
part, as follows: (i) 1,000 Option Shares on or after the date
of grant; (ii) an additional 1,000 Option Shares on or after the
first anniversary of the date of grant; and (iii) an additional
1,000 Option Shares on or after the second anniversary of the
date of grant. Notwithstanding the foregoing, except as
otherwise provided in paragraph (b) below of this Section 3, an
Option may not be exercised after the earliest to occur of the
following dates: (i) the date that is ten (10) years from the
date of grant, (ii) the date upon which the Optionee is removed
for cause as an Independent Director, or (iii) three (3) months
following the date the Optionee ceases to be an Independent
Director for any reason other than death or disability.
(b) Subject to the provisions of this Section 3 and the
restrictions imposed in the Plan, in the event that the Optionee
dies or becomes disabled while an Independent Director of the
Company, any Option as to which the Optionee's rights have become
vested but which has not yet been exercised may be exercised and
the Option Shares may be purchased for a period of one (1) year
after death or the disabling event, provided that the death or
disabling event occurs while the Optionee is an Independent
Director and prior to his or her removal for cause, resignation
or ceasing to be an Independent Director for any other reason and
provided that the Option is otherwise exercisable on the date of
death or of the disabling event; provided however, that if the
Option is exercised within the first six (6) months after it
becomes exercisable, any Shares issued pursuant to such exercise
may not be sold until the six-month anniversary of the date of
the grant of the Option.
4. Manner of Exercise. All Options exercised during the
Optionee's lifetime shall be exercised only by the Optionee or
the Optionee's legal representative. A legal representative
shall be required to provide written evidence reasonably
satisfactory to the Company of his or her authority to act on
behalf of the Optionee. Each Optionee may name, from time to
time, any beneficiary or beneficiaries (who may be named
contingently or successively) who may exercise the Optionee's
Options following the Optionee's death (the "Optionee's
beneficiaries"). Each designation will revoke all prior
designations by the Optionee, must be in writing to be valid and
will be effective only when filed with the Secretary of the
Company during the Optionee's lifetime. The Optionee may also
revoke a designation without designating a new beneficiary. To
be valid such a revocation must be in writing and will be
effective only when filed with the Secretary of the Company
during the Optionee's lifetime. The Option may be exercised
only by the delivery of a written notice of exercise in person or
sent by registered or certified mail, return receipt requested,
postage prepaid, to the Company at its principal executive
offices at 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000,
Attn: Secretary. In the event that the Company moves its
principal executive offices it shall notify the Optionee in
writing of the new address and Options will thereafter be
exercisable only by the delivery of written notice of exercise in
person or sent by registered or certified mail, return receipt
requested, postage prepaid, to the Company at its new principal
executive offices. Each such notice of exercise shall state the
number of Option Shares with respect to which the Option is being
exercised and either shall be signed by the Optionee or, in the
event that the Option is being exercised by the legal
representative of the Optionee or by the Optionee's
beneficiaries, shall be signed by such legal representative or
beneficiaries, and shall be accompanied by a copy of the
Optionee's death certificate (if the Optionee is deceased) and/or
such other proof, satisfactory to counsel for the Company, of the
right of such person to exercise the Option. Notices sent by
registered or certified mail shall be effective only when
received by the Company. Each such notice shall be accompanied
by (a) the original executed copy of this Agreement, (b) the full
aggregate purchase price of the Option Shares being purchased,
and (c) such other documents or instruments as the Company may
require to comply with the then current federal and state income
tax and securities laws. In the event that this Option is
exercised for less than all of the Option Shares covered by this
Agreement, and subject to the terms and conditions of the Plan,
the Company shall deliver an executed copy of a new Option
Agreement to the Optionee within sixty (60) days of such exercise
for the number of Option Shares covered by this Agreement which
are not then exercised. The exercise price for the Option Shares
may be paid (i) in cash, by check, bank draft or money order; or
(ii) unless, in the opinion of counsel to the Company doing so
may result in a possible violation of law, by the delivery of
Shares then owned by the Optionee valued at Fair Market Value on
the date of exercise. No Option Shares shall be issued in
connection with an exercise of the Option until payment for such
Shares has been made.
5. Delivery of Certificates. The Company shall not be required
to issue or deliver any certificate for the Option Shares upon
the exercise of the Option prior to compliance by the Company
with any requirements of the then current federal and state
securities laws and of any stock exchange or other market system
on which the Shares may at that time be listed or traded. The
Optionee (or the legal representative of the Optionee or the
Optionee's beneficiaries) shall have no interest in the Option
Shares unless and until certificates for such Option Shares are
issued to him or her.
6. Effect of Certain Changes. In the event that the number of
outstanding Shares shall be changed by reason of split-ups or
combinations of shares or recapitalizations or by reason of stock
dividends, the number of Option Shares which are granted, the
number of Option Shares which can be purchased on a particular
date and the Option Price per Option Share shall be appropriately
adjusted, as determined by the Company, to give proper effect to
such changes.
7. Options are Non-Transferable. The Option may not be
assigned, transferred, pledged or hypothecated in any way whether
by operation of law or otherwise (except by will, or if the
Independent Director dies intestate, by the laws of descent and
distribution). The Option may be exercised only by the Optionee
(or in the event of the Optionee's incompetency by the Optionee's
legal representative) during the Optionee's lifetime and, after
the Optionee's death, may be exercised only by the Optionee's
legal representative or by the Optionee's beneficiaries.
8. No Guarantee of Directorship. Nothing in this Agreement
shall be deemed or construed to confer upon any Independent
Director any right to serve as an Independent Director for any
period of time or to continue serving at his or her present or
any other rate of compensation.
9. Limitation on Liability.
In the event that the Optionee shall have designated a
beneficiary or beneficiaries in accordance with Section 4 and has
not revoked such designation in accordance with Section 4, the
Company shall be absolved of all further liability to the
Optionee, the Optionee's estate, the Optionee's spouse and the
Optionee's heirs, successors and assigns to the extent that it
issues Shares as directed by the beneficiary or beneficiaries so
designated upon the exercise of an Option following the death of
the Optionee that satisfies the requirements of Section 4 of this
Agreement.
10. Tax Withholding.
Subject to Section 3.4 of the Plan, the Company shall have the
power to withhold, or require an Optionee to remit to the
Company, an amount sufficient to satisfy any withholding or other
tax due from the Company with respect to any amount payable
and/or the Option Shares issuable under the Plan, and the Company
may defer such payment or issuance unless indemnified to its
satisfaction.
11. Miscellaneous.
(a) The Option may not be exercised with respect to a fraction
of any Option Share.
(b) This Agreement contains all of the undertakings and
understandings between the Company and the Optionee regarding the
subject matter of the Option. No oral or unwritten undertaking
or understandings exist with regard to this Option and if claimed
or believed by any person to exist shall be disregarded and shall
not be relied upon for any purpose. No modification or amendment
of any of the terms of the Option shall be valid if not made in
writing and no such writing shall be binding on the Company if
not signed by its Chairman, President or one of its Vice
Presidents and attested by its Secretary or an Assistant
Secretary.
(c) Anything to the contrary notwithstanding, the provisions of
the Plan shall be incorporated in this Agreement and made a part
hereof by this reference and shall govern and control to the
extent of any inconsistency between the Plan and this Agreement
and also with respect to any matter that is not addressed in this
Agreement.
(d) This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, except to the
extent preempted by federal law.
(e) This Agreement shall be binding upon the successors and
assigns of the Optionee and the Company.
(f) If any provision of this Agreement, or the application of
such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of
such provisions to persons or circumstances other than those to
which it is held invalid, shall not be affected thereby.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized corporate officers, and the
Optionee has duly executed this Agreement, all as of the date and
year first above written.
INLAND RETAIL REAL ESTATE TRUST, INC.
By:
Xxxxxx X. Xxxxx, Chairman
ATTEST:
Xxxxxx X. Xxxxxxxxx, Secretary
Optionee:
Signature: _________________________________
Name: _________________________________
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