Exh. 10.23
STARWOOD LODGING TRUST
NON-QUALIFIED STOCK OPTION AGREEMENT
Starwood Lodging Trust, a real estate investment trust organized under the
laws of Maryland (the "Company"), hereby grants to _____________ (the
"Optionee"), as of _____ ___, 199_ (the "Option Date"), pursuant to the
provisions of the Starwood Lodging Trust 1995 Share Option Plan (the "Plan"), an
non-qualified option to purchase form the Company (the "Option") ________
Shares, at the price of $_____ per Paired Share upon and subject to the terms
and conditions set forth below. References to employment by the Company shall
include employment by a "subsidiary corporation" of the Company, as such term is
defined in Section 424 of the Internal Revenue Code of 1986, as amended (the
"Code"). Capitalized terms not defined herein shall have the meanings specified
in the Plan.
1. Option Subject to Acceptance of Agreement.
The Option may not be exercised unless (i) the Optionee shall accept this
Agreement by executing it in the space provided below and returning such
original execution copy to the Company and (ii) the Plan is approved by a
majority of all the votes cast at a meeting of shareholders at which a quorum is
present.
2. Time and Manner of Exercise of Option.
2.1 Maximum Term of Option. In no event may the option be exercised,
in whole or in part, after _________ __, ____ (the "Expiration Date").
2.2 Exercise of Option. (a) The Option shall become exercisable (i)
on __________ __, ____ with respect to ________ Paired Shares subject to the
Option, (ii) on __________ __, ____ with respect to an additional __________
Paired Shares subject to the Option, and (iii) on __________ __, _____ with
respect to the remaining ________ Paired Shares subject to the Option.
(b) If the Optionee's employment by the Company terminates for any
reason other than Cause, the Option shall be exercisable to the extent it is
exercisable on the effective date of the Optionee's termination of employment,
shall continue to become exercisable in accordance with Section 2.2(a) and may
be exercised by the Optionee or the Optionee's Legal Representative or Permitted
Transferees, as the case may be, until the Expiration Date.
(c) If the Optionee's employment by the Company terminates for
Cause, the Option, whether or not then exercisable, shall terminate
automatically on the effective date of the Optionee's termination of employment.
(d) For purposes of this Section 2.2, "Cause" shall be limited to
conviction of a felony, or determination of a court of competent jurisdiction of
significant
1.
violation of the Optionee's duty of loyalty to the Company or of a substantial
disregard of the duties properly assigned to the Optionee (other than as a
result of disability).
2.3 Method of Exercise. Subject to the limitations set forth in this
Agreement, the Option may be exercised by the Optionee (1) by giving written
notice to the Company specifying the number of whole Paired Shares to be
purchased and accompanied by payment therefor in full (or arrangement made for
such payment to the Company's satisfaction) either (i) in cash, (ii) previously
owned whole Paired Shares (which the Optionee has held for at least six months
prior to the delivery of such Paired Shares or which the Optionee purchased on
the open market and for which the Optionee has good title, free and clear of all
liens and encumbrances) having a fair market value, determined as of the date of
exercise, equal to the aggregate purchase price payable pursuant to the Option
by reason of such exercise, (iii) in cash by a broker-dealer acceptable to the
Company to whom the Optionee has submitted an irrevocable notice of exercise or
(iv) a combination of (i) and (ii), and (2) by executing such documents as the
Company may reasonably request. The Committee shall have sole discretion to
disapprove of an election pursuant to either clause (ii) or (iii). Any fraction
of a Paired Share which would be required to pay such purchase price shall be
disregarded and the remaining amount due shall be paid in cash by the Optionee.
No certificate representing a Paired Share shall be delivered until the full
purchase therefor has been paid.
2.4 Termination of Option. (a) In no event may the Option be
exercised after it terminates as set forth in this Section 2.4. The Option shall
terminate, to the extent not exercised pursuant to Section 2.3 or earlier
terminated pursuant to Section 2.2, on the Expiration Date.
(b) In the event that rights to purchase all or a portion of the
Paired Shares subject to the Option expire or are exercised, cancelled or
forfeited, the Optionee shall promptly return this Agreement to the Company for
full or partial cancellation, as the case may be. Such cancellation shall be
effective regardless of whether the Optionee returns this Agreement. If the
Optionee continues to have rights to purchase Paired Shares hereunder, the
Company shall, within 10 days of the Optionee's delivery of this Agreement to
the Company, either (i) xxxx this Agreement to indicate the extent to which the
Option has expired or been exercised, cancelled or forfeited or (ii) issue to
the Optionee a substitute option agreement applicable to such rights, which
agreement shall otherwise be substantially similar to this Agreement in form and
substance.
3. Additional Terms and Conditions of Option.
3.1 Nontransferability of Option. The Option may not be transferred
by the Optionee other than (i) by will or the laws of descent and distribution
or pursuant to the beneficiary designation procedures approved by the Company or
(ii) as otherwise permitted under Rule 16b-3 under the Exchange Act. Except to
the extent permitted by the foregoing, during the Optionee's lifetime the
Options are exercisable only by the Optionee or the Optionee's Legal
Representative. Except as permitted by the foregoing, the Options may not be
sold, transferred, assigned, pledged, hypothecated, voluntarily
2.
encumbered or otherwise disposed of (whether by operation of law or otherwise)
or be subject to execution, attachment or similar process. Upon any attempt to
sell, transfer, assign, pledge, hypothecate, voluntarily encumber or otherwise
dispose of the Options (unless permitted by Section 3.1(a) above or this Section
3.1(b)), the Options and all rights hereunder shall, to the extent of any such
attempt, immediately become null and void.
3.2 Investment Representation. The Optionee hereby represents and
covenants that (a) any Paired Shares purchased upon exercise of the Option will
be purchased for investment and not with a view to the distribution thereof
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act"), unless such purchase has been registered under the Securities Act and any
applicable state securities laws; (b) any subsequent sale of any such Paired
Shares shall be made either pursuant to an effective registration statement
under the Securities Act and any applicable state securities laws, or pursuant
to an exemption from registration under the Securities Act and such state
securities laws; and (c) if requested by the Company, the Optionee shall submit
a written statement, in form satisfactory to the Company, to the effect that
such representation (x) is true and correct as of the date of purchase of any
Paired Shares hereunder or (y) is true and correct as of the date of any sale of
any such Paired Shares, as applicable. As a further condition precedent to any
exercise of the Option, the Optionee shall comply with all regulations and
requirements of any regulatory authority having control of or supervision over
the issuance or delivery of the Paired Shares and, in connection therewith,
shall execute any documents which the Board or the Committee shall in its sole
discretion deem necessary or advisable.
3.3 Withholding Taxes. (a) As a condition precedent to the delivery
of Paired Shares upon exercise of the Option, the Optionee shall, upon request
by the Company, pay to the Company in addition to the purchase price of the
Paired Shares, such amount of cash as the Company may be required, under all
applicable federal, state, local or other laws or regulations, to withhold and
pay over as income or other withholding taxes (the "Required Tax Payments") with
respect to such exercise of the Option. If the Optionee shall fail to advance
the Required Tax Payments after request by the Company, the Company may, in its
discretion, deduct any Required Tax Payments from any amount then or thereafter
payable by the Company to the Optionee.
(b) The Optionee may elect to satisfy his or her obligation to
advance the Required Tax Payments by any of the following means: (1) a cash
payment to the Company pursuant to Section 3.3(a), (2) delivery to the Company
of previously owned whole Paired Shares (which the Optionee has held for at
least six months prior to the delivery of such Paired Shares or which the
optionee purchased on the open market and for which the Optionee has good title,
free and clear of all liens and encumbrances) having a fair market value,
determined as of the date the obligation to withhold or pay taxes first arises
in connection with the Option (the "Tax Date"), equal to the Required Tax
Payments, (3) a cash payment by a broker-dealer acceptable to the Company to
whom the Optionee has submitted an irrevocable notice of exercise or (4) any
combination of (1) and (2). The Committee shall have sole discretion to
disapprove of an
3.
election pursuant to any of clauses (2)-(4). Paired Shares to be delivered may
not have a Fair Market Value in excess of the minimum amount of the Required Tax
Payments. Any fraction of a Paired Share which would be required to satisfy any
such obligation shall be disregarded and the remaining amount due shall be paid
in cash by the Optionee. No certificate representing a Paired Share shall be
delivered until the Required Tax payments have been satisfied in full.
(c) Unless the Committee otherwise determines, if the Optionee is
subject to Section 16 of the Exchange Act, the Optionee may deliver to the
Company previously owned whole Paired Shares in accordance with Section 3.3(b),
but only if such delivery is in connection with the delivery of Paired Shares in
payment of the exercise price of the Option.
3.4 Adjustment. In the event of any stock split, stock dividend,
recapitalization, reorganization, merger, consolidation, combination, exchange
of shares, liquidation, spin-off or other similar change in capitalization or
event, or any distribution to holders of Paired Shares other than a regular cash
dividend, the number and class of securities subject to the Option and the
purchase price per security shall be appropriately adjusted by the Committee
without an increase in the aggregate purchase price. If any adjustment would
result in a fractional security being subject to the Option, the Company shall
pay the Optionee, in connection with the first exercise of the Option, in whole
or in part, occurring after such adjustment, an amount in cash determined by
multiplying (i) the fraction of such security (rounded to the nearest hundredth)
by (ii) the excess, if any, of (A) the fair market value of a Paired Share on
the exercise date over (B) the exercise price of the Option. The decision of the
Committee regarding any such adjustment shall be final, binding and conclusive.
3.5 Compliance with Applicable Law. The Option is subject to the
condition that if the listing, registration or qualification of the Paired
Shares subject to the Option upon any securities exchange or under any law, or
the consent or approval of any government body, or the taking of any other
action is necessary or desirable as a condition of, or in connection with, the
purchase or delivery of Paired Shares hereunder, the Option may not be
exercised, in whole or in part, unless such listing, registration,
qualification, consent or approval shall have been effected or obtained, free of
any conditions not acceptable to the Company. The Company agrees to use
reasonable efforts to effect or obtain any such listing, registration,
qualification, consent or approval.
3.6 Delivery of Certificates. Upon the exercise of the Option, in
whole or in part, the Company shall deliver or cause to be delivered one or more
certificates representing the number of Paired Shares purchased against full
payment therefor. The Company shall pay all original issue or transfer taxes and
all fees and expenses incident to such delivery, except as otherwise provided in
Section 3.3.
3.7 Option Confers No Rights as Stockholder. The Optionee shall not
be entitled to any privileges of ownership with respect to Paired Shares subject
to the Option unless and until purchased and delivered upon the exercise of the
Option, in
4.
whole or in part, and the Optionee becomes a stockholder of record with respect
to such delivered Paired Shares; and the Optionee shall not be considered a
stockholder of the Company or the Corporation with respect to any Paired Shares
not so purchased and delivered.
3.8 Option Confers No Rights to Continued Employment. In no event
shall the granting of the Option or its acceptance by the Optionee give or be
deemed to give the Optionee any right to continued employment by the Company or
any affiliate of the Company.
3.9 Decisions of Board or Committee. The Board or the Committee
shall have the right to resolve all questions which may arise in connection with
the Option or its exercise. Any interpretation, determination or other action
made or taken by the Board or the Committee regarding the Plan or this Agreement
shall be final, binding and conclusive.
3.10 Company to Reserve Paired Shares. The Company shall at all
times prior to the expiration or termination of the Option reserve or cause to
be reserved and keep or cause to be kept available, either in its treasury or
out of its authorized but unissued Paired Shares, the full number of Paired
Share subject to the Option from time to time.
3.11 Agreement Subject to the Plan. This Agreement is subject to the
provisions of the Plan and shall be interpreted in accordance therewith. The
Optionee hereby acknowledges receipt of a copy of the Plan.
4. Miscellaneous Provisions.
4.1 Designation as Pledged Stock Option. The Option is hereby
designated as not constituting an "incentive stock option" within meaning of
section 422 of the Internal Revenue Code of 1986, as amended (the "Code"); this
Agreement shall be interpreted and treated consistently with such designation.
4.2 Meaning of Certain Terms. (a) As used herein, the term "Legal
Representative" shall include an executor, administrator, legal representative,
beneficiary or similar person and the term "Permitted Transferee" shall include
any transferee (i) pursuant to a transfer permitted under Section 4.4 of the
Plan and Section 3.1 hereof or (ii) designated pursuant to beneficiary
designation procedures which may be approved by the Company.
4.3 Successors. This Agreement shall be binding upon and inure to
the benefit of any successor or successors of the Company and any person or
persons who shall, upon the death of the Optionee, acquire any rights hereunder
in accordance with this Agreement or the Plan.
5.
4.4 Notices. All notices, requests or other communications provided
for in this Agreement shall be made, if to the Company, to the President of the
Company at 00000 Xxxx Xxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
and if to the Optionee, to __________________, or to such other address as
either party may give by notice to the other in the manner herein provided. All
notices, requests or other communications provided for in this Agreement shall
be in writing either (a) by personal delivery to the party entitled thereto, (b)
by facsimile with confirmation of receipt, (c) by mailing in the United States
mails to the last known address of the party entitled thereto or (d) by express
courier service. The notice, request or other communication shall be deemed to
be received upon personal delivery, upon confirmation of receipt of facsimile
transmission or upon receipt by the party entitled thereto if by United States
mail or express courier service; provided, however, that if a notice, request or
other communication is not received during regular business hours, it shall be
deemed to be received on the next succeeding business day of the Company.
4.5 Governing Law. The Option, this Agreement, and all
determinations made and actions taken pursuant hereto and thereto, to the extent
not governed by the laws of the United States, shall be governed by the laws of
the State of California and construed in accordance therewith without giving
effect to principles of conflicts of laws.
4.6 Counterparts. This Agreement may be executed in two counterparts
each of which shall be deemed an original and both of which together shall
constitute one and the same instrument.
4.7 Disclaimer. The name "Starwood Lodging Trust" is the designation
of Starwood Lodging Trust and its Trustees (as Trustees but not personally)
under a Declaration of Trust dated August 25, 1969, as amended and restated and
all persons dealings with Starwood Lodging Trust must look solely to Starwood
Lodging Trust's property for the enforcement of any claims against Starwood
Lodging Trust, as the Trustees, officers, agents and security holders of
Starwood Lodging Trust assume no personal obligation of Starwood Lodging Trust,
and their respective property shall not be subject to claims of any person
relating to such obligation.
STARWOOD LODGING TRUST
By:____________________________
Name:__________________________
Its:___________________________
Accepted:
_________________________
"Optionee"
6.
