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EXHIBIT 10.19
STOCK OPTION AGREEMENT
(DIRECTOR OPTION)
PURSUANT TO THE
AMERICAN SPECTRUM REALTY, INC.
2000 OMNIBUS STOCK INCENTIVE PLAN
AGREEMENT, dated as of ______________, ____ by and between
American Spectrum Realty, Inc. (the "Company") and _______________________ (the
"Participant").
PRELIMINARY STATEMENT
The Participant has been granted, subject to execution of this
agreement, under the American Spectrum Realty, Inc. Equity Award Plan (the
"Plan"), a director stock option (the "Option") on ____________, ____ (the
"Grant Date") to purchase the number of shares of the Company's common stock,
par value $.01 per share (the "Common Stock") set forth below, as a non-employee
director of the Company. Unless otherwise indicated, any capitalized term used
but not defined herein shall have the meaning ascribed to such term in the Plan.
A copy of the Plan has been delivered to the Participant. By signing and
returning this Agreement, the Participant acknowledges having received and read
a copy of the Plan and agrees to comply with it, this Agreement and all
applicable laws and regulations.
Accordingly, the parties hereto agree as follows:
1. TAX MATTERS. No part of the Option granted hereby is
intended to qualify as an "incentive stock option" under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
2. GRANT OF OPTION. Subject in all respects to the Plan and
the terms and conditions set forth herein and therein, the Participant is hereby
granted an Option to purchase from the Company _______________ shares of Common
Stock, at a price per share of $ _______ (the "Option Price").
3. EXERCISE.
(a) The Option shall become exercisable in installments on the
dates provided below, which shall be cumulative; provided that the Participant
has not incurred a termination of his service as a director ("Termination of
Directorship") with the Company prior to that date. To the extent that the
Option has vested and exercisable with respect to a percentage of shares of
Common Stock granted as provided below, the Option may thereafter be exercised
by the Participant, in whole or in part, at any time or from time to time prior
to the expiration of the Option as provided herein and in accordance with
Section 7.2 of the Plan, including, without limitation, the filing of such
written form of exercise notice, if any, as may be required by the
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Plan Administrator and payment in full of the Option Price multiplied by the
number of shares of Common Stock so exercised. Upon expiration of the Option,
the Option shall be canceled and no longer exercisable. The following table
indicates the dates (the "Vesting Dates") upon which the Participant shall be
entitled to exercise the Option with respect to the total number of shares
granted as indicated beside that date:
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VESTING DATE TOTAL PERCENT VESTED
------------------------------------------------------------
Grant Date (25%)
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1st anniversary of Grant (50%)
Date
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2nd anniversary of Grant (75%)
Date
------------------------------------------------------------
3rd anniversary of Grant (100%)
Date
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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.
(b) Notwithstanding any other provision to the contrary, to
the extent this Option is not vested upon the Participant's Termination of
Directorship of employment, the Option shall, upon such Termination of
Directorship, be non-exercisable and shall be canceled.
4. OPTION TERM. The term of each Option shall be 10 years
after the Grant Date, subject to earlier termination in the event of the
Participant's Termination of Directorship as specified in Section 5 below.
5. TERMINATION.
(a) Subject to Section 4 above and the terms of the Plan, the
Option, to the extent vested at the time of the Participant's Termination of
Directorship, shall remain exercisable as follows:
(i) In the event of Participant's Termination of
Directorship for any reason other than Disability, death or Cause, for a period
of three (3) months after such termination.
(ii) In the event of the Participant's Termination of
Directorship by reason of the Participant's resignation or removal from the
Board due to Disability, for a period of one (1) year after such termination.
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(iii) In the event of the Participant's Termination of
Directorship for Cause, the Option granted to the Participant hereunder shall
immediately terminate in full and no rights thereunder may be exercised.
(iv) If a Participant dies while a Director or within
three (3) months after Termination of Directorship as described in clause (a) of
Section 5.4 of the Plan or within twelve (12) months after Termination of
Directorship as described in clause (b) of Section 5.4 of the Plan, the Option
granted to the Participant may be exercised at any time within twelve (12)
months after the Participant's death by the person or persons to whom such
rights under the Option shall pass by will, or by the laws of descent or
distribution.
6. Restriction on Transfer of Option. Except as otherwise
provided below, the Option granted hereby shall not be transferable other than
by will or by the laws of descent and distribution and during the lifetime of
the Participant, may be exercised only by the Participant or the Participant's
guardian or legal representative. In addition, except as otherwise provided
below, the Option shall not be assigned, negotiated, pledged or hypothecated in
any way (except as provided by law or herein), and the Option shall not be
subject to execution, attachment or similar process. Upon any attempt to
transfer, assign, negotiate, pledge or hypothecate 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. Notwithstanding the foregoing, the Plan Administrator may
determine at the time of grant or thereafter that the Option that is otherwise
not transferable is transferable to a "family member" (as defined in the Plan)
in whole or in part and in such circumstances, and under such conditions, as
specified by the Plan Administrator. An Option that is transferred to a family
member pursuant to the preceding sentence may not be subsequently transferred
otherwise than by will or by the laws of descent and distribution and remains
subject to the terms of the Plan and this Agreement, including without
limitation, the provisions of Section 7 hereof and Article XII of the Plan.
7. SECURITIES REPRESENTATIONS. By exercising the Option, the
Participant is hereby deemed to be making the following representations and
warranties and any issuances of shares of Common Stock by the Company shall be
made in reliance upon the following express representations and warranties of
the Participant.
Upon exercise of the Option at a time when the Common Stock
covered by the Options is not registered under the Securities Act of 1933 (the
"Act"), the Participant is thereby deemed to acknowledge, represent and warrant
that:
(a) shares of the Common Stock are being acquired for the
Participant's own account and not with a view to, or for sale in connection
with, the distribution thereof, nor with any present intention of distributing
or selling any of such shares of Common Stock;
(b) the Participant has been advised that the shares of Common
Stock have not been registered under the Act on the ground that no distribution
or public offering of the shares of Common Stock is to be effected (it being
understood, however, that the shares of
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Common Stock are being issued and sold in reliance on the exemption provided
under Rule 701 or Section 4(2) under the Act), and in this connection the
Company is relying in part on the Participant's representations set forth in
this Section;
(c) in the event that the Participant is permitted to sell,
transfer, pledge, hypothecate, assign or otherwise dispose of the shares of
Common Stock, the Participant may only do so pursuant to a registration
statement under the Act and qualification under applicable state securities laws
or pursuant to an opinion of counsel satisfactory to the Company that such
registration and qualification are not required, and that the transaction (if it
involves a sale in the over-the-counter market or on a securities exchange) does
not violate the provisions of Rule 144 under the Act. A stop-transfer order will
be placed on the books of the Company respecting the certificates evidencing the
shares of Common Stock, and such certificates shall bear any required legends,
until such time as the shares of Common Stock evidenced by such certificates
shall have been registered under the Act or shall have been transferred in
accordance with an opinion of counsel for the Company that such registration is
not required;
(d) the transfer of the shares of Common Stock have not been
registered under the Act, and the shares of Common Stock must be held
indefinitely unless subsequently registered under the Act or an exemption from
such registration is available and the Company is under no obligation to
register the shares of Common Stock;
(e) the Participant understands that the shares of Common
Stock acquired upon exercise of the Option are restricted securities within the
meaning of Rule 144 promulgated under the Act; that the exemption form
registration under Rule 144 will not be available unless (i) a public trading
market then exists for the common stock of the Company, (ii) adequate
information concerning the Company is then available to the public, and (iii)
other terms and conditions of Rule 144 or any exemption therefrom are complied
with; and that any sale of the shares of Common Stock may be made only in
limited amounts in accordance with such terms and conditions;
(f) the Participant is capable of evaluating the merits and
risks of this investment, has the ability to protect Participant's own interest
in this transaction and is financially capable of bearing a total loss of his
investment; and
(g) Participant is fully aware of (i) the speculative nature
of the investment in Common Stock, (ii) the financial hazards involved, and
(iii) the level of liquidity of the shares being issued and the restrictions on
transferability of the shares.
8. RIGHTS AS A STOCKHOLDER. The Participant shall have no
rights as a stockholder with respect to any shares covered by the Option unless
and until the Participant has become the holder of record of the shares, and no
adjustments shall be made for dividends in cash or other property, distributions
or other rights in respect of any such shares, except as otherwise specifically
provided for in the Plan.
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9. LOCK UP. Participant agrees that in connection with any
registration of the Company's securities that, upon request of the Company or
the underwriter managing any public offering of the Company's securities,
Participant will not sell or otherwise dispose of any shares of Common Stock
without the prior written consent of the Company or such underwriter, as the
case may be, for a period of time (not to exceed one (1) year) from the
effective date of such registration as the Company or the underwriter may
specify for persons of Participant's status, provided that to the extent an
Option would otherwise expire during such period because of a Termination of
Directorship (but not because of Section 4), it shall be extended until thirty
(30) days after the earlier of (i) the expiration of such period or (ii) the
waiver of the condition by the Company or the underwriter.
10. PROVISIONS OF PLAN CONTROL. This Agreement is 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 as may be adopted by the Plan Administrator
and as may be in effect from time to time. The Plan is incorporated herein by
reference. 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.
11. NOTICES. Any notice or communication given hereunder shall
be in writing and shall be deemed to have been duly given when delivered in
person, or by United States mail, to the appropriate party at the address set
forth below (or such other address as the party shall from time to time
specify):
If to the Company, to:
American Spectrum Realty, Inc.
0000 Xxx Xxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Corporate Secretary
If to the Participant, to:
The address indicated after the Participant's signature at
the end of this Agreement.
12. NO OBLIGATION TO CONTINUE EMPLOYMENT. This Agreement is
not an agreement of employment or any other relationship. This Agreement does
not guarantee that the Company will retain the Participant for any specific time
period, nor does it modify in any respect the Company's right to terminate or
modify the Participant's relationship or compensation at any time.
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IN WITNESS WHEREOF, the parties have executed this Agreement
on the date and year first above written.
AMERICAN SPECTRUM REALTY, INC.
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[Participant's Name]
By:
Social Security No. ----------------------------------------
------------- Authorized Officer
Home Address:
------------------
Street
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City State Zip Code
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