EXHIBIT 99.1
Option No. ___
[FORM OF DIRECTOR OPTION AGREEMENT]
NON-QUALIFIED STOCK OPTION AGREEMENT
ISSUED UNDER THE
DIVIDEND CAPITAL TOTAL REALTY TRUST INC.
EQUITY INCENTIVE PLAN
A. A STOCK OPTION (the "Option") for a total of [_______] shares of Common
Stock, $0.01 par value per share, of the Dividend Capital Total Realty Trust
Inc., a Maryland corporation (herein the "Company"), is hereby granted as of
[___________, 2___] (the "Option Grant Date"), to [____________] (herein the
"Optionee"), subject in all respects to the terms and provisions of the
Dividend Capital Total Realty Trust Inc. Equity Incentive Plan (the "Plan"),
which has been adopted by the Company and which is incorporated herein by
reference. Defined terms not explicitly defined in this Agreement but defined
in the Plan shall have the same definitions as in the Plan.
B. The option price of the Option as set forth in the Plan is $[for
Initial Grants: Eleven Dollars ($11.00)] $[_______] per share.
C. [For Initial Grants: The Option will vest as follows: 20% of the Shares
as of the Option Grant Date and an additional 20% of the Shares on each of the
first four anniversaries of the Option Grant Date.]
[For Subsequent Grants: 100% of the Shares on the second anniversary of
the Option Grant Date.]
D. The Option herein granted is not intended to qualify as and will not be
treated as an "incentive stock option" within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended.
E. The Option may not be exercised if the issuance of shares of Common
Stock of the Company upon such exercise would constitute a violation of any
applicable Federal or State securities or other law or valid regulation. The
Optionee, as a condition to the Optionee's exercise of the Option, shall
represent to the Company that the shares of Common Stock of the Company that
the Optionee acquires under the Option are being acquired by the Optionee for
investment and not with a present view to distribution or resale, unless
counsel for the Company is then of the opinion that such a representation is
not required under the Securities Act or any other applicable law, regulation,
or rule of any governmental agency. The Common Stock issued upon exercise of
the Option shall bear the following legend if required by counsel for the
Company:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR UNDER ANY STATE SECURITIES PROVISIONS. WITHOUT
SUCH REGISTRATION, SUCH SECURITIES MAY NOT BE SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED AT ANY TIME WHATSOEVER, EXCEPT
UPON DELIVERY TO THE COMPANY OF EVIDENCE SATISFACTORY TO THE COMPANY
AND ITS COUNSEL (INCLUDING, AT THE COMPANY'S OPTION, AN OPINION OF
COUNSEL) THAT REGISTRATION IS NOT REQUIRED FOR SUCH TRANSFER AND THAT
ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE SECURITIES ACT OF
1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR ANY RULES OR
REGULATIONS PROMULGATED THEREUNDER.
F. The Option may not be transferred in any manner otherwise than by will
or the laws of descent and distribution, and may be exercised during the
lifetime of the Optionee only by the Optionee. The terms of the Option shall be
binding upon the executors, administrators, heirs, successors, and assigns of
the Optionee.
G. The term of the Option shall commence on the Option Grant Date and
shall expire on [___________] (the "Expiration Date") [no later than 10 years
after Option Grant Date]; provided, however, that:
(a) if the Optionee's service with the Company terminates
prior to the Expiration Date for any reason other than the Optionee's
removal for Cause, that portion of the Option that is not vested as of
the effective date of such termination of service shall immediately
terminate and that portion of the Option that is vested as of the
effective date of such termination of service shall remain exercisable
until the earlier of (1) the first anniversary of the effective date
of such termination of service and (2) the Expiration Date; and
(b) if the Optionee is removed for Cause, the Option shall
immediately terminate and be forfeited in its entirety as of the
effective date of such removal.
The Administrator may upon the termination of the Optionee's service with
the Company, in its discretion, determine to (i) extend the term of the Option,
and/or (ii) permit the Option to continue to vest, provided that in no event
may the Option be exercised after the Expiration Date.
H. The Option may be exercised, to the extent specified above, by
delivering a notice of exercise (in a form designated by the Company) together
with the exercise price to the Secretary of the Company, or to such other
person as the Company may designate, during regular business hours, together
with such additional documents as the Company may the require pursuant to the
Plan.
I. By exercising the Option, the Optionee agrees that:
(a) as a precondition to the completion of any exercise of
the Option, the Company may require the Optionee to enter an
arrangement providing for the cash payment by the Optionee to the
Company of any tax withholding obligation of the Company arising by
reason of: (1) the exercise of the Option; (2) the lapse of any
substantial risk of forfeiture to which the shares are subject at the
time of exercise; or (3) the disposition of shares acquired upon such
exercise. The Optionee also agrees that any exercise of the Option
shall not be completed and that the Company shall be under no
obligation to issue any Common Stock to the Optionee until such an
arrangement is established or the Company's tax withholding
obligations are satisfied, as determined by the Company; and
(b) the Company (or a representative of the underwriters)
may, in connection with the first underwritten registration of the
offering of any securities of the Company under the Act, require that
the Optionee not sell or otherwise transfer or dispose of any shares
of Common Stock or other securities of the Company during such period
(not to exceed one hundred eighty (180) days) following the effective
date (the "Effective Date") of the registration statement of the
Company filed under the Act as may be requested by the Company or the
representative of the underwriters. The Optionee further agrees that
the Company may impose stop-transfer instructions with respect to
securities subject to the foregoing restrictions until the end of such
period.
Dated as of [_________, 2___].
DIVIDEND CAPITAL TOTAL REALTY TRUST INC.
By: ____________________________________
Title:___________________________________
__________________________________________
OPTIONEE
