EXHIBIT 10.12
[FORM AGREEMENT FOR 2004 PLAN - EXECUTIVE OFFICERS]
[NON-QUALIFIED STOCK OPTION GRANT]
STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of the ____ day of ______ ______, by and
between DEVELOPERS DIVERSIFIED REALTY CORPORATION, an Ohio corporation (the
"Company"), and _____________________________, an individual (the "Holder").
W I T N E S S E T H:
WHEREAS, the Company desires to provide the Holder with an option to
purchase _______________ Common Shares, without par value, of the Company
("Shares"), pursuant to the Company's 2004 Equity-Based Award Plan (the "Plan")
(terms not defined in this agreement will have the meaning set forth in the
Plan); and
WHEREAS, the Holder desires to accept such option;
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the parties hereto hereby agree as follows:
1. Grant of Option. The Company does hereby irrevocably grant to the
Holder, and the Holder does hereby accept, the right and option (the "Option")
to purchase, at the option of the Holder, ______________ Shares at the exercise
price per Share of $ ________ and upon and subject to the other terms and
conditions hereof and the Plan.
2. Term of the Option; Vesting. The Option is exercisable, in whole
or in part, once vested, in accordance with the following schedule. If the
Holder is then employed by the Company, the Option shall vest as follows:
Date No. of Shares Vesting
__________ _____________
__________ _____________
__________ _____________
Shares for which the Option has become exercisable shall be referred to herein
as "Vested Shares," and Shares for which the Option has not become exercisable
shall be referred to herein as "Unvested Shares." The Option shall terminate on
the tenth anniversary of the date hereof and must be exercised, if at all and to
the extent exercisable, on or before such date and shall not thereafter be
exercisable, notwithstanding anything herein to the contrary. Notwithstanding
anything contained herein to the contrary, it shall be a condition to the
Holder's right to exercise the Option with respect to any Vested Shares that
there shall have been filed with the Securities and Exchange Commission an
effective registration statement on Form S-8 (or such other form as the Company
shall deem necessary) with respect to the Shares to be received upon exercise.
3. Exercise. Subject to the other terms and conditions hereof, the
Option shall be exercisable from time to time by written notice to the Company
(in the form required by the Company) which shall:
(a) state that the Option is thereby being exercised, the number of
Shares with respect to which the Option is being exercised, each
person in whose name any certificates for the Shares should be
registered and such person's address and social security number;
(b) be signed by the person or persons entitled to exercise the
Option and, if the Option is being exercised by anyone other than
the Holder, be accompanied by proof satisfactory to counsel for the
Company of the right of such person or persons to exercise the
Option under the Plan and all applicable laws and regulations; and
(c) be accompanied by such representations, warranties or agreements
with respect to the investment intent of such person or persons
exercising the Option as the Company may reasonably request, in form
and substance satisfactory to counsel for the Company.
As conditions to the exercise of the Option and the obligation of the Company to
issue Shares upon the exercise thereof, the proposed recipient of the Shares
shall make any representation or warranty to comply with any applicable law or
regulation or to confirm any factual matters reasonably requested by the Company
or its counsel.
Upon exercise of the Option and the satisfaction of all conditions thereto, the
Company shall deliver a certificate or certificates for Shares to the specified
person or persons at the specified time upon receipt of the aggregate exercise
price for such Shares by any method of payment authorized by the Plan.
4. Termination of Option. Upon termination of the Holder's
employment with the Company, the Option will be governed as follows:
(a) Termination by Death. Subject to Sections 5(b)(3) and 5(c) of
the Plan, if the Holder's employment with the Company or any
Subsidiary or Affiliate terminates by reason of death, the Option
shall become immediately and automatically vested and exercisable.
If termination of the Holder's employment is due to death, then the
Option may thereafter be exercised by the estate of the Holder
(acting through its fiduciary) at any time after the date of the
Holder's death (or, subject to Section 13 of the Plan, as the
Committee may specify after grant). Notwithstanding the foregoing,
in no event will the Option be exercisable after the tenth
anniversary of the date hereof.
(b) Termination by Reason of Disability. Subject to Sections 5(b)(3)
and 5(c), if the Holder's employment with the Company or any
Subsidiary or Affiliate terminates by reason of Disability, the
Option shall become immediately and automatically vested and
exercisable. If termination of the Holder's employment is due to
Disability, then the Option may thereafter be exercised by the
Holder or by the Holder's duly authorized legal representative if
the Holder is unable to exercise the Option as a result of the
Holder's Disability, at any time after the date of such termination
of employment (or, subject to Section 13 of the Plan, such other
period as the Committee may specify after grant); and if the Holder
dies before the Option is exercised, any unexercised Option held by
the Holder shall thereafter be exercisable by the estate of the
Holder (acting through its fiduciary) at any time after the date of
the Holder's death (or, subject to Section 13 of the Plan, such
other period as the Committee may specify after grant).
Notwithstanding
the foregoing, in no event will the Option be exercisable after the
tenth anniversary of the date hereof.
(c) Termination for Retirement. Subject to Section 5(b)(3) and 5(c),
if the Holder's employment with the Company or any Subsidiary or
Affiliate terminates by reason of Retirement, the Option shall
become immediately and automatically vested and exercisable. If
termination of the Holder's employment is due to Retirement, then
the option may thereafter be exercised by the Holder at any time
after the date of such Retirement (or, subject to Section 13 of the
Plan, such other period as the Committee may specify after grant),
if the Holder is unable to exercise the Option as a result of the
Holder's Disability, then the Option may thereafter be exercised by
the Holder's duly authorized legal representative, at any time after
the date of such Retirement (or, subject to Section 13 of the Plan,
such other period as the Committee may specify after grant); and if
the Holder dies before the Option is exercised, any unexercised
Option held by the Holder shall thereafter be exercisable by the
estate of the Holder (acting through its fiduciary) at any time
after the date of the Holder's death (or, subject to Section 13 of
the Plan, such other period as the Committee may specify after
grant). Notwithstanding the foregoing, in no event will the Option
be exercisable after the tenth anniversary of the date hereof.
(d) Termination for Cause. If the Holder's employment with the
Company or any Subsidiary or Affiliate terminates for Cause, the
Option will be governed by Section 5(b)(6) of the Plan.
(e) Other Termination. Unless otherwise determined by the Committee
after the time of granting the Option, if the Holder's employment
with the Company or any Subsidiary or Affiliate terminates for any
reason other than death, Disability, Retirement, or for Cause, any
Vested Shares (and any Shares which become Vested Shares within
three months after the date of the Holder's termination of
employment) must be exercised by the Holder within three months
after the date the Holder's employment terminates. Notwithstanding
the foregoing, in no event will the Option be exercisable after the
tenth anniversary of the date hereof. The balance of the Option
shall be forfeited.
(f) Leave of Absence. In the event the Holder is granted a leave of
absence by the Company or any Subsidiary or Affiliate to enter
military service or because of sickness, the Option will be governed
by Section 5(b)(6) of the Plan.
5. Transferability. The Holder may transfer the Option, during his
or her lifetime (i) to one or more members of such Holder's family, (ii) to one
or more trusts for the benefit of one or more of such Holder's family, (iii) to
a partnership or partnerships of members of such Holder's family or (iv) to a
charitable organization as defined in Section 501(c)(3) of the Code, provided
that no consideration is paid for the transfer and that the transfer would not
result in the loss of any exemption under Rule 16b-3 of the Securities Exchange
Act of 1934, as amended, with respect to any Option. The Option and the Holder's
rights therein are also transferable by will or the laws of descent and
distribution or pursuant to a qualified domestic relations order (as defined in
the Internal Revenue Code or the Employment Retirement Income Security Act of
1974, as amended). The transferee of any Option will be subject to all
restrictions, terms and conditions applicable to the Option prior to its
transfer.
6. Taxes. The Holder hereby agrees to pay to the Company, in
accordance with the terms of the Plan, any federal, state or local taxes of any
kind required by law to be withheld and remitted by the Company with respect to
an exercise of the Option. The Holder may satisfy such tax obligation, in whole
or in part, by (i) electing to have the Company withhold a portion of the Shares
otherwise to be delivered upon exercise of (or the lapse of restrictions
relating to) the Option with a Fair Market Value equal to the amount of such
taxes or (ii) delivering to the Company Shares other than Shares issuable upon
exercise of (or the lapse of restrictions relating to) the Option with a Fair
Market Value equal to the amount of such taxes. The election, if any, must be
made on or before the date that the amount of tax to be withheld is determined.
If the Holder does not make such payment to the Company, the Company shall have
the right to withhold from any payment of any kind otherwise due to the Holder
from the Company, any federal, state or local taxes of any kind required by law
to be withheld with respect to an exercise of the Option or the Shares which are
the subject of such Option.
7. Deferral. The Holder may, upon exercise of the Option, and in his
or her sole discretion, elect to defer the receipt of any Shares to be received
as a result of the exercise of the Option. Subject to any exceptions adopted by
the Committee, such request must generally be made at least one year prior to
exercise of the Option.
8. Subject to the Plan. This Agreement is made and the Option
evidenced hereby is granted under and pursuant to, and they are expressly made
subject to all of the terms and conditions of, the Plan, notwithstanding
anything herein to the contrary. The Holder hereby acknowledges receipt of a
copy of the Plan and that the Holder has read and understands the terms and
conditions of the Plan.
9. Intent. The Option is intended to be treated as a Non-Qualified
Stock Option and not as an incentive stock option within the meaning of Section
422 of the Internal Revenue Code. The Option shall be construed and exercised
consistent with such intention.
10. Securities Law Compliance. Notwithstanding any provision of this
Agreement to the contrary, the Option shall not be exercisable unless, at the
time the Holder attempts to exercise the Option, in the opinion of counsel for
the Company, all applicable securities laws, rules and regulations have been
complied with. The Holder agrees that the Company may impose such restrictions
on the Shares as are deemed advisable by the Company, including, without
limitation, restrictions relating to listing or trading requirements. The Holder
further agrees that certificates representing the Shares may bear such legends
and statements as the Company shall deem appropriate or advisable to assure,
among other things, compliance with applicable securities laws, rules and
regulations.
11. Investment Representation. The Holder agrees that any Shares
which the Holder may acquire by virtue of the Option may not be transferred,
sold, assigned, pledged, hypothecated or otherwise disposed of by the Holder
unless (i) a registration statement or post-effective amendment to a
registration statement under the Securities Act of 1933, as amended, with
respect to such Shares has become effective so as to permit the sale or other
disposition of such Shares by the Holder; or (ii) there is presented to the
Company an opinion of counsel satisfactory to the Company to the effect that the
sale or other proposed disposition of such Shares by the Holder may lawfully be
made otherwise than pursuant to an effective registration statement or
post-effective amendment to a registration statement relating to the such Shares
under the Securities Act of 1933, as amended.
12. Rights of the Holder. The granting of the Option shall in and of
itself not confer any right on the Holder to continue in the employ of the
Company and shall not interfere in any way with the right of the Company to
terminate the Holder's employment at any time, subject to the terms of any
employment agreement between the Company and the Holder. The Holder shall have
no dividend, voting or other rights of a stockholder with respect to the Shares
which are subject to the Option prior to the
purchase of such Shares upon exercise of the Option and the execution and
delivery of all other documents and instruments deemed necessary or desirable by
the Company.
13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Ohio, except to the extent otherwise
governed by Federal law.
IN WITNESS WHEREOF, the parties have subscribed their names hereto
as of the date first above written.
DEVELOPERS DIVERSIFIED REALTY
CORPORATION, an Ohio corporation
By: ______________________________
Name: ____________________________
Title: ___________________________
