Exhibit 10.9
FM PROPERTIES INC.
STOCK OPTION PLAN
SECTION 1
Purpose. The purposes of the FM Properties Inc. Stock
Option Plan (the "Plan") are to promote the interests of FM
Properties Inc. and its stockholders by (i) attracting and
retaining officers and executive and other key employees or
managers of the business of FM Properties Inc. and its
subsidiaries; (ii) motivating such individuals by means of
performance-related incentives to achieve longer-range
performance goals; and (iii) enabling such individuals to
participate in the long-term growth and financial success of FM
Properties Inc. and its subsidiaries.
SECTION 2
Definitions. As used in the Plan, the following terms
shall have the meanings set forth below:
"Award" shall mean any Option, Stock Appreciation
Right, Limited Right or Other Stock-Based Award.
"Award Agreement" shall mean any written agreement,
contract or other instrument or document evidencing any Award,
which may, but need not, be executed or acknowledged by a
Participant.
"Board" shall mean the Board of Directors of FM
Properties Inc.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Committee" shall mean a committee of the Board
designated by the Board to administer the Plan and composed of
not fewer than two directors, each of whom, to the extent
necessary to comply with Rule 16b-3 only, is a "non-employee
director" within the meaning of Rule 16b-3 and, to the extent
necessary to comply with Section 162(m) only, is an "outside
director" under Section 162(m). Until otherwise determined by
the Board, the Committee shall be the Corporate Personnel
Committee of the Board.
"Company" shall mean FM Properties Inc.
"Designated Beneficiary" shall mean the beneficiary
designated by the Participant, in a manner determined by the
Committee, to receive the benefits due the Participant under the
Plan in the event of the Participant's death. In the absence of
an effective designation by the Participant, Designated
Beneficiary shall mean the Participant's estate.
"Eligible Individual" shall mean (i) any person
providing services as an officer or an executive or key manager
of the Company or a Subsidiary, whether or not employed by such
entity, (ii) any employee of the Company or a Subsidiary,
including any director who is also an employee of the Company or
a Subsidiary, and (iii) any person who has agreed in writing to
become a person described in clauses (i) or (ii) within not more
than 30 days following the date of grant of such person's first
Award under the Plan.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended from time to time.
"FTX" shall mean Freeport-McMoRan Inc.
"Incentive Stock Option" shall mean an option granted
under Section 6 of the Plan that is intended to meet the
requirements of Section 422 of the Code or any successor
provision thereto.
"Limited Right" shall mean any right granted under
Section 8 of the Plan.
"Nonqualified Stock Option" shall mean an option
granted under Section 6 of the Plan that is not intended to be an
Incentive Stock Option.
"Offer" shall mean any tender offer, exchange offer or
series of purchases or other acquisitions, or any combination of
those transactions, as a result of which any person, or any two
or more persons acting as a group, and all affiliates of such
person or persons, shall own beneficially more than 40% of the
Shares outstanding (exclusive of Shares held in the Company's
treasury or by the Company's Subsidiaries).
"Offer Price" shall mean the highest price per Share
paid in any Offer that is in effect at any time during the period
beginning on the ninetieth day prior to the date on which a
Limited Right is exercised and ending on and including the date
of exercise of such Limited Right. Any securities or property
that comprise all or a portion of the consideration paid for
Shares in the Offer shall be valued in determining the Offer
Price at the higher of (i) the valuation placed on such
securities or property by the person or persons making such
Offer, or (ii) the valuation, if any, placed on such securities
or property by the Committee or the Board.
"Option" shall mean an Incentive Stock Option or a
Nonqualified Stock Option.
"Other Stock-Based Award" shall mean any right or award
granted under Section 9 of the Plan.
"Participant" shall mean any Eligible Individual
granted an Award under the Plan.
"Partnership" shall mean FM Properties Operating Co.
"Person" shall mean any individual, corporation,
partnership, association, joint-stock company, trust,
unincorporated organization, government or political subdivision
thereof or other entity.
"Rule 16b-3" shall mean Rule 16b-3 promulgated by the
SEC under the Exchange Act, or any successor rule or regulation
thereto as in effect from time to time.
"SAR" shall mean any Stock Appreciation Right.
"SEC" shall mean the Securities and Exchange
Commission, including the staff thereof, or any successor
thereto.
"Section 162(m)" shall mean Section 162(m) of the Code
and all regulations promulgated thereunder as in effect from time
to time.
"Shares" shall mean the shares of common stock, par
value $.01 per share, of the Company, and such other securities
of the Company or a Subsidiary as the Committee may from time to
time designate.
"Stock Appreciation Right" shall mean any right granted
under Section 7 of the Plan.
"Subsidiary" shall mean the Partnership and any
corporation or other entity in which the Company possesses
directly or indirectly equity interests representing at least 50%
of the total ordinary voting power or at least 50% of the total
value of all classes of equity interests of such corporation or
other entity.
SECTION 3
Administration. The Plan shall be administered by the
Committee. Subject to the terms of the Plan and applicable law,
and in addition to other express powers and authorizations
conferred on the Committee by the Plan, the Committee shall have
full power and authority to: (i) designate Participants; (ii)
determine the type or types of Awards to be granted to an
Eligible Individual; (iii) determine the number of Shares to be
covered by, or with respect to which payments, rights or other
matters are to be calculated in connection with, Awards; (iv)
determine the terms and conditions of any Award; (v) determine
whether, to what extent, and under what circumstances Awards may
be settled or exercised in cash, whole Shares, other whole
securities, other Awards, other property or other cash amounts
payable by the Company upon the exercise of that or other Awards,
or canceled, forfeited or suspended and the method or methods by
which Awards may be settled, exercised, canceled, forfeited or
suspended; (vi) determine whether, to what extent, and under what
circumstances cash, Shares, other securities, other Awards, other
property, and other amounts payable by the Company with respect
to an Award shall be deferred either automatically or at the
election of the holder thereof or of the Committee; (vii)
interpret and administer the Plan and any instrument or agreement
relating to, or Award made under, the Plan; (viii) establish,
amend, suspend or waive such rules and regulations and appoint
such agents as it shall deem appropriate for the proper
administration of the Plan; and (ix) make any other determination
and take any other action that the Committee deems necessary or
desirable for the administration of the Plan. Unless otherwise
expressly provided in the Plan, all designations, determinations,
interpretations and other decisions under or with respect to the
Plan or any Award shall be within the sole discretion of the
Committee, may be made at any time and shall be final, conclusive
and binding upon all Persons, including the Company, any
Subsidiary, any Participant, any holder or beneficiary of any
Award, any stockholder of the Company and any Eligible
Individual.
SECTION 4
Eligibility. Any Eligible Individual who is not a
member of the Committee shall be eligible to be granted an Award.
SECTION 5
(a) Shares Available for Awards. Subject to
adjustment as provided in Section 5(b):
(i) Calculation of Number of Shares Available. The
number of Shares with respect to which Awards may be granted
under the Plan shall be 850,000. If, after the effective date of
the Plan, an Award granted under the Plan expires or is
exercised, forfeited, canceled or terminated without the delivery
of Shares, then the Shares covered by such Award or to which such
Award relates, or the number of Shares otherwise counted against
the aggregate number of Shares with respect to which Awards may
be granted, to the extent of any such expiration, exercise,
forfeiture, cancellation or termination without the delivery of
Shares, shall again be, or shall become, Shares with respect to
which Awards may be granted. Notwithstanding the foregoing and
subject to adjustment as provided in Section 5(b), the aggregate
number of Shares in respect of which Awards may be granted under
the Plan to any Eligible Individual shall not exceed 250,000 in
any year.
(ii) Substitute Awards. Any Shares delivered by the
Company, any Shares with respect to which Awards are made by the
Company, or any Shares with respect to which the Company becomes
obligated to make Awards, through the assumption of, or in
substitution for, outstanding awards previously granted by an
acquired company or a company with which the Company combines,
shall not be counted against the Shares available for Awards
under the Plan.
(iii) Sources of Shares Deliverable Under Awards. Any
Shares delivered pursuant to an Award may consist of authorized
and unissued Shares or of treasury Shares, including Shares held
by the Company or a Subsidiary and acquired in the open market or
otherwise obtained by the Company or a Subsidiary.
(b) Adjustments. In the event that the Committee
determines that any dividend or other distribution (whether in
the form of cash, Shares, Partnership interests, Subsidiary
securities, other securities or other property),
recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase or exchange of Shares or other securities
of the Company, issuance of warrants or other rights to purchase
Shares or other securities of the Company, or other similar
corporate transaction or event affects the Shares such that an
adjustment is determined by the Committee to be appropriate to
prevent dilution or enlargement of the benefits or potential
benefits intended to be made available under the Plan, then the
Committee may, in its sole discretion and in such manner as it
may deem equitable, adjust any or all of (i) the number and type
of Shares (or other securities or property) with respect to which
Awards may be granted, (ii) the number and type of Shares (or
other securities or property) subject to outstanding Awards, and
(iii) the grant or exercise price with respect to any Award or,
if deemed appropriate, make provision for a cash payment to the
holder of an outstanding Award or, if deemed appropriate, adjust
outstanding Awards to provide the rights contemplated by Section
9(b) hereof; provided, in each case, that with respect to Awards
of Incentive Stock Options no such adjustment shall be authorized
to the extent that such authority would cause the Plan to violate
Section 422(b)(1) of the Code or any successor provision thereto;
and provided further, that the number of Shares subject to any
Award denominated in Shares shall always be a whole number.
SECTION 6
(a) Stock Options. Subject to the provisions of the
Plan, the Committee shall have sole and complete authority to
determine the Eligible Individuals to whom Options shall be
granted, the number of Shares to be covered by each Option, the
option price therefor and the conditions and limitations
applicable to the exercise of the Option. The Committee shall
have the authority to grant Incentive Stock Options, Nonqualified
Stock Options or both. In the case of Incentive Stock Options,
the terms and conditions of such grants shall be subject to and
comply with such rules as may be required by Section 422 of the
Code, as from time to time amended, and any implementing
regulations. Except in the case of an Option granted in
assumption of or substitution for an outstanding award of a
company acquired by the Company or with which the Company
combines, the exercise price of any Option granted under this
Plan shall not be less than 100% of the fair market value of the
underlying Shares on the date of grant.
(b) Exercise. Each Option shall be exercisable at
such times and subject to such terms and conditions as the
Committee may, in its sole discretion, specify in the applicable
Award Agreement or thereafter, provided, however, that in no
event may any Option granted hereunder be exercisable after the
expiration of 10 years after the date of such grant. The
Committee may impose such conditions with respect to the exercise
of Options, including without limitation, any condition relating
to the application of Federal or state securities laws, as it may
deem necessary or advisable.
(c) Payment. No Shares shall be delivered pursuant to
any exercise of an Option until payment in full of the option
price therefor is received by the Company. Such payment may be
made in cash, or its equivalent, or, if and to the extent
permitted by the Committee, by applying cash amounts payable by
the Company upon the exercise of such Option or other Awards by
the holder thereof or by exchanging whole Shares owned by such
holder (which are not the subject of any pledge or other security
interest), or by a combination of the foregoing, provided that
the combined value of all cash, cash equivalents, cash amounts so
payable by the Company upon exercises of Awards and the fair
market value of any such whole Shares so tendered to the Company,
valued (in accordance with procedures established by the
Committee) as of the effective date of such exercise, is at least
equal to such option price.
SECTION 7
(a) Stock Appreciation Rights. Subject to the
provisions of the Plan, the Committee shall have sole and
complete authority to determine the Eligible Individuals to whom
Stock Appreciation Rights shall be granted, the number of Shares
to be covered by each Stock Appreciation Right, the grant price
thereof and the conditions and limitations applicable to the
exercise thereof. Stock Appreciation Rights may be granted in
tandem with another Award, in addition to another Award, or
freestanding and unrelated to any other Award. Stock
Appreciation Rights granted in tandem with or in addition to an
Option or other Award may be granted either at the same time as
the Option or other Award or at a later time. Stock Appreciation
Rights shall not be exercisable after the expiration of 10 years
after the date of grant. Except in the case of a Stock
Appreciation Right granted in assumption of or substitution for
an outstanding award of a company acquired by the Company or with
which the Company combines, the grant price of any Stock
Appreciation Right granted under this Plan shall not be less than
100% of the fair market value of the Shares covered by such Stock
Appreciation Right on the date of grant or, in the case of a
Stock Appreciation Right granted in tandem with a then
outstanding Option or other Award, on the date of grant of such
related Option or Award.
(b) A Stock Appreciation Right shall entitle the
holder thereof to receive an amount equal to the excess, if any,
of the fair market value of a Share on the date of exercise of
the Stock Appreciation Right over the grant price. Any Stock
Appreciation Right shall be settled in cash, unless the Committee
shall determine at the time of grant of a Stock Appreciation
Right that it shall or may be settled in cash, Shares or a
combination of cash and Shares.
SECTION 8
(a) Limited Rights. Subject to the provisions of the
Plan, the Committee shall have sole and complete authority to
determine the Eligible Individuals to whom Limited Rights shall
be granted, the number of Shares to be covered by each Limited
Right, the grant price thereof and the conditions and limitations
applicable to the exercise thereof. Limited Rights may be
granted in tandem with another Award, in addition to another
Award, or freestanding and unrelated to any Award. Limited
Rights granted in tandem with or in addition to an Award may be
granted either at the same time as the Award or at a later time.
Limited Rights shall not be exercisable after the expiration of
10 years after the date of grant and shall only be exercisable
during a period determined at the time of grant by the Committee
beginning not earlier than one day and ending not more than
ninety days after the expiration date of an Offer. Except in the
case of a Limited Right granted in assumption of or substitution
for an outstanding award of a company acquired by the Company or
with which the Company combines, the grant price of any Limited
Right granted under this Plan shall not be less than 100% of the
fair market value of the Shares covered by such Limited Right on
the date of grant or, in the case of a Limited Right granted in
tandem with a then outstanding Option or other Award, on the date
of grant of such related Option or Award.
(b) A Limited Right shall entitle the holder thereof
to receive an amount equal to the excess, if any, of the Offer
Price on the date of exercise of the Limited Right over the grant
price. Any Limited Right shall be settled in cash, unless the
Committee shall determine at the time of grant of a Limited Right
that it shall or may be settled in cash, Shares or a combination
of cash and Shares.
SECTION 9
(a) Other Stock-Based Awards. The Committee is hereby
authorized to grant to Eligible Individuals an "Other Stock-Based
Award", which shall consist of an Award, the value of which is
based in whole or in part on the value of Shares, that is not an
instrument or Award specified in Sections 6 through 8 of this
Plan. Other Stock-Based Awards may be awards of Shares or may be
denominated or payable in, valued in whole or in part by
reference to, or otherwise based on or related to, Shares
(including, without limitation, securities convertible or
exchangeable into or exercisable for Shares), as deemed by the
Committee consistent with the purposes of the Plan. The
Committee shall determine the terms and conditions of any such
Other Stock-Based Award. Except in the case of an Other
Stock-Based Award granted in assumption of or in substitution for
an outstanding award of a company acquired by the Company or with
which the Company combines, the price at which securities may be
purchased pursuant to any Other Stock-Based Award granted under
this Plan, or the provision, if any, of any such Award that is
analogous to the purchase or exercise price, shall not be less
than 100% of the fair market value of the securities to which
such Award relates on the date of grant.
(b) Dividend Equivalents. In the sole and complete
discretion of the Committee, an Award, whether made as an Other
Stock-Based Award under this Section 9 or as an Award granted
pursuant to Sections 6 through 8 hereof, may provide the holder
thereof with dividends or dividend equivalents, payable in cash,
Shares, Partnership interests, Subsidiary securities, other
securities or other property on a current or deferred basis.
SECTION 10
(a) Amendments to the Plan. The Board may amend,
suspend or terminate the Plan or any portion thereof at any time,
provided that no amendment shall be made without stockholder
approval if such approval is necessary to comply with any tax or
regulatory requirement. Notwithstanding anything to the
contrary contained herein, the Committee may amend the Plan in
such manner as may be necessary for the Plan to conform with
local rules and regulations in any jurisdiction outside the
United States.
(b) Amendments to Awards. The Committee may amend,
modify or terminate any outstanding Award with the holder's
consent at any time prior to payment or exercise in any manner
not inconsistent with the terms of the Plan, including without
limitation, (i) to change the date or dates as of which an Award
becomes exercisable, or (ii) to cancel an Award and grant a new
Award in substitution therefor under such different terms and
conditions as it determines in its sole and complete discretion
to be appropriate.
(c) Adjustment of Awards Upon the Occurrence of
Certain Unusual or Nonrecurring Events. The Committee is hereby
authorized to make adjustments in the terms and conditions of,
and the criteria included in, Awards in recognition of unusual or
nonrecurring events (including, without limitation, the events
described in Section 5(b) hereof) affecting the Company, or the
financial statements of the Company or any Subsidiary, or of
changes in applicable laws, regulations, or accounting
principles, whenever the Committee determines that such
adjustments are appropriate to prevent dilution or enlargement of
the benefits or potential benefits intended to be made available
under the Plan.
(d) Cancellation. Any provision of this Plan or any
Award Agreement to the contrary notwithstanding, the Committee
may cause any Award granted hereunder to be canceled in
consideration of a cash payment or alternative Award made to the
holder of such canceled Award equal in value to such canceled
Award. The determinations of value under this subparagraph shall
be made by the Committee in its sole discretion.
SECTION 11
(a) Delegation. Subject to the terms of the Plan and
applicable law, the Committee may delegate to one or more
officers of the Company the authority, subject to such terms and
limitations as the Committee shall determine, to grant Awards to,
or to cancel, modify or waive rights with respect to, or to
alter, discontinue, suspend, or terminate Awards held by,
Eligible Individuals who are not officers or directors of the
Company for purposes of Section 16 of the Exchange Act, or any
successor section thereto, or who are otherwise not subject to
such Section.
(b) Award Agreements. Each Award hereunder shall be
evidenced by a writing delivered to the Participant that shall
specify the terms and conditions thereof and any rules applicable
thereto, including but not limited to the effect on such Award of
the death, retirement or other termination of employment of the
Participant and the effect thereon, if any, of a change in
control of the Company or any Subsidiary.
(c) Withholding. A Participant may be required to
pay to the Company, and the Company shall have the right to
deduct from all amounts paid to a Participant (whether under the
Plan or otherwise), any taxes required by law to be paid or
withheld in respect of Awards hereunder to such Participant. The
Committee may provide for additional cash payments to holders of
Awards to defray or offset any tax arising from the grant,
vesting, exercise or payment of any Award.
(d) Transferability. No Awards granted hereunder may
be transferred, pledged, assigned or otherwise encumbered by a
Participant except: (i) by will; (ii) by the laws of descent and
distribution; (iii) pursuant to a domestic relations order, as
defined in the Code, if permitted by the Committee and so
provided in the Award Agreement or an amendment thereto; or (iv)
if permitted by the Committee and so provided in the Award
Agreement or an amendment thereto, Options and Limited Rights
granted in tandem therewith may be transferred or assigned (a) to
Immediate Family Members, (b) to a partnership in which Immediate
Family Members, or entities in which Immediate Family Members are
the owners, members or beneficiaries, as appropriate, are the
partners, (c) to a limited liability company in which Immediate
Family Members, or entities in which Immediate Family Members are
the owners, members or beneficiaries, as appropriate, are the
members, or (d) to a trust for the benefit of Immediate Family
Members; provided, however, that no more than a de minimus
beneficial interest in a partnership, limited liability company
or trust described in (b), (c) or (d) above may be owned by a
person who is not an Immediate Family Member or by an entity that
is not beneficially owned solely by Immediate Family Members.
"Immediate Family Members" shall be defined as the spouse and
natural or adopted children or grandchildren of the Participant
and their spouses. To the extent that an Incentive Stock Option
is permitted to be transferred during the lifetime of the
Participant, it shall be treated thereafter as a Nonqualified
Stock Option. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of Awards, or levy of
attachment or similar process upon Awards not specifically
permitted herein, shall be null and void and without effect. The
designation of a Designated Beneficiary shall not be a violation
of this Section 11(d).
(e) Share Certificates. All certificates for Shares
or other securities delivered under the Plan pursuant to any
Award or the exercise thereof shall be subject to such stop
transfer orders and other restrictions as the Committee may deem
advisable under the Plan or the rules, regulations, and other
requirements of the SEC, any stock exchange upon which such
Shares or other securities are then listed, and any applicable
federal or state laws, and the Committee may cause a legend or
legends to be put on any such certificates to make appropriate
reference to such restrictions.
(f) No Limit on Other Compensation Arrangements.
Nothing contained in the Plan shall prevent the Company from
adopting or continuing in effect other compensation arrangements,
which may, but need not, provide for the grant of options, stock
appreciation rights and other types of Awards provided for
hereunder (subject to stockholder approval of any such
arrangement if approval is required), and such arrangements may
be either generally applicable or applicable only in specific
cases.
(g) No Right to Employment. The grant of an Award
shall not be construed as giving a Participant the right to be
engaged or employed by or retained in the employ of FTX, the
Company or any Subsidiary. FTX, the Company or any Subsidiary
may at any time dismiss a Participant from engagement or
employment, free from any liability or any claim under the Plan,
unless otherwise expressly provided in the Plan or in any Award
Agreement or any agreement relating to the engagement or
employment of the Participant by FTX, the Company or any
Subsidiary. No Eligible Individual, Participant or other person
shall have any claim to be granted any Award, and there is no
obligation for uniformity of treatment of Eligible Individuals,
Participants or holders or beneficiaries of Awards.
(h) Governing Law. The validity, construction, and
effect of the Plan, any rules and regulations relating to the
Plan and any Award Agreement shall be determined in accordance
with the laws of the State of Delaware.
(i) Severability. If any provision of the Plan or any
Award is or becomes or is deemed to be invalid, illegal, or
unenforceable in any jurisdiction or as to any Person or Award,
or would disqualify the Plan or any Award under any law deemed
applicable by the Committee, such provision shall be construed or
deemed amended to conform to applicable laws, or if it cannot be
construed or deemed amended without, in the determination of the
Committee, materially altering the intent of the Plan or the
Award, such provision shall be stricken as to such jurisdiction,
Person or Award and the remainder of the Plan and any such Award
shall remain in full force and effect.
(j) No Trust or Fund Created. Neither the Plan nor
any Award shall create or be construed to create a trust or
separate fund of any kind or a fiduciary relationship between the
Company and a Participant or any other Person. To the extent
that any Person acquires a right to receive payments from the
Company pursuant to an Award, such right shall be no greater than
the right of any unsecured general creditor of the Company.
(k) No Fractional Shares. No fractional Shares shall
be issued or delivered pursuant to the Plan or any Award, and the
Committee shall determine whether cash, other securities or other
property shall be paid or transferred in lieu of any fractional
Shares or whether such fractional Shares or any rights thereto
shall be canceled, terminated, or otherwise eliminated.
(l) Headings. Headings are given to the subsections
of the Plan solely as a convenience to facilitate reference.
Such headings shall not be deemed in any way material or relevant
to the construction or interpretation of the Plan or any
provision thereof.
SECTION 12
Effective Date of the Plan. The Plan shall be
effective as of the date of its approval by the Board, provided
the Plan is approved by the stockholders of the Company at the
first annual meeting of stockholders of the Company occurring
subsequent to such date.
SECTION 13
Term of the Plan. No Award shall be granted under the
Plan after the tenth anniversary of the effective date of the
Plan; however, unless otherwise expressly provided in the Plan or
in an applicable Award Agreement, any Award theretofore granted
may, and the authority of the Committee to amend, alter, adjust,
suspend, discontinue, or terminate any such Award or to waive any
conditions or rights under any such Award shall, extend beyond
such date.