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Exhibit 10.5
1997 Options
Carey Diversified LLC
50 Rockefeller Plaza
New York, NY 10020
NONSTATUTORY LISTED SHARE OPTION AGREEMENT
CAREY DIVERSIFIED LLC, a Delaware limited liability company (the "Company"), and
_______________, a non-employee Director of the Company (the "Optionee"), for
good and valuable consideration the receipt and adequacy of which are hereby
acknowledged and intending to be legally bound hereby, agree as follows:
1. Grant of Option. The Company hereby confirms the grant to the Optionee on
_______________, 1997 (the "Date of Grant") of an option (the "Option") to
purchase 4,000 Listed Shares of the Company (the "Listed Shares" or
"Shares") at an option price of $20.00 per Share, under and subject to the
terms and conditions of the Company's 1997 Non-Employee Directors'
Incentive Plan (the "Plan") and this Agreement. The Plan is incorporated
herein by reference and made a part hereof as though set forth in full
herein. Terms which are capitalized herein but which are not defined
herein have the same meaning as in the Plan unless the context otherwise
requires.
The Option confirmed hereby is a "nonstatutory Listed Share Option", i.e.,
a Listed Share Option which does not qualify under Section 422 of the
Internal Revenue Code of 1986, as amended. Subject to the provisions of
(i) Sections 4(C) and 4(E) of the Plan regarding the periods during which
Listed Share Options may be exercised upon the optionee ceasing to be a
Director of the Company (including death of the Optionee) and (ii) Section
6(B) of the Plan regarding the exercise of Listed Share Options following
a Change in Control Event (as defined in the Plan), the Option is
exercisable as follows:
On and after __________________, 1998 as to one-third of
the shares subject to the Option;
On and after __________________, 1999 as to an additional
one-third of the shares subject to the Option; and
On and after __________________, 2000 as to the final one-third of
the shares subject to the Option.
2. Acceptance of Grant of Option. The Optionee accepts the grant of the
Option confirmed hereby, acknowledges having received a copy of the Plan
and agrees to be bound by the terms and provisions of the Plan, as the
Plan may be amended from time to time; provided, however, that no
amendment or termination of the Plan shall, without the written consent of
the Optionee, adversely affect the rights of the Optionee with respect to
the Option.
3. Option Not Transferable. Unless otherwise determined by the Committee, (a)
the Option shall not be transferable otherwise than by will or by the laws
of descent and distribution, and (b) the Option shall be exercisable
during the lifetime of the Optionee only by the Optionee or the Optionee's
guardian or legal representative.
4. Procedure for Exercise of Option. (a) The Option may be exercised only by
delivery by the Optionee of written notice to the Company in the form
contained in Exhibit B attached hereto. Each exercise form must set forth
the number of Listed Shares as to
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which the Option is exercised, must be dated and signed by the person
exercising the Option and must be accompanied by (i) a cash payment (which
may be made by means of a check, bank draft or money order) in United
States dollars, (ii) shares of already-owned Listed Shares at the fair
market value of such shares on the date of exercise, (iii) the optionee
delivering to the Company a properly executed exercise notice together
with irrevocable instructions to a broker to promptly deliver to the
Company cash or a check payable and acceptable to the Company to pay the
purchase price; provided that in the event the optionee chooses to pay the
purchase price as so provided, the optionee and the broker shall comply
with such procedures and enter into such agreements of indemnity and other
agreements as the Committee shall prescribe as a condition of such payment
procedure, or (iv) any combination of cash and such shares, in the amount
of the full purchase price for the number of Listed Shares as to which the
Option is exercised; provided, however, that any portion of --------
------- the option price representing a fraction of a share shall be paid
by the Optionee in cash and no already-owned Listed Shares which have been
held for less than six months may be delivered in payment of the option
price. The Optionee may choose to exercise an Option by participating in a
broker or other agent-sponsored exercise or financing program. If the
Optionee so chooses, the Company will deliver the Listed Shares acquired
pursuant to the exercise of the Option to the broker or other agent, as
designated by the Optionee, and will cooperate with all other reasonable
procedures of the broker or other agent to permit participation by the
Optionee in the sponsored exercise or financing program. Notwithstanding
any procedures of the broker or other agent-sponsored exercise or
financing program, if the option price is paid in cash, no exercise of an
Option shall be deemed to occur and no Listed Shares will be issued until
the Company has received full payment in cash (including check, bank
draft, or money order) for the option price from the broker or other
agent.
The Company shall advise any person exercising the Option in whole or in
part with shares of already-owned Listed Shares as to the amount of any
cash required to be paid to the Company representing a fraction of a
share, and such person will be required to pay any such cash directly to
the Company before any distribution of certificates representing Listed
Shares will be made. The person exercising the Option should execute the
form of assignment on the back of the certificate or should deliver an
executed Assignment Separate from Certificate with respect to each share
certificate delivered in payment of the option price. Delivery of shares
of already-owned Listed Shares in payment of the option price may also be
accomplished through the effective transfer to the Company of shares held
through a broker or other agent.
If a person other than the Optionee exercises the Option, the exercise
material must include proof satisfactory to the Company of the right of
such person to exercise the Option, and the signature on all certificates
or Assignments Separate from Certificate for shares delivered in payment
of the option price must be guaranteed by a member of an approved
Signature Guarantee Medallion Program.
The date of exercise of the Option is the date on which the exercise form
or forms, proof of right to exercise (if required) and payment of the
option price in cash or already-owned Listed Shares are received by the
Company at the address set forth on the cover page of this Agreement,
Attention: Chief Financial Officer (or in the case of cash or shares, by
effective transfer to the Company's account). For purposes of determining
the date of exercise where payment of the option price is made in
already-owned Listed Shares, any cash required to be paid to the Company
with respect to a fraction of a share shall not be taken into account in
determining whether payment of the option price has been made.
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5. Issuance of Certificates. Subject to this Section 5, the Company will
issue a certificate or ------------------------ certificates representing
the number of Listed Shares for which the Option is exercised as soon as
practicable after the date of exercise. In lieu of certificates, the
Company may cause all or part of such shares to be transferred to an
account of the person exercising the option with a broker or other agent.
Unless the person exercising the Option otherwise directs the Company in
writing, the certificate or certificates will be registered in the name of
the person exercising the Option and delivered to such person. If the
option price is paid in whole or in part with of already-owned Listed
Shares, the Company will issue at the same time and return to the person
exercising the Option a certificate representing the number of any excess
shares included in any certificate or certificates delivered to the
Company at the time of exercise.
6. Interpretation of Plan and Agreement. This Agreement is the Listed Share
Option agreement referred to in Section 4(F) of the Plan. If there is any
conflict between the Plan and this Agreement, the provisions of the Plan
shall control. Any dispute or disagreement which shall arise under or in
any way relate to the interpretation or construction of the Plan or this
Agreement shall be resolved by the Committee, and the decision of the
Committee shall be final, binding and conclusive for all purposes.
7. Effect of Agreement on Rights of Company and Shareholders. This Agreement
does not confer any right on the Optionee to continue as a Director of the
Company or interfere in any way with the rights of the shareholders of the
Company or the Board of Directors to elect and remove Directors.
8. Binding Effect. This Agreement shall be binding upon the successors and
assigns of the Company and upon the legal representatives, heirs and
legatees of the Optionee.
9. Entire Agreement. This Agreement (including the Plan which is incorporated
hereby by reference) constitutes the entire agreement between the Company
and the Optionee and supersedes all prior agreements and understandings,
oral or written, between the Company and the Optionee with respect of the
subject matter of this Agreement.
10. Amendment. This Agreement may be amended only by a written instrument
signed by the Company and the Optionee.
11. Section Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of any of the provisions of this Agreement.
12. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York, to the
extent applicable.
IN WITNESS WHEREOF, the Company and the Optionee have executed this Agreement as
of the Date of Grant.
CAREY DIVERSIFIED LLC
By
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Chairman
OPTIONEE:
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Notice of Exercise Form
(To be executed only upon partial or full
exercise of the Listed Share Options)
The undersigned hereby represents and warrants that he or she is the
registered holder of a Listed Share Option granted under the terms of the Carey
Diversified LLC 1997 Non-Employee Director's Incentive Plan, and hereby
irrevocably exercises such Listed Share Option with respect to the portion of
the Listed Share Option hereinafter specified:________________
__________________________________________ (number of Listed Shares. Payment of
the aggregate corresponding Exercise Price is enclosed.
I agree and understand that this exercise is subject to the terms
and conditions specified in the agreement governing this Listed Share Option and
the Carey Diversified LLC 1997 Non-Employee Director's Incentive Plan.
The undersigned requests that, if a certificate for the Listed
Shares is issued by the Company on account of or with respect to this exercise,
such certificate be issued in the name of (choose one)
___ (a) the undersigned or
___ (b) the undersigned and _________________________.
Dated:______________________,___ By:____________________________
(Signature of Registered
Holder)