EXHIBIT 10.4
G REIT, INC.
INDEPENDENT DIRECTORS' STOCK OPTION PLAN
ARTICLE I DEFINITIONS........................................... 4
1.01. Agreement............................................ 4
1.02. Board................................................ 4
1.03. Code................................................. 4
1.04. Common Stock......................................... 4
1.05. Company.............................................. 4
1.06. Fair Market Value.................................... 4
1.07. Independent Director................................. 5
1.08. Offering............................................. 5
1.09. Option............................................... 5
1.10. Option Price......................................... 5
1.11. Participant.......................................... 6
1.12. Plan................................................. 6
ARTICLE II PURPOSES............................................. 6
ARTICLE III ADMINISTRATION...................................... 6
ARTICLE IV COMMON STOCK SUBJECT TO PLAN......................... 7
4.01. Common Stock Issued.................................. 7
4.02. Aggregate Limit...................................... 7
4.03. Reallocation of Shares............................... 7
ARTICLE V OPTIONS............................................... 7
5.01. Award................................................ 7
5.02. Option Price......................................... 8
5.03. Maximum Option Period................................ 8
5.04. Nontransferability................................... 8
5.05. Status as Independent Director....................... 8
5.06. Exercise............................................. 8
5.07. Payment.............................................. 9
5.08. Shareholder Rights................................... 9
ARTICLE VI ADJUSTMENT UPON CHANGE IN COMMON STOCK............... 10
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ARTICLE VII COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY
BODIES AND ASSURANCE OF REIT STATUS...................... 11
ARTICLE VIII GENERAL PROVISIONS................................ 11
8.01. Effect on Service.................................. 11
8.02. Unfunded Plan...................................... 11
8.03. Rules of Construction.............................. 12
ARTICLE IX AMENDMENT........................................... 12
ARTICLE X DURATION OF PLAN..................................... 12
ARTICLE XI EFFECTIVE DATE OF PLAN.............................. 12
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ARTICLE I
DEFINITIONS
1.01. Agreement
Agreement means a written agreement (including any amendment or
supplement thereto) between the Company and a Participant specifying the terms
and conditions of an Option granted to such Participant.
1.02. Board
Board means the Board of Directors of the Company.
1.03. Code
Code means the Internal Revenue Code of 1986, and any amendments
thereto.
1.04. Common Stock
Common Stock means the common stock of the Company.
1.05. Company
Company means G REIT, Inc.
1.06. Fair Market Value
Fair Market Value means, on any given date, the fair market value of a
share of Common Stock determined in accordance with (a) or (b) below:
(a) If the Common Stock is not traded on a national securities exchange
or quotation system, Fair Market Value means a price determined by the Board in
good faith, taking into account, among other factors the Board deems relevant,
the price per share at which the Common Stock is then being sold to the public,
the price per share of the common stock of comparable companies, the Company's
earnings, and the value of the Company's assets; provided, however, that any
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such determination by the Board must be approved by a majority of the
Independent Directors.
(b) If the Common Stock is traded on a national securities exchange or
quotation system, Fair Market Value means that average of the last sales price
or
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the average of the last bid and ask prices, in each case for the five trading
days immediately preceding the date of determination.
1.07. Independent Director
Independent Director means a member of the Board who is not, and has
not been in the two years immediately prior to any determination of such Board
member's Independent Director status, directly or indirectly associated with the
Company or Triple Net Properties, L.L.C. within the meaning of Section I(B)(14)
of the NASAA Statement of Policy Regarding Real Estate Investment Trusts.
Notwithstanding the foregoing, for purposes of determining eligibility to
participate under this Plan, the term Independent Director shall also include
any individual who is a member of the Company's Board of Directors and is not an
employee or officer of the Company or its advisor, Triple Net Properties, LLC.
1.08. Offering
Offering means the initial public offering of Common Stock by the
Company.
1.09. Option
Option means a stock option that entitles the holder to purchase from
the Company a stated number of shares of Common Stock at the price set forth in
an Agreement.
1.10. Option Price
Option Price means the purchase price per share of Common Stock under
an Option determined in accordance with (a), (b) or (c) below, but subject to
Section 5.02:
(a) If the date of grant of an Option occurs on or before the date of
the commencement of the Offering, the Option Price for such Option shall be the
price per share of Common Stock in the Offering less the dealer manager's
selling commission and marketing support and due diligence reimbursement fee
allocable to a share of Common Stock.
(b) If the date of grant of an Option occurs during the Offering but
after the date of the commencement of the Offering, the Option Price for such
Option shall be the greater of (i) the price per share of Common Stock in the
Offering less the dealer manager's selling commission and marketing support and
due diligence reimbursement fee allocable to a share of Common Stock and (ii)
the Fair Market Value on the date of grant of such Option.
(c) If the date of grant of an Option occurs after the completion of
the Offering, the Option Price for such Option shall be the Fair Market Value on
the date of grant of such Option.
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1.11. Participant
Participant means a member of the Board who is an Independent Director
on the applicable date of grant of an Option.
1.12. Plan
Plan means the G REIT, Inc. Independent Directors' Stock Option Plan.
ARTICLE II
PURPOSES
The Plan is intended to assist the Company in recruiting and retaining
Independent Directors and to promote a greater identity of interest between the
Independent Directors and the Company and its shareholders by enabling
Participants to share in the future success of the Company. The Plan is intended
to permit the grant of nonqualified stock options - i.e., Options not qualifying
under Section 422 of the Code. The proceeds received by the Company from the
sale of shares of Common Stock pursuant to this Plan shall be used for general
corporate purposes.
ARTICLE III
ADMINISTRATION
The Plan shall be administered by the Board. The Board shall have
authority to grant Options upon such terms (not inconsistent with the provisions
of this Plan), as the Board may consider appropriate. Such terms may include
conditions (in addition to those contained in this Plan), on the exercisability
of all or any part of an Option. Notwithstanding any such conditions, the Board
may, in its discretion, (i) accelerate the time at which any Option may be
exercised, or (ii) suspend the forfeiture of any award made under this Plan. In
addition, the Board shall have complete authority to interpret all provisions of
this Plan; to prescribe the form of Agreements; to adopt, amend, and rescind
rules and regulations pertaining to the administration of the Plan; and to make
all other determinations necessary or advisable for the administration of this
Plan. The express grant in the Plan of any specific power to the Board shall not
be construed as limiting any power or authority of the Board. Notwithstanding
the foregoing, any decision made or action taken by the Board under this Article
III must be approved by a majority of the Independent Directors. Subject to such
approval, any decision made or action taken by the Board or in connection with
the administration of this Plan shall be
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final and conclusive. Neither the Board nor any member of the Board shall be
liable for any act done in good faith with respect to this Plan or any Agreement
or Option. All expenses of administering this Plan shall be borne by the
Company.
ARTICLE IV
COMMON STOCK SUBJECT TO PLAN
4.01. Common Stock Issued
Upon the exercise of any Option, the Company may deliver to the
Participant (or the Participant's broker if the Participant so directs), shares
of Common Stock from its authorized but unissued Common Stock.
4.02. Aggregate Limit
The maximum aggregate number of shares of Common Stock that may be
issued under this Plan is 100,000 shares. The maximum aggregate number of shares
of Common Stock that may be issued under this Plan shall be subject to
adjustment as provided in Article VI.
4.03. Reallocation of Shares
If an Option is terminated, in whole or in part, for any reason other
than its exercise, the number of shares allocated to the Option or portion
thereof may be reallocated to other Options to be granted under this Plan.
ARTICLE V
OPTIONS
5.01. Award
Each Participant shall be granted an Option for 5,000 shares of Common
Stock on the first day he or she becomes an Independent Director. Thereafter,
each Participant shall be granted an Option for 5,000 shares of Common Stock on
the date of each annual meeting of the Company's shareholders; provided, that,
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the Participant is an Independent Director immediately following the applicable
annual meeting. Further, no Participant may be granted Options covering a number
of shares equal to or in excess of ten percent (10%) of the outstanding shares
of Common Stock of the Company as of the grant date of such Options.
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5.02. Option Price
The Option Price per share for shares of Common Stock purchased on the
exercise of an Option shall be determined by the Board on the date of grant in
accordance with Section 1.10; provided, however, that in no event may the Option
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Price be less than the Fair Market Value on the date the Option is granted.
5.03. Maximum Option Period
The maximum period in which an Option may be exercised shall be ten
years from the date of grant.
5.04. Nontransferability
Each Option granted under this Plan shall be nontransferable except by
will or by the laws of descent and distribution. During the lifetime of the
Participant to whom the Option is granted, the Option may be exercised only by
the Participant. No right or interest of a Participant in any Option shall be
liable for, or subject to, any lien, obligation, or liability of such
Participant.
5.05. Status as Independent Director
In the event that the terms of any Option provide that it may be
exercised only during service as an Independent Director or within a specified
period of time after termination of such service, the Board may decide to what
extent leaves of absence for governmental or military service, illness,
temporary disability, or other reasons shall not be deemed interruptions of
continuous service as an Independent Director.
5.06. Exercise
(a) Subject to the provisions of this Plan, including Section 5.06(b)
through (e), and the applicable Agreement, an Option may be exercised in whole
at any time or in part from time to time at such times and in compliance with
such requirements as the Board shall determine. An Option granted under this
Plan may be exercised with respect to any number of whole shares less than the
full number for which the Option could be exercised. A partial exercise of an
Option shall not affect the right to exercise the Option from time to time in
accordance with this Plan and the applicable Agreement with respect to the
remaining shares subject to the Option.
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(b) Options granted on or before the commencement of the Offering will
become exercisable for one-third of the shares subject to the Option on the date
of grant, and for an additional one-third of such shares on each of the first
and second anniversaries of the date of grant.
(c) Options granted after the commencement of the Offering will become
exercisable in whole or in part on the second anniversary of the date of grant.
(d) If a Participant is an Independent Director continuously from the
date of grant of an Option though the Participant's termination of service as an
Independent Director due to death or "permanent and total disability," within
the meaning of Section 22(e)(3) of the Code, the Participant or the
Participant's successor in interest (in the event of death) may exercise
Participant's Option or Options for all or part of the shares subject
thereto/for the number of shares for which each such Option was exercisable on
the date of Participant's termination of service, for one year following such
termination of service or, if sooner, during the period prior to the stated
expiration date of the Option or Options.
(e) If a Participant ceases to be an Independent Director for any
reason other than death or "permanent and total disability," within the meaning
of Section 22(e)(3) of the Code, Participant may exercise his or her Option or
Options for the number of shares for which each such Option was exercisable on
the date of the Participant's termination of service, for three months following
such termination of service or, if sooner, during the period prior to the stated
expiration date of the Option or Options.
5.07. Payment
Subject to rules established by the Board, payment of all or part of
the Option price may be made in cash, a cash equivalent acceptable to the Board,
with shares of Common Stock, or a combination thereof. If shares of Common Stock
are used to pay all or part of the Option Price, the sum of the cash and cash
equivalent and the Fair Market Value (determined as of the day preceding the
date of exercise) of the shares surrendered must not be less than the Option
Price of the shares for which the Option is being exercised.
5.08. Shareholder Rights
No Participant shall have any rights as a shareholder with respect to
shares subject to his Option until the date of exercise of such Option.
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ARTICLE VI
ADJUSTMENT UPON CHANGE IN COMMON STOCK
The maximum number of shares as to which Options may be granted; and
the terms of outstanding Options, including the Option Price and the kind of
shares subject to the Options shall be adjusted as the Board shall determine to
be equitably required (i) in the event that the Company (a) effects one or more
stock dividends, stock split-ups, subdivisions or consolidations of shares or
(b) engages in a transaction to which Section 424 of the Code applies and in
which the Company is the surviving entity, or (ii) there occurs any other event
which, in the judgment of the Board necessitates such action. Any determination
made by the Board under this Article VI is subject to approval by a majority of
the Independent Directors and, if such approval is obtained, shall be final and
conclusive.
This Plan shall terminate and any outstanding Options will be forfeited
(i) in the event of a dissolution or liquidation of the Company; (ii) in the
event the Company engages in a transaction to which Section 424 of the Code
applies and in which the Company is not the surviving entity; or (iii) upon the
sale of all or substantially all of the assets of the Company. Notwithstanding
the foregoing, in connection with or in contemplation of any of the events
described in the preceding sentence, the Board may provide in writing for any of
the following alternatives to termination of the Plan and forfeiture of
outstanding Options, separately or in combination: (i) the assumption by the
successor corporation of outstanding Options or the substitution by such
corporation for such Options of options covering the stock of the successor
corporation, or a parent or subsidiary thereof, with appropriate adjustments as
to the number and kind of shares and option prices; (ii) the continuation of the
Plan by such successor corporation, in which event the Plan will continue in the
manner and under the terms so provided by the Board; or (iii) a payment in cash
or shares of Common Stock or other securities in lieu of and in complete
satisfaction of outstanding Options. Any action taken by the Board under this
paragraph is subject to approval by a majority of the Independent Directors and,
if such approval is obtained, shall be final and conclusive.
The issuance by the Company of stock of any class, or securities
convertible into stock of any class, for cash or property, or for labor or
services, either upon direct sale or upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of stock or obligations of the Company
convertible into such stock or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the maximum number
of shares as to which Options may be granted or the terms of outstanding
Options.
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ARTICLE VII
COMPLIANCE WITH LAW AND APPROVAL OF
REGULATORY BODIES AND ASSURANCE OF REIT STATUS
No Option shall be exercisable, no shares of Common Stock shall be
issued, no certificates for shares of Common Stock shall be delivered, and no
payment shall be made under this Plan (i) except in compliance with (a) all
applicable federal and state laws and regulations (including, without
limitation, withholding tax requirements), (b) any listing agreement to which
the Company is a party, and (c) the rules of all domestic stock exchanges on
which the Company's shares may be listed and (ii) only if such exercise or
issuance of Common Stock or delivery of certificates will not jeopardize the
Company's status as a real estate investment trust under the Code. The Company
shall have the right to rely on an opinion of its counsel as to such compliance
and assurance of real estate investment trust status. Any stock certificate
issued to evidence shares of Common Stock for which an Option is exercised may
bear such legends and statements as the Board may deem advisable to assure
compliance with federal and state laws and regulations. No Option shall be
exercisable, no shares of Common Stock shall be issued, no certificate for
shares of Common Stock shall be delivered, and no payment shall be made under
this Plan until the Company has obtained such consent or approval as the Board
may deem advisable from regulatory bodies having jurisdiction over such matters.
ARTICLE VIII
GENERAL PROVISIONS
8.01. Effect on Service
Neither the adoption of this Plan, its operation, nor any documents
describing or referring to this Plan (or any part thereof), shall confer upon
any Participant any right to continue in service as a member of the Board.
8.02. Unfunded Plan
The Plan, insofar as it provides for grants, shall be unfunded, and the
Company shall not be required to segregate any assets that may at any time be
represented by grants under this Plan. Any liability of the Company to any
person with respect to any grant under this Plan shall be based solely upon any
contractual obligations that may be created pursuant to this Plan. No such
obligation of the Company shall be deemed to be secured by any pledge of, or
other encumbrance on, any property of the Company.
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8.03. Rules of Construction
Headings are given to the articles and sections of this Plan solely as
a convenience to facilitate reference. The reference to any statute, regulation,
or other provision of law shall be construed to refer to any amendment to or
successor of such provision of law.
ARTICLE IX
AMENDMENT
The Board may amend or terminate this Plan from time to time; provided,
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however, that any amendment must be approved by a majority of the Independent
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Directors; and provided, further, that no amendment may become effective until
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any applicable laws, regulations, rules or requirements of any governmental
authority or stock exchange on which the Common Stock is then listed are
satisfied. Except as provided in Article VI, no amendment shall, without a
Participant's consent, adversely affect any rights of such Participant under any
Option outstanding at the time such amendment is made.
ARTICLE X
DURATION OF PLAN
No Option may be granted under this Plan more than five years after the
commencement of the Offering. Options granted before that date shall remain
valid in accordance with their terms.
ARTICLE XI
EFFECTIVE DATE OF PLAN
Options may be granted under this Plan upon its adoption by the Board;
provided that, unless this Plan is approved by a majority of the votes cast by
the Company's shareholders, voting either in person or by proxy, at a duly held
shareholders' meeting at which a quorum is present, no Option shall be
exercisable.
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