Exhibit 10.1


 


BEHRINGER
HARVARD OPPORTUNITY REIT I, INC.

AMENDED AND RESTATED 2004 INCENTIVE AWARD PLAN


 


AMENDED
AND RESTATED STOCK OPTION AGREEMENT


 


This Amended and Restated
Stock Option Agreement amends and restated that certain Stock Option Agreement
dated              ,
200     pursuant to which Behringer Harvard Opportunity
REIT I, Inc., a Maryland corporation (the “Company”), granted to the
optionee named below (“Optionee”) an option (this “Option”) to purchase the
total number of shares shown below of Common Stock of the Company (“Shares”) at
the exercise price per share set forth below (the “Exercise Price”), subject to
all of the terms and conditions of such Stock Option Agreement and the
Behringer Harvard Opportunity REIT I, Inc. Amended and Restated 2004
Incentive Award Plan (the “Plan”). 
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings ascribed to them in the Plan. 
The terms and conditions of the Plan are incorporated herein by
reference.


 


	
  Shares
  Subject to Option:

  	
   

  	
  5,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exercise
  Price Per Share:

  	
   

  	
  $

  	
  9.10

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Expiration
  Date:

  	
   

  	
  December 31, 2012

  	
   

  
					



 


Vesting:  Shares subject to issuance under this Option
shall be eligible for exercise in accordance with the vesting schedule (and
other terms) set forth in Section 10 of this Amended and Restated Stock
Option Agreement.


 


IN WITNESS WHEREOF, this Amended
and Restated Stock Option Agreement has been executed by the Company by a duly
authorized officer as of the date specified hereon.


 


	
   

  	
  BEHRINGER
  HARVARD OPPORTUNITY REIT I, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  



 


	
  Original
  Grant Date:

  	
   

  	
   

  



 


	
   

  	
   

  	
  Type
  of Stock Option Intended:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Incentive Stock Option
  (ISO)

  
	
   

  	
   

  	
   

  
	
  XX

  	
   

  	
  Non-Qualified
  Stock Option (NQSO)

  



 


Optionee hereby acknowledges
receipt of a copy of the Plan, represents that Optionee has read and
understands the terms and provisions of the Plan, and accepts this Option
subject to all the terms and conditions of the Plan and this Amended and
Restated Stock Option Agreement. 
Optionee acknowledges that there may be adverse tax consequences upon
exercise of this Option or disposition of Shares purchased by exercise of this
Option, and that Optionee should consult a tax adviser prior to such exercise
or disposition.


 


	
   

  	
   

  
	
   

  	
  [Name
  of Optionee]

  



 





















 


1.             Exercise Period of Option.  Subject to the terms and conditions of this
Amended and Restated Stock Option Agreement and the Plan, and unless otherwise
modified in writing signed by the Company and Optionee, this Option may be
exercised with respect to all of the Shares subject to this Option only in
accordance with the vesting schedule set forth in Section 10 below.


 


2.             Restrictions on Exercise.  This Option may not be exercised, unless such
exercise is in compliance with the Securities Act of 1933 and all applicable
state securities laws, as they are in effect on the date of exercise, and the
requirements of any stock exchange or national market system on which the
Company’s Shares may be listed at the time of exercise.  Optionee understands that the Company is
under no obligation to register, qualify or list the Shares subject to this
Option with the Securities and Exchange Commission (“SEC”), any state
securities commission or any stock exchange to effect such compliance.  Also, this Option may not be exercised within
the first six (6) months of the Grant Date noted hereon (except in
situations otherwise allowed by this Option and Section 7(e)(8)(B) of
the Fair Labor Standards Act) if the Optionee is currently, at the time of
exercise, or has been at any time within the two (2) year period immediately
preceding exercise, a non-exempt (as defined in the Fair Labor Standards Act)
employee of the Company.


 


3.             Termination of Option.


 


(a)           Termination
for Cause.  If Optionee
ceases to perform services for the Company, or any Parent or Subsidiary, for
Cause, this Option shall immediately be forfeited, along with any and all
rights or subsequent rights attached thereto, as of the Termination Date.  For this purpose, “Cause” shall be defined as
set forth in the written employment agreement between the Optionee and the
Company, or, if no such written agreement exists or if “Cause” is not defined
in such written employment agreement, “Cause” shall be defined as set forth in
the Plan, or, if not defined in the Plan, “Cause” shall mean actions or
omissions harmful to the Company as determined by the Board in its sole and
absolute discretion.


 


(b)           No Right
to Employment or Other Relationship.  Nothing in the Plan or this Amended and
Restated Stock Option Agreement shall confer on Optionee any right to continue
in the employ of, or other relationship with, the Company, or any Parent or
Subsidiary, or limit in any way the right of the Company, or any Parent or
Subsidiary, to terminate Optionee’s employment or other relationship at any
time, with or without cause.


 


4.             Manner of Exercise.


 


(a)           Exercise
Agreement.  This Option
shall be exercisable by delivery to the Company of an executed Exercise and
Stockholder Agreement (“Exercise Agreement”) in such form as may be approved or
accepted by the Company, which shall set forth Optionee’s election to exercise
this Option with respect to some or all of the Shares subject to this Option,
the number of Shares subject to this Option being purchased, and any
restrictions imposed on the Shares subject to this Option (including, without
limitation, vesting or performance-based restrictions, rights of the Company to
re-purchase Shares acquired pursuant to the exercise of an Option, voting
restrictions, investment intent restrictions, restrictions on transfer, “first
refusal” rights of the Company to purchase Shares acquired pursuant to the
exercise of an Option prior to their sale to any other person, “drag along”
rights requiring the sale of shares to a third party purchaser in certain
circumstances, “lock up” type restrictions in the case of an initial public
offering of the Company’s stock, restrictions or limitations that would be
applied to stockholders under any applicable restriction agreement among the
stockholders, and restrictions under applicable federal securities laws, under
the requirements of any stock exchange or market upon which such Shares are
then listed and/or traded, and/or under any blue sky or state securities laws
applicable to such Shares).  The Company
may modify the required Exercise Agreement at any time for any reason
consistent with the Plan.  If the
Optionee receives a hardship distribution from a Code §401(k) plan of the
Company, or any Parent or Subsidiary, this Option may not be exercised during
the six (6) month period following the hardship withdrawal (unless the
Company determines that such exercise would not jeopardize the
tax-qualification of such Code §401(k) plan).


 


(b)           Exercise
Price.  Such Exercise Agreement shall be
accompanied by full payment of the Exercise Price for the Shares being purchased.  Payment for the Shares being purchased may be
made in U.S. dollars in cash (by check), or by delivery to the Company of a
number of Shares which have been owned and completely paid for by the holder
for at least six (6) months prior to the date of exercise (i.e., “mature shares” for accounting
purposes) having an aggregate fair market value equal to the amount to be
tendered, or a combination thereof.  In
addition, this Option may be exercised through a brokerage transaction
following registration of the Shares under Section 12 of 


 





















 


the Securities Exchange Act
of 1934 as permitted under the provisions of Regulation T promulgated by the
Federal Reserve Board applicable to cashless exercises.


 


(c)           Withholding
Taxes.  Prior to the issuance of Shares
upon exercise of this Option, Optionee must pay, or make adequate provision
for, any applicable federal or state withholding obligations of the
Company.  Optionee may provide for
payment of withholding taxes upon exercise of the Option by requesting that the
Company retain Shares with a Fair Market Value equal to the minimum amount of
taxes required to be withheld.  In such
case, the Company shall issue the net number of Shares to Optionee by deducting
the Shares retained from the Shares exercised.


 


(d)           Issuance
of Shares.  Provided that
such Exercise Agreement and payment are in form and substance satisfactory to
counsel for the Company, the Company shall cause the Shares purchased to be
issued in the name of Optionee or Optionee’s legal representative.  Optionee shall not be considered a
Stockholder until such time as Shares have been issued as noted on the
stockholder register of the Company.


 


5.             Notice of Disqualifying Disposition of ISO Shares.  If this Option is an ISO, and
if Optionee sells or otherwise disposes of any of the Shares acquired pursuant
to this ISO on or before the later of (a) the date two (2) years
after the Grant Date, or (b) the date one (1) year after exercise of
the ISO, with respect to the Shares to be sold or disposed, Optionee shall and
hereby agrees to immediately notify the Company in writing of such sale or
disposition.  Optionee acknowledges and
agrees that Optionee may be subject to income tax withholding by the Company on
the compensation income recognized by Optionee from any such early disposition
by payment in cash or out of the current wages or earnings payable to Optionee,
and Optionee agrees to remit same to Company upon request.  Optionee also hereby agrees that Optionee
shall include the compensation from such early disposition in the Optionee’s
gross income for federal tax purposes.


 


6.             Nontransferability of Option.  This Option may not be transferred in any
manner, other than by will or by the laws of descent and distribution.  In addition, except as expressly permitted
under the Plan for NQSOs, during Optionee’s lifetime, this Option may only be
exercised Optionee.  The terms of this
Option shall be binding upon the executor, administrators, successors and
assigns of Optionee.  However, if this
Option is a NQSO, it may be transferred to the extent allowed by the Plan.


 


7.             Tax Consequences.  Optionee understands that the grant and
exercise of this Option, and the sale of Shares obtained through the exercise
of this Option, may have tax implications that could result in adverse tax
consequences to Optionee.  Optionee
represents that Optionee has consulted with, or will consult with, his or her
tax advisor; Optionee further acknowledges that Optionee is not relying on the
Company for any tax, financial or legal advice; and it is specifically
understood by the Optionee that no representations or assurances are made as to
the qualification of this Option as an ISO or as to any particular tax
treatment with respect to the Option. Optionee also acknowledges that exercise
of an ISO option must generally occur within ninety (90) days of termination of
employment, regardless of any longer period allowed by this Amended and
Restated Stock Option Agreement.


 


8.             Interpretation.  Any dispute regarding the interpretation of
this Amended and Restated Stock Option Agreement shall be submitted to the
Board or the Committee, which shall review such dispute in accordance with the
Plan.  The resolution of such a dispute
by the Board or Committee shall be final and binding on the Company and Optionee.


 


9.             Entire Agreement and Other Matters.  The Plan and the Exercise
Agreement are incorporated herein by this reference.  Optionee acknowledges and agrees that the
granting of this Option constitutes a full accord, satisfaction and release of
all obligations or commitments made to Optionee by the Company or any of its
officers, directors, stockholders or affiliates with respect to the issuance of
any securities, or rights to acquire securities, of the Company or any of its
affiliates.  This Amended and Restated
Stock Option Agreement, the Plan and the Exercise Agreement constitute the
entire agreement of the parties hereto, and supersede all prior understandings
and agreements with respect to the subject matter hereof.  This Amended and Restated Stock Option
Agreement and the underlying Option are void ab initio
unless this Certificate has been executed by the Optionee and the Optionee has
agreed to all terms and provisions hereof.


 


10.          Vesting and Exercise of Shares.  Subject to the terms of the
Plan, this Amended and Restated Stock Option Agreement and the Exercise
Agreement, the Optionee shall be entitled to purchase, pursuant to the exercise



 





















 


of this Option, the
percentage of the Shares subject to this Option shown below during the calendar
year specified below:


 


	
  Vesting Schedule:

  	
   

  
	
  Percentage Exercisable:

  	
   

  	
  Year Exercisable:

  	
   

  
	
  25%

  	
   

  	
  2010

  	
   

  
	
  25%

  	
   

  	
  2011

  	
   

  
	
  50%

  	
   

  	
  2012

  	
   

  



 


If Optionee does not
exercise such percentage of Shares exercisable during the calendar year
specified above, such percentage of the Option shall be forfeited and no longer
be exercisable.  If the above calculation
of Shares available for purchase through exercise of this Option would result
in a fraction, any fraction will be rounded to zero.  Notwithstanding the foregoing, if there a
Triggering Event (as defined below) occurs, all of the Shares subject to this
Option that have not already vested and become exercisable shall accelerate and
may be exercised only during the period from the date of the Triggering Event
through and including December 31 of the calendar year in which the
Triggering Event occurs (and may no longer be exercised according to the
vesting schedule set forth above in this Section 10).  “Triggering Event” shall mean the date that
either (1) any one person, or more than one person acting as a group,
acquires ownership of stock of the Company that, together with stock held by
such person or group, constitutes more than 50% of the total fair market value
or total voting power of the stock of the Company, (2) any one person, or
more than one person acting as a group that are unrelated to the Company,
acquires (or has acquired during the 12-month period ending on the date of the
most recent acquisition by such person or persons) assets from the Company that
have a total gross fair market value equal to or more than 40% of the total
gross fair market value of all of the assets of the Company, (3) the date
that during a 12-month period 30% of the voting power of the stock is acquired,
or (4) during a 12-month period, a majority of the members of the board of
directors are replaced.