Exhibit 10.34
FEDERAL REALTY INVESTMENT
TRUST
COMBINED INCENTIVE AND
NON-QUALIFIED STOCK OPTION AGREEMENT
(Award under the Federal Realty Investment
Trust
Amended and Restated 2003 Long Term Incentive
Award Program)
February 17, 2009
The parties to this Combined
Incentive and Non-Qualified Stock Option Agreement (this
“Agreement”) are Federal Realty Investment Trust, a
Maryland real estate investment trust (the “Trust”),
and Andrew P. Blocher , an individual employee of the Trust
(the “Key Employee”).
The Board of Trustees of the Trust
(the “Board of Trustees”) has authorized the award by
the Trust to the Key Employee, under the Trust’s 2001
Long-Term Incentive Plan (the “Plan”): (a) options
that qualify as “Incentive Stock Options” within the
meaning of Section 422 or any successor provision of the
Internal Revenue Code of 1986, as amended (“Code”),
and/or (b) options not intended to qualify as Incentive Stock
Options (“Non-Qualified Stock Options”), subject to
certain restrictions and covenants on the part of Key Employee as
set forth herein. The parties hereto desire to set forth in this
Agreement their respective rights and obligations with respect to
such Incentive Stock Options and Non-Qualified Stock
Options.
Capitalized terms used in this
Agreement, unless otherwise defined herein, have the respective
meanings given to such terms in the Plan.
In consideration of the covenants
set forth in this Agreement, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Award of Options
.
(a) Number of Shares and Price. The
Trust hereby grants to the Key Employee an option
(“Option”) to purchase the number of Shares set forth
on the last page of this Agreement. The exercise price per Share of
the Option shall be as is set forth on the last page of this
Agreement, such price being the Fair Market Value per Share on the
Grant Date of the Option. The portion of the Option indicated on
the last page of this Agreement as an Incentive Stock Option is
intended to be an Incentive Stock Option; provided, however, that
to the extent, but only to the extent, that the provisions of this
Agreement or the nature of any actions taken by the Key Employee
are inconsistent with the treatment of such portion of the Option
as an Incentive Stock Option, such portion of the Option shall be
deemed a Non-Qualified Stock Option. The other portion of the
Option indicated on the last page of this Agreement is a
Non-Qualified Stock Option.
(b) Term and Exercise. The Option
shall expire ten (10) years from the Grant Date, subject to
earlier termination as set forth in Section 3. Subject to the
provisions of Sections 2 and 3, the Option shall become
exercisable in installments as set forth on the last page of this
Agreement.
2. Exercise of Option Upon
Termination of Service .
(a) Retirement. Upon the Key
Employee’s termination of Service by reason of retirement and
notwithstanding anything to the contrary set forth in this
Agreement, some or all of the Options shall become immediately
exercisable as follows: (i) 50% of the then unexercisable
Options shall become immediately exercisable in the event of the
Key Employee’s retirement on or after the Key Employee
reaches the age of 58 (“Permitted Retirement Date”) but
before the Key Employee reaches the age of 62; (ii) 75% of the
then unexercisable Options shall become immediately exercisable in
the event of the Key Employee’s retirement on or after the
Key Employee reaches the age of 62 but before the Key Employee
reaches the age of 65; and (iii) all of the then unexercisable
Options shall become immediately exercisable in the event of the
Key Employee’s retirement on or after the Key Employee
reaches the age of 65. The Key Employee shall have a period of two
years after such termination of Service by reason of retirement to
exercise all or a part of the Option to the extent that it
was
exercisable upon or as a result of such
termination of Service as aforesaid. In no event, however, may the
Option be exercised later than the expiration date described in
Section 1(b) .
(b) Death. In the event of the death
of the Key Employee while employed by the Trust, all Options shall
become immediately exercisable notwithstanding anything to the
contrary set forth in this Agreement, and the Key Employee’s
beneficiary shall have a period of two years after the Key
Employee’s death to exercise all or a part of the Option to
the extent that it was exercisable upon or as a result of the Key
Employee’s death as aforesaid. In no event, however, may the
Option be exercised later than the expiration date described in
Section 1(b). Notwithstanding the foregoing, the provisions of
this Section 2(b) shall not extend any of the times periods
for a Key Employee to exercise all or part of the Option which have
been established by any of Sections 2(a), (c), (d), (e),
(f) or (g).
(c) Disability. Upon the Key
Employee’s termination of Service by reason of Disability,
all Options shall become immediately exercisable notwithstanding
anything to the contrary set forth in this Agreement, and the Key
Employee shall have a period of two years after such termination of
Service to exercise all or a part of the Option to the extent that
it was exercisable upon or became exercisable as a result of such
termination of Service by reason of Disability. In no event,
however, may the Option be exercised later than the expiration date
described in Section 1(b).
(d) Termination without Cause. If
Key Employee’s Service is terminated without Cause and at the
time of such termination, the individual holding the title of Chief
Executive Officer of the Trust is the same individual that holds
the title of Chief Executive Officer of the Trust as of the date of
this Agreement, then Key Employee shall have a period of one
(1) year from the date of such termination of Service to
exercise all or any part of the Option to the extent it was
exercisable at the date of termination of Service and all or any
portion of the Option that was not exercisable at the date of
termination of the Service shall be forfeited. If Key
Employee’s Service is terminated without Cause and at the
time of such termination, the individual holding the title of Chief
Executive Officer of the Trust is not the same individual that
holds the title of Chief Executive Officer of the Trust as of the
date of this Agreement, then all Options shall become immediately
exercisable notwithstanding anything to the contrary set forth in
this Agreement, and the Key Employee shall have a period of one
(1) year after such termination of Service to exercise all
or any part of the Option to the extent that it was exercisable
upon or became exercisable as a result of such termination of
Service. In no event may any Option be exercised later than the
expiration date described in Section 1(b).
(e) Termination for Cause. Upon the
Key Employee’s termination of Service for Cause, the Key
Employee’s right to exercise all of any part of the Option,
to the extent it was exercisable at the date of termination of
Service, shall terminate at the date of termination of Service. In
no event may the Option be exercised later than the expiration date
described in Section 1(b).
(f) Change in Control. If the Key
Employee incurs an Involuntary Termination within the one year
period commencing with a Change in Control, the Option, to the
extent it is outstanding and unexercised on the date of such
Involuntary Termination, shall become immediately and fully
exercisable for a period of one (1) year from the date
of such termination of Service. In no event, however, may the
Option be exercised later than the expiration date described in
Section 1(b). The provisions of this Section 3(f) shall
not be applicable to the Option if such Change in Control results
from the Key Employee’s beneficial ownership (within the
meaning of Rule 13d-3 under the Exchange Act) of Shares or Trust
Voting Securities.
(g) Any other Termination of
Service. Upon the Key Employee’s termination of Service for
any reason other than as set forth in Sections 2(a)
through (f), the Key Employee shall have a period of one
(1) year from the date of such termination of Service to
exercise all or any part of the Option to the extent it was
exercisable at the date of termination of Service. In no event may
the Option be exercised later than the expiration date described in
Section 1(b).
3. Forfeiture
.
To the extent all or any part of the
Option was not exercisable as of the date of termination of Service
or did not become exercisable as a result of the termination of
Service as provided in Section 2, the unexercisable portion of
the Option shall expire at the date of such termination of
Service.
4. Exercise Procedures
.
(a) Method of Exercise. The Option
shall be exercisable by written notice to the Trust, which must be
received by the Secretary of the Trust not later than 5:00 P.M.
local time at the principal executive office of the Trust on the
expiration date of the Option. Such written notice shall set forth:
(i) the number of Shares being purchased and whether those
Shares are issuable as a result of the exercise of the Incentive
Stock Option portion of the Option or the Non-Qualified Stock
Option portion of the Option; (ii) the total exercise price
for the Shares being purchased; (iii) the exact name as it
should appear on the stock certificate(s) to be issued for the
Shares being purchased; and (iv) the address to which the
stock certificate(s) should be sent.
(b) Payment of Exercise Price. The
exercise price of Shares purchased upon exercise of the Option
shall be paid in full: (i) in cash; (ii) by delivery to
the Trust of Shares which if acquired from the Trust shall have
been held by the Key Employee for at least six (6) months;
(iii) in any combination of cash and Shares; or (iv) by
delivery of such other consideration as the Committee deems
appropriate and in compliance with applicable law (including
payment in accordance with a cashless exercise program under which,
if so instructed by the Key Employee, Shares may be issued directly
to the Key Employee’s broke
