EQUITY ONE, INC. Restricted Stock Agreement Under the Amended and Restated
Exhibit
10.4
EQUITY
ONE, INC.
Under
the Amended and Restated
2000
Executive Incentive Compensation Plan
For
[Insert
name of Recipient]
This
RESTRICTED
STOCK AGREEMENT (the
“Agreement”) is
made and entered into effective as of _______ __, 200_, by and between EQUITY
ONE, INC., a Maryland corporation (the “Company”), and
____________________ (the “Recipient”).
W
I T N E S S E T H:
WHEREAS, the
Company has adopted the Amended and Restated 2000 Executive Incentive
Compensation Plan (the “Plan”;
capitalized terms not otherwise defined in this Agreement shall have the
meanings given thereto in the Plan) to assist it and its Subsidiaries in
attracting, motivating, retaining and rewarding high-quality employees,
officers, directors and independent contractors;
WHEREAS, the
Plan authorizes the Board or the Committee to grant Awards, including shares of
Restricted Stock, to the Plan’s participants; and
WHEREAS, the
Board or the Committee has
determined that it is in the best interest of the Company to grant the Recipient
an Award of Restricted Stock, on the
terms and subject to the conditions provided in the Plan and this Agreement;
NOW,
THEREFORE, for and
in consideration of the mutual premises, covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto (the
“parties”),
intending to be legally bound, hereby agree as follows:
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Section 1. Award
of Restricted Stock. Subject
to the terms and conditions of the Plan and this Agreement, the Company hereby
grants and issues, as of _______ __, 200_ (the “Date
of Grant”), to
the Recipient, _________ shares of Restricted Stock. The Restricted Stock is
issued pursuant to the Plan, which is incorporated herein for all purposes. The
Recipient hereby acknowledges receipt of a copy of the Plan and agrees to be
bound by all of the terms and conditions hereof and thereof and all applicable
laws and regulations.
Section 2. Vesting
of Restricted Stock; No Partial Vesting.
(a) Subject
to the acceleration and forfeiture provisions below, the shares of Restricted
Stock shall become vested in the following percentages and on the following
dates (each, a “Vesting
Date”):
|
Percentage
of Shares
|
Vesting
Date
|
|
__%
|
______
__, 200_
|
|
__%
|
______
__, 200_
|
|
__%
|
______
__, 200_
|
|
__%
|
______
__, 200_
|
Except as otherwise provided
herein, there shall be no proportionate or partial vesting of shares of
Restricted Stock in or during the months, days or periods prior to each Vesting
Date, and all vesting of shares of Restricted Stock shall occur only on the
applicable Vesting Date.
(b) Notwithstanding
any other term or provision of this Agreement, the Board or the Committee shall
be authorized, in its sole discretion, based upon its review and evaluation of
the performance of the Recipient and of the Company, to accelerate the vesting
of any shares of Restricted Stock under this Agreement, at such times and upon
such terms and conditions as the Board or the Committee shall deem advisable in
accordance with the Plan.
(c) Subject
to any written employment agreement, offer letter or other similar agreement, in
the event of the Recipient’s death during the term of this Agreement, that
percentage (and number) of shares of Restricted Stock that would have vested (in
accordance with Section 2(a) hereof) had the death occurred on the third-month
anniversary of the date of death, shall be Vested Shares (as defined below) and
shall be delivered, subject to any requirements under this Agreement, to the
beneficiary or beneficiaries designated by the Recipient, or if the Recipient
has not so designated any beneficiary(ies), or no designated beneficiary
survives the Recipient, such shares shall be delivered to the personal
representative of the Recipient’s estate.
(d) Notwithstanding
anything in this Agreement to the contrary, the Restricted Stock shall also vest
at the time(s) and in the manner as provided under the terms of any written
employment agreement, offer letter or other similar agreement between the
Recipient and the Company, the terms of which shall govern and control the terms
hereof.
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(e) The
portion of the Restricted Stock that has not vested pursuant to this Section 2
is sometimes referred to as “Non-Vested
Shares,” and
the portion of the Restricted Stock that has vested pursuant to this Section 2
is sometimes referred to as “Vested
Shares.”
Section 3. Delivery
of Restricted Stock.
(a) One or
more stock certificates evidencing the Restricted Stock shall be issued in the
name of the Recipient but shall be held and retained by the Company until the
later of (i) the latest date on which the shares subject to this Award become
Vested Shares pursuant to Section 2 hereof, or (ii) the date on which the
Non-Vested Shares are forfeited pursuant to the provisions of Section 4 hereof
(the later of such dates being referred to as the “Applicable
Date”). All
such stock certificates may be inscribed with the following legend, along with
such other legends that the Board or the Committee shall deem necessary and
appropriate:
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO SUBSTANTIAL VESTING AND
OTHER RESTRICTIONS AS SET FORTH IN THE RESTRICTED STOCK AGREEMENT BETWEEN THE
ISSUER AND THE ORIGINAL HOLDER OF THE SHARES, A COPY OF WHICH MAY BE OBTAINED AT
THE PRINCIPAL OFFICE OF THE ISSUER. SUCH RESTRICTIONS ARE BINDING ON TRANSFEREES
OF THESE SHARES, AND INCLUDE VESTING CONDITIONS WHICH MAY RESULT IN THE COMPLETE
FORFEITURE OF THE SHARES.
(b) The
Recipient shall, at the Company’s request, deposit with the Company stock powers
or other instruments of transfer or assignment, duly endorsed in blank with
signature(s) guaranteed, corresponding to each certificate representing shares
of Restricted Stock until such shares become Vested Shares. If the Recipient
shall fail to provide the Company with any such stock power or other instrument
of transfer or assignment, the Recipient hereby irrevocably appoints the
Secretary of the Company as his attorney-in-fact, with full power of appointment
and substitution, to execute and deliver any such power or other instrument
which may be necessary to effectuate the transfer of the Restricted Stock (or
assignment of distributions thereon) on the books and records of the
Company.
(c) On or
after the Applicable Date, upon
written request to the Company by the Recipient, the Company shall promptly
cause a new certificate or certificates to be issued for and with respect to all
Vested Shares, which certificate(s) shall be delivered to the Recipient within
ten (10) business days of the date of receipt by the Company of the Recipient’s
written request. The new certificate or certificates shall continue to bear
those legends and endorsements that the Company shall deem necessary or
appropriate.
Section 4. Termination
of Employment or Cessation of Services. Subject
to Section 2 above, unless the Board or Committee shall determine otherwise, in
its sole discretion, or unless any written agreement between the Recipient and
the Company provides to the contrary, if the Recipient’s employment with the
Company or any of its Subsidiaries is terminated, or if the Recipient ceases to
perform services for the Company or any of its Subsidiaries, for any reason, any
Non-Vested Shares shall be forfeited immediately upon such event or occurrence
and revert back to the Company, without any payment or other consideration to
the Recipient. The Board or the Committee shall have the power and authority to
enforce on behalf of the Company any and all rights of the Company under this
Agreement in the event of the Recipient’s forfeiture of Non-Vested Shares
pursuant to this Section 4.
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Section 5. Rights
with Respect to Restricted Stock.
(a) Except as
otherwise provided in this Agreement (including, without limitation, as provided
in Section 7 hereof), the Recipient shall have, with respect to all the shares
of Restricted Stock, whether Vested Shares or Non-Vested Shares, all the rights
of a holder of shares of common stock of the Company, including without
limitation (i) the right to vote such Restricted Stock, (ii) the right to
receive cash dividends, if any, as may be declared on the Restricted Stock from
time to time, and (iii) the rights available to all holders of shares of common
stock of the Company upon any merger, consolidation, reorganization, liquidation
or dissolution, stock split-up, stock dividend or recapitalization undertaken by
the Company; provided,
however, that,
unless vesting is accelerated pursuant to Section 2 above, all of such rights
shall be subject to the terms, provisions, conditions and restrictions set forth
in this Agreement (including without limitation conditions under which all such
rights shall be forfeited).
(b) If at any
time while this Agreement is in effect (or shares granted hereunder shall be or
remain unvested) there shall be any increase or decrease in the number of issued
and outstanding shares of Common Stock of the Company through the declaration of
a stock dividend or through any recapitalization resulting in a stock split-up,
combination or exchange of such shares, then and in that event, the Board or the
Committee shall make any adjustments it deems fair and appropriate, in view of
such change, in the number of shares of Restricted Stock then subject to this
Agreement. If any such adjustment shall result in a fractional share, such
fraction shall be disregarded.
(c) Notwithstanding
any term or provision of this Agreement to the contrary, the existence of this
Agreement, or of any outstanding Restricted Stock awarded hereunder, shall not
affect in any manner the right, power or authority of the Company to make,
authorize or consummate: (i) any or all adjustments, recapitalizations,
reorganizations or other changes in the Company’s capital structure or its
business; (ii) any merger, consolidation or similar transaction by or of the
Company; (iii) any offer, issue or sale by the Company of any capital stock of
the Company, including any equity or debt securities, or preferred or preference
stock that would rank prior to or on parity with the Restricted Stock and/or
that would include, have or possess other rights, benefits and/or preferences
superior to those that the Restricted Stock includes, has or possesses, or any
warrants, options or rights with respect to any of the foregoing; (iv) the
dissolution or liquidation of the Company; (v) any sale, transfer or assignment
of all or any part of the stock, assets or business of the Company; or (vi) any
other corporate transaction, act or proceeding (whether of a similar character
or otherwise).
Section 6. Tax
Matters; Section 83(b) Election.
(a) If the
Recipient properly elects, within thirty (30) days of the Date of Grant, to
include in gross income for federal income tax purposes an amount equal to the
fair market value (as of the Date of Grant) of the Restricted Stock pursuant to
Section 83(b) of the Internal Revenue Code of 1986, as amended (the
“Code”), the
Recipient shall make arrangements satisfactory to the Company to pay to the
Company any federal, state or local income taxes required to be withheld with
respect to the Restricted Stock. If the Recipient shall fail to make such tax
payments as are required, the Company shall, to the extent permitted by law,
have the right to deduct from any payment of any kind otherwise due to the
Recipient any federal, state or local taxes of any kind required by law to be
withheld with respect to the Restricted Stock.
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(b) If the
Recipient does not properly make the election described in Subsection 6(a)
above, the Recipient shall, no later than each Vesting Date, pay to the Company,
or make arrangements satisfactory to the Committee for payment of, any federal,
state or local taxes of any kind required by law to be withheld with respect to
the Restricted Stock (including, without limitation, as a result of the vesting
thereof), and the Company shall, to the extent permitted by law, have the right
to deduct from any payment of any kind otherwise due to Recipient any federal,
state, or local taxes of any kind required by law to be withheld with respect to
the Restricted Stock.
(c) RECIPIENT
ACKNOWLEDGES THAT HE OR SHE HAS BEEN INFORMED OF THE AVAILABILITY OF MAKING AN
ELECTION IN ACCORDANCE WITH SECTION 83(B) OF THE CODE; THAT SUCH ELECTION MUST
BE FILED WITH THE INTERNAL REVENUE SERVICE WITHIN 30 DAYS OF THE GRANT DATE; AND
THAT RECIPIENT IS SOLELY RESPONSIBLE FOR MAKING SUCH ELECTION.
(d) Tax
consequences on the Recipient (including without limitation federal, state,
local and foreign income tax consequences) with respect to the Restricted Stock
(including, without limitation, the grant, vesting and/or forfeiture thereof)
are the sole responsibility of the Recipient. The Recipient should consult with
his or her own personal accountant(s) and/or tax advisor(s) regarding these
matters, the making of a Section 83(b) election, and the Recipient’s filing,
withholding and payment (or tax liability) obligations and the Company makes no
recommendation with respect to any such election.
Section 7. Transfer
Restrictions. Except
as otherwise expressly provided in Section 2(c) of this Agreement, Non-Vested
Shares of Restricted Stock (i) are not transferable, (ii) shall not be sold,
conveyed, transferred, assigned, pledged, hypothecated, encumbered, gifted,
donated, delivered or otherwise disposed of, whether voluntarily or
involuntarily, in whole or in part, directly or indirectly (hereinafter, a
“transfer”)
(whether by operation of law or otherwise), and (iii) shall not be subject to
execution, attachment or similar process. Upon any attempt to transfer
Non-Vested Shares, or in the event of any levy upon any of such shares by reason
of any execution, attachment or similar process contrary to the provisions
hereof, such Non-Vested Shares shall immediately and without notice terminate,
be forfeited and be and become null and void.
Section 8. Amendment,
Modification and Assignment; Non-Transferability. This
Agreement may only be modified or amended in a writing signed by the parties
hereto. No promises, assurances, commitments, agreements, undertakings or
representations, whether oral, written, electronic or otherwise, and whether
express or implied, with respect to the subject matter hereof, have been made by
either party which are not set forth expressly in this Agreement. Unless
otherwise consented to in writing by the Company, in its sole discretion, this
Agreement (and Recipient’s rights hereunder) may not be assigned, and the
obligations of Recipient hereunder may not be delegated, in whole or in part.
The rights and obligations created hereunder shall be binding on the Recipient
and his heirs and legal representatives and on the successors and assigns of the
Company.
Section 9. Complete
Agreement. This
Agreement (together with the Plan and those agreements and documents expressly
referred to herein, for the purposes referred to herein) embody the complete and
entire agreement and understanding between the parties with respect to the
subject matter hereof, and supersede any and all prior promises, assurances,
commitments, agreements, undertakings or representations, whether oral, written,
electronic or otherwise, and whether express or implied, which may relate to the
subject matter hereof in any way.
Section 10. No
Right to (Continued) Employment or Service. This
Agreement and the grant of Restricted Stock hereunder shall not shall confer, or
be construed to confer, upon the Recipient any right to employment or service,
or continued employment or service, with the Company or any of its
Subsidiaries.
Section 11. No
Limit on Other Compensation Arrangements. Nothing
contained in this Agreement shall preclude the Company from adopting or
continuing in effect other or additional compensation plans, agreements or
arrangements, and any such plans, agreements and arrangements may be either
generally applicable or applicable only in specific cases or to specific
persons.
Section 12. Severability. If any
term or provision of this Agreement is or becomes or is deemed to be invalid,
illegal or unenforceable in any jurisdiction or under any applicable law, rule
or regulation, then such provision shall be construed or deemed amended to
conform to applicable law (or if such provision cannot be so construed or deemed
amended without materially altering the purpose or intent of this Agreement and
the grant of Restricted Stock hereunder, such provision shall be stricken as to
such jurisdiction and the remainder of this Agreement and the award hereunder
shall remain in full force and effect).
Section 13. No
Trust or Fund Created. Neither
this Agreement nor the grant of Restricted Stock hereunder shall create or be
construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company and the Recipient or any other person. To the
extent that the Recipient or any other person acquires a right to receive
payments from the Company pursuant to this Agreement, such right shall be no
greater than the right of any unsecured general creditor of the
Company.
Section 14. Law
Governing. This
Agreement shall be governed by and construed and enforced in accordance with the
internal laws of the State of Florida (without reference to the conflict of laws
rules or principles thereof).
Section 15. Effect
of the Plan. This
Agreement and the Restricted Stock are subject to all the terms, conditions and
provisions of the Plan, including, without limitation, the amendment provisions
thereof, and to such rules, regulations and interpretations relating to the Plan
adopted by the Committee or the Board as may be in effect from time to time. If
and to the extent that this Agreement conflicts or is inconsistent with the
terms, conditions and provisions of the Plan, the Plan shall control, and this
Agreement shall be deemed to be modified accordingly. The Recipient accepts the
Restricted Stock subject to all the terms and provisions of the Plan and this
Agreement. The undersigned Recipient hereby accepts as binding, conclusive and
final all decisions or interpretations of the Committee or the Board upon any
questions arising under the Plan and this Agreement.
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Section 16. Interpretation.
The
Recipient accepts the Restricted Stock subject to all the terms, provisions and
restrictions of this Agreement. The undersigned Recipient hereby accepts as
binding, conclusive and final all decisions or interpretations of the Board of
the Company upon any questions arising under this Agreement or under the Plan.
Section 17. Headings.
Section, paragraph and other headings and captions are provided solely as a
convenience to facilitate reference. Such headings and captions shall not be
deemed in any way material or relevant to the construction, meaning or
interpretation of this Agreement or any term or provision hereof.
Section 18. Notices. Any
notice under this Agreement shall be in writing and shall be deemed to have been
duly given when delivered personally or when deposited in the United States
mail, registered, postage prepaid, and addressed, in the case of the Company, to
the Company’s Chief Financial Officer at 0000 X.X. Xxxxx Xxxxxxx Xxxxx, Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000, or if the Company should move its principal office,
to such principal office, and, in the case of the Recipient, to the Recipient’s
last permanent address as shown on the Company’s records, subject to the right
of either party to designate some other address at any time hereafter in a
notice satisfying the requirements of this Section.
Section 19. Non-Waiver
of Breach. The
waiver by any party hereto of the other party’s prompt and complete performance,
or breach or violation, of any term or provision of this Agreement shall be
effected solely in a writing signed by such party, and shall not operate nor be
construed as a waiver of any subsequent breach or violation, and the waiver by
any party hereto to exercise any right or remedy which he or it may possess
shall not operate nor be construed as the waiver of such right or remedy by such
party, or as a bar to the exercise of such right or remedy by such party, upon
the occurrence of any subsequent breach or violation.
Section 20. Counterparts. This
Agreement may be executed in two or more separate counterparts, each of which
shall be an original, and all of which together shall constitute one and the
same agreement.
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IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Agreement as of the date first written above.
EQUITY ONE,
INC.
By:______________________________
Name:
Title:
Recipient
acknowledges receipt of a copy of the Plan and represents that he or she is
familiar with the terms and provisions thereof, and hereby accepts the
Restricted Stock issued pursuant hereto subject to all of the terms and
provisions thereof. Recipient has reviewed the Plan and this Agreement in their
entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Agreement, and fully understands all provisions of this
Agreement.
Agreed
and Accepted on this
__ day of
_________, 200__:
RECIPIENT:
__________________________________
[ ]
