EXHIBIT 10.11
XXXX-XXXX REALTY CORPORATION
RESTRICTED SHARE AWARD AGREEMENT
XXXXXXX XXXXXXXX
AGREEMENT EVIDENCING THE GRANT
OF A RESTRICTED SHARE AWARD PURSUANT
TO THE EMPLOYEE STOCK OPTION PLAN
OF XXXX-XXXX REALTY CORPORATION
AGREEMENT ("Agreement") effective as of March 12, 2001, ("Grant
Date") by and between Xxxx-Xxxx Realty Corporation (the "Company") and Xxxxxxx
Xxxxxxxx ("Recipient").
WHEREAS, pursuant to the 2000 Employee Stock Option Plan of
Xxxx-Xxxx Realty Corporation (the "Plan"), the Company wishes to award shares
(hereinafter, "Restricted Share Award") of the Company's common stock, par value
$.01 per share ("Common Stock") to the Recipient subject to such terms,
conditions, and restrictions as set forth in the Plan, this Agreement and the
Employment Agreement dated as of December 5, 2000 by and between the Company and
the Recipient (the "Employment Agreement"); and
WHEREAS, upon the vesting of Restricted Shares, Recipient is also
entitled to receive a tax gross-up from the Company under the terms of the
Employment Agreement to enable Recipient to retain as many shares of Common
Stock as possible,
NOW THEREFORE, the parties hereto hereby agree as follows:
1. AWARD OF SHARES OF RESTRICTED STOCK.
(a) AWARD. Pursuant to the Plan, the Committee hereby awards to
the Recipient, effective as of the Grant Date, a Restricted Share Award
representing the conditional receipt of 18,519 shares of Common Stock
("Restricted Shares") at no out-of-pocket cost to the Recipient subject to the
terms, conditions and restrictions set forth
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herein. Except for the defined terms set forth in Section 4 below, capitalized
terms not otherwise defined in this Agreement shall be as defined in the Plan.
(b) EMPLOYMENT AGREEMENT. The provisions of the Plan and this
Agreement are subject to the terms of the Recipient's Employment Agreement.
2. AWARD RESTRICTIONS.
(a) GENERAL RULES. Ownership of Restricted Shares shall not vest
in the Recipient, and shall be subject to forfeiture until the conditions of
Section 2(b) and (c) or Section 4 are fully satisfied. For purposes of this
Agreement, the following concepts shall be defined as follows: (i) the lapse of
restrictions on the Recipient's rights with respect to the Restricted Shares
granted hereunder shall be referred to as "Vesting"; (ii) the period between the
Grant Date and the date of Vesting shall be referred to as the "Vesting Period";
and (iii) the date Vesting occurs shall be referred to as the "Vesting Date."
(b) VESTING. An aggregate of 18,519 Restricted Shares may vest in
the Recipient and vest on either a year by year basis approximately over a three
year Vesting Period or on a cumulative basis approximately over a five year
maximum Vesting Period. The number of Restricted Shares scheduled to be vested
and earned on each Vesting Date on a year by year basis provided the Performance
Goals specified in Section 2(c) below are satisfied is as follows:
RESTRICTED SHARES VESTING DATE
5,555 January 1, 2002
6,482 January 1, 2003
6,482 January 1, 2004
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The Vesting Date for this Agreement shall be each January 1st
through and including January 1, 2006. In determining the number of Restricted
Shares which are earned and vested, if applicable, fractional shares shall be
rounded down to the nearest whole number and shall be aggregated and earned on
the next Vesting Date.
(c) PERFORMANCE GOALS. (i) The Restricted Shares shall vest on the
applicable Vesting Date on a year by year basis provided one of the following
financial tests ("Financial Tests") is met for the measurement period ending on
the last day of the Company's fiscal year immediately preceding such Vesting
Date: (A) the Company achieves an eight percent (8%) funds from operations per
common share ("FFO") increase, or (B) shareholders receive a twelve and three
quarters percent (12.75%) total return (dividends, assuming reinvestment upon
applicable payment date, plus stock appreciation per share of Common Stock). For
purposes of this Agreement, FFO shall mean (i) net income (loss) before minority
interest of unit holders, computed in accordance with generally accepted
accounting principles ("GAAP"), excluding the effect of straight lining of
rents, gains (or losses) from debt restructuring, other extraordinary and
significant non-recurring items, and gains (or losses) on sale of property and
other property-related valuation allowances, plus real estate related
depreciation and amortization, as calculated in accordance with the National
Association of Real Estate Investment Trusts definition published in March 1995
after adjustment for straight lining of rents and as applied in accordance with
the accounting practices and policies of the Company in effect from time to time
on a consistent basis
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to the entire Vesting Period, divided by (ii) the sum of (A) the diluted
weighted average number of outstanding shares of Common Stock and (B) the
diluted weighted average number of outstanding common limited partnership units
of Xxxx-Xxxx Realty, L.P., a Delaware limited partnership of which the Company
is the sole general partner, for the applicable period with such calculations
being made all before the effect on FFO and diluted common shares/common limited
partnership units resulting from certain non-recurring cash payments made
pursuant to certain written employment agreements and from the vesting of
restricted share awards and other similar plans or compensation arrangements for
the applicable period.
(ii) In the event that neither of the Financial Tests above is
satisfied for the fiscal year of the Company corresponding to the applicable
Vesting Date ("Non-Achievement Year"), any Restricted Shares that failed to vest
under the annual performance goal criteria on such Date may vest on such Date or
on a subsequent Vesting Date provided the test described below is satisfied (the
"Cumulative Test"). The Cumulative Test shall be applied at the end of the
Non-Achievement Year or any subsequent fiscal year ("Catch-Up Year") with
respect to any Non-Achievement Year PROVIDED a Financial Test was satisfied in a
prior fiscal year or is satisfied in a Catch-Up Year, by applying the aggregate
Financial Test percentages and the performance goal requirement on a cumulative
basis beginning with the first fiscal year of the Vesting Period and ENDING with
the Non-Achievement Year or the Catch-Up Year, as applicable. In the event the
Cumulative Test is satisfied (I.E., the aggregate increase in FFO or aggregate
total return is not less than the minimum percentage required to
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satisfy the Financial Test after taking into account the applicable
Non-Achievement Year), the Restricted Shares that failed to vest in the
Non-Achievement Year shall automatically vest on the Vesting Date applicable to
the Non-Achievement Year or the Catch-Up Year, as the case may be. For example,
if vesting occurred in years one (1) and two (2), year three (3) is a
Non-Achievement Year, and the Cumulative Test is met for the Non-Achievement
Year (I.E., either the aggregate increase in FFO is not less than twenty-four
(24%) percent or the aggregate total return is not less than thirty-eight and
one-quarter (38.25%) percent) vesting would occur on the Vesting Date applicable
to the Non-Achievement Year. In the event the Cumulative Test is not met in the
Non-Achievement Year (year (3)) and one of the Financial Tests is met in year
four (4), the Cumulative Test may be used in year four (4). Under this scenario,
vesting in that portion of the Restricted Stock Award scheduled to vest in year
three (3) will occur in year four (4) if either the aggregate increase in FFO is
not less than thirty-two percent (32%) or the aggregate total return is not less
than fifty-one percent (51%) at the end of the fourth (4th) fiscal year. RULES
FOR APPLICATION OF THE CUMULATIVE TEST: (a) the Cumulative Test will be applied
first at the end of any Non-Achievement Year, (b) it is not necessary for any
Catch-Up Year to immediately succeed a Non-Achievement Year in order for the
Cumulative Test to be applicable as long as the Catch-Up Year occurs during the
Vesting Period, (c) if two (2) or more Non-Achievement Years have occurred
during the Vesting Period and Restricted Shares that failed to vest in the
Non-Achievement Years remain non-vested, then in the event that the Cumulative
Test is
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met on a partial basis so that at least one (1) full year's vesting may occur,
the Restricted Share Award granted with respect to the last Non-Achievement Year
that has occurred, shall vest first and any excess shall be credited to another
Non-Achievement Year and (d) the Cumulative Test may be met on a partial basis
by aggregating percentages in excess of the minimum annual requirement from more
than one (1) fiscal year in the Vesting Period. For example, if vesting occurred
in year one (1) and the FFO is sixteen (16%) percent, years two (2) and three
(3) are Non-Achievement Years with a loss in year two (2) of two (2%) percent
and year three (3) the FFO is four (4%) percent, the Restricted Shares awarded
with respect to year three (3) would vest under the Cumulative Test and two (2%)
percent of the remaining FFO would be available to be used in year two (2) or
any other year (E.G., in the event that FFO were fourteen (14%) percent in year
four (4), the Restricted Shares applicable to year two (2) would also vest. In
the alternative, if FFO were six (6%) percent in year four (4), year four (4)
would vest and year two (2) would remain a Non-Achievement Year).
Notwithstanding any contrary provisions contained in this Section 2(c) and
subject to Section 4 below, any Restricted Shares that have not been earned and
vested by January 1, 2004 on a year by year basis or by January 1, 2006 pursuant
to the Cumulative Test shall automatically be canceled and forfeited.
(d) LAPSE OF RESTRICTIONS. Upon the Vesting of Restricted Shares,
the Recipient shall own the Shares free and clear of all restrictions imposed by
this Agreement and the Recipient shall be free to hold or dispose of such Shares
in his
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discretion, subject to applicable federal and state law or regulations.
(e) PROHIBITION AGAINST ASSIGNMENT. During the Vesting Period, the
Restricted Shares may not be transferred or encumbered by the Recipient by means
of sale, assignment, mortgage, transfer, exchange, pledge, or otherwise. The
levy of any execution, attachment, or similar process upon the Restricted Shares
shall be null and void.
3. STOCK CERTIFICATES.
(a) CERTIFICATES. Restricted Shares shall be evidenced by one or
more stock certificates registered in the name of the Recipient or a nominee or
nominees therefor. As soon as practicable following the date hereof, the Company
shall prepare and issue separate certificates for the Restricted Shares
scheduled to vest in each year (the "Share Certificates"), which shall be
registered in the name of the Recipient or a nominee and which shall bear such
restrictive legend or legends (if any) as the Company may deem necessary or
desirable under any applicable law.
(b) STOCK POWERS. The Recipient shall execute and deliver to the
designee of the Company (the "Designee") stock powers corresponding to the Share
Certificates designating the Company as the transferee of an unspecified number
of Shares, which stock powers may be completed by the Designee as specified
herein. The Recipient and the Company each waive the requirement that the
signature of the Recipient on the stock powers be guaranteed. Upon receipt of a
copy of this Agreement and the stock powers, each signed by the Recipient, the
Designee shall
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promptly notify the proper officers of the Company and the Share Certificates
and stock powers shall be held by the Company in accordance with the terms of
this Agreement.
(c) EFFECT OF VESTING. Upon Vesting, the Company shall cause to be
delivered to the Recipient (i) a certificate for the Shares which have vested
free and clear of restrictive legends and (ii) any stock powers signed hereunder
by the Recipient remaining in its possession related to the vested shares. In
the event that the Recipient dies after shares are vested but before delivery of
the certificate for the vested shares, such certificate shall be delivered to,
and registered in the name of, the Recipient's beneficiary or estate, as the
case may be.
(d) RIGHTS OF STOCKHOLDER. Except as otherwise provided in Section
2 and this Section 3, during the Vesting Period and after the certificates for
the Restricted Shares have been issued, the Recipient shall be entitled to all
rights of a stockholder of the Company, including the right to vote and the
right to receive dividends, with respect to the Restricted Shares subject to
this Agreement. Subject to applicable withholding requirements, if any,
dividends on the Restricted Shares shall be paid to the Recipient when earned
and payable.
(e) POWER OF DESIGNEE. The Designee is hereby authorized by the
Recipient to utilize the stock power delivered by the Recipient to transfer all
forfeited Shares to the Company upon receipt of instructions from a duly
authorized representative of the Company.
4. TERMINATION OF EMPLOYMENT; CHANGE IN CONTROL.
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(a) TERMINATION DUE TO DISABILITY, DEATH OR FOR GOOD REASON;
CHANGE IN CONTROL. Unless otherwise provided in the Employment Agreement and
notwithstanding any provision of the Plan to the contrary, if the Recipient
terminates employment with the Company due to Disability, death, for Good Reason
or a termination initiated by the Company without Cause, all Restricted Shares
subject to this Agreement and held by, or on behalf of, the Recipient shall be
deemed earned and vested as of the Recipient's last day of employment with the
Company. In addition, unless otherwise provided in the Employment Agreement and
notwithstanding any provision of the Plan to the contrary, all Restricted Shares
subject to this Agreement and held by the Recipient on the date a Change in
Control occurs shall be deemed earned and vested as of such date.
(b) TERMINATION FOR ANY OTHER REASON. Unless otherwise provided in
the Employment Agreement, if the Recipient's employment with the Company
terminates prior to January 1, 2006 for reasons other than Disability, death, a
termination initiated by the Company without Cause or by Recipient for Good
Reason or as a result of a Change in Control, any Restricted Shares subject to
this Agreement that have not been earned and vested prior to the Recipient's
termination of employment shall be immediately forfeited on the last day of the
Recipient's employment with the Company.
5. WITHHOLDING.
In connection with the delivery of any stock certificates, or the
making of any payment in accordance with the provisions of this Agreement, the
Company shall
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withhold Shares or cash amounts (for fractional Shares) equal to the taxes then
required by applicable federal, state and local law to be so withheld.
6. ADJUSTMENTS FOR CAPITAL CHANGES.
In the event of any change in the outstanding shares of Common Stock
of the Company by reason of any stock dividend or split, recapitalization,
merger, consolidation, spin-off, reorganization, combination or exchange of
shares, or other similar corporate change, or other increase or decrease in such
shares effected without receipt or payment of consideration by the Company, a
duly authorized representative of the Company shall adjust the number of
Restricted Shares granted pursuant to the Plan and this Agreement to prevent
dilution or enlargement of the rights granted to the Recipient.
7. NO RIGHT TO CONTINUED EMPLOYMENT.
Nothing in this Agreement shall confer on the Recipient any right to
continue as an employee of the Company or in any way affect the Company's or any
subsidiary's right to terminate the Recipient's employment at any time.
8. NOTICE.
Any notice to the Company hereunder shall be in writing addressed
to:
Xxxx-Xxxx Realty Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxxx X. Xxxxx
Chief Executive Officer
and
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Xxxxx X. Xxxxxx, Esq.
General Counsel
Any notice to the Recipient hereunder shall be in writing addressed
to:
Mr. Xxxxxxx Xxxxxxxx
000 Xxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000
or such other address as the Recipient shall notify the Company in
writing.
9. ENTIRE AGREEMENT; EFFECT OF EMPLOYMENT AGREEMENT.
(a) ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties and shall not be modified or amended except in
writing and duly signed by each of the parties hereto. No waiver by either party
of any default under this Agreement shall be deemed a waiver of any later
default thereof.
(b) EFFECT OF EMPLOYMENT AGREEMENT. In the event the Employment
Agreement with the Company contains additional rights, duties and/or obligations
with respect to the Recipient, such terms and conditions shall govern the
Recipient's Restricted Share Award AS IF such terms and conditions had been set
forth herein; and in the event of any conflict or inconsistency between the
terms of the Employment Agreement or this Agreement, the terms and conditions of
the Employment Agreement shall control.
10. CONSTRUCTION.
The various provisions of this Agreement are severable in their
entirety. Any determination of invalidity or unenforceability of any one
provision shall have no effect on the continuing force and effect of the
remaining provisions.
11. GOVERNING LAW.
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This Agreement shall be governed by the laws of the State of New
Jersey applicable to contracts made, and to be enforced, within the State of New
Jersey.
12. SUCCESSORS.
This Agreement shall be binding upon and inure to the benefit of the
successors, assigns and heirs of the respective parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
to be effective on the date first above written.
XXXX-XXXX REALTY CORPORATION
BY: /s/ Xxxxxxxx X. Xxxxx
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XXXXXXXX X. XXXXX
CHIEF EXECUTIVE OFFICER
RECIPIENT
/s/ Xxxxxxx Xxxxxxxx
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XXXXXXX XXXXXXXX
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