TRANSFEREE AGREEMENT
THIS TRANSFEREE AGREEMENT (this "Agreement") is made as of the ____ day
of __________, _____, by and between Insignia Capital Investments, Inc., as a
Member ("Transferor") of ICII-WV Holdings, LLC, a Delaware limited liability
company (the "Company"), and ____________________, an individual who desires to
become a Member ("Transferee") pursuant to this Agreement. All capitalized terms
used but not defined herein have the same meanings as in the limited liability
company agreement of the Company, attached hereto as Annex A (the "LLC
Agreement").
WHEREAS, Transferor is a wholly-owned subsidiary of Insignia Financial
Group, Inc., a Delaware corporation (collectively with its subsidiaries,
"Insignia"), and Insignia is causing Transferor to enter into this Agreement;
WHEREAS, Insignia desires to incentivize and retain in the employ of
Insignia certain individuals and to compensate them for their contributions to
the growth and profits of Insignia and thereby induce them to continue to make
such contributions in the future;
WHEREAS, Transferee is an employee of Insignia;
WHEREAS, in furtherance thereof, and pursuant to and in accordance with
the LLC Agreement, this Agreement is designed to transfer and assign
("Transfer") a Profits Interest represented by ____ Profits Units in the Company
from Transferor to Transferee, subject to forfeiture as provided herein; and
WHEREAS, the parties hereto desire to execute this Agreement to
further evidence the Transfer by Transferor;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. Definitions.
Whenever used herein, the following capitalized terms shall
have the meanings set forth below:
"Board" means the Board of Managers of the Company.
"Cause" means: (a) if Transferee has a written employment
agreement with Insignia containing a definition of the term "Cause," such
definition; otherwise, (b) (i) engaging in willful or gross misconduct or
neglect, (ii) repeatedly failing to adhere to the directions of superiors or the
written policies and practices of Insignia, (iii) the commission of a felony or
a crime of moral turpitude or any crime involving Insignia, (iv) fraud,
misappropriation or embezzlement, (v) a material breach of Transferee's
employment agreement (if any) with Insignia, or (vi) any other illegal act
detrimental to Insignia.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning set forth in the recitals.
"Disability" means a disability which renders Transferee
incapable of performing substantially all of his or her material duties for
Insignia for a period of at least 180 consecutive days.
"Insignia" has the meaning set forth in the recitals.
"IRS" means the Internal Revenue Service.
"Transfer" has the meaning set forth in the recitals.
"Transferee" has the meaning set forth in the recitals.
"Transferor" has the meaning set forth in the recitals.
"Units" means the Profits Units Transferred pursuant to this
Agreement.
"Unvested Unit" means a Unit that was Transferred to
Transferee pursuant to this Agreement which continues to be subject to
forfeiture pursuant to Section 4 at the time in question.
"Vested Unit" means a Unit that was Transferred to Transferee
pursuant to this Agreement which is no longer subject to forfeiture pursuant to
Section 4 at the time in question.
2. Transfer of Units.
(a) Transferor hereby Transfers ____ Profits Units to
Transferee, and Transferee hereby accepts such Units, in each case subject to
forfeiture as provided in Section 4 hereof and the other terms and conditions of
this Agreement.
(b) Transferee will be entered into the records of the Company
as the holder of the Units Transferred pursuant to this Agreement, and
Transferee shall be subject to the provisions and restrictions set forth in the
LLC Agreement.
3. Effective Date of Agreement.
This Agreement is effective as of the date first above
written. As required by the LLC Agreement, the Board of the Company has approved
this Agreement and the Transfer of Units pursuant hereto as evidenced by its
signature on the signature page hereto.
4. Restrictions and Conditions; Forfeiture.
(a) The Profits Units Transferred pursuant to this Agreement
are subject to forfeiture back to Transferor during such periods, in such
percentage amounts and upon the occurrence of such conditions and events as are
indicated on Schedule I attached hereto.
(b) Except as provided in Section 4(a), Transferee shall have,
in respect of the Units, all of the rights of a Member of the Company, including
the right to vote the Units and the right to receive and retain any cash
distributions in respect of such Units, until such time (if ever) as such Units
are forfeited back to the Company. Subject to Section 3.8 of the LLC Agreement,
Transferee shall not be required to return to Transferor any distributions
received in respect of subsequently forfeited Units.
(c) Upon forfeiture of Units held by Transferee back to
Transferor pursuant to Section 4(a), Transferee shall (i) cease to be a Member
of the Company and shall have no further rights to allocations of Profits and
Losses of the Company or to distributions, including those of any Profits
previously allocated to Transferee except to the extent already received, if as
a result of such forfeiture no Units continue to be held by Transferee, or (ii)
if Transferee continues to hold other Units, continue to be a Member of the
Company but shall have no further rights to allocations of Profits in respect of
the
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forfeited Units or to distributions in respect of the forfeited Units except
to the extent already received. Any forfeiture of Units shall, without any
further action by the Board, Transferee, Transferor, the Company or any other
Person, result in an automatic Transfer of the Units so forfeited hereunder from
Transferee to Transferor.
5. Section 83(b) Tax Election.
Within 30 days from the date of Transfer of Units to Transferee
pursuant to this Agreement, Transferee shall duly file with the IRS an election
under Section 83(b) of the Internal Revenue Code (in substantially the form
attached as Annex B hereto), and shall deliver a copy of such election, as
filed, to Insignia. Notwithstanding anything contained in this Agreement to the
contrary, Transferee's filing and delivery of the Section 83(b) Tax Election
Form shall be a condition precedent to Transferor's obligation as may otherwise
be provided hereunder to provide Units to Transferee, and the failure of
Transferee to satisfy such requirement with respect to the Units shall cause
such Units to be forfeited in accordance with Section 4 hereof.
6. Nontransferability of Unvested Units.
Unvested Units shall not be transferred or assigned by
Transferee in any manner whatsoever. Vested Units will be transferable if and to
the extent permitted by Article V of the LLC Agreement.
7. Miscellaneous.
(a) Without limiting any power and authority otherwise
possessed by Transferor, Transferor shall have the full power and authority to
interpret and administer this Agreement and any other instrument or agreements
relating to this Agreement. The Transferor's actions in this regard shall be
final, conclusive and binding upon all persons, including without limitation
Transferee and Transferee's beneficiaries.
(b) The failure of Transferor, Transferee or the Company to
insist upon strict compliance with any provision of this Agreement, or to assert
any right Transferor, Transferee or the Company, respectively, may have under
this Agreement, shall not be deemed to be a waiver of such provision or right or
any other provision or right of this Agreement or the LLC Agreement.
(c) Nothing in this Agreement shall confer on Transferee any
right to continue in the employ or other service of Insignia or interfere in any
way with the right of Insignia to terminate Transferee's employment or other
service at any time.
(d) The Company is an express third-party beneficiary of this
Agreement.
(e) TRANSFEREE EXPRESSLY ACKNOWLEDGES THAT PURSUANT TO SECTION
2.12 OF THE LLC AGREEMENT, EXCEPT AS EXPRESSLY SET FORTH IN THE LLC AGREEMENT
THE BOARD AND THE MANAGERS ACTING WITHIN THEIR CAPACITY HAVE NO DUTY TO
TRANSFEREE, FIDUCIARY OR OTHERWISE, AND MAY TAKE WHATEVER ACTIONS THEY DEEM
APPROPRIATE IN THEIR SOLE AND ABSOLUTE DISCRETION INCLUDING, BUT NOT LIMITED TO,
SELLING, DISPOSING, REDUCING OR FORFEITING ANY COMPANY ASSETS FOR ANY
CONSIDERATION WHATSOEVER OR FOR NO CONSIDERATION AT ALL, AND TRANSFEREE HEREBY
CONFIRMS AND AGREES TO SUCH LIMITATION ON THE DUTY OF THE BOARD COLLECTIVELY AND
ON EACH MANAGER INDIVIDUALLY.
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8. Notices.
All notices under this Agreement shall be in writing and
delivered personally or by recognized overnight courier, as follows:
if to Transferor:
Insignia Capital Investments, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx, President
if to Transferee:
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if to the Company:
ICII-WV Holdings, LLC
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Vice President
Such addresses may be changed at any time by written notice to
the other party given in accordance with this Section 8.
9. Captions.
The use of captions in this Agreement is for convenience. The
captions are not intended to and do not provide substantive rights.
10. Amendment; Waiver; Severability.
This Agreement may not be amended or modified except by a
written agreement executed by the parties hereto or their respective successors
and legal representatives. No waiver of any provision of this Agreement shall be
valid unless it is in writing and signed by the party charged therewith. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
11. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF DELAWARE,
WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS.
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12. Counterparts.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, and all of which taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
TRANSFEROR:
INSIGNIA CAPITAL INVESTMENTS, INC.
By:
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Name:
Title:
TRANSFEREE:
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Name:
AS REQUIRED BY THE LLC AGREEMENT, THIS AGREEMENT AND THE TRANSFER OF UNITS
PURSUANT HERETO IS HEREBY APPROVED BY THE BOARD OF MANAGERS OF THE COMPANY:
ICII-WV HOLDINGS, LLC
By:
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Name:
Title:
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SCHEDULE I
FORFEITURE SCHEDULE
ANNEX A
limited liability company agreement
of
ICII-WV HOLDINGS, LLC
ANNEX B
Section 83(b) TAX ELECTION FORM
ELECTION TO INCLUDE IN GROSS INCOME
IN YEAR OF TRANSFER OF PROPERTY
PURSUANT TO SECTION 83(B) OF THE INTERNAL REVENUE CODE
The undersigned hereby elects pursuant to Section 83(b) of the Internal
Revenue Code with respect to the property described below and supplies the
following information in accordance with the regulations promulgated thereunder:
1. The name, address and taxpayer identification number of the
undersigned are:
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Taxpayer I.D. No.:___________________________
2. Description of property with respect to which the election is being
made:
_________ Profits Units of membership interest in ICII-WV Holdings,
LLC
3. The date of transfer of property is _________________.
The taxable year to which this election relates is calendar year
200___.
4. The nature of the restriction(s) to which the property is subject is:
[Insert Restriction]
The property is non-transferable in the taxpayer's hands, except for
certain estate-related planning purposes and transfers to family
members, by virtue of the Limited Liability Company Agreement of
ICII-WV Holdings, LLC.
5. Fair market value:
The fair market value at time of transfer (determined without regard
to any restrictions other than restrictions which by their terms will
never lapse) of the property with respect to which this election is
being made is $10.00.
6. Amount paid for property:
The amount paid by taxpayer for said property is $0 per Unit.
7. Furnishing statement to employer:
A copy of this statement has been furnished to Insignia Financial
Group, Inc.
Dated: _________________ Signature: ___________________________
