BEAZER HOMES USA, INC. DIRECTOR AWARD AGREEMENT FOR OPTION AND RESTRICTED STOCK
Exhibit 10.2
BEAZER HOMES USA, INC.
2010 EQUITY INCENTIVE PLAN
DIRECTOR AWARD AGREEMENT FOR
OPTION AND RESTRICTED STOCK
THIS AWARD AGREEMENT (this “Agreement”) is made as of [ ,] 2010 by and between
BEAZER HOMES USA, Inc., a Delaware corporation (the “Company”), and
(“Participant”).
WITNESSETH:
WHEREAS, the Company pursuant to its 2010 Equity Incentive Plan (the “Plan”) wishes to make
certain awards to Participant.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained,
the parties hereto hereby agree to the terms set forth below. The terms of this Agreement shall be
interpreted in accordance with the Plan, and any capitalized term used in this Agreement but not
defined herein shall have the meaning set forth in the Plan.
1. GRANT OF OPTION TO ACQUIRE COMMON STOCK
(a) Grant; Effective Date; Option Price. The Company hereby notifies Participant that
the Company has granted to Participant in accordance with the Plan, and effective as of
, 2010 (the “Option Effective Date”), the right and option (hereinafter referred to as
the “Option”) to purchase, on the terms and conditions set forth herein, all or any part of an
aggregate of Shares at a price per Share equal to the closing price per Share as reported
by the New York Stock Exchange (the “NYSE”) at the close of business on the Option Effective
Date ($ ) (the “Option Price”), subject to adjustment as provided in Section 3 below. The
Option is not intended to be an incentive stock option within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the “Code”).
The Company will at all times during the Option Term (as set forth in Section 1(b)(i) below)
reserve and keep available such number of Shares as will be sufficient to satisfy the requirements
of this Agreement.
(b) Duration and Exercisability of Option; Limitations on Exercisability.
(i) The Option shall in all events terminate and no longer be exercisable at 11:59 p.m. (ET)
on the seventh anniversary of the Option Effective Date (the period commencing on the Option
Effective Date and ending at 11:59 p.m. (ET) on the seventh anniversary thereof being referred to
herein as the “Option Term”).
(ii) (A) The Option shall not be exercisable, in whole or in part, prior to the first
anniversary of the Option Effective Date, but shall become vested and exercisable by Participant as
to one third (1/3) of the aggregate Shares subject to the Option (rounded down to the nearest whole
Share) on each of the first and second anniversaries of the Option Effective Date and with respect
to the remaining Shares subject to the Option on the third anniversary of the Option Effective
Date, provided that Participant has served continuously on the Board of Directors of the Company
(the “Board”) from the Option Effective Date until each such vesting date.
(B) Notwithstanding Section 1(b)(ii)(A) above, the Option shall become vested and exercisable
in full upon the occurrence of a Change in Control (as defined in
- 2 -
the Plan), if not vested and exercisable previously, provided that Participant has served
continuously on the Board from the Option Effective Date until such Change in Control.
(C) Notwithstanding Section 1(b)(ii)(A) above, the Option shall become vested and exercisable
in full in the event that Participant’s service on the Board terminates due to retirement, death,
becoming Disabled (as defined below) or an unsuccessful attempt by Participant to win re-election
to the Board, if not vested and exercisable previously, provided that Participant has served
continuously on the Board from the Option Effective Date until the date of retirement, death,
becoming Disabled or an unsuccessful attempt by Participant to win re-election to the Board. For
purposes of this Agreement, a Participant shall be deemed “Disabled” if the Participant becomes ill
or is injured or otherwise becomes disabled or incapacitated such that, in the opinion of the
Board, he/she cannot fully carry out and perform his/her duties as a Director, and such disability
or incapacity shall continue for a period of forty-five (45) consecutive days. The term
“disability” shall have a meaning correlating with the foregoing.
(iii) During the lifetime of Participant, the Option shall be exercisable only by Participant
(or, subject to Section 1(d)(ii) below, by Participant’s guardian or legal representative or
Permitted Transferee (as hereinafter defined) to whom the Option has been gifted or transferred
pursuant to a domestic relations order) and shall not be assignable or transferable by Participant
other than (A) to an individual by will or the laws of descent and distribution, or (B) to a
Permitted Transferee by gift or transfer pursuant to a domestic relations order. For purposes of
this Agreement, “Permitted Transferee” shall mean (A) any person who is a “family member” of the
Participant, as such term is used in the instructions to Form S-8
- 3 -
under the Securities Act of 1933, as amended (the “Act”) (collectively “Immediate Family
Members”); (B) a trust solely for the benefit of the Participant and the Participant’s Immediate
Family Members; (C) a partnership or limited liability company whose only partners or shareholders
are the Participant and the Participant’s Immediate Family Members; or (D) any other transferee as
may be approved by the Committee in its sole discretion.
(iv) The exercise of all or any part of the Option shall only take effect at such time that
the issuance of the Shares pursuant to such exercise will not violate any state or federal
securities or other laws or the rules of the NYSE or any other exchange upon which the Company’s
securities may then be trading. Any other provision of this Agreement notwithstanding, the Company
shall have the right to designate one or more periods of time during which the Option shall not be
exercisable if the Company determines (in its sole discretion) that such limitation on exercise
could in any way facilitate a lessening of any restriction on transfer pursuant to the Act or any
state securities laws with respect to any issuance of securities by the Company, facilitate the
registration or qualification or any securities by the Company under the Act or any state
securities laws, or facilitate the perfection of any exemption from the registration or
qualification requirements of the Act or any applicable state securities laws for the issuance or
transfer of any securities. Such limitation on exercise shall not affect the date on which the
Option becomes vested or the Option Term pursuant to clause (i) of this Section 1(b) in any way
other than to limit the periods during which the Option shall be exercisable.
(c) No Rights as a Shareholder. Participant shall have none of the rights of a
Shareholder with respect to Shares subject to the Option until such Shares shall have been
- 4 -
issued to Participant upon exercise of the Option. No adjustments will be made for dividends or
other distributions or rights if the applicable record date occurs before a stock certificate is
issued pursuant to Participant’s exercise of the Option.
(d) Effect of Termination of Service on Option.
(i) In the event that Participant voluntarily resigns from or otherwise terminates his/her
service on the Board (other than due to retirement, death, becoming Disabled or an unsuccessful
attempt by Participant to win re-election to the Board and other than as the result of a Change in
Control), both the vested and unvested portions of the Option shall terminate as of such date of
resignation or termination and shall no longer be exercisable.
(ii) In the event that Participant’s service on the Board terminates due to retirement, death,
becoming Disabled or an unsuccessful attempt by Participant to win re-election to the Board, prior
to the complete exercise of the Option, then the Option, to the extent vested and exercisable at
that time pursuant to Section 1(b)(ii) hereof, may be exercised at any time within twelve (12)
months after Participant’s termination of service on the Board, after which time any remaining
portion of the Option shall terminate and no longer be exercisable. In this case, the Option may
be exercised by Participant, his/her guardian or legal representatives or by any Permitted
Transferee to whom the Option has been gifted or transferred pursuant to a domestic relations
order, or by any person or persons to whom the Option is transferred by will or the applicable laws
of descent and distribution, as applicable, to the extent of the full number of Shares which
Participant was entitled to purchase under the Option on the date of such termination of service on
the Board, and subject to the condition that no portion of the Option shall be exercisable after
the expiration of the Option Term.
- 5 -
(e) Effect of a Change in Control of the Company on the Option. In the event of a
Change in Control (as defined in the Plan), the Company shall use its commercially reasonable
efforts to notify Participant that a Change in Control will occur and the Company shall give to
Participant, in the Company’s sole discretion, either (i) a reasonable time thereafter within which
to exercise any portion of the Option to the extent vested and exercisable and not exercised
previously, prior to the effectiveness of such Change in Control, at the end of which time the
Option shall terminate and no longer be exercisable (provided that, to the extent vesting of any
portion of such Option is contingent on the Change in Control, the exercise of such portion of the
Option shall also be contingent on consummation of the Change in Control), or (ii) the right, after
the Change in Control, to exercise the remaining portion of the Option (or a substitute option) as
to such number of shares of stock of the corporation succeeding the Company or acquiring its
business by reason of such Change in Control as may be determined in accordance with Section 3
below. Alternatively, the Committee, in its sole discretion, may provide for the redemption of the
unexercised portion of the Option at the time of the Change in Control in exchange for an amount of
cash or other property equal to the excess of (i) the amount of cash or other property that would
have been realized by Participant on the Change in Control with respect to the Shares subject to
such portion of the Option had such portion of the Option been exercised immediately prior to the
Change in Control over (ii) the aggregate Option Price for such number of Shares subject to the
unexercised portion of the Option.
(f) Manner of Exercise; Form of Payment.
(i) The Option can be exercised only by Participant or other proper party (as permitted by
Section 1(b)(iii) above) by delivering a timely written notice to the Company at its
- 6 -
principal office. The notice shall state the number of Shares as to which the Option is being
exercised and be accompanied by payment in full of the Option Price for all Shares designated in
the notice.
(ii) Participant may pay the Option Price in cash, by check (bank check, certified check or
personal check), by money order or by wire transfer. In addition, with the approval of the
Committee, Participant may pay the Option Price by (A) having the Company withhold a portion of the
Shares otherwise to be delivered upon the exercise of the Option having a Fair Market Value equal
to the Option Price; (B) delivering to the Company (actually or by attestation) Shares other than
the Shares issuable upon the exercise of the Option with a Fair Market Value equal to the Option
Price; (C) a cashless exercise through a broker; or (D) any combination of cash, check, money order
or wire transfer and any of Sections 1(f)(ii)(A) through (C). Any election to have Shares withheld
must be made on or before the date that the Option Price is to be paid.
2. AWARD OF RESTRICTED STOCK
(a) Award; Effective Date. The Company hereby notifies Participant that, effective as
of , 2010 (the “Restricted Stock Effective Date”), the Company has awarded to
Participant Shares, subject to the terms of the Plan and subject to such further
restrictions as are set forth below. Such restricted Shares are hereinafter referred to as
“Restricted Stock.”
(b) Vesting; Change in Control; Restrictions. (i) Subject in each case to the
provisions of this Section 2, Participant’s rights with respect to the Restricted Stock awarded
hereunder shall vest as follows: 100% of the Restricted Stock awarded will vest on the third
- 7 -
anniversary of the Restricted Stock Effective Date, provided that Participant has served
continuously on the Board from the Restricted Stock Effective Date until such vesting date.
(ii) Notwithstanding Section 2(b)(i) above, upon the occurrence of a Change in Control, all
Restricted Stock not vested previously shall become immediately vested, provided that Participant
has served continuously on the Board from the Restricted Stock Effective Date until such Change in
Control.
(iii) Notwithstanding Section 2(b)(i) above, in the event that Participant’s service on the
Board terminates due to retirement, death, becoming Disabled or an unsuccessful attempt by
Participant to win re-election to the Board, the Restricted Stock not vested previously shall
become immediately vested, provided that Participant has served continuously on the Board from the
Restricted Stock Effective Date until the date of retirement, death, becoming Disabled or an
unsuccessful attempt by the Participant to win re-election to the Board.
(iv) Prior to vesting, the Restricted Stock shall not be voluntarily or involuntarily sold,
assigned, transferred, pledged, alienated, hypothecated or encumbered by Participant, other than by
will or the laws of descent and distribution.
(v) Prior to vesting, Participant shall have voting rights and receive dividends, if and when
declared, on the Restricted Stock held by the Company on behalf of Participant.
(c) Forfeiture of Restricted Stock. In the event that Participant voluntarily resigns
from or otherwise terminates his/her service on the Board (other than due to retirement, death,
becoming Ddisabled or an unsuccessful attempt by Participant to win re-election to the Board
- 8 -
and other than as a result of a Change in Control), then the Restricted Stock which is held by
Participant on the date of such resignation or termination shall be forfeited by Participant, and
the Company shall have no further obligation to Participant with respect to such forfeited
Restricted Stock.
(d) Stock Certificates. The Restricted Stock awarded hereunder shall be held in a
book entry account by the Company. Appropriate adjustments shall be made by the Company to the
Restricted Stock awarded hereunder to reflect changes made by the Committee pursuant to those
events described in Section 3 below. Upon vesting of the Restricted Stock awarded hereunder, a
certificate or certificates representing such Shares shall be delivered to the Participant, which
certificate or certificates may contain such legends as the Company, in its sole discretion, deems
necessary or advisable in connection with applicable securities laws. Such certificates shall be
delivered as soon as administratively practicable, but no later than 30 days after vesting.
3. ADJUSTMENTS
If there shall be any change in the Shares through (i) dividends or other distributions
(whether in the form of cash, Shares, other securities or other property), (ii) recapitalization,
(iii) stock split, (iv) reverse stock split, (v) reorganization, (vi) merger, (vii) consolidation,
(viii) split-up, (ix) spin-off, (x) combination, (xi) repurchase or exchange of Shares or other
securities of the Company, (xii) issuance of warrants or other rights to purchase Shares or other
securities of the Company or (xiii) other similar corporate transaction or event that affects the
Shares, then appropriate adjustments in the outstanding portion of the Option or Restricted Stock
shall be made by the Committee, in its sole discretion under the Plan, in order to prevent
or
- 9 -
dilution
or enlargement of the Option or Restricted Stock rights contemplated hereby. Such adjustments
may include, where appropriate, changes in the number and type of Shares subject to the Option or
Restricted Stock and/or the Option Price.
4. MISCELLANEOUS
(a) The Plan. The grant of the Option and award of Restricted Stock provided for
herein are made pursuant to the Plan and are subject to its terms. The Plan is available for
inspection during business hours at the principal offices of the Company (currently located at 0000
Xxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 30328), and a copy of the Plan may be obtained by
Participant through a request in writing therefor directed to the Secretary of the Company. To the
extent the terms of this Agreement are inconsistent with the Plan, the terms of the Plan shall
control.
(b) No Right to Continued Service. This Agreement shall not confer on Participant any
right with respect to continuance of service as a director on the Board, nor will it interfere in
any way with the right of the Company or its shareholders to terminate Participant’s service as a
director on the Board.
(c) Waivers. No waiver at any time of any term or provision of this Agreement shall
be construed as a waiver of any other term or provision of this Agreement and a waiver at any time
of any term or provision of this Agreement shall not be construed as a waiver at any subsequent
time of the same term or provision.
(d) Headings. All headings set forth in this Agreement are intended for convenience
only and shall not control or affect the meaning, construction or effect of this Agreement or of
any of the provisions hereof.
- 10 -
(e) Counterparts. This Agreement may be executed via facsimile transmission signature
and in counterparts, each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
(f) Board and Committee Determinations. All matters to be determined by the Board or
any committee thereof, including, without limitation, the Compensation Committee, pursuant to the
terms of this Agreement shall be determined by the members of the Board or such duly authorized
committee without the vote of Participant.
(g) Law Governing Agreement. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
- 11 -
IN WITNESS WHEREOF, the parties hereto have executed this DIRECTOR AWARD AGREEMENT FOR OPTION
AND RESTRICTED STOCK covering the grant of Option and award of Restricted Stock effective as of
, 2010.
| BEAZER HOMES USA, INC. |
||||
| By: | ||||
| Xxxx X. Xxxxxx | ||||
| Senior Vice President, Human Resources | ||||
| PARTICIPANT |
||||
| Name | ||||
- 12 -
