PERFORMANCE RESTRICTED STOCK AGREEMENT (TSR) (Second Amended and Restated 2015 Stock Award and Incentive Plan)
Exhibit 10.28
PERFORMANCE RESTRICTED STOCK AGREEMENT (TSR)
(Second Amended and Restated 2015 Stock Award and Incentive Plan)
This PERFORMANCE RESTRICTED STOCK AGREEMENT, dated as of [______________] (the “Agreement”), is by and between Apartment Investment and Management Company, a Maryland corporation (the “Company”), and [______________] (the “Recipient”). Capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings set forth in the Apartment Investment and Management Company Second Amended and Restated 2015 Stock Award and Incentive Plan (the “Plan”).
WHEREAS, effective [______________] (the “Date of Grant”), the Compensation and Human Resources Committee (the “Committee”) of the Board of Directors (the “Board”) of the Company granted the Recipient a Performance Restricted Stock Award, pursuant to which the Recipient shall receive shares of the Company’s Class A Common Stock, par value $0.01 per share (“Common Stock”), pursuant to and subject to the terms and conditions of the Plan.
NOW, THEREFORE, in consideration of the Recipient’s services to the Company and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
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Exhibit 10.28
(ii) Except as set forth in Section 3, such lapse of restrictions shall occur only if the Recipient has remained employed by the Company through the Vesting Date, as the case may be (the “Restricted Period”). The portion of the Restricted Stock which does not vest as of the Vesting Date based on TSR performance, and any related accrued but unpaid dividends that are at that time subject to restrictions as set forth herein, shall, as of the Vesting Date, be forfeited to the Company without payment of any consideration by the Company, and neither the Recipient nor any of his or her successors, heirs, assigns or personal representatives shall thereafter have any further rights or interests in such shares of Restricted Stock or certificates.
(iii) In order to enforce the foregoing restrictions, the Committee may (A) require that the certificates representing the shares of Restricted Stock remain in the physical custody of the Company or in book entry until any or all of such restrictions expire or have been removed, and (B) cause a legend or legends to be placed on the certificates or book entry which make appropriate reference to the restrictions imposed under the Plan.
(iv) All determinations with respect to the calculations pursuant to this Agreement shall be made in the sole discretion of the Committee.
3. Termination of Employment. Except as otherwise set forth in this Agreement, in the event that the Recipient ceases to be employed by the Company for any reason prior to the lapse of the Restricted Period, then the Restricted Stock and any accrued but unpaid dividends that
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Exhibit 10.28
are at that time subject to restrictions set forth herein, shall be forfeited to the Company without payment of any consideration by the Company, and neither the Recipient nor any of his or her successors, heirs, assigns or personal representatives shall thereafter have any further rights or interests in such shares of Restricted Stock or certificates. In the event that the Recipient’s employment with the Company is terminated due to his death or total and permanent disability, then the Restricted Period set forth in Section 2(b) hereof shall immediately lapse and the Restricted Stock shall become immediately and fully vested, with the level of TSR performance calculated as if the date of termination was the final day of the Performance Period, and as if the level of TSR performance as of such date was the higher of (a) target or (b) actual TSR performance as of such date, as determined in the sole discretion of the Committee in accordance with Section 2(b) and Exhibit A. Restricted Stock not vesting in accordance with the foregoing sentence shall be forfeited to the Company without payment of any consideration by the Company, and neither the Recipient nor any of his or her successors, heirs, assigns or personal representatives shall thereafter have any further rights or interests in such shares of Restricted Stock or certificates. For purposes of this Section 3, the Recipient’s employment will have terminated by reason of total and permanent disability if, in the reasonable and good faith judgment of the Committee, the Recipient is totally and permanently disabled and is unable to return to or perform his or her duties on a full-time basis.
4. Change in Control. In the event of the termination of the Recipient’s employment with the Company by the Company without Cause or by the Recipient for Good Reason, in either case prior to the Vesting Date and within the period commencing six (6) months prior to and ending twenty-four (24) months following the occurrence of a Change in Control (as defined below) (a “CIC Termination”), the Restricted Stock issued hereunder shall, in addition to any provisions relating to vesting contained in this Agreement, become immediately and fully vested, and the Restricted Period set forth in Section 2(b) hereof shall lapse, (a) upon the consummation of such Change in Control (in the case of a CIC Termination that occurs prior to the date of the Change in Control) or (b) as of the date of such termination (in the case of a CIC Termination that occurs on or after the date of the Change in Control), with the level of TSR performance calculated as if the date of the Change in Control was the final day of the Performance Period, and (i) as if the level of TSR performance as of such date was attained at target level (if such date is prior to the last day of the Performance Period), or (ii) based on actual TSR performance as of such date, as determined in the sole discretion of the Committee in accordance with Section 2(b) and Exhibit A (if such date is on or following the last day of the Performance Period). For the avoidance of doubt, in the event of a CIC Termination that occurs prior to the date of a Change in Control, the Restricted Stock shall remain outstanding and eligible to vest upon the occurrence of such Change in Control during the six month period immediately following such termination of employment with the Company, in accordance with the preceding sentence. Any shares of Restricted Stock that do not become vested in accordance with this Section 4 shall be canceled and forfeited without payment of any consideration therefor (x) as of the six-month anniversary of the date on which such termination of employment with the Company occurs (in the case of a CIC Termination that occurs prior to the date of the Change in Control) or (y) as of the date of such termination (in the case of a CIC Termination that occurs on or after the date of the Change in Control), and the Recipient shall have no further right to or interest in such forfeited shares of Restricted Stock.
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Exhibit 10.28
(a) For purposes of this Agreement, a “Change in Control” shall mean the occurrence of any of the following events:
(i) an acquisition (other than directly from the Company) of any voting securities of the Company (the “Voting Securities”) by any “person” (as the term “person” is used for purposes of Section 13(d) or Section 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) immediately after which such person has “beneficial ownership” (within the meaning of Rule 13d‑3 promulgated under the Exchange Act) (“Beneficial Ownership”) of 50% or more of the combined voting power of the Company’s then outstanding Voting Securities; provided, however, in determining whether a Change in Control has occurred, the acquisition of Voting Securities in a Non-Control Acquisition (as hereinafter defined) shall not constitute an acquisition that would cause a Change in Control. “Non-Control Acquisition” shall mean an acquisition (A) by or under an employee benefit plan (or a trust forming a part thereof) maintained by (1) the Company or (2) any corporation, partnership or other person of which a majority of its voting power or its equity securities or equity interest is owned directly or indirectly by the Company or in which the Company serves as a general partner or manager (a “Subsidiary”), (B) by the Company or any Subsidiary, or (C) by any person in connection with a Non-Control Transaction (as hereinafter defined). “Non-Control Transaction” shall mean a merger, consolidation, share exchange or reorganization involving the Company, in which (1) the stockholders of the Company, immediately before such merger, consolidation, share exchange or reorganization, own, directly or indirectly immediately following such merger, consolidation, share exchange or reorganization, at least 50% of the combined voting power of the outstanding voting securities of the corporation that is the successor in such merger, consolidation, share exchange or reorganization (the “Surviving Company”) in substantially the same proportion as their ownership of the Voting Securities immediately before such merger, consolidation, share exchange or reorganization, and (2) the individuals who were members of the Board of Directors of the Company immediately prior to the execution of the agreement providing for such merger, consolidation, share exchange or reorganization constitute at least 50% of the members of the board of directors of the Surviving Company;
(ii) the individuals who constitute the Board as of the date hereof (the “Incumbent Board”) cease for any reason to constitute at least 50% of the Board; provided, however, that if the election, or nomination for election by the Company’s stockholders, of any new director was approved by a vote of at least two-thirds of the Incumbent Board, such new director shall be considered as a member of the Incumbent Board; provided, further, that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of either an actual or threatened “election contest” (as described in Rule 14a-11 promulgated under the Exchange Act) (an “Election Contest”) or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board of Directors (a “Proxy Contest”) including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest; or
(iii) the consummation of any of the following: (A) a merger, consolidation, share exchange or reorganization involving the Company (other than a Non-Control Transaction); (B) a complete liquidation or dissolution of the Company; or (C) the sale or other
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Exhibit 10.28
disposition of all or substantially all of the assets of the Company to any person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because any person (a “Subject Person”) acquired Beneficial Ownership of more than the permitted amount of the outstanding Voting Securities as a result of the acquisition of Voting Securities by the Company that, by reducing the number of Voting Securities outstanding, increases the proportional number of shares Beneficially Owned by such Subject Person, provided that if a Change in Control would occur (but for the operation of this sentence) as a result of the acquisition of Voting Securities by the Company, and after such share acquisition by the Company, such Subject Person becomes the Beneficial Owner of any additional Voting Securities that increases the percentage of the then outstanding Voting Securities Beneficially Owned by such Subject Person, then a Change in Control shall occur.
(b) “Cause” shall mean the termination of the Recipient’s employment because of the occurrence of any of the following events, as determined by the Board in accordance with the procedure below:
(i) the failure by the Recipient to attempt in good faith to perform his or her duties or to follow the lawful direction of the individual to whom the Recipient reports; provided, however, that the Company shall have provided the Recipient with written notice of such failure and the Recipient has been afforded at least fifteen (15) days to cure same;
(ii) the indictment of the Recipient for, or the Recipient’s conviction of or plea of guilty or nolo contendere to, a felony or any other serious crime involving moral turpitude or dishonesty;
(iii) the Recipient’s willfully engaging in misconduct in the performance of his or her duties (including theft, fraud, embezzlement, securities law violations, a material violation of the Company’s code of conduct or a material violation of other material written policies) that is injurious to the Company, monetarily or otherwise, in more than a de minimis manner;
(iv) the Recipient’s willfully engaging in misconduct unrelated to the performance of his or her duties for the Company that is materially injurious to the Company, monetarily or otherwise;
(v) the material breach by the Recipient of any material written agreement with the Company.
For purposes of this Section 4(b), no act, or failure to act, on the part of the Recipient shall be considered “willful” unless done, or omitted to be done, by the Recipient in bad faith and without reasonable belief that his or her action or omission was in the best interest of the Company. Any termination shall be treated as a termination for Cause only if (i) the Recipient is given at least five (5) business days’ written notice of termination specifying the alleged Cause event and shall have the opportunity to appear (with counsel) before the full Board to present information
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Exhibit 10.28
regarding his or her views on the Cause event, and (ii) after such hearing, the Recipient is terminated for Cause by at least a majority of the Board. After providing the notice of termination in the foregoing sentence, the Board may suspend the Recipient with full pay and benefits until a final determination pursuant to this Section 4(b) has been made. Notwithstanding the foregoing provisions of this Section 4(b), if the Recipient is party to an employment agreement with the Company that provides a definition of Cause, such definition shall apply instead of the foregoing provisions of this Section 4(b).
(c) “Good Reason” shall mean (i) a reduction in the Recipient’s base salary; (ii) a material diminution in the Recipient’s title or responsibilities; or (iii) relocation of the Recipient’s primary place of employment more than fifty miles; provided, however, that the Recipient may only terminate employment for Good Reason by delivering written notice to the Board within ninety (90) days following the date on which the Recipient first knows of the event constituting Good Reason, which notice specifically identifies the facts and circumstances claimed by the Recipient to constitute Good Reason, and the Company has failed to cure such facts and circumstances within thirty (30) days after receipt of such notice; and provided further, however, that if the Recipient is party to an employment agreement with the Company that provides a definition of Good Reason, such definition shall apply instead of the foregoing provisions of this Section 4(c).
5. Tax Withholding; Tax Treatment.
(a) Tax Withholding. Notwithstanding anything to the contrary, the release of the shares of Restricted Stock hereunder shall be conditioned upon the Recipient making adequate provision for federal, state or other withholding obligations, if any, which may arise upon the vesting of the Restricted Stock.
(b) Tax Treatment. Set forth below is a brief summary as of the Date of Grant of certain United States federal tax consequences of the award of Restricted Stock. THIS SUMMARY DOES NOT ADDRESS SPECIFIC STATE, LOCAL OR FOREIGN TAX CONSEQUENCES THAT MAY BE APPLICABLE TO THE RECIPIENT. THE RECIPIENT UNDERSTANDS THAT THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE.
To ensure compliance with Treasury Department regulations, we advise you that, unless otherwise expressly indicated, any federal tax advice contained in this Agreement was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.
The Recipient shall recognize ordinary income at the time or times the Restricted Stock vests in an amount equal to the aggregate Fair Market Value of such shares on each such date.
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Exhibit 10.28
The Recipient hereby acknowledges and agrees that, with respect to the grant of Restricted Stock, the Recipient will not make an election with the Internal Revenue Service electing pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended (the “Code”), to be taxed currently on the aggregate Fair Market Value of the Restricted Stock as of the Date of Grant. The Recipient further acknowledges and agrees that if the Recipient makes such an election, the grant of Restricted Stock shall be immediately forfeited and shall be of no further force or effect.
BY SIGNING THIS AGREEMENT, THE RECIPIENT REPRESENTS THAT HE OR SHE HAS REVIEWED WITH HIS OR HER OWN TAX ADVISORS THE FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THAT HE OR SHE IS RELYING SOLELY ON SUCH ADVISORS AND NOT ON ANY STATEMENTS OR REPRESENTATIONS OF THE COMPANY OR ANY OF ITS AGENTS. THE RECIPIENT UNDERSTANDS AND AGREES THAT HE OR SHE (AND NOT THE COMPANY) SHALL BE RESPONSIBLE FOR ANY TAX LIABILITY THAT MAY ARISE AS A RESULT OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
6. Miscellaneous.
(a) Entire Agreement. This Agreement and the Plan contain the entire understanding and agreement of the Company and the Recipient concerning the subject matter hereof, and supersede all earlier negotiations and understandings, written or oral, between the parties with respect thereto.
(b) Captions. The captions and section numbers appearing in this Agreement are inserted only as a matter of convenience. They do not define, limit, construe or describe the scope or intent of the provisions of this Agreement.
(c) Counterparts. This Agreement may be executed in counterparts, each of which when signed by the Company or the Recipient will be deemed an original and all of which together will be deemed the same agreement.
(d) Notices. Any notice or communication having to do with this Agreement must be given by personal delivery or by certified mail, return receipt requested, addressed, if to the Company or the Committee, to the attention of the General Counsel of the Company at the principal office of the Company and, if to the Recipient, to the Recipient’s last known address contained in the personnel records of the Company.
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Exhibit 10.28
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By: ____________________________________
Name:
Title:
Recipient:
By: ___________________________________
Name:
Address: ___________________________
___________________________
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Exhibit 10.28
EXHIBIT A
This Exhibit sets forth the calculation methodology with respect to the Agreement. Certain defined terms may be found at the end of this Exhibit A. Terms not defined on this Exhibit A shall have the meaning set forth in the body of the Agreement.
With respect to one-third of the Restricted Stock:
Performance Level |
Relative TSR vs. NAREIT Apartment Index TSR: Performance vs. Index Over Performance Period |
Portion of Target Award Vesting (“Vesting Portion”) |
Threshold |
[ ] bps |
[ ] % |
Target |
[ ] bps |
[ ] % |
Maximum |
[ ] bps |
[ ] % |
With respect to one-third of the Restricted Stock:
Performance Level |
Relative TSR vs. Xxxxxxx 2000 Value Index TSR: Performance vs. Index Over Performance Period |
Portion of Target Award Vesting (“Vesting Portion”) |
Threshold |
[ ] bps |
[ ] % |
Target |
[ ] bps |
[ ] % |
Maximum |
[ ] bps |
[ ] % |
With respect to one-third of the Restricted Stock:
Performance Level |
Relative TSR vs. Custom Performance Peers TSR: Performance vs. Index Over Performance Period |
Portion of Target Award Vesting (“Vesting Portion”)
|
Threshold |
[ ] Percentile |
[ ] % |
Target |
[ ] Percentile |
[ ] % |
Maximum |
[ ] Percentile |
[ ] % |
TSR results above the Threshold level and below the Maximum level shall result in a Vesting Portion that is interpolated between the Threshold and Maximum Vesting Portions set forth on this Exhibit A. TSR results below the Threshold level will cause the Restricted Stock to be forfeited to the Company without payment of any consideration by the Company, and neither the
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Exhibit 10.28
Recipient nor any of his or her successors, heirs, assigns or personal representatives shall thereafter have any further rights or interests in such shares of Restricted Stock or certificates.
If the performance level is above Target but as of the Determination Date the Company has negative absolute TSR with respect to the Performance Period, then the Restricted Stock shall vest at the Target level as of the dates set forth in Section 2(b) of the Agreement, with the Vesting Portion in excess of Target (the “Excess Portion”) vesting only upon the Company’s achievement of positive absolute TSR with respect to the period beginning on the first day of the Performance Period; provided, however, that if the Company has not achieved positive absolute TSR with respect to the period beginning on the first day of the Performance Period as of the third anniversary of the Determination Date, then the Excess Portion shall be forfeited to the Company without payment of any consideration by the Company, and neither the Recipient nor any of his or her successors, heirs, assigns or personal representatives shall thereafter have any further rights or interests in such shares of Restricted Stock or certificates.
For purposes of these calculations:
“TSR” means the Company’s Total Shareholder Return as reported by SNL Financial or another third party judged by the Committee to be a reputable third party, which measurement shall be confirmed by the Committee. For purposes of calculating Aimco’s TSR, the “starting” share price will be calculated using the average closing price for the 20-day trading period up to and including [__________________], and the “ending” share price be calculated using the average closing price for the 20-day period up to and including [_______________].
When measuring the TSR of the Company, the calculation shall be adjusted as deemed appropriate by the Committee to reflect any change in corporate structure of the nature referenced in Section 3.4 of the Plan.
Measurement of the TSR of the NAREIT Apartment Index, the Xxxxxxx 2000 Value Index, and the companies set forth in the custom peer group for purposes of comparison to the Company’s TSR shall be as reported by SNL Financial or another third party judged by the Committee to be a reputable third party, which measurement shall be confirmed by the Committee.
“bps” shall mean basis points, each of which shall equal 1/100th of 1%.
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