Exhibit 10.1
FORM OF RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT, dated as of _____________ (the
"Effective Date"), is made by and among Arden Realty, Inc., a Maryland
corporation (the "Company"), Arden Realty Limited Partnership, a Maryland
limited partnership (the "Partnership"), and _____________, an employee of the
Company (the "Holder"):
WHEREAS, the Company and the Partnership have established the Second
Amended and Restated 1996 Stock Option and Incentive Plan of Arden Realty, Inc.
and Arden Realty Limited Partnership (the "Plan");
WHEREAS, the Company wishes to carry out the Plan (the terms of which
are hereby incorporated by reference and made a part of this Agreement);
WHEREAS, the Plan provides for the issuance of shares of the Company's
Common Stock (as defined herein) subject to certain restrictions thereon; and
WHEREAS, the Compensation Committee of the Company's Board of Directors
(the "Committee"), has determined that it would be to the advantage and in the
best interest of the Company and its stockholders to obtain and retain the
services of key Employees and Consultants considered essential to the long range
success of the Company by offering them an opportunity to own stock in the
Company.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.1 General. Wherever the following terms are used in this Agreement
they shall have the meanings specified below, unless the context clearly
indicates otherwise. Capitalized terms not defined herein shall have the
meanings assigned to such terms in the Plan. The masculine pronoun shall include
the feminine and neuter, and the singular the plural, where the context so
indicates.
1.2 Change in Control. For purposes of this Agreement, a "Change in
Control" shall mean the occurrence of any of the following events:
(a) the individuals constituting the Board as of the Effective
Date (the "Incumbent Board") cease for any reason to constitute at
least two-thirds (2/3rds) 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 (2/3rds)
of the Incumbent Board, such new director shall be considered a member
of the Incumbent Board;
(b) an acquisition 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 "1934 Act")) immediately after
which such person has "beneficial ownership" (within the meaning of
Rule 13d-3 promulgated under the 0000 Xxx) ("Beneficial Ownership") of
20% or more of the combined voting power of the Company's then
outstanding Voting Securities; or
(c) approval by the stockholders of the Company of:
(i) a merger, consolidation, share exchange or
reorganization involving the Company, unless
(ii) 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 80% 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
(iii) the individuals who were members of the
Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation, share exchange or
reorganization constitute at least two-thirds (2/3rds) of the members
of the board of directors of the Surviving Company;
(ii) a complete liquidation or dissolution of the Company;
or
(iii) an agreement for the sale or other disposition of
all or substantially all of the assets of the Company.
(d) any Person is or becomes the Beneficial Owner of
securities of the Company representing ten percent (10%) or more of the
combined voting power of the Company's then outstanding securities and
(A) the identity of the Chief Executive Officer of the Company is
changed during the period beginning sixty (60) days before the
attainment of the ten percent (10%) beneficial ownership and ending two
(2) years thereafter, or (B) individuals constituting at least
one-third (1/3) of the members of the Board at the beginning of such
period shall leave the Board during the period beginning sixty (60)
days before the attainment of the ten percent (10%) beneficial
ownership and ending two (2) years thereafter.
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1.3 Consultant. "Consultant" shall mean any consultant or adviser if:
(a) the consultant or adviser renders bona fide services to the
Company;
(b) the services rendered by the consultant or adviser are not
in connection with the offer or sale of securities in a capital-raising
transaction and do not directly or indirectly promote or maintain a
market for the Company's securities; and
(c) the consultant or adviser is a natural person who has contracted
directly with the company to render such services.
1.4 Disability, "Disability" shall mean permanent and total disability
(within the meaning of Section 22(e)(3) of the Code).
ARTICLE II.
AWARD OF RESTRICTED STOCK
2.1 Award of Shares, For good and valuable consideration which the
Committee has determined to exceed the par value of its Common Stock, on the
date hereof the Company issues to the Holder ________ shares of its Common Stock
(the "Shares") upon the terms and conditions set forth in this Agreement.
2.2 Consideration to the Company. As partial consideration for the
issuance of the Shares by the Company, the Holder agrees to remain in the employ
of or as a Consultant to the Company, the Partnership, or any Subsidiary
(whichever is applicable), as applicable, with such duties and responsibilities
as the Company, the Partnership or any Subsidiary (as applicable) shall from
time to time prescribe, for a period of at least one year after the Shares are
issued. Nothing in this Agreement or in the Plan shall confer upon the Holder
any right to continue in the employ of or in the service of the Company, the
Partnership or any Subsidiary or shall interfere with or restrict in any way the
rights of the Company, the Partnership or any Subsidiary which are hereby
expressly reserved, to discharge a Holder who is an Employee or Consultant at
any time for any reason whatsoever, with or without cause.
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ARTICLE III.
RESTRICTIONS
3.1 Forfeiture. Upon the Holder's Termination of Employment or
Termination of Consultancy (each as defined in the Plan), all of the Unreleased
Shares (as defined below) shall thereupon be forfeited immediately and without
any further action by the Company (the "Forfeiture Restriction").
3.2 Release of Shares from Restrictions.
(a) Subject to Sections 3.1, 3.5, 3,6 and 4.4 each Share shall be
released from the Forfeiture Restriction and the Transfer Restriction
in accordance with the following schedule:
Twenty-five percent (25 %) of the Shares (rounded up to the next whole number
of shares) shall be released from the Forfeiture Restriction and the Transfer
Restriction on each anniversary of the grant date, so that all of the Shares
shall be released from the Forfeiture Restriction and the Transfer Restriction
on the fourth (4th) anniversary after the grant date.
(b) Any of the Shares which, from time to time, have not yet been
released from the Forfeiture Restriction and the Transfer Restriction
are referred to herein as "Unreleased Shares."
(c) In the event of a Change of Control, or the death or Disability
of the Holder, all of the Unreleased Shares shall cease to be subject
to the Forfeiture Restriction or the Transfer Restriction.
3.3 Legend. Certificates representing Shares issued pursuant to this
Agreement shall, until such Shares are released from the Forfeiture Restriction
and the Transfer Restriction and new certificates are issued therefor, bear the
following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
FORFEITURE AND CERTAIN RESTRICTIONS ON TRANSFERABILITY UNDER THE TERMS
OF THAT CERTAIN RESTRICTED STOCK AGREEMENT BY AND BETWEEN ARDEN REALTY,
INC. (THE "COMPANY"), ARDEN REALTY LIMITED PARTNERSHIP AND THE
REGISTERED OWNER OF SUCH SHARES, AND SUCH SHARES MAY NOT BE DIRECTLY OR
INDIRECTLY. OFFERED, TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED
OR OTHERWISE DISPOSED OF UNDER ANY CIRCUMSTANCES, EXCEPT PURSUANT TO
THE PROVISIONS OF SUCH AGREEMENT."
3.4 Issuance of Certificates for Vested Shares. Subject to Section 3.7,
upon the release of Shares from the Forfeiture Restriction and the Transfer
Restriction, the Company shall cause new certificates to be issued with respect
to such vested Shares and delivered to the Holder or his legal
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representative, free from the legend provided for in Section 3.3. Such vested
Shares shall cease to be subject to the terms and conditions of this Agreement
3.5 Restrictions On New Shares. In the event that the Holder receives
any new or additional or different shares or securities which are attributable
to the Holder in his capacity as the registered owner of Shares then subject to
Forfeiture Restriction and the Transfer Restriction, such new or additional or
different shares or securities shall be considered to be Shares under this
Agreement and shall be subject to the Forfeiture Restriction and the Transfer
Restriction, unless the Board or the Committee provides otherwise.
3.6 Section 83(b). The Holder covenants that he will not make an
election under Section 83(b) of the Code with respect to the receipt of any of
the Shares.
3.7 Tax Withholding. Notwithstanding anything to the contrary in this
Agreement, the Company shall be entitled to require payment in cash or
deduction from other compensation payable to the Holder of any sums required by
federal, state or local tax law to be withheld with respect to the issuance,
lapsing of restrictions on or exercise of the Shares. The Board or the
Committee may, in their discretion, allow the Holder to deliver shares of
Common Stock owned by the Holder duly endorsed for transfer to the Company with
an aggregate Fair Market Value on the date of delivery equal to the statutory
minimum sums to be withheld. The Company shall not be obligated to deliver any
new certificate representing vested Shares to the Holder or his legal
representative unless and until the Holder or his legal representative shall
have paid or otherwise satisfied in full the amount of all federal, state and
local taxes applicable to the taxable income of the Holder resulting from the
grant of the Shares or the lapse or removal of the Forfeiture Restriction and
the Transfer Restriction.
ARTICLE IV.
MISCELLANEOUS
4.1 Unreleased Shares Not Transferable. Unless otherwise permitted by
the Committee pursuant to the Plan, no Unreleased Shares or any interest or
right therein or part thereof shall be liable for the debts, contracts or
engagements of the Holder or his successors in interest or shall be subject to
disposition by transfer, alienation, anticipation, pledge, encumbrance,
assignment or any other means whether such disposition be voluntary or
involuntary or by operation of law by judgment, levy, attachment, garnishment or
any other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect (the
"Transfer Restriction"); provided, however, that this Section 4.1 shall not
prevent transfers by will or by applicable laws of descent and distribution. In
case of a permitted transfer, the transferee or other recipient shall receive
and hold the Shares so transferred subject to the provisions of this Agreement,
and there shall be no further transfer of such Shares except in accordance with
the terms of this Section. Any transferee shall acknowledge the same by signing
a copy of this Agreement. Transfer or sale of the Shares is subject to
restrictions on transfer imposed by any applicable state and federal securities
laws.
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4.2 Conditions to Issuance of Stock Certificates. The Company shall not
be required to issue or deliver any certificate or certificates for shares of
stock pursuant to this Agreement prior to fulfillment of all of the following
conditions:
(a) The admission of such shares to listing on all stock exchanges
on which such class of stock is then listed; and
(b) The payment by the Holder of all amounts required to be
withheld, under federal, state and local tax laws, with respect to the
issuance of Shares and/or the lapse or removal of the Forfeiture
Restriction and/or the Transfer Restriction; and
(c) The lapse of such reasonable period of time as the Committee may
from time to time establish for reasons of administrative convenience.
(d) The completion of any registration or other qualification of
such shares under any state or federal law or under rulings or
regulations of the Securities and Exchange Commission or of any other
governmental regulatory body, which the Committee shall, in its
absolute discretion, deem necessary or advisable; and
(e) The obtaining of any approval or other clearance from any state
or federal governmental agency which the Committee shall, in its
absolute discretion, determine to be necessary or advisable.
4.3 Escrow.
(a) Holder hereby authorizes and directs the Secretary of the
Company, or such other person designated by the Company, to transfer
the Unreleased Shares as to which the Forfeiture Option is effective
from Holder to the Company.
(b) To insure the availability for delivery of Holder's Unreleased
Shares upon forfeiture pursuant to Section 3.1, Holder hereby appoints
the Secretary, or any other person designated by the Company as escrow
agent, as its attorney-in-fact to sell, assign and transfer unto the
Company, such Unreleased Shares, if any, forfeited pursuant to the
Forfeiture Option and shall, upon execution of this Agreement, deliver
and deposit with the Secretary of the Company, or such other person
designated by the Company, the share certificates representing the
Unreleased Shares, together with the stock assignment duly endorsed in
blank, attached hereto as Exhibit A. The Unreleased Shares and stock
assignment shall be held by the Secretary in escrow, pursuant to the
Joint Escrow Instructions of the Company and Holder attached as
Exhibit B hereto, until the Forfeiture Restriction becomes effective as
provided in Section 3.1, until such Unreleased Shares are vested, or
until such time as this Agreement no longer is in effect. Upon vesting
of the Unreleased Shares, the escrow agent shall promptly deliver to
the Holder the certificate or certificates representing such Shares in
the escrow agent's possession belonging to the Holder, and the escrow
agent shall be
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discharged of all further obligations hereunder; provided, however,
that the escrow agent shall nevertheless retain such certificate or
certificates as escrow agent if so required pursuant to other
restrictions imposed pursuant to this Agreement.
(c) The Company, or its designee, shall not be liable for any act
it may do or omit to do with respect to holding the Shares in escrow
and while acting in good faith and in the exercise of its judgment.
4.4 Ownership Limit and REIT Status. The Forfeiture Restriction and/or
the Transfer Restriction on the Shares shall not lapse if the lapsing of such
restrictions would likely result in any of the following:
(a) a violation of the restrictions or limitations on ownership
provided for from time to time under the terms of the organizational
documents of the Company; or
(b) income to the Company that could impair the Company's status as
a real estate investment trust, within the meaning of Section 856
through 860 of the Code.
4.5 Notices. Any notice to be given under the terms of this Agreement
to the Company shall be addressed to the Company in care of its Secretary, and
any notice to be given to the Holder shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this Section
4.5, either party may hereafter designate a different address for notices to be
given to it or him. Any notice which is required to be given to the Holder
shall, if the Holder is then deceased, be given to the Holder's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section 4.5. Any notice shall
have been deemed duly given when enclosed in a properly sealed envelope or
wrapper addressed as aforesaid, deposited (with postage prepaid) in a post
office or branch post office regularly maintained by the United States Postal
Service.
4.6 Rights as Stockholder. Except as otherwise provided herein, upon
delivery of the Shares to the escrow holder pursuant to Section 4.3, the Holder
shall have all the rights of a stockholder with respect to said shares, subject
to the restrictions herein, including the right to vote the shares and to
receive all dividends or other distributions paid or made with respect to the
Shares; provided, however, that any and all shares of Common Stock received by
the Holder with respect to such Shares as a result of stock dividends, stock
splits or any other form of recapitalization shall also be subject to the
Forfeiture Restriction and the Transfer Restriction until such restrictions on
the underlying Shares lapse or are removed pursuant to this Agreement.
4.7 Titles. Titles are provided herein for convenience only and are not
to serve as a basis for interpretation or construction of this Agreement.
4.8 Conformity to Securities Laws. The Holder acknowledges that the
Plan and this Agreement are intended to conform to the extent necessary with all
provisions of all applicable federal and state laws, rules and regulations
(including but not limited to, the Securities Act and the Exchange Act) and to
such approvals by any listing, regulatory or other governmental authority as
may,
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in the opinion of counsel for the Company, be necessary or advisable in
connection therewith. Notwithstanding anything herein to the contrary, this
Agreement shall be administered, and the Shares shall be issued, only in such a
manner as to conform to such laws, rules and regulations. To the extent
permitted by applicable law, the Plan, this Agreement and the Shares issued
hereunder shall be deemed amended to the extent necessary to conform to such
laws, rules and regulations.
4.9 Limitations Applicable to Section 16 Persons and Performance-Based
Compensation. Notwithstanding any other provision of this Agreement, the Plan,
the Shares and this Agreement shall be subject to any additional limitations set
forth in any applicable exemptive rule under Section 16 of the Exchange Act
(including any amendment to Rule 16b-3) that are requirements for the
application of such exemptive rule. To the extent permitted by applicable law,
the Plan, this Agreement and the Shares issued hereunder shall be deemed amended
to the extent necessary to conform to such applicable exemptive rule.
Furthermore, notwithstanding any other provision of the Plan or this Agreement,
the Shares shall be subject to any additional limitations set forth in Section
162(m) of the Code (including any amendment to Section 162(m) of the Code) or
any regulations or rulings issued thereunder that are requirements for
qualification as performance-based compensation as described in Section
162{m)(4)(C) of the Code, and this Agreement shall be deemed amended to the
extent necessary to conform to such requirements unless the Committee shall have
determined that the Shares are not intended to so qualify.
4.10 Governing Law. The laws of the State of Maryland shall govern the
interpretation, validity, administration, enforcement and performance of the
terms of this Agreement regardless of the law that might be applied under
principles of conflicts of laws.
4.11 Survival of Terms. This Agreement shall apply to and bind Holder
and the Company and their respective permitted assignees and transferees, heirs,
legatees, executors, administrators and legal successors.
4.12 Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
4.13 Assignment. Except as otherwise provided herein, the Company's
rights and obligations hereunder may be assigned to any Company Subsidiary or to
any successor pursuant to a merger, consolidation or similar event. Subject to
the foregoing, this Agreement and the respective rights and obligations of the
parties hereto shall inure to the benefit of and be binding upon, the successors
and assigns of the parties.
4.14 Invalid Provision. The invalidity or unenforceability of any
particular provision hereof shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provision was omitted.
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IN WITNESS HEREOF, this Agreement has been executed and delivered by
the parties hereto.
Holder: ARDEN REALTY, INC., a Maryland
corporation
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Address By:
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City, State, Zip Code Its:
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Holder's Taxpayer Identification Number
ARDEN REALTY LIMITED
PARTNERSHIP, a Maryland Limited
Partnership
By: ARDEN REALTY INC.,
a Maryland corporation
Its: Sole General Partner
By:
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Its:
