EXHIBIT 9.4
RESTRICTED STOCK AWARD AGREEMENT
[FORM FOR DIRECTORS]
This Restricted Stock Award Agreement (the "Agreement"), made as of the
day of , 2004 (the "Grant Date") by and between CRIIMI
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MAE Inc. (the "Company"), and (the "Grantee"), evidences the
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grant by the Company of a stock award of restricted Shares (the "Award") to the
Grantee on such date and the Grantee's acceptance of the Award in accordance
with the provisions of the Company's 2001 Stock Incentive Plan, as amended on
September 29, 2004 (the "2001 Plan"). The Company and the Grantee agree as
follows:
1. Basis for Award. This Award is made under the Plan pursuant to Section 6
of the 2001 Plan for services to be rendered to the Company by the Grantee.
2. Stock Awarded.
(a) The Company hereby awards to the Grantee, in the aggregate,
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Shares ("Restricted Stock"), which shall be subject to the restrictions and
conditions set forth in the Plan and in this Agreement.
(b) Each certificate issued in respect of the Restricted Stock shall be
registered in the Grantee's name and deposited by him, together with a share
power endorsed in blank, with the Company and shall bear the following (or a
similar) legend:
"THE TRANSFERABILITY OF THIS CERTIFICATE
AND THE COMMON STOCK REPRESENTED HEREBY ARE
SUBJECT TO THE TERMS AND CONDITIONS
(INCLUDING FORFEITURE) CONTAINED IN THE
RESTRICTED STOCK AWARD AGREEMENT DATED AS OF
, ENTERED INTO BETWEEN THE
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REGISTERED OWNER AND CRIIMI MAE INC"
At the expiration of the restrictions, the Company shall redeliver to the
Grantee (or his legal representative, beneficiary or heir) share certificates
for the Shares deposited with it without any legend except as otherwise provided
by the Plan, this Agreement or as otherwise required by applicable law. The
Grantee shall have the right to receive dividends on and to vote the Restricted
Stock while it is held in custody except as otherwise provided by the Plan.
Notwithstanding the foregoing, the Company shall retain custody of all Retained
Distributions made or declared with respect to the Restricted Stock and such
Retained Distributions shall be subject to the same restrictions on terms and
conditions as are applicable to the Restricted Stock.
(c) Except as provided in the Plan or this Agreement, including without
limitation, Section 3 below, the restrictions on the Restricted Stock are that
the stock will be forfeited by the Grantee and all of the Grantee's rights to
such stock shall immediately terminate
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without any payment or consideration by the Company, in the event of any
sale, assignment, transfer, hypothecation, pledge or other alienation of such
Restricted Stock made or attempted, whether voluntary or involuntary, and if
involuntary whether by process of law in any civil or criminal suit, action or
proceeding, whether in the nature of an insolvency or bankruptcy proceeding or
otherwise, without the written consent of the Committee, excluding the Grantee
if he so serves on the Committee.
3. Vesting and/or Forfeiture. The restrictions described in Section 2 of
this Agreement will lapse with respect to of the Restricted
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Stock on and with respect to of the
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Restricted Stock on and with respect to of the
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Restricted Stock on , provided the Grantee still serves the
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Company as a director on such vesting dates, except as set forth in the
following sentences of this section. All restrictions will lapse with respect to
100% of the Restricted Stock still subject to restriction upon Grantee's death,
separation from service due to Disability, or termination of service by the
Company without Cause which occurs at any time on or prior to
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or termination of service within two (2) years of a Change of Control. If the
Grantee ceases to serve the Company as a director for any other reason at any
time prior to the vesting dates, the unvested Restricted Stock shall
automatically be forfeited upon such cessation of service.
4. Compliance with Laws and Regulations. The issuance and transfer of
Shares shall be subject to compliance by the Company and the Grantee with all
applicable requirements of securities laws and with all applicable requirements
of any stock exchange on which the Shares may be listed at the time of such
issuance or transfer. The Grantee understands that the Company is under no
obligation to register or qualify the Shares with the Securities and Exchange
Commission, any state securities commission or any stock exchange to effect such
compliance.
5. Tax Withholding.
(a) The Grantee agrees that, subject to clause 5(b) below, no later than
the date as of which the restrictions on the Restricted Stock shall lapse with
respect to all or any of the Restricted Stock covered by this Agreement, the
Grantee shall pay to the Company (in cash or to the extent permitted by the
Committee, Shares held by the Grantee whose Fair Market Value on the day
preceding the date the Restricted Stock vests is equal to the amount of the
Grantee's minimum tax withholding liability) any federal, state or local taxes
of any kind required by law to be withheld, if any, with respect to the
Restricted Stock for which the restrictions shall lapse. The Company or its
affiliates shall, to the extent permitted by law, have the right to deduct from
any payment of any kind otherwise due to the Grantee any federal, state or local
taxes of any kind required by law to be withheld with respect to the shares of
Restricted Stock.
(b) If the Grantee properly elects, within thirty (30) days of the Grant
Date, to include in gross income for federal income tax purposes an amount equal
to the Fair Market Value as of the Grant Date of the Restricted Stock granted
hereunder pursuant to Section 83(b) of the Internal Revenue Code of 1986, as
amended, the Grantee shall pay to the Company, or make other arrangements
satisfactory to the Committee to pay to the Company in the year of
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such grant, any federal, state or local taxes required to be withheld with
respect to such Shares. If the Grantee fails to make such payments, the Company
or its affiliates shall, to the extent permitted by law, have the right to
deduct from any payment of any kind otherwise due to the Grantee any federal,
state or local taxes of any kind required by law to be withheld with respect to
such Shares.
6. No Right to Continued Service. Nothing in this Agreement shall be deemed
by implication or otherwise to impose any limitation on any right of the Company
or any of its affiliates to terminate the Grantee's service at any time, in the
absence of a specific written agreement to the contrary.
7. Representations and Warranties of Grantee. The Grantee represents and
warrants to the Company that:
(a) Agrees to Terms of the Plan. The Grantee has received a copy of the
Plan and has read and understands the terms of the Plan and this Agreement, and
agrees to be bound by their terms and conditions. The Grantee acknowledges that
there may be adverse tax consequences upon the vesting of Restricted Stock or
disposition of the Shares once vested, and that the Grantee should consult a tax
adviser prior to such time.
(b) Cooperation. The Grantee agrees to sign such additional documentation
as may reasonably be required from time to time by the Company.
8. Adjustment Upon Changes in Capitalization. In the event of a Change in
Capitalization, the Committee may make appropriate adjustments to the number and
class of shares relating to Restricted Stock as it deems appropriate, in its
sole discretion, to preserve the value of this Award in accordance with the
terms of the Plan.
9. Governing Law; Modification. This Agreement shall be governed by the
laws of the State of Maryland without regard to the conflict of law principles.
The Agreement may not be modified except in writing signed by both parties.
10. Defined Terms. Except as otherwise provided herein, or unless the
context clearly indicates otherwise, capitalized terms used but not defined
herein have the definitions as provided in the 2001 Plan. The terms and
provisions of the 2001 Plan are incorporated herein by reference, and the
Grantee hereby acknowledges receiving a copy of the 2001 Plan. In the event of a
conflict or inconsistency between the discretionary terms and provisions of the
2001 Plan and the provisions of this Agreement, this Agreement shall govern and
control.
11. Miscellaneous. The masculine pronoun shall be deemed to include the
feminine, and the singular number shall be deemed to include the plural unless a
different meaning is plainly required by the context.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
date first above written.
CRIIMI MAE INC.
By:
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Name:
Its:
GRANTEE
By:
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Name:
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