Carter Validus Mission Critical REIT, Inc. Restricted Stock Award Agreement
Xxxxxx
Validus Mission Critical REIT, Inc.
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Name
of Recipient:
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Award
Date:
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Number
of Award Shares:
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THIS
AGREEMENT1
(the “Agreement”) is made and entered into as of the
day and date on the last page hereof (the "Award
Date"), by and between
Xxxxxx Validus Mission Critical REIT, Inc. (the "Company"), a Maryland corporation, and the
individual Recipient noted above (the "Recipient").
W I T N E S S E T H:
WHEREAS, the Company has adopted the Xxxxxx
Validus Mission Critical REIT, Inc. 2010 Restricted Share Plan (the
"Plan"); and
WHEREAS, the Board of Directors of the Company
(the "Board") or a committee thereof has authorized
the grant to Recipient of a restricted stock award under the Plan or the Plan
itself provides for an automatic grant of a restricted stock award to Recipient
[to
purchase shares of] OR [of]
the common stock of the Company ("Common
Stock"), and the Company
and Recipient wish to confirm herein the terms, conditions, and restrictions of
the restricted stock award;
NOW,
THEREFORE, in consideration
of the premises, the mutual covenants contained herein, and other good and
valuable consideration, the parties hereto agree as follows:
1 Award of
Shares
1.1 Award of
Shares. Subject
to the terms, restrictions, limitations, and conditions stated herein and in the
Plan, the Company hereby awards to Recipient the number of shares of Common
Stock (the "Award
Shares") noted
above. [As consideration for the grant of the Award Shares, Recipient
hereby agrees to deliver to the Company {a promissory note payable for the
purchase price of [Insert Purchase Price] in substantially the form attached
hereto as Exhibit
D (the “Promissory
Note”)}{cash in the amount
of [insert]}][, and the Recipient shall execute and deliver to the Company the
Stock Pledge and Security Agreement attached hereto as Exhibit
E.] By the
execution of this Agreement, the Recipient hereby accepts the Award Shares
subject to all terms and provisions of this Agreement.
1.2 Vesting of Award
Shares. Recipient shall become
vested in a percentage of the Award Shares shown below based upon the Continuous
Service of the Recipient from the Award Date of the Award Shares (as noted
hereon):
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Vesting
Schedule:
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Percentage
Vested:
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Continuous
Service from Award Date:
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If the
above calculation of vested Shares would result in a fraction, any fraction will
be rounded to zero. [However, notwithstanding the foregoing,
in the event that the Recipient ceases Continuous Service with the Company (1)
by reason of death or Disability, (2) after having attained the age of
sixty-five (65), (3) because the Recipient’s employment with the Company has
been terminated by the Company without Cause, (4) because the Recipient has
terminated employment with the Company for Good Reason, or (5) because the
Recipient’s employment contract with the Company (if any) has come to an end and
has not been renewed or extended, then the Recipient shall nonetheless
immediately, as of the date of such cessation of Continuous Service, become
fully (100%) vested in the Award Shares. Furthermore, notwithstanding
the foregoing, in the event that a Change of Control of the Company occurs, then
the Recipient shall nonetheless immediately, as of the date of such Change of
Control, become fully (100%) vested in the Award
Shares.] Notwithstanding the foregoing, the Board may, in its
sole discretion, accelerate the vesting of the Award Shares in whole or in
part. The Award Shares which have become vested pursuant to the
vesting schedule or by virtue of such acceleration are herein referred to as the
"Vested Award Shares"
and all Award Shares which are not Vested Award Shares are sometimes herein
referred to as the "Unvested
Award Shares."
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1.3 Rights as
Stockholder; Dividend & Voting Rights. Recipient (or any
subsequent transferee) shall have no rights as a Stockholder with respect to any
Award Shares until shares are issued in Recipient's name. Recipient
shall be entitled to dividends paid or declared on Vested and Unvested Award
Shares for which the record date is on or after the date such Award Shares have
been issued in the Recipient’s name; provided, however,
any dividends paid in the
form of common stock of the Company shall be considered Award Shares and shall
be subject to all terms and provisions of this Agreement as the underlying Award
Shares. Recipient shall have all voting rights applicable for all
Vested and Unvested Award Shares for which the record date is on or after the
date such Award Shares have been issued in the Recipient’s
name. Recipient shall have no rights whatsoever (dividend, voting or
otherwise) with respect to Award Shares which have been forfeited under Sections
2.1 or 2.2.
1.4 Withholding on Award
Shares. Recipient hereby agrees
that, in consideration for the grant of the Award Shares, the following federal
and state income tax withholding provisions shall apply:
(a) Code §83(b) Election
Made by Recipient. If the Recipient makes a
Code §83(b) Election with respect to the Award Shares, then, in order not to
forfeit Award Shares, the Recipient must deliver to the Company a check payable
to the Company in the amount of all withholding or other tax obligations
(whether federal, state or local) imposed on the Company by reason of such Code
§83(b) Election simultaneously with the Recipient’s delivery to the Company of a
copy of his Code §83(b) Election (which must occur no later than thirty (30)
days after the Award Date). If the Recipient does not timely make
such payment, the Award Shares shall be immediately forfeited by the Recipient,
and any amounts which must be paid by the Company for any required withholding
or other tax obligations imposed on the Company by reason of such Code §83(b)
Election shall be paid by the Recipient by directly withholding all such amounts
as quickly as possible consistent with applicable law from any other
compensation payable to the Recipient on or after the date of such Code §83(b)
Election. The Recipient hereby agrees to the withholding by the
Company outlined in the preceding sentence, and authorizes and directs that such
withholding from the Recipient’s compensation be made if such sentence is
applicable.
(b) Code §83(b) Election
Not Made by Recipient. If the Recipient does not
make a Code §83(b) Election with respect to the Award Shares, then the Recipient
shall be entitled to elect one (or, at the discretion of the Committee, a
combination) of the following methods of satisfying the Company’s withholding
obligations (see Exhibit
C
attached):
(1) Direct Payment on or
prior to Substantial Vesting Event. The Recipient may, on or
before the date of occurrence of an event pursuant to which such Award Shares
become “substantially vested” within the meaning of Code §83, deliver to the
Company cash and/or a check payable to the Company in the amount of all
withholding or other tax obligations (whether federal, state or local) imposed
on the Company by reason of the substantial vesting of such Award
Shares.
(2) Return of Vested
Award Shares upon Substantial Vesting Event. The Recipient may, as of the
close of business on the business day which is coincident with or which
immediately follows the occurrence of an event pursuant to which such Award
Shares become “substantially vested” within the meaning of Code §83, allow the
Company to repurchase from the Recipient the smallest whole number of Vested
Award Shares which, when multiplied by the fair market value of the Common Stock
on such business date, is sufficient to satisfy the amount of the withholding
tax obligations imposed on the Company by reason of the vesting of the Award
Shares. If the
Recipient elects this method of satisfying withholding obligations, the
Recipient acknowledges and understands that any Vested Award Shares repurchased
from the Recipient may result in tax consequences to the
Recipient.
(3) Incremental
Withholding over Likely Vesting Period. The Recipient may, beginning
as of the Award Date, allow the Company to withhold from future compensation
payments to the Recipient substantially equal amounts such that the aggregate of
such amounts shall, as of the next likely date of occurrence of an event
pursuant to which any such Award Shares shall become “substantially vested”
within the meaning of Code §83, be sufficient to satisfy the amount of the
withholding tax obligations imposed on the Company by reason of the vesting of
the Award Shares. If the Recipient elects this method of satisfying
withholding obligations, the Recipient acknowledges and understands
that:
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(i) The Company shall have complete
discretion to determine how much and when amounts shall be
withheld;
(ii) Amounts withheld may be immediately paid
to the appropriate tax authority as a prepayment of the withholding obligations,
or may be held by the Company until such time as the withholding obligations
become due, in the sole and complete discretion of the
Company;
(iii) No interest or earnings shall accrue
based on such incremental withholding; and
(iv) In the event that the vesting of Award
Shares should occur earlier than forecasted in determining the substantially
equal amounts to be withheld from the Recipient’s future compensation payments,
the Recipient may nonetheless be required to deliver to the Company a check
payable to the Company in the amount of all withholding or other tax obligations
(whether federal, state or local) imposed on the Company by reason of the
substantial vesting of such Award Shares.
The Recipient’s election of a method of
withholding under this Section 1.4 must be made prior to the date of occurrence
of an event pursuant to which such Award Shares become “substantially vested”
within the meaning of Code §83; provided,
however, (1) the
Recipient’s election of the method specified in Section 1.4(b)(3) above must be
made within thirty (30) days of the Award Date, and (2) if the Recipient is
required to file beneficial ownership reports pursuant to Section 16(a) of the
Securities Exchange Act of 1934, the Recipient’s election of the method
specified in Section 1.4(b)(2) must be made either (A) at least six months
prior to the date of vesting of any of such Award Shares, or (B) prior to the
date of vesting of any of such Award Shares and in any ten-day period beginning
on the third day following the release of the Company's quarterly or annual
summary statement of sales and earnings. The Recipient’s election of
a method of withholding under this Section 1.4 shall, once made, be
irrevocable. Notwithstanding the above, if, for any reason,
withholding or other tax obligations (whether federal, state or local) are
imposed upon the Company by reason of the grant of the Award Shares or their
becoming substantially vested, the Company shall have the power and the right to
deduct or withhold, or require the Recipient to remit to the Company as a
condition precedent to immediate forfeiture of the Award Shares, an amount
sufficient to satisfy such withholding or other tax obligations (whether
federal, state or local), and, in this regard, the Company may offer the
Recipient various alternatives for satisfying such obligations. Upon
receipt of payment in full of all withholding tax obligations, the Company shall
cause such Vested Award Shares to be issued and delivered to the
Recipient.
1.5 Investment
Representations. Recipient hereby
represents, warrants, covenants, and agrees with the Company as
follows:
(a) The Award Shares being acquired by
Recipient will be acquired for Recipient's own account without the participation
of any other person, with the intent of holding the Award Shares for investment
and without the intent of participating, directly or indirectly, in a
distribution of the Award Shares and not with a view to, or for resale in
connection with, any distribution of the Award Shares, nor is Recipient aware of
the existence of any distribution of the Award Shares;
(b) Recipient is not acquiring the Award
Shares based upon any representation, oral or written, by any person with
respect to the future value of, or income from, the Award Shares but rather upon
an independent examination and judgment as to the prospects of the
Company;
(c) The Award Shares were not offered to
Recipient by means of publicly disseminated advertisements or sales literature,
nor is the Recipient aware of any offers made to other persons by such
means;
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(d) Recipient is able to bear the economic
risks of the investment in the Award Shares, including the risk of a complete
loss of my investment therein;
(e) Recipient understands and agrees that
the Award Shares will be issued and sold to Recipient without registration under
any state law relating to the registration of securities for sale, and will be
issued and sold in reliance on the exemptions from registration under the
Securities Act of 1933 (the "1933 Act"), provided by Sections 3(b) and/or
4(2) thereof and the rules and regulations promulgated
thereunder;
(f) The Award Shares cannot be offered for
sale, sold or transferred by Recipient other than pursuant to: (A) an effective
registration under the 1933 Act or in a transaction otherwise in compliance with
the 1933 Act; and (B) evidence satisfactory to the Company of compliance with
the applicable securities laws of other jurisdictions. The Company
shall be entitled to rely upon an opinion of counsel satisfactory to it with
respect to compliance with the above laws;
(g) The Company will be under no obligation
to register the Award Shares or to comply with any exemption available for sale
of the Award Shares without registration or filing, and the information or
conditions necessary to permit routine sales of securities of the Company under
Rule 144 of the 1933 Act are not now available and no assurance has been given
that it or they will become available. The Company is under no
obligation to act in any manner so as to make Rule 144 available with respect to
the Award Shares;
(h) Recipient has and has had complete
access to and the opportunity to review and make copies of all material
documents related to the business of the Company, including, but not limited to,
contracts, financial statements, tax returns, leases, deeds, and other books and
records. Recipient has examined such of these documents as Recipient
has wished and is familiar with the business and affairs of the
Company. Recipient realizes that the purchase of the Award Shares is
a speculative investment and that any possible profit therefrom is
uncertain;
(i)
Recipient has had the
opportunity to ask questions of and receive answers from the Company and any
person acting on its behalf and to obtain all material information reasonably
available with respect to the Company and its affairs. Recipient has
received all information and data with respect to the Company which Recipient
has requested and which Recipient has deemed relevant in connection with the
evaluation of the merits and risks of Recipient's investment in the
Company;
(j)
Recipient has such knowledge
and experience in financial and business matters that Recipient is capable of
evaluating the merits and risks of the purchase of the Award Shares hereunder
and Recipient is able to bear the economic risk of such purchase;
and
(k) The agreements, representations,
warranties, and covenants made by Recipient herein extend to and apply to all of
the Award Shares of the Company issued to Recipient pursuant to this restricted
stock award. Acceptance by Recipient of such Award Shares shall
constitute a confirmation by Recipient that all such agreements,
representations, warranties, and covenants made herein shall be true and correct
at that time.
2 Restrictions & Forfeiture of Award
Shares
2.1 Forfeiture of Award
Shares. As a
condition of receiving a grant of Award Shares pursuant to this Agreement, the
Recipient agrees that if, subsequent to the grant of the Award Shares, the
Recipient, either directly or indirectly, on the Recipient's own behalf or in
the service or on behalf of others, serves as a principal, partner, officer,
director, manager, supervisor, administrator, consultant or employee engaged in
any business which involves the business of investing in
income-producing commercial real estate in the medical, data center and
educational sectors (a
“Business Competing
with the Business of the Company”) while performing services for the
Company and for a period ending one year from the date of the Recipient’s
cessation of services for the Company, and the Committee determines in good
faith that the Recipient has violated the provisions of this Section, then
notwithstanding any other provisions contained in this Agreement, (1) the
Recipient (or any subsequent holder or transferee of the Award Shares) shall
immediately forfeit any and all Vested and Unvested Shares and (2) the Recipient
(or such subsequent holder or transferee of the Award Shares) shall forfeit and
return to the Company any amounts which Recipient (or such holder or transferee)
received at the time of disposition of any Vested Shares within ten (10)
calendar days of notice from the Company.
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2.2 Forfeiture upon
Cessation of Services. Notwithstanding anything to
the contrary herein, upon the Recipient’s cessation of the performance of services
for the Company, or any Parent or Subsidiary:
(a) by the Company for actions or omissions
which would constitute Cause, all Award Shares (including all Vested Award
Shares and Unvested Award Shares) shall be forfeited, effective upon the date of
such cessation of the
performance of services;
or
(b) for any other reason (including, but not
limited to death or disability), all Unvested Award Shares shall be forfeited,
effective upon such
cessation of the performance of services.
2.3 Restrictions on
Unvested Award Shares. None of the Unvested Award
Shares may be conveyed, pledged, assigned, transferred, hypothecated,
encumbered, or otherwise disposed of by Recipient, and any attempt to do so with
respect to Unvested Award Shares shall be null and void ab
initio, unless the
Committee expressly authorizes such in writing, in which
case the transferee shall be subject to all provisions of this Restricted Stock
Agreement. If
Unvested Award Shares are transferred pursuant to the preceding sentence, the
Recipient agrees to notify the Committee at least thirty (30) days prior to such
transfer, and the Committee may require that the transferee thereof execute and
deliver to the Company such documents and agreements as the Company shall
reasonably require to evidence the fact that the Award Shares to be owned,
either directly or beneficially, by such transferee shall continue to be subject
to all the restrictions set forth in this Agreement and all applicable rights in
favor of the Company set forth elsewhere herein, and that such transferee is
subject to and bound by such restrictions and provisions. The restrictions
of this Section 2.3 shall not apply to Vested Award Shares.
2.4 Restrictions on
Transfer of Award Shares. Award Shares shall be
subject to the following transfer restrictions:
(a) General
Rule. None of
the Award Shares may be conveyed, pledged, assigned, transferred, hypothecated,
encumbered, or otherwise disposed of by Recipient, or if the Award Shares are
held or owned of record by a transferee, by such transferee, (either being
referred to herein as the “Holder”), except as expressly provided in
subsections (b), (c), or (d) below.
(b) Company Permitted
Transfers. The
Board may, but shall not be obligated to, approve the transfer of any or all of
the Award Shares upon the condition that the transferee thereof execute and
deliver to the Company such documents and agreements as the Company shall
require to evidence the fact that the Award Shares to be owned, either directly
or beneficially, by such transferee shall continue to be subject to all the
restrictions set forth in this Agreement and all applicable rights in favor of
the Company set forth herein, and that such transferee is subject to and bound
by such restrictions and provisions.
(c) Transfers upon
Death. The Award
Shares may be transferred by Holder to a transferee by bequest or by
operation of the laws of descent and distribution upon the death of Holder upon
the condition that the transferee thereof execute and deliver to the Company
such documents and agreements as the Company shall require to evidence the fact
that the Award Shares to be owned, either directly or beneficially, by such
transferee shall continue to be subject to all the restrictions set forth in
this Agreement and all applicable rights in favor of the Company set forth
herein, and that such transferee is subject to and bound by such restrictions
and provisions.
(d) Post Service Period
Transfers. The
Award Shares may be transferred by Holder after the expiration of the one year
period commencing on the date of the Recipient’s cessation of services for the
Company (the “Post Service
Period”), if and only if
Holder shall have first complied with the right of first refusal described in
Section 2.6 below.
2.5 Company's Right to
Repurchase. During the Post Service
Period, the Company shall have the right, but not the obligation, to purchase
from Holder all or any portion of the Award Shares which have not been forfeited
pursuant to Sections 2.1 or 2.2. The purchase price shall be the
product of (1) a price per Award Share (the “Repurchase Price Per
Share”), multiplied by (2)
the number of Vested Award Shares the Company is repurchasing. If the
Company elects to exercise its right to repurchase pursuant to this Section 2.5,
it shall do so by giving written notice thereof to Holder, which notice shall
specify the number of Award Shares held by Holder as to which the Company is
exercising its repurchase right. The repurchase by the Company and the
sale by Holder of such Award Shares shall be consummated not later than thirty
(30) days following the date the Company gives written notice of its exercise of
such repurchase right. Payment of the purchase price by the Company shall
be in cash or by the Company's check against delivery of the Award Shares being
repurchased. The
Repurchase Price Per Share shall equal the fair market value of a share of
Common Stock (on a fully diluted basis) as of the last day of the most recent
fiscal quarter for which financial information is available, as determined by
the Board of the Company. In making such determination, the Board may
take into account factors that it, in good faith, deems relevant to such
valuation, including the absence of a trading market, the minority status of the
Award Shares, and such other facts and circumstances deemed material to the
value of the Award Shares in the hands of Recipient.
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2.6 Right of First
Refusal. Before
any Award Shares held by Holder may be sold or otherwise transferred (except for
a transfer under Sections 2.4(b) or 2.4(c)), the Company or the stockholders of
the Company (the “Stockholders”) shall have a right of first refusal
to purchase the Award Shares on the terms and conditions set forth in this
Section 2.6 (the “Right of First
Refusal”).
(a) Notice of Proposed
Transfer. The
Holder of the Award Shares shall deliver to the Company a written notice (the
“Notice”) stating (i) the Holder’s bona fide
intention to sell or otherwise transfer such Award Shares, (ii) the name of each
proposed purchaser or other transferee (“Proposed
Transferee”), (iii) the
number of Award Shares to be transferred to each Proposed Transferee, and (iv)
the bona fide cash price or other consideration for which the Holder proposes to
transfer the Award Shares (the “Offered
Price”); in addition, by
providing the Notice, the Holder is deemed to be offering to sell the Shares at
the Offered Price to the Company or the Stockholders, as the case may
be.
(b) Exercise of Right of
First Refusal. At any time within sixty
(60) days after receipt of the Notice (the “Election
Period”), the Company may,
by giving written notice to the Holder, elect to purchase any or all of the
Award Shares proposed to be transferred to any one or more of the Proposed
Transferees, at the purchase price determined in accordance with subsection (c)
below. In the event the Company does not so elect to purchase any or
all of the Award Shares proposed to be transferred, the Company shall promptly
provide the Notice to the Stockholders. In such event, at any time
within the Election Period, the Stockholders may, by giving written notice to
the Holder, elect to purchase any or all of the Award Shares proposed to be
transferred to any one or more of the Proposed Transferees, at the purchase
price determined in accordance with subsection (c) below. The
Stockholders shall have the right to accept the offer to purchase the Award
Shares proposed to be transferred for the consideration and on the terms and
conditions specified in the Notice, with each Stockholder having the right to
acquire its Pro Rata Allotment (as defined below). “Pro Rata
Allotment” shall mean with
respect to any Award Shares proposed to be transferred, as determined for any
Stockholder, the number of such Award Shares multiplied by a fraction, the
numerator of which is the number of shares of Common Stock owned of record on
the relevant date of determination by such Stockholder (on an as if converted
basis), and the denominator of which is the number of shares of Common Stock
owned of record on the relevant date of determination by all Stockholders (on a
fully-diluted, as if converted basis). Each Stockholder shall have
the right to assign its rights under this subsection (b) to the Company, or to
the other Stockholders (proportionately, based upon proportions of the Pro Rata
Allotment allocated to each Stockholder, excluding the assigning
Stockholder).
(c) Purchase
Price. The
purchase price for the Award Shares purchased under this Section 2.6 shall be
the Offered Price. If the Offered Price includes consideration other
than cash, the Board in good faith shall determine the cash equivalent value of
the non-cash consideration.
(d) Payment. Payment of the purchase
price shall be made, at the option of the Company or the Stockholders, as the
case may be, either (i) in cash (by certified check), by cancellation of all or
a portion of any outstanding indebtedness of the Holder to the Company (if the
Company shall be the purchasing party) or by any combination thereof within
thirty (30) days after receipt of the Notice or (ii) in the manner and at the
time(s) set forth in the Notice.
(e) Holder’s Right to
Transfer. If all
of the Award Shares proposed in the Notice to be transferred to a given Proposed
Transferee are not purchased by the Company and/or the Stockholders as provided
in this Section 2.6, then the Holder may sell or otherwise transfer such Award
Shares to that Proposed Transferee at the Offered Price or at a higher price,
provided that such sale or other transfer is consummated within one hundred and
twenty (120) days after the date of the Notice and provided further that any
such sale or other transfer is effected in accordance with any applicable
securities laws and the Proposed Transferee agrees in a manner satisfactory to
the Company and in writing that the provisions of this Section 2.6 shall
continue to apply to the Award Shares in the hands of such Proposed
Transferee. If the Award Shares described in the Notice are not
transferred to the Proposed Transferee within such period, a new Notice shall be
given to the Company or the Stockholders, as the case may be, and the Company
shall again be offered the Right of First Refusal, before any Award Shares held
by the Holder may be sold or otherwise transferred.
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(f) Third Party
Beneficiaries. Recipient agrees that the
Stockholders are third party beneficiaries of the provisions of this Section 2.6
and that the Stockholders may enforce such provisions as if they were parties
hereto. Recipient acknowledges that decisions that the Stockholders
make with respect to the Company may be made in reliance upon the Recipient
entering into this Agreement, and the Company would not enter into this
Agreement without Recipient agreeing to the provisions of this Section
2.6.
2.7 Pledging of Award
Shares. If the
Company incurs indebtedness and in connection therewith, at the time the
Recipient receives his Award Shares, all other stockholders of the Company have
either pledged their shares of Common Stock, or have been asked to pledge their
shares of Common Stock for the benefit of certain lenders of the Company, the
Recipient, if so requested by the Company, shall pledge any exercised Award
Shares on the same terms and conditions as the other stockholders of the Company
and shall take such actions as may be required to accomplish the pledge as may
be requested by the Company.
2.8 Market-Stand-Off
Agreement. Recipient agrees that, if requested by
the Company and its underwriters, Recipient will enter into a lock-up or similar
agreement not to sell or offer to sell any securities of the Company during the
180-day period following the effective date of a registration statement of the
Company filed under the 1933 Act provided that such agreement only applies to
the first such registration statement of the Company which includes securities
to be sold on the Company’s behalf to the public in an underwritten
offering.
2.9 Termination of
Restrictions. The restrictions contained
in Sections 2.4 through 2.7 above shall continue in effect, notwithstanding the
earlier termination or expiration of this Agreement, until ninety (90) days after the first sale of
common stock of the Company to the general public pursuant to a registration
statement filed with and declared effective by the Securities and Exchange
Commission (other than a registration statement solely covering an employee
benefit plan or corporate reorganization). However, notwithstanding
the foregoing, the Award Shares, whether owned by the Recipient or any
transferee thereof shall continue to be subject to all restrictions imposed
under Section 2.1 through 2.2 until all Award Shares have become Vested Award
Shares.
2.10 Right of
Setoff. At any
closing of a purchase by the Company of Award Shares pursuant to Sections 2.5,
or 2.6, the Company shall have the right to set off against and to deduct from
any sums payable by it in connection with the purchase of Award Shares, the
principal amount of and all accrued but unpaid interest on any indebtedness of
Recipient owing to the Company on the date of the closing.
3 General
Provisions
3.1 Legends. Each certificate (if any)
representing the Award Shares shall, subject to Section 3.2 below, be endorsed
with the following legend and Recipient shall not make any transfer of the Award
Shares without first complying with the restrictions on transfer described in
such legend:
transfer is
restricted
the securities evidenced by this
certificate are subject to a right of first refusal and other restrictions on
transfer set forth in a restricted stock award agreement dated [INSERT
DATE OF THIS AGREEMENT], a
copy of which is available from the company.
The securities evidenced by this
certificate have not been registered under the securities act of 1933, as
amended, and may not be sold, transferred, assigned, or hypothecated unless
(1) there is an effective registration under such act covering such
securities, (2) the transfer is made in compliance with rule 144
promulgated under such act, or (3) the issuer receives an opinion of
counsel, reasonably satisfactory to the company, stating that such sale,
transfer, assignment or hypothecation is exempt from the registration
requirements of such act.
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Recipient agrees that the Company may
also endorse any other legends required by applicable federal or state
securities laws. The Company need not register a transfer of the
Award Shares, and may also instruct its transfer agent, if any, not to register
the transfer of the Award Shares unless the conditions specified in the
foregoing legends are satisfied.
3.2 Removal of Legend
and Transfer Restrictions.
(a) Any legend endorsed on a certificate
pursuant to Section 3.1 and the stop transfer instructions with respect to the
Award Shares shall be removed and the Company shall issue a certificate without
such legend to the holder thereof if such Award Shares are registered under the
Securities Act and a prospectus meeting the requirements of Section 10 of the
Securities Act is available.
(b) The restrictions described in the second
sentence of the legend set forth in Section 3.1 may be removed at such time
as permitted by Rule 144(k) promulgated under the Securities
Act.
3.3 Governing
Laws. This
Agreement shall be construed, administered and enforced according to the laws of
the State of Maryland; provided, however, no Award Shares shall be issued
except, in the reasonable judgment of the Board, in compliance with exemptions
under applicable state securities laws of the state in which Recipient resides,
and/or any other applicable securities laws.
3.4 Successors. This Agreement shall be
binding upon and inure to the benefit of the heirs, legal representatives,
successors, and permitted assigns of the parties.
3.5 Notice. Except as otherwise
specified herein, all notices and other communications under this Agreement
shall be in writing and shall be deemed to have been given if personally
delivered or if sent by registered or certified United States mail, return
receipt requested, postage prepaid, addressed to the proposed recipient at the
last known address of the recipient. Any party may designate any
other address to which notices shall be sent by giving notice of the address to
the other parties in the same manner as provided herein.
3.6 Severability. In the event that any one
or more of the provisions or portion thereof contained in this Agreement shall
for any reason be held to be invalid, illegal, or unenforceable in any respect,
the same shall not invalidate or otherwise affect any other provisions of this
Agreement, and this Agreement shall be construed as if the invalid, illegal or
unenforceable provision or portion thereof had never been contained
herein.
3.7 Entire
Agreement. Subject to the terms and
conditions of the Plan, this Agreement expresses the entire understanding and
agreement of the parties with respect to the subject matter. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
instrument.
3.8 Violation. Any transfer, pledge, sale,
assignment, or hypothecation of the Award Shares or any portion thereof shall be
a violation of the terms of this Agreement and shall be null, void and without
effect ab
initio.
3.9 Headings. Paragraph headings used
herein are for convenience of reference only and shall not be considered in
construing this Agreement.
3.10 Specific
Performance. In
the event of any actual or threatened default in, or breach of, any of the
terms, conditions and provisions of this Agreement, the party or parties who are
thereby aggrieved shall have the right to specific performance and injunction in
addition to any and all other rights and remedies at law or in equity, and all
such rights and remedies shall be cumulative.
3.11 No Employment Rights
Created. Neither
the establishment of the Plan nor the award of Award Shares hereunder shall be
construed as giving Recipient the right to continued employment with the
Company.
3.12 Capitalized
Terms. All
capitalized terms used in this Agreement shall have the meanings given to them
herein or in the Plan.
Page
8
3.13 No Disclosure
Duty. The
Recipient and the Company acknowledge and agree that the Company and its
directors, officers or employees shall have no duty or obligation to disclose to
the Recipient any material information regarding the business of the Company or
affecting the value of the Award Shares.
3.14 Tax
Consequences. Recipient
represents that Recipient has been advised by the Company to consult with, and
has fully consulted with, Recipient’s own tax consultants regarding his making a
Code §83(b) election with respect to the Award Shares, [his execution
of the Promissory Note and the Pledge Agreement with respect to the
Shares], and the
resulting impact on Recipient’s personal tax situation, prior to entering into
this agreement and that
Recipient is not relying on the Company for any tax advice. Recipient
understands that Recipient may suffer adverse tax consequences as a result of
Recipient’s receipt and disposition of the Shares. Recipient
understands that Recipient may or may not make a Code §83(b) Election with
respect to the Award Shares, but that Recipient shall be subject to the
withholding provisions of Section 1.4 herein based upon the choice of Recipient
regarding such Code §83(b) Election and the choice of Recipient regarding the
time and manner that withholding obligations shall be
satisfied.
IN WITNESS
WHEREOF, the parties have
executed and sealed this Agreement on the day and year first set forth
above.
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Company:
Xxxxxx
Validus Mission Critical REIT, Inc.:
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Recipient:
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By:
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Its:
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Attest:
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By:
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Its:
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Xxxxxx Validus Mission Critical REIT, Inc.
Restricted Stock Agreement
Page
9
Exhibit
A
Definitions
A. Agreement shall mean this
Restricted Stock Agreement.
B. Award Shares shall mean the
shares of common stock of the Company which are awarded to the Recipient subject
to the terms and conditions of this Agreement.
C. Code shall mean the Internal
Revenue Code of 1986, as amended from time to time.
D. Code §83(b) Election shall
mean the election available to the recipient of property transferred in
connection with the performance of services to include in gross income under
Code §83(b) the excess of the fair market value of the property transferred
determined as of the time of transfer over the amount (if any) paid for such
property as compensation for services.
E. Common Stock shall mean the
common stock of the Company.
F. Company shall mean Xxxxxx
Validus Mission Critical REIT, Inc., and any successor thereto.
G. Committee shall mean the
Compensation Committee of the Board of Directors.
H. Disability shall mean a
physical or mental impairment that substantially limits one or more major life
activities and prevents the Recipient from performing his or her duties for the
Company.
I.
Plan shall mean the
Xxxxxx Validus Mission Critical REIT, Inc. 2010 Restricted Share
Plan.
J. Recipient shall mean the
individual shown on this Agreement as the Recipient.
K. Unvested Award Shares shall
mean the Award Shares which have not become
vested pursuant to the Vesting Schedule or otherwise.
L. Vested Award Shares shall mean
the Award Shares which have become vested pursuant to the Vesting Schedule or
otherwise.
Xxxxxx Validus Mission Critical REIT, Inc.
Restricted Stock Agreement
Exhibit A - Definitions
Exhibit
B
ELECTION
UNDER SECTION 83(b)
OF
THE INTERNAL REVENUE CODE
The
undersigned taxpayer (the “Taxpayer”) hereby elects, pursuant to Section 83(b)
of the Internal Revenue Code of 1986, as amended, to include in his gross income
for the current taxable year, the amount of any compensation taxable to him in
connection with his receipt of the property described below:
1. The
name, address and taxpayer identification number of the undersigned Taxpayer are
as follows:
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Name:
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Address:
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Social
Security Number (TIN):
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2. The
property with respect to which the election is made is:
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shares
of common stock of Xxxxxx Validus Mission Critical REIT,
Inc.
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3. The
date on which the property was transferred and the taxable year for which this
election is made are:
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Date on Which Property Was Transferred:
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Taxable
Year for Which Election is Made:
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4. The
property is subject to transferability, forfeiture and other restrictions, all
as set forth in a Restricted Stock Agreement between the Taxpayer and Xxxxxx
Validus Mission Critical REIT, Inc..
5. The
fair market value at the time of transfer, determined without regard to any
restriction other than a restriction which by its terms will never lapse, of
such property is:
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$____________________/Share
x
________________________ Shares =
$______________________________
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6. No
amount was paid for such property.
The
undersigned Taxpayer has submitted copies of this statement to Xxxxxx Validus
Mission Critical REIT, Inc., the person for whom the services were performed in
connection with the Taxpayer’s receipt of the above-described
property. The Taxpayer is the person performing the services in
connection with the transfer of said property. The undersigned Taxpayer understands
that the foregoing election may not be revoked except with the consent
of the Commissioner, which will only be granted when the Taxpayer is under a
mistake of fact as to the underlying transaction and when made within 60 days of
the date such mistake of fact first became known to the
Taxpayer.
The
undersigned Taxpayer understands and acknowledges that, for this election to be
effective, copies of this completed election form must be filed with the
Internal Revenue Service (at the location where the Taxpayer’s income tax return
would be filed) not later than 30 days after the date the above-described
property was transferred to the Taxpayer, and must also be submitted with the
Taxpayer’s federal income tax return for the taxable year in which the
above-described property was transferred. A copy of this completed
election must also be submitted to Xxxxxx Validus Mission Critical REIT, Inc.,
along with full payment of amounts required to be withheld under applicable law,
within 30 days after the date the above-described property was transferred to
the Taxpayer.
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Dated
this _____________ day of __________________,
20________.
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Signature:
________________________________________________
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Name
of Taxpayer:
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Code §83(b) Election
Form
EXHIBIT C
WITHHOLDING ELECTION
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TO: Xxxxxx Validus Mission Critical
REIT, Inc.
RE: Withholding
Election
This election relates to the
number of shares of common stock of the Company which will vest on the
date noted below (the “Vesting
Shares”):
Number of Vesting Shares:
________________
Date of Vesting:
___________________
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Restricted Stock
Agreement:
Restricted Stock Agreement between
the Recipient (designated below) and Xxxxxx Validus Mission Critical REIT,
Inc. (the “Company”).
Date of
Agreement:____________________________
Total Number of Restricted Shares
subject to Restricted Stock Agreement:
______________________________
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I, the undersigned Recipient, hereby
certify that:
-My correct name and social security
number and my current address are set forth at the end of this
document.
-I have read and understand the
Restricted Stock Agreement and the various methods by which withholding
obligations regarding the Vesting Shares subject to the Restricted Stock
Agreement may be satisfied.
-I do hereby elect the following method
of withholding pursuant to Section 1.4 of the Restricted Stock Agreement with
respect to any withholding or other tax obligations (whether federal, state or
local) imposed on the Company by reason of the substantial vesting of the
Vesting Shares (the “Withholding
Obligations”), assuming
that I have met all requirements under the Plan relative to such election and
such election is approved by the Company:
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□
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In accordance with Section
1.4(b)(1), I hereby elect to pay to the Company the entire amount of all
Withholding Obligations with respect to the Vesting Shares in cash or by
check on or before the Date of
Vesting.
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□
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In accordance with Section
1.4(b)(2), I hereby elect that the entire amount of all Withholding
Obligations with respect to the Vesting Shares should be paid by having
the Company repurchase the smallest whole number of the Vested Shares
which, when multiplied by the fair market value per share of the common
stock of the Company as of the close of business on the business day which
is coincident with or immediately follows the Date of Vesting, will be
sufficient to satisfy the amount of such Withholding Obligations, and
applying all the proceeds from such repurchase to such Withholding
Obligations. I further acknowledge and understand that the
repurchase by the Company of any Vested Shares may result in tax
consequences to me.
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□
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In accordance with Section
1.4(b)(3), I hereby elect for the Company to withhold substantially equal
amounts from my future compensation so that the total of such amounts
shall, as of the Date of Vesting, be designed to be sufficient to satisfy
the amount of all Withholding Obligations with respect to the Vesting
Shares.
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Dated this __________ day of
_____________, 20_____
Recipient’s
Address:
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Recipient:
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Printed
Name:
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Social Security
Number:
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_______ - ______ -
_________
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Withholding Election Form
