Exhibit 10.2
RESTRICTED STOCK UNIT AGREEMENT
This RESTRICTED STOCK UNIT AGREEMENT ("AGREEMENT"), dated
September 11, 2003, between Avatar Holdings Inc., a Delaware corporation (the
"COMPANY") and Xxxxxx Xxxxxx (the "PARTICIPANT").
1. AWARD. Pursuant to the provisions of the Amended and Restated 1997
Incentive and Capital Accumulation Plan, as the same may be amended, modified
and supplemented (the "PLAN"), the Compensation Committee (the "COMMITTEE") of
the Board of Directors of the Company (the "BOARD") hereby awards to the
Participant, on the date hereof, subject to the terms and conditions of the Plan
and subject further to the terms and conditions herein set forth, an opportunity
to receive 15,504 Restricted Stock Units ("UNITS"). Capitalized terms used but
not defined herein shall have the meanings assigned to them in the Plan.
2. TERMS AND CONDITIONS. The award evidenced by this Agreement is
subject to the following terms and conditions:
(a) The Participant is hereby granted 15,504 Units on the date hereof.
(b) The Participant shall not possess any incidents of ownership
(including, without limitation, dividend and voting rights) in shares of Common
Stock in respect of the Units until such Units have vested and been distributed
to the Participant in the form of shares of Common Stock in accordance with
Sections 3 and 4 hereof.
(c) Except as provided in this Section 2(c), the Units and any interest
of the Participant therein may not be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of. Any attempt to transfer Units in
contravention of this Section 2(c) is void AB INITIO. Units shall not be subject
to execution, attachment or other process. Notwithstanding the foregoing, with
the prior written consent of the Committee, the Participant shall be permitted
to transfer such Units to members of his immediate family (I.E., children,
grandchildren or spouse), trusts for the benefit of such family members, and
partnerships whose only partners are such family members; PROVIDED, HOWEVER,
that no consideration can be paid for the transfer of the Units and the
transferee of the Units shall be subject to all conditions applicable to the
Units (including all of the terms and conditions of this Agreement) prior to
transfer.
3. VESTING AND CONVERSION OF UNITS. On January 2, 2007, the Units
granted to the Participant pursuant to Section 2(a) hereof, shall vest in full
and such vested Units shall be converted into an equivalent number of shares of
Common Stock that will be promptly distributed to the Participant; PROVIDED,
HOWEVER, that subject to the provisions of Section 4 hereof, no Units shall vest
or be converted and distributed to the Participant unless the Participant is an
employee of the Company on December 31, 2006.
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Upon the distribution of the shares of Common Stock in respect of the
Units, the Company shall issue to the Participant or the Participant's personal
representative a stock certificate representing such shares of Common Stock,
free of any restrictions, but subject to Section 8 hereof.
4. TERMINATION OF EMPLOYMENT; CHANGE IN THE COMMON STOCK.
(a) TERMINATION OF EMPLOYMENT.
(i) If the Participant's employment with the Company is
terminated by the Company for "cause" (as defined
below) or by the Participant, the Participant shall
forfeit all Units granted to the Participant pursuant
to Section 2(a) hereof.
(ii) If the Participant's employment with the Company is
terminated by the Company other than for "cause", all
Units granted to the Participant pursuant to Section
2(a) hereof, if any, shall vest, be converted into
shares of Common Stock and be promptly distributed to
the Participant.
(iii) If the Participant dies or in the event the
Participant's employment with the Company is
terminated by the Company by reason of the
Participant's "disability" (as defined below), 7,752
Units granted to the Participant pursuant to Section
2(a) hereof, shall vest, be converted into shares of
Common Stock and be promptly distributed to the
Participant and the remainder of the Units shall be
forfeited.
For purposes of this Section 4(a), the terms "CAUSE" and
"DISABILITY", shall have the meanings ascribed to such terms in the
Participant's employment agreement with the Company, dated September 11, 2003,
as amended or restated from time to time.
(b) CHANGE IN COMMON STOCK. In the event of any change in the Common
Stock (through merger, consolidation, reorganization, exchange of shares, or
other similar transaction which results in a change in the capital structure of
the Company), an adjustment shall be made to each outstanding Unit such that
each such Unit shall thereafter vest in accordance with Section 3 for such
securities, cash and/or other property as would have been received in respect of
the Common Stock subject to such Unit had such Unit vested in full immediately
prior to such change, and such an adjustment shall be made successively each
time any such change shall occur.
5. DEFERRAL. The Participant may elect to defer the receipt of Common
Stock upon the vesting of the Units granted to the Participant pursuant to
Section 2(a) hereof and for the Company to continue to maintain such Units on
its books of account if the Participant delivers to the Company a written notice
of such election at least six months prior to such vesting and enters into a
deferral agreement with the Company on terms satisfactory to the Committee.
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6. EQUITABLE ADJUSTMENT. If there shall be any change in the Common
Stock of the Company, through recapitalization, stock dividend, stock split,
reverse stock split, split up, spinoff, combination of shares, dividend in kind
or other like change in capital structure or distribution (other than normal
cash dividends) to stockholders of the Company, in order to prevent dilution or
enlargement of the Participant's rights under this Agreement and the Plan, the
Committee may, in an equitable manner, adjust the number and kind of shares that
may be issued under this Agreement and make any other appropriate adjustments in
the terms of the Units and this Agreement to reflect such changes or
distributions.
7. TAXES. Any distribution of Common Stock pursuant to this Agreement
shall be net of any amounts required to be withheld pursuant to applicable
federal, state and local tax withholding requirements. In connection with any
such distribution, the Company may require the Participant to remit to it an
amount sufficient to satisfy such tax withholding requirements prior to the
delivery of any certificates for such Common Stock. In lieu thereof, the Company
shall have the right to withhold the amount of such taxes from any other sums
due or to become due from the Company to the Participant as the Committee shall
prescribe. The Committee may, in its discretion and subject to such rules as it
may adopt (including any as may be required to satisfy applicable tax and/or
non-tax regulatory requirements), permit the Participant to pay all or a portion
of the federal, state and local withholding taxes arising in connection with the
Units granted hereunder and any distribution of shares of Common Stock in
respect thereof by electing to have the Company withhold shares of Common Stock
having a Fair Market Value equal to the amount of tax to be withheld, such tax
calculated at rates prescribed by statute or regulation.
8. REGULATORY COMPLIANCE AND LISTING. The issuance or delivery of any
stock certificates representing shares of Common Stock issuable pursuant to this
Agreement may be postponed by the Committee for such period as may be required
to comply with any applicable requirements under the federal or state securities
laws, any applicable listing requirements of any national securities exchange or
the NASDAQ National Market System, and any applicable requirements under any
other law, rule or regulation applicable to the issuance or delivery of such
shares, and the Company shall not be obligated to deliver any such shares of
Common Stock to the Participant if either delivery thereof would constitute a
violation of any provision of any law or of any regulation of any governmental
authority, any national securities exchange or the NASDAQ National Market
System, or the Participant shall not yet have complied fully with the provisions
of Section 7 hereof.
9. INVESTMENT REPRESENTATIONS AND RELATED MATTERS. The Participant
hereby represents that the Common Stock issuable pursuant to this Agreement is
being acquired for investment and not for sale or with a view to distribution
thereof. The Participant acknowledges and agrees that any sale or distribution
of shares of Common Stock issued pursuant to this Agreement may be made only
pursuant to either (a) a registration statement on an appropriate form under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), which registration
statement has become effective and is current with regard to the shares being
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sold, or (b) a specific exemption from the registration requirements of the
Securities Act that is confirmed in a favorable written opinion of counsel, in
form and substance satisfactory to counsel for the Company, prior to any such
sale or distribution. The Participant hereby consents to such action as the
Committee or the Company deems necessary or appropriate from time to time to
prevent a violation of, or to perfect an exemption from, the registration
requirements of the Securities Act or to implement the provisions of this
Agreement, including but not limited to placing restrictive legends on
certificates evidencing shares of Common Stock issued pursuant to this Agreement
and delivering stop transfer instructions to the Company's stock transfer agent.
10. NO RIGHT TO CONTINUED EMPLOYMENT. This Agreement does not confer
upon the Participant any right to continued employment by the Company or any of
its subsidiaries or affiliated companies, nor shall it interfere in any way with
the right of the Participant's employer to terminate the Participant's
employment at any time for any reason or no reason.
11. CONSTRUCTION. The Plan and this Agreement will be construed by and
administered under the supervision of the Committee, and all determinations of
the Committee will be final and binding on the Participant and the Company.
12. NOTICES. Any notice required or permitted under this Agreement
shall be deemed given when delivered personally, or when deposited in a United
States Post Office, postage prepaid, addressed, as appropriate, (i) to the
Participant at the last address specified in Participant's employment records,
or such other address as the Participant may designate in writing to the
Company, or (ii) to the Company, Avatar Holdings Inc., 000 Xxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000 Attention: Chairman of the Board, or such
other address as the Company may designate in writing to the Participant.
13. FAILURE TO ENFORCE NOT A WAIVER. The failure of either party hereto
to enforce at any time any provision of this Agreement shall in no way be
construed to be a waiver of such provision or of any other provision hereof.
14. GOVERNING LAW. This Agreement shall be governed by and construed
according to the laws of the State of Delaware, without regard to the conflicts
of laws provisions thereof.
15. INCORPORATION OF PLAN. The Plan is hereby incorporated by reference
and made a part of this Agreement, and this Agreement shall be subject to the
terms of the Plan, as the Plan may be amended from time to time.
16. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original but all of which together shall
represent one and the same agreement.
17. MISCELLANEOUS. This Agreement cannot be changed or terminated
orally. This Agreement and the Plan contain the entire agreement between the
parties relating to the subject matter hereof. The section headings herein are
intended for reference only and shall not affect the interpretation hereof.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
AVATAR HOLDINGS INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
/s/ XXXXXX X. XXXXXX
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Xxxxxx Xxxxxx
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