Exhibit 10.9
RESTRICTED STOCK UNIT AGREEMENT
This RESTRICTED STOCK UNIT AGREEMENT ("Agreement"), dated April 15,
2005, by and between Avatar Holdings Inc., a Delaware corporation (the
"Company") and Xxxxxx X. Xxxxxx (the "Participant").
1. AWARD. Pursuant to the provisions of the Avatar Holdings Inc.
Amended and Restated 1997 Incentive and Capital Accumulation Plan (2005
Restatement), as the same may be amended, restated, modified or supplemented
(the "Plan"), the Committee (as defined in the Plan, the "Committee") 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 30,000 Performance Conditioned Restricted
Stock Units ("Units"). Capitalized terms used but not defined herein shall have
the meanings assigned to them in the Plan. This award is intended to constitute
a Performance-Based Award within the meaning of the Plan.
2. TERMS AND CONDITIONS. The award evidenced by this Agreement is
subject to the following terms and conditions:
(a) Subject to Section 4 hereof, the Participant shall be granted,
automatically and without further authorization on the part of the Committee,
30,000 Units upon satisfaction of the following condition (the date on which
such condition is satisfied is hereinafter referred to as the "Grant Date"): (i)
the closing stock price of the Common Stock on its principal trading market
shall have been at least $72.50 per share for twenty (20) trading days out of
thirty (30) consecutive trading days or (ii) the Company consummates a
transaction which results in the stockholders of the Company receiving cash,
securities, or other property (or any combination thereof) having a "value" as
determined by the Committee of at least $72.50 per share in either case, during
the period beginning on the date immediately following the date hereof and
ending on June 30, 2011 (the "Hurdle Price Condition"); provided, however, that,
except as provided in Sections 4(c) and 4(d), no Units shall be granted if the
Participant's employment with the Company has terminated for any reason on or
prior to the time the Hurdle Price Condition is satisfied. For purposes of this
Section 2(a), "value" shall mean the amount received by the stockholders of the
Company taking into account the net present value of any debt, securities,
future payments, contingent rights or other non-cash consideration to be paid to
such stockholders.
(b) The Participant shall not possess any incidents of ownership
(including, without limitation, dividend, interest and voting rights) in shares
of Common Stock in respect of the Units or the Change in Control Amount, as
applicable, until such Units or the Change in Control Amount, as applicable,
shall have vested and been distributed to the Participant in the form of shares
of Common Stock or, in the case of a Change in Control Amount, a single, lump
sum cash payment, 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 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.
(d) Each reference contained in this Agreement to:
"Anniversary" shall mean, with respect to any date, the
annual recurrence of such date.
"Change in Control Amount" shall have the meaning set forth
in Section 4(e) hereof.
"Common Stock" shall mean common stock, par value $1.00 per
share, of the Company.
"Fair Market Value" shall mean the average of the closing
prices of the Common Stock for the fifteen trading days ending with
and including the measuring date if the Common Stock is readily
tradeable on a national securities exchange, the National Association
of Securities Dealers Automated Quotation System or other national
market system, provided, however, if such exchange or system is not
open for business on any day during such period or the Common Stock
was not traded on any day during such period, the Fair Market Value
shall be determined as of the most recent fifteen (15) trading days
ending with and including the measuring date on which such exchange
or system shall have been open for business and the Common Stock was
traded, and if the Common Stock is not readily tradable as set forth
above, Fair Market Value shall mean the amount determined in good
faith by the Committee as the fair market value of the Common Stock
of the Company.
3. VESTING AND CONVERSION OF UNITS. On June 30, 2011, the Units
granted to the Participant pursuant to Section 2(a) hereof, if any, shall vest
in full and such vested Units shall be converted into an equivalent number of
shares of Common Stock that will be immediately 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 or any of its subsidiaries or
affiliates (the foregoing entities being referred to herein collectively as the
"Avatar Entities" and each as an "Avatar Entity") on June 30, 2011.
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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.
4. TERMINATION OF EMPLOYMENT; CHANGE IN CONTROL.
(a) For purposes of this Section 4, the terms "Cause", "Change in
Control", "Change in Control Date", "Good Reason" and "Disability" shall have
the meanings ascribed to such terms in the Participant's amended and restated
employment agreement with the Company, dated as of the date hereof, as amended
or restated from time to time; provided, however, if the Participant is no
longer employed pursuant to such employment agreement, each such term shall have
the meaning ascribed to it in the employment agreement last in effect which
contains such defined term.
(b) If the Participant's employment with the Company is terminated by
the Company for Cause or by the Participant for other than Good Reason, the
Participant shall forfeit all Units granted to the Participant pursuant to
Section 2(a) hereof (or, in the event a Change in Control has occurred, the
Change in Control Amount), if any, as of the date of termination of employment.
(c) If the Participant's employment with the Company is terminated by
the Company other than for Cause, or is terminated by the Participant for Good
Reason, (i)(A) 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
immediately distributed to the Participant, and (B) any additional Units that
satisfy the Hurdle Price Condition on or before June 30, 2011, if any, shall
vest on the date the Hurdle Price Condition is satisfied, be converted into
shares of Common Stock and be immediately distributed to the Participant, or,
(ii) in the event a Change in Control has occurred, the Participant shall be
entitled to receive the Change in Control Amount, if any, upon the date of
termination of employment.
(d) If the Participant's employment with the Company is terminated
due to the Participant's death or Disability, the number of Units granted to the
Participant pursuant to Section 2(a) hereof, if any, which equals the greater of
(i) the product of (x) a fraction the numerator of which is the number of
completed whole months elapsed from January 1, 2005 to the date of death or
Disability, as the case may be (whichever is sooner), and the denominator of
which seventy-eight (78) and (y) 30,000 or (ii) 15,000 Units, shall vest, be
converted into shares of Common Stock and be immediately distributed to the
Participant (or the executor or administrator of the deceased Participant's
estate or the person or persons to whom the deceased Participant's rights shall
pass by will or the laws of descent or distribution, as applicable), and any
portion of the Units then remaining unvested shall be forfeited. If the
Participant's employment with the Company is terminated by Participant's death
or Disability prior to the Grant Date and the Hurdle Price Condition is
satisfied on or before the first Anniversary of Participant's termination for
death or Disability, 15,000 Units shall be granted and shall vest, be converted
into shares of Common Stock and be immediately distributed to the Participant
(or the executor or administrator of the deceased Participant's estate or the
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person or persons to whom the deceased Participant's rights shall pass by will
or the laws of descent or distribution, as applicable), and any portion of the
Units then remaining unvested shall be forfeited. Notwithstanding the foregoing,
if a Change in Control has occurred prior to such termination for death or
Disability, the Participant (or the executor or administrator of the deceased
Participant's estate or the person or persons to whom the deceased Participant's
rights shall pass by will or the laws of descent or distribution, as applicable)
shall be entitled to receive the Change in Control Amount, if any, upon the date
of termination of employment.
(e) In the event of a Change in Control, all Units granted to the
Participant pursuant to Section 2(a) hereof, if any, shall be converted into
shares of Common Stock immediately prior to the consummation of the Change in
Control and, upon consummation of the Change in Control, shall be converted into
such amount of cash, securities or other property (or any combination thereof)
received by the stockholders of the Company in connection with the Change in
Control (the "Change in Control Amount"). The Change in Control Amount shall be
distributed to the Participant on or promptly following the Change in Control
Date.
5. DEFERRAL. With the prior written consent of the Committee, and on
such terms as the Committee may prescribe (which terms shall be in compliance
with Section 409A of the Internal Revenue Code of 1986, as amended), 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.
6. EQUITABLE ADJUSTMENT. If there shall be any change in the Common
Stock of the Company, through merger, consolidation, reorganization,
recapitalization, stock dividend, stock split, reverse stock split, split up,
spinoff, combination of shares, exchange 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
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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 Stock Market, Inc., 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 Stock Market, Inc., 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
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.
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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.
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 modified or terminated
orally. This Agreement, the Plan and the letter agreement, dated as of the date
hereof, between the Company and the Participant, 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.
(signature page follows)
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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/ Xxxxxxx X. XxXxxxx
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Name: Xxxxxxx X. XxXxxxx
Title: Executive Vice President
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
