Exhibit 10(x)(x)(i)(x)
FEDERAL REALTY INVESTMENT TRUST
PERFORMANCE SHARE AWARD AGREEMENT
This Performance Share Award Agreement (this "Agreement") is made as of
February 9, 2000 between Federal Realty Investment Trust, a Maryland real estate
investment trust (the "Trust"), and Xxxxxx X. Xxxx, an individual employee of
the Trust (the "Key Employee").
WHEREAS, the Compensation Committee of the Board of Trustees of the Trust
(the "Board of Trustees") has authorized the award by the Trust to the Key
Employee under the Trust's Amended and Restated 1993 Long-Term Incentive Plan
(the "Amended Plan") of a Performance Share Award for a certain number of shares
of beneficial interest of the Trust (the "Shares"); and
WHEREAS, the parties hereto desire to set forth in this Agreement their
respective rights and obligations with respect to such Shares.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Award of Performance Shares.
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1.1. The Trust hereby grants to the Key Employee, as of February 9,
2000 (the "Award Date"), thirty-seven thousand five hundred (37,500) Shares (the
"Performance Shares"), subject to the restrictions and other terms and
conditions set forth herein and in the Amended Plan.
1.2. On or as soon as practicable after the Award Date, the Trust
shall cause one or more stock certificates representing the Performance Shares
to be registered in the name of the Key Employee. Such stock certificate or
certificates shall be subject to a stop-transfer order and such other
restrictions as the Board of Trustees or any committee thereof may deem
advisable under the rules, regulations, and other requirements of the Securities
and Exchange Commission, any stock exchange upon which the Shares are listed and
any applicable federal or state securities law, and the Trust may cause a legend
or legends to be placed on such certificate or certificates to make appropriate
reference to such restrictions.
1.3. The certificate or certificates representing the Performance
Shares shall be held in custody by the Chief Financial Officer of the Trust
until the Restriction Period (as hereinafter defined in Paragraph 4) with
respect thereto shall have lapsed.
Simultaneously with the execution and delivery of this Agreement, the Key
Employee shall deliver to the Trust one or more undated stock powers endorsed in
blank relating to the Performance Shares. The Trust shall deliver or cause to be
delivered to the Key Employee or, in the case of the Key Employee's death, to
the Key Employee's Beneficiary, one or more stock certificates for the
appropriate number of Shares, free of all such restrictions, as to which the
restrictions herein shall have expired. Upon forfeiture, in accordance with
Paragraph 4, of all or any portion of the Performance Shares, the certificate or
certificates representing the forfeited Performance Shares shall be canceled.
2. Restrictions Applicable to Performance Shares.
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2.1. Beginning on the Award Date, the Key Employee shall have all
rights and privileges of a stockholder with respect to the Performance Shares,
except that the following restrictions shall apply:
(a) none of the Performance Shares may be assigned or
transferred (other than by will or the laws of descent and
distribution, or in the Committee's discretion, pursuant to a domestic
relations order within the meaning of Rule 16a-12 of the Securities
Exchange Act of 1934, as amended), pledged (subject to Paragraph 5) or
sold by the Key Employee during the Restriction Period (as hereinafter
defined in Paragraph 4);
(b) all or a portion of the Performance Shares may be forfeited
in accordance with Paragraph 4; and
(c) any Shares distributed as a dividend or otherwise with
respect to any Performance Shares as to which the restrictions have
not yet lapsed shall be subject to the same restrictions as such
Performance Shares and shall be represented by book entry and held in
the same manner as the Performance Shares with respect to which they
were distributed.
2.2. Any attempt to dispose of Performance Shares in a manner
contrary to the restrictions set forth in this Agreement shall be null, void and
ineffective.
3. Performance Period.
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The Performance Period shall be the period beginning on January 1,
2000 and ending on December 31, 2007. Within the Performance Period there shall
be eight
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Award Periods; each such Award Period shall begin on January 1 and end on
December 31 of the same year.
4. Restriction Period.
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4.1. Subject to Paragraphs 4.2 through 4.8, the restrictions set
forth in Paragraph 2 shall apply for a period (the "Restriction Period") from
the Award Date until such Restriction Period lapses. The number of Performance
Shares as to which the Restriction Period shall lapse during the Performance
Period shall be determined by the Committee in accordance with this Paragraph 4.
4.2. (a) Promptly after the announcement or other publication by the
Trust of its final results of operations for each of the first through the
eighth Award Periods, the Committee shall determine the extent to which the
Performance Target (as defined in Paragraph 4.2(b)) has been met or exceeded by
the Trust within such Award Period, and shall determine, in accordance with this
Performance Share Award Agreement, the number of Performance Shares, if any, as
to which the Restriction Period will lapse with respect to such Award Period;
provided, however, that the Restriction Period for any particular Performance
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Shares shall not lapse unless the Key Employee tenders to the Trust (or the
Trust otherwise withholds in accordance with Paragraph 4.8) (i) the amount of
any state and federal withholding tax obligation which will be imposed on the
Trust by reason of the lapsing of the Restriction Period for such Performance
Shares or (ii) an executed promissory note evidencing the Key Employee's
obligation to repay a Tax Loan (as hereinafter defined in Paragraph 5) in the
amount of any such tax obligation. The Trust will promptly notify the Key
Employee (or the executors or administrators of his estate) of its
determinations under this Paragraph 4.2 (the "Determination Notice"). The
Determination Notice shall specify the number of Performance Shares as to which
the Restriction Period has lapsed to the extent that the Performance Target has
been met by the Trust within the Award Period. The Trust will file the
Determination Notice with the minutes of the Committee.
(b) The Performance Target will have been met or exceeded based
upon the application of an annual test, which shall meet the criteria set forth
in Section 8.01(a) of the Amended Plan. The Committee shall establish both a
threshold level, the attainment of which shall result in the Restriction Period
lapsing as to 4,687.5 Performance Shares, and a maximum level, the attainment of
which will result in the Restriction Period lapsing as to 7,500 Performance
Shares. The Performance Target (both the threshold level and the maximum level)
for the 2000 Award Period is attached to this Agreement, and the Performance
Target for each subsequent Award Period shall be attached to this Agreement as
it is established by the Committee. In the event that the Committee fails to
establish a Performance Target for an Award Period during the first calendar
quarter of such Award Period, the Performance Target for the prior Award Period
shall be deemed to apply. If, in any Award Period, the Trust does not meet or
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exceed the Performance Target (after taking into account the lapsing of
Performance Shares resulting therefrom), the Restriction Period will not lapse
as to any Performance Shares allocable to such Award Period.
4.3. If there are any Performance Shares as to which the Restriction
Period has not lapsed after the Committee has determined the number of
Performance Shares as to which the Restriction Period will lapse with respect to
the eighth Award Period (the "Remaining Shares"), then on January 1, 2009, and
on January 1 of each of the four succeeding calendar years, the Restriction
Period shall lapse with respect to one-fifth of the number of Remaining Shares;
provided, however, that the Restriction Period for any particular Performance
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Shares shall not lapse unless the Key Employee tenders to the Trust (or the
Trust otherwise withholds in accordance with Paragraph 4.8) (i) the amount of
any state and federal withholding tax obligation which will be imposed on the
Trust by reason of the lapsing of the Restriction Period for such Performance
Shares or (ii) an executed promissory note evidencing the Key Employee's
obligation to repay a Tax Loan (in accordance with Paragraph 5) in the amount of
any such tax obligation.
4.4. The Restriction Period shall lapse as to all Performance Shares
upon the occurrence of a Change in Control. In such event, if the Key Employee
tenders (or the Trust otherwise withholds in accordance with Paragraph 4.8) the
amount of any state and federal withholding tax obligation which will be imposed
on the Trust by reason of the lapsing of the Restriction Period for the
Performance Shares, the Trust shall deliver or cause to be delivered to the Key
Employee, within ten (10) business days after the Change in Control, one or more
stock certificates representing those Performance Shares as to which the
Restriction Period shall have lapsed. In the event of a Change in Control, the
Trust shall make a payment to the Key Employee in the amount of federal and
state income taxes that he will incur as a result of the lapsing of the
Restriction Period with respect to all Performance Shares under this Paragraph
4.4 (the "Income Tax Payment"); provided, however, that the Trust shall withhold
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from such Income Tax Payment and pay to the applicable government taxing
authorities, any amounts required to be withheld with respect to the Income Tax
Payment under applicable law.
4.5. (a) The Restriction Period shall lapse as to all Performance
Shares in the event (i) of the termination of the Key Employee due to Disability
(as defined in Paragraph 4.5(b)) or (ii) the Key Employee is terminated by the
Trust without Cause (as defined in Paragraph 4.5(b)), if the Key Employee or his
legal representative tenders (or the Trust otherwise withholds in accordance
with Paragraph 4.8) (i) the amount of any state and federal withholding tax
obligation which will be imposed on the Trust by reason of the lapsing of the
Restriction Period for such Restricted Shares or (ii) an executed promissory
note evidencing the Key Employee's obligation to repay a Tax Loan (as defined in
Paragraph 4) in the amount of any such tax obligation.
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(b) For purposes of this Agreement, the terms "Cause" and
"Disability" shall have the meanings assigned to them in the Severance Agreement
between the Trust and the Key Employee in effect from time to time.
4.6. In the event (i) of the Key Employee's death or (ii) the Key
Employee resigns from employment in all capacities with the Trust, the
Restriction Period shall lapse as to (x) the number of Performance Shares as to
which the Restriction Period was to lapse at the end of the Award Period during
which the Key Employee died or resigned from employment in all capacities with
the Trust, times (y) (A) the number of months the Key Employee was employed
during the Award Period (including, in the event of the Key Employee's death,
the month in which his death occurred, as a whole month) (in the event of the
Key Employee's resignation from employment in all capacities with the Trust, if
the Key Employee resigned before the 16th day of a month, that month shall be
treated as a month in which he did not work) divided by (B) twelve; provided,
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however, that the Restriction Period will not lapse as to any Restricted Shares
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unless the Key Employee or his legal representative tenders (or the Trust
otherwise withholds in accordance with Paragraph 4.8) (i) the amount of any
state and federal withholding tax obligation which will be imposed on the Trust
by reason of the lapsing of the Restriction Period for such Performance Shares
or (ii) an executed promissory note evidencing the Key Employee's or his
estate's obligation to repay a Tax Loan (as defined in Paragraph 4) in the
amount of any such tax obligation. After the Restriction Period with respect to
this number of Performance Shares has lapsed, all rights of the Key Employee to
any and all then-remaining Performance Shares as to which the Restriction Period
has not lapsed shall terminate and be forfeited.
4.7. If the Key Employee is terminated by the Trust for Cause during
the Restriction Period, then all rights of the Key Employee to any and all then-
remaining Performance Shares as to which the Restriction Period has not lapsed
shall terminate and be forfeited.
4.8. In the event the Key Employee or his legal representative (i)
fails to promptly tender to the Trust any required tax withholding amount in
accordance with this Paragraph 4 or (ii) elects not to execute a promissory note
evidencing his obligation to repay a Tax Loan (in accordance with Paragraph 5)
in the amount of any required tax withholding amount, then the Trust shall
retain a portion of the Performance Shares sufficient to meet its tax
withholding obligation.
5. Tax Loan. (a) The Trust shall extend loans to the Key Employee
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from time to time to provide him with funds to pay the federal and state taxes
that he will incur as a result of the lapsing of the Restriction Period with
respect to Performance Shares except with respect to federal and state taxes
incurred as a result of the lapsing of the Restriction Period with respect to
Performance Shares under Paragraph 4.4 ("Tax Loans"). The Key Employee will
execute promissory notes in the form attached
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to this Agreement to evidence his obligation to repay such Tax Loans. The Key
Employee hereby pledges the Performance Shares awarded to him hereunder as to
which the Restriction Period has lapsed, and assigns to the Trust all quarterly
cash or other dividends paid on the Performance Shares awarded to him hereunder
as collateral to secure his obligation to repay any Tax Loans extended to him
hereunder and any accrued but unpaid Interest on such Tax Loans. As of each date
a Tax Loan is extended to the Key Employee, the dollar amount of such Tax Loan
so issued to the Key Employee hereunder shall not exceed 50% of the Fair Market
Value of the Shares awarded to the Key Employee hereunder as to which the
Restriction Period has then lapsed.
(b) In the event of a Change in Control, the Trust shall extend a
loan to the Key Employee to provide him with funds to pay the federal and state
income taxes that he will incur as a result of (i) the forgiveness of any Tax
Loans extended under Paragraph 5(a) and (ii) receipt of the Income Tax Payment
(in accordance with Paragraph 4.4) (the "Change in Control Tax Loan"). The Key
Employee will execute a promissory note in the form attached to this Agreement
to evidence his obligation to repay such Change in Control Tax Loan.
6. Miscellaneous.
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6.1. Definitions; Application of Amended Plan. Capitalized terms used
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in this Agreement, unless otherwise defined herein, have the respective meanings
given to such terms in the Amended Plan. The terms of the Amended Plan are
incorporated by reference as if set forth herein in their entirety and, except
as specifically provided herein, shall govern the terms of this Performance
Share Award Agreement.
6.2. Notices. Any notice required or permitted to be given under
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this Agreement shall be in writing and shall be deemed to have been given when
delivered in person or when deposited in the U.S. mail, registered or certified,
postage prepaid, and mailed to the respective addresses set forth herein, unless
a party changes its address for receiving notices by giving notice in accordance
with this Paragraph, in which case, to the address specified in such notice.
6.3. Continued Employment. This Agreement shall not confer upon the
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Key Employee any right with respect to continuance of employment by the Trust.
6.4. Entire Agreement; Amendment. This Agreement constitutes the
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entire agreement of the parties with respect to the subject matter hereof and
shall supersede all prior agreements and understandings, oral or written,
between the parties with respect thereto. No provision of this Agreement may be
amended, modified or waived at any time unless such amendment, modification or
waiver shall be agreed to in writing and signed by both of the parties hereto.
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6.5. Assignment. This Agreement shall be binding upon and inure to
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the benefit of the heirs and representatives of the Key Employee and the assigns
and successors of the Trust, but neither this Agreement nor any rights
hereunder, subject to Paragraph 2.1(a), shall be assignable or otherwise subject
to hypothecation by the Key Employee.
6.6. Severability. If, for any reason, any provision of this
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Agreement is held invalid, such invalidity shall not affect any other provision
of this Agreement not so held invalid, and each such other provision shall to
the full extent consistent with law continue in full force and effect. If any
provision of this Agreement shall be held invalid in part, such invalidity shall
in no way affect the rest of such provision not held so invalid, and the rest of
such provision, together with all other provisions of this Agreement, shall to
the full extent consistent with law continue in full force and effect.
6.7. Governing Law. This Agreement and its validity, interpretation,
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performance and enforcement shall be governed by the laws of the State of
Maryland other than the conflict of laws provisions of such laws, and shall be
construed in accordance therewith.
6.8. Certain References. References to the Key Employee in any
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provision of this Agreement under circumstances where the provision should
logically be construed to apply to the Key Employee's executors or the
administrators, or the person or persons to whom all or any portion of the
Restricted Shares may be transferred by will or the laws of descent and
distribution, shall be deemed to include such person or persons.
6.9. Headings. The headings of Paragraphs hereof are included solely
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for convenience of reference and shall not control the meaning or interpretation
of any of the provisions of this Agreement.
6.10. Source of Payments. Payments provided under this Agreement, if
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any, shall be paid in cash from the general funds of the Trust, and no special
or separate fund shall be established and no other segregation of assets shall
be made to assure payment.
6.11. Counterparts. This Agreement may be executed in multiple
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counterparts with the same effect as if each of the signing parties had signed
the same document. All counterparts shall be construed together and constitute
the same instrument.
IN WITNESS WHEREOF, the Trust has caused this Agreement to be duly executed
and the Key Employee has hereunto set his hand effective as of the day and year
first above written.
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FEDERAL REALTY INVESTMENT TRUST
By: /s/ Xxxxxx X. Xxxx
____________________________________
Name: Xxxxxx X. Xxxx
Title: Chair, Compensation Committee
Address:
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
KEY EMPLOYEE:
/s/ Xxxxxx X. Xxxx
_______________________________________
XXXXXX X. XXXX
Address:
00 Xxxxxxx Xxxxx Xxx
Xxxxx Xxxxx, Xxxxxxxx 00000
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ATTACHMENT TO WOOD PERFORMANCE SHARE AWARD AGREEMENT
Performance Target for 2000 Award Period
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Funds From Operations/Annual Number of Performance Shares as to which
Per Share Growth Rate/1/ Restriction Period Lapses
Less than 5% None
Threshold level: Equal to or greater than 5% but less 4,687.5 shares
than 7%
Maximum level: Equal to or greater than 7% 7,500 shares
________________________
/1/ As the same may be adjusted for specific items as agreed between the
Committee and the Key Employee.
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