FORM OF RESTRICTED STOCK AGREEMENT (2007 Stock Award and Incentive Plan)
Exhibit 10.2
FORM
OF RESTRICTED STOCK AGREEMENT
(2007 Stock Award and Incentive Plan)
(2007 Stock Award and Incentive Plan)
This RESTRICTED STOCK AGREEMENT, dated as of (the “Agreement”), by and between
Apartment Investment and Management Company, a Maryland corporation (the “Company”), and
(“Recipient”). Capitalized terms used but not otherwise defined in this Agreement
shall have the respective meanings set forth in the Apartment Investment and Management Company
2007 Stock Award and Incentive Plan (the “Plan”).
WHEREAS, effective (the “Date of Grant”), the Compensation and Human Resources
Committee (the “Committee”) of the Board of Directors (the “Board”) of the Company granted the
Recipient a Restricted Stock Award, pursuant to which the Recipient shall receive shares of the
Company’s Class A Common Stock, par value $0.01 per share (“Common Stock”), pursuant to and subject
to the terms and conditions of the Plan.
NOW, THEREFORE, in consideration of the Recipient’s services to the Company and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Number of Shares and Share Price. The Company hereby grants the Recipient a
Restricted Stock Award (the “Stock Award”)
of
shares of Common Stock (the “Restricted
Stock”) pursuant to the terms of this Agreement and the provisions of the Plan.
2. Restrictions and Restricted Period.
(a) Restrictions. Shares of Restricted Stock granted hereunder may not be sold,
assigned, transferred, pledged, hypothecated or otherwise disposed of and shall be subject to a
risk of forfeiture until the lapse of the Restricted Period (as defined below). The Company shall
not be required (i) to transfer on its books any shares of Restricted Stock which shall have been
sold or transferred in violation of any of the provisions set forth in this Agreement, or (ii) to
treat as owner of such shares or to accord the right to vote as such owner or to pay dividends to
any transferee to whom such shares shall have been so transferred.
(b) Lapse of Restrictions; Restricted Period. The restrictions set forth above shall
lapse and the Restricted Stock shall become freely transferable (provided, that
such transfer is otherwise in accordance with federal and state securities laws) and
non-forfeitable as follows: as to
percent ( %) of the
Restricted Stock on
;
as to
percent ( %) of the Restricted Stock on ; as to percent
( %) of the Restricted Stock on
;
and as to
percent ( %) of the Restricted
Stock on (the “Restricted Period”). In order to enforce the foregoing restrictions, the
Board may (i) require that the certificates representing the shares of Restricted Stock remain in
the physical custody of the Company or in book entry until any or all of such restrictions expire
or have been removed, and (ii) may cause a legend or legends to be placed on the certificates which
make appropriate reference to the restrictions imposed under the Plan.
(c) Rights of a Stockholder. From and after the Date of Grant and for so long as the
Restricted Stock is held by or for the benefit of the Recipient, the Recipient shall have all the
rights of a stockholder of the Company with respect to the Restricted Stock, including but not
limited to the right to receive dividends and the right to vote such shares, subject to the
provisions of paragraph 2(d) hereof.
(d) Dividends. Dividends paid on Restricted Stock shall be paid at the dividend
payment date for the Common Stock, or be deferred for payment to such date as determined by the
Committee; provided such deferral is in compliance with Section 409A of the Code, in cash, shares
of Common Stock or other property. Stock distributed in connection with a Common Stock split or
Common Stock dividend, and other property distributed as a dividend (excluding cash), shall be
subject to restrictions and a risk of forfeiture to the same extent as the Restricted Stock with
respect to which such Common Stock or other property has been distributed.
3. Termination of Employment. In the event that Recipient ceases to be employed by
the Company for any reason prior to the lapse of the Restricted Period, then the Restricted Stock
and any accrued but unpaid dividends that are at that time subject to restrictions set forth
herein, shall be forfeited to the Company without payment of any consideration by the Company, and
neither the Recipient nor any of his or her successors, heirs, assigns or personal representatives
shall thereafter have any further rights or interests in such shares of Restricted Stock or
certificates. In the event that Recipient’s employment with the Company is terminated due to his
death or total and permanent disability then the Restricted Period set forth in Section 2(b) hereof
shall immediately lapse as to all shares of Restricted Stock and the Restricted Stock shall become
immediately fully vested. For purposes of this Section 3, Recipient’s employment will have
terminated by reason of total and permanent disability if, in the reasonable and good faith
judgment of the Company, the Recipient is totally and permanently disabled and is unable to return
to or perform his or her duties on a full-time basis.
4. Change of Control. All unvested shares of Restricted Stock issued hereunder shall,
in addition to any provisions relating to vesting contained in this Agreement, become immediately
fully vested upon the occurrence of a Change of Control (as defined below).
For purposes of this Agreement, a “Change in Control” shall mean the occurrence of any
of the following events:
(a) an acquisition (other than directly from the Company) of any voting securities of the
Company (the “Voting Securities”) by any “person” (as the term “person” is used for purposes of
Section 13(d) or Section 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) immediately after which such person has “beneficial ownership” (within the meaning of Rule
13d-3 promulgated under the Exchange Act) (“Beneficial Ownership”) of 50% or more of the combined
voting power of the Company’s then outstanding Voting Securities; provided, however, in determining
whether a Change in Control has occurred, Voting Securities that are acquired in a Non-Control
Acquisition (as hereinafter defined) shall not constitute an acquisition that would cause a Change
in Control. “Non-Control Acquisition” shall mean an acquisition (A) by or
under an employee benefit plan (or a trust forming a part thereof) maintained by (1) the
Company or (2) any corporation, partnership or other person of which a majority of its voting power
or its equity
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securities or equity interest is owned directly or indirectly by the Company or in
which the Company serves as a general partner or manager (a “Subsidiary”), (B) by the Company or
any Subsidiary, or (C) by any person in connection with a Non-Control Transaction (as hereinafter
defined). “Non-Control Transaction” shall mean a merger, consolidation, share exchange or
reorganization involving the Company, in which (1) the stockholders of the Company, immediately
before such merger, consolidation, share exchange or reorganization, own, directly or indirectly
immediately following such merger, consolidation, share exchange or reorganization, at least 50% of
the combined voting power of the outstanding voting securities of the corporation that is the
successor in such merger, consolidation, share exchange or reorganization (the “Surviving Company”)
in substantially the same proportion as their ownership of the Voting Securities immediately before
such merger, consolidation, share exchange or reorganization, and (2) the individuals who were
members of the Board of Directors of the Company immediately prior to the execution of the
agreement providing for such merger, consolidation, share exchange or reorganization constitute at
least 50% of the members of the board of directors of the Surviving Company;
(b) the individuals who constitute the Board as of the date hereof (the “Incumbent Board”)
cease for any reason to constitute at least 50% of the Board; provided, however, that if the
election, or nomination for election by the Company’s stockholders, of any new director was
approved by a vote of at least two-thirds of the Incumbent Board, such new director shall be
considered as a member of the Incumbent Board; provided, further, that no individual shall be
considered a member of the Incumbent Board if such individual initially assumed office as a result
of either an actual or threatened “election contest” (as described in Rule 14a-11 promulgated under
the Exchange Act) (an “Election Contest”) or other actual or threatened solicitation of proxies or
consents by or on behalf of a person other than the Board of Directors (a “Proxy Contest”)
including by reason of any agreement intended to avoid or settle any Election Contest or Proxy
Contest; or
(c) the consummation of any of the following: (A) a merger, consolidation, share exchange or
reorganization involving the Company (other than a Non-Control Transaction); (B) a complete
liquidation or dissolution of the Company; or (C) an agreement for the sale or other disposition of
all or substantially all of the assets of the Company to any person (other than a transfer to a
Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because
any person (a “Subject Person”) acquired Beneficial Ownership of more than the permitted amount of
the outstanding Voting Securities as a result of the acquisition of Voting Securities by the
Company that, by reducing the number of Voting Securities outstanding, increases the proportional
number of shares Beneficially Owned by such Subject Person, provided that if a Change in Control
would occur (but for the operation of this sentence) as a result of the acquisition of Voting
Securities by the Company, and after such share acquisition by the Company, such Subject Person
becomes the Beneficial Owner of any additional Voting Securities that increases the percentage of
the then outstanding Voting Securities Beneficially Owned by such Subject Person, then a Change in
Control shall occur.
5. Tax Withholding; Tax Treatment.
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(a) Tax Withholding. Notwithstanding anything to the contrary, the release of the
shares of Restricted Stock hereunder shall be conditioned upon the Recipient making adequate
provision for federal, state or other withholding obligations, if any, which may arise upon the
vesting of the Restricted Stock.
(b) Tax Treatment. Set forth below is a brief summary as of the Date of Grant of
certain United States federal tax consequences of the award of Restricted Stock. THIS SUMMARY DOES
NOT ADDRESS SPECIFIC STATE, LOCAL OR FOREIGN TAX CONSEQUENCES THAT MAY BE APPLICABLE TO THE
RECIPIENT. THE RECIPIENT UNDERSTANDS THAT THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS
AND REGULATIONS ARE SUBJECT TO CHANGE.
TO ENSURE COMPLIANCE WITH TREASURY DEPARTMENT REGULATIONS, WE ADVISE YOU THAT, UNLESS OTHERWISE
EXPRESSLY INDICATED, ANY FEDERAL TAX ADVICE CONTAINED IN THIS AGREEMENT WAS NOT INTENDED OR WRITTEN
TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE
CODE OR (II) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTERS
ADDRESSED HEREIN.
Unless the Recipient has filed a Section 83(b) election as discussed below, the Recipient
shall recognize ordinary income at the time or times the Restricted Stock vests in an amount equal
to the aggregate Fair Market Value of such shares on each such date.
The Recipient hereby acknowledges that he or she has been informed that, with respect to the
grant of Restricted Stock, an election may be filed by the Recipient with the Internal Revenue
Service, within 30 days of the Date of Grant, electing pursuant to Section 83(b) of the Internal
Revenue Code of 1986, as amended (the “Code”), to be taxed currently on the aggregate Fair Market
Value of the Restricted Stock as of the Date of Grant.
THE RECIPIENT ACKNOWLEDGES THAT IT IS THE RECIPIENT’S SOLE RESPONSIBILITY AND NOT THE
COMPANY’S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b) OF THE CODE, EVEN IF THE RECIPIENT
REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO MAKE THIS FILING ON THE RECIPIENT’S BEHALF.
BY SIGNING THIS AGREEMENT, THE RECIPIENT REPRESENTS THAT HE OR SHE HAS REVIEWED WITH HIS OR
HER OWN TAX ADVISORS THE FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT AND THAT HE OR SHE IS RELYING SOLELY ON SUCH ADVISORS AND NOT ON ANY
STATEMENTS OR REPRESENTATIONS OF THE COMPANY OR ANY OF ITS AGENTS. THE RECIPIENT UNDERSTANDS AND
AGREES THAT HE OR SHE (AND NOT THE COMPANY) SHALL BE RESPONSIBLE FOR ANY TAX LIABILITY THAT MAY
ARISE AS A RESULT OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
6. Miscellaneous.
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(a) Entire Agreement. This Agreement and the Plan contain the entire understanding
and agreement of the Company and the Recipient concerning the subject matter hereof, and supersede
all earlier negotiations and understandings, written or oral, between the parties with respect
thereto.
(b) Captions. The captions and section numbers appearing in this Agreement are
inserted only as a matter of convenience. They do not define, limit, construe or describe the
scope or intent of the provisions of this Agreement.
(c) Counterparts. This Agreement may be executed in counterparts, each of which when
signed by the Company or the Recipient will be deemed an original and all of which together will be
deemed the same agreement.
(d) Notices. Any notice or communication having to do with this Agreement must be
given by personal delivery or by certified mail, return receipt requested, addressed, if to the
Company or the Committee, to the attention of the General Counsel of the Company at the principal
office of the Company and, if to the Recipient, to the Recipient’s last known address contained in
the personnel records of the Company.
(e) Succession and Transfer. Each and all of the provisions of this Agreement are
binding upon and inure to the benefit of the Company and the Recipient and their permitted
successors, assigns and legal representatives.
(f) Amendments. Subject to the provisions of the Plan, this Agreement may be amended
or modified at any time by an instrument in writing signed by the parties hereto.
(g) Governing Law. This Agreement and the rights of all persons claiming hereunder
will be construed and determined in accordance with the laws of the State of Maryland without
giving effect to the choice of law principles thereof.
(h) Plan Controls. This Agreement is made under and subject to the provisions of the
Plan, and all of the provisions of the Plan are hereby incorporated by reference into this
Agreement. In the event of any conflict between the provisions of this Agreement and the
provisions of the Plan, the provisions of the Plan shall govern. By signing this Agreement, the
Recipient confirms that he or she has received a copy of the Plan and has had an opportunity to
review the contents thereof.
(i) No Guarantee of Continued Service. The Recipient acknowledges and agrees that
nothing herein, including the opportunity to make an equity investment in the Company, shall be
deemed to create any implication concerning the adequacy of the Recipient’s services to the
Company, any Company Subsidiary or any Partnership or Partnership Subsidiary shall be construed as
an agreement by the Company, any Company Subsidiary or any Partnership or Partnership Subsidiary,
express or implied, to employ the Recipient or contract for the Recipient’s services, to
restrict the right of the Company, any Company Subsidiary or any Partnership or Partnership
Subsidiary, as applicable, to discharge the Recipient or cease contracting for the Recipient’s
services
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or to modify, extend or otherwise affect in any manner whatsoever, the terms of any
employment agreement or contract for services that may exist between the Recipient and the Company,
any Company Subsidiary or any Partnership or Partnership Subsidiary, as applicable.
{Signature page follows}
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
| APARTMENT INVESTMENT AND MANAGEMENT COMPANY |
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| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| RECIPIENT: | ||||||
| By: | ||||||
| Address: | ||||||
| Home Telephone: | ||||||
