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EXHIIBT 10.17
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT, made as of the ____ day of ________, ____, by and
between American Spectrum Realty, Inc., a Maryland corporation with its
principal office at 0000 Xxxx Xxxxx Xxxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000 (the
"Company"), and ___________, residing at
____________________________________________ (the "Participant").
WHEREAS, the Board of Directors of the Company (the "Board") approved
and the stockholders adopted the American Spectrum Realty, Inc. 2000 Omnibus
Stock Incentive Plan (the "Plan");
WHEREAS, the Board has determined that the Participant receive an award
of Restricted Stock under the Plan.
NOW, THEREFORE, the Company and the Participant agree as follows:
1. Grant of Shares.
Subject to the restrictions, terms and conditions of the Plan and this
Agreement, the Company hereby awards to the Participant _______________ (______)
shares of the validly issued common stock of the Company, par value $.01 per
share (the "Shares"). The Participant shall pay the Company $.01 per Share for
each Share awarded hereunder Pursuant to Section 3 hereof, the Shares are
subject to certain restrictions, which restrictions shall expire in accordance
with the provisions of Section 2 hereof. While such restrictions are in effect,
the Shares subject to such restrictions shall be referred to herein as
"Restricted Stock."
2. Vesting. The Restricted Stock shall become vested and cease to be
Restricted Stock (but shall remain subject to the other terms of this Agreement)
as follows if the Participant has been continuously employed by the Company or
an Affiliate until such date:
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VESTING DATE NUMBER OF SHARES
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Grant Date
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1st anniversary of Grant Date
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2nd anniversary of Grant Date
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3rd anniversary of Grant Date
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There shall be no proportionate or partial vesting in the periods prior
to the applicable vesting dates and all vesting shall occur only on the
appropriate vesting date.
In addition, all shares shall become immediately vested and cease to be
Restricted Stock upon any Change in Control.
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3. Restrictions on Transfer. The Participant shall not sell, negotiate,
transfer, pledge, hypothecate, assign or otherwise dispose of the Shares, except
as set forth in the Plan or this Agreement. Any attempted sale, negotiation,
transfer, pledge, hypothecation, assignment or other disposition of the Shares
in violation of the Plan or this Agreement shall be void and of no effect and
the Company shall have the right to disregard the same on its books and records
and to issue "stop transfer" instructions to its transfer agent.
4. Forfeiture. If the Participant's employment with the Company or any
Affiliate is terminated for any reason (other than death), including, without
limitation, retirement, disability or for Cause during the relevant Restriction
Period, the Participant shall forfeit to the Company, without compensation, any
and all unvested Restricted Stock; provided however that the Participant shall
not forfeit any unvested Restricted Stock if Participant is employed pursuant to
an employment agreement and the termination of employment is for a breach by the
Company or the Participant terminates for "Good Reason" (as defined in the
employment agreement).
5. Rights as a Holder of Restricted Stock. From and after the Grant
Date, the Participant shall have the right to vote the Restricted Stock, to
receive and retain all cash dividends payable to holders of Shares of record on
and after the Grant Date (although such dividends will be treated, to the extent
required by applicable law, as additional compensation for tax purposes), and to
exercise all other rights, powers and privileges of a holder of Shares with
respect to the Restricted Stock, with the exceptions that the Participant shall
not transfer the Restricted Stock during the Restriction Period.
6. Adjustments. In the event of any stock dividend, split up,
split-off, spin-off, distribution, recapitalization, combination or exchange of
shares, merger, consolidation, reorganization or liquidation or the like, the
Restricted Stock shall, where appropriate in the sole discretion of the Board,
receive the same distributions as other Shares or be adjusted either on the same
basis as other Shares or on some other basis as determined by the Board. In any
such event, the Board may, in its sole discretion, determine to award additional
Restricted Stock in lieu of the distribution or adjustment being made with
respect to other Shares. In any such event, the determination made by the Board
shall be conclusive.
7. Taxes; Section 83(b) Election. The Participant acknowledges, subject
to the last sentence of this paragraph, that (i) no later than the date on which
any Restricted Stock shall have become vested, the Participant shall pay to the
Company, or make arrangements satisfactory to the Company regarding payment of,
any Federal, state or local taxes of any kind required by law to be withheld
with respect to any Restricted Stock which shall have become so vested; (ii) the
Company shall, to the extent permitted by law, have the right to deduct from any
payment of any kind otherwise due to the Participant any Federal, state or local
taxes of any kind required by law to be withheld with respect to any Restricted
Stock which shall have become so vested, including that the Company may, but
shall not be required to, sell a number of Shares sufficient to cover applicable
withholding taxes; and (iii) in the event that the Participant does not satisfy
(i) above on a timely basis, the Company may, but shall not be required to, pay
such required withholding and treat such amount as a demand loan to you at
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the maximum rate permitted by law, with such loan, at the Company's sole
discretion and provided the Company so notifies the Participant within 30 days
of the making of the loan, secured by the Shares and any failure by you to pay
the loan upon demand shall entitle the Company to all of the rights at law of a
creditor secured by the Shares. The Company may hold as security any
certificates representing any Shares and, upon demand of the Company, the
Participant shall deliver to the Company any certificates in his or her
possession representing Shares together with a stock power duly endorsed in
blank. The Participant also acknowledges that it is his or her sole
responsibility, and not the Company's, to file timely and properly any election
under Section 83(b) of the Internal Revenue Code and any corresponding
provisions of state tax laws, if you wish to utilize such election.
8. Legend. In the event that a certificate evidencing Restricted Stock
is issued, the certificate representing the Shares shall have endorsed thereon
the following legends:
(a) "THE ALIENATION, ATTACHMENT, SALE, TRANSFER, ASSIGNMENT, PLEDGE,
ENCUMBRANCE OR CHARGE OF THE SHARES OF STOCK REPRESENTED HEREBY ARE SUBJECT TO
THE TERMS AND CONDITIONS (INCLUDING FORFEITURE) OF AMERICAN SPECTRUM REALTY,
INC. (THE "COMPANY") 2000 OMNIBUS STOCK INCENTIVE PLAN AND AN AGREEMENT ENTERED
INTO BETWEEN THE REGISTERED OWNER AND THE COMPANY DATED AS OF THE ___ DAY OF
________, ____. COPIES OF SUCH PLAN AND AGREEMENT ARE ON FILE AT THE PRINCIPAL
OFFICE OF THE COMPANY."
(b) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER
SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED."
(c) Any legend required to be placed thereon by applicable blue sky
laws of any state.
Notwithstanding the foregoing, in no event shall the Company be
obligated to issue a certificate representing the Restricted Stock prior to
vesting as set forth in Section 2 hereof.
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9. Company Call Rights. In the event of the Participant's
termination of employment by the Company for Cause, the Company may repurchase
from the Participant any shares of Common Stock previously acquired by the
Participant through the award of Restricted Stock under the Plan at a repurchase
price equal to the lesser of (i) the par value paid for such Restricted Stock or
(ii) the Fair Market Value of a Share as of the date of termination.
10. Securities Representations. The Shares are being issued to
the Participant and this Agreement is being made by the Company in reliance upon
the following express representations and warranties of the Participant.
The Participant acknowledges, represents and warrants that:
(a) the Shares are being acquired for his own account and not
with a view to, or for sale in connection with, the distribution thereof, nor
with any present intention of distributing or selling any of such Shares;
(b) he has been advised that the Shares have not been
registered under the Securities Act of 1933 (the "Act") on the ground that no
distribution or public offering of the Shares is to be effected, and in this
connection the Company is relying in part on his representations set forth in
this Section;
(c) in the event that the Participant is permitted to sell,
transfer, pledge, hypothecate, assign or otherwise dispose of the Shares, the
Participant may only do so pursuant to a registration statement under the Act
and qualification under applicable state securities laws or pursuant to an
opinion of counsel satisfactory to the Company that such registration and
qualification are not required, and that the transaction (if it involves a sale
in the over-the-counter market or on a securities exchange) does not violate the
provisions of Rule 144 under the Act. A stop-transfer order will be placed on
the books of the Company respecting the certificates evidencing the Shares, and
such certificates shall bear, until such time as the Shares evidenced by such
certificates shall have been registered under the Act or shall have been
transferred in accordance with an opinion of counsel for the Company that such
registration is not required, the legends set forth in Section 8 thereof;
(d) the transfer of the Shares has not been registered under
the Act, and the Shares must be held indefinitely unless subsequently registered
under the Act or an exemption from such registration is available and the
Company is under no obligation to register the Shares; and
(e) he understands that the Shares are restricted securities
within the meaning of Rule 144 promulgated under the Act; that the exemption
form registration under Rule 144 will not be available unless: (i) a public
trading market then exists for the common stock of the Company; (ii) adequate
information concerning the Company is then available to the public; and (iii)
other terms and conditions of Rule 144 or any exemption therefrom are complied
with; and that any sale of the Shares may be made only in limited amounts in
accordance with such terms and conditions.
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11. LOCK UP. Participant agrees that in connection with any
registration of the Company's securities that, upon request of the Company or
the underwriter managing any public offering of the Company's securities,
Participant will not sell or otherwise dispose of any shares of Common Stock
without the prior written consent of the Company or such underwriter, as the
case may be, for a period of time (not to exceed one (1) year) from the
effective date of such registration as the Company or the underwriter may
specify for persons of Participant's status.
12. Not an Employment Agreement. Neither the execution of this
Agreement nor the issuance of the Shares hereunder constitute an agreement by
the Company to employ or to continue to employ the Participant during the
entire, or any portion of, the term of this Agreement, including but not limited
to any period during which any Restricted Stock is outstanding.
13. Power of Attorney. The Company, its successors and assigns, is
hereby appointed the attorney-in-fact, with full power of substitution, of the
Participant for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any instruments which such attorney-in-fact may
deem necessary or advisable to accomplish the purposes hereof, which appointment
as attorney-in-fact is irrevocable and coupled with an interest. The Company, as
attorney-in-fact for the Participant, may in the name and stead of the
Participant, make and execute all conveyances, assignments and transfers of the
Restricted Stock, other RS Property, Shares and property provided for herein,
and the Participant hereby ratifies and confirms all that the Company, as said
attorney-in-fact, shall do by virtue hereof. Nevertheless, the Participant
shall, if so requested by the Company, execute and deliver to the Company all
such instruments as may, in the judgment of the Company, be advisable for this
purpose.
14. Uncertificated Shares. Notwithstanding anything else herein, the
Committee may, in its sole and absolute discretion, subject to the terms of the
Plan, issue the Shares in the form of uncertificated shares. Such uncertificated
shares of Restricted Stock shall be credited to a book entry account maintained
by the Company (or its designee) on behalf of the Participant. If thereafter
certificates are issued with respect to such uncertificated shares of Restricted
Stock, such issuance and delivery of certificates shall be in accordance with
the applicable terms of this Agreement.
15. Miscellaneous.
15.1 This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, personal legal
representatives, successors, trustees, administrators, distributees, devisees
and legatees. The Company may assign to, and require, any successor (whether
direct or indirect, by purchase, merger, consolidation or
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otherwise) to all or substantially all of the business and/or assets of the
Company or any Affiliate by which you the Participant is employed to expressly
assume and agree in writing to perform this Agreement. Notwithstanding the
foregoing, the Participant may not assign this Agreement.
15.2 This award of Restricted Stock shall not affect in any way the
right or power of the Board or stockholders of the Company to make or authorize
an adjustment, recapitalization or other change in the capital structure or the
business of the Company, any merger or consolidation of the Company or
subsidiaries, any issue of bonds, debentures, preferred or prior preference
stock ahead of or affecting the Common Stock, the dissolution or liquidation of
the Company or any Affiliate, any sale or transfer of all or part of its assets
or business or any other corporate act or proceeding.
15.3 The Participant agrees that the award of the Restricted Stock
hereunder is special incentive compensation and that it, any dividends paid
thereon (even if treated as compensation for tax purposes) will not be taken
into account as "salary" or "compensation" or "bonus" in determining the amount
of any payment under any pension, retirement or profit-sharing plan of the
Company or any life insurance, disability or other benefit plan of the Company.
15.4 No modification or waiver of any of the provisions of this
Agreement shall be effective unless in writing and signed by the party against
whom it is sought to be enforced.
15.5 This Agreement may be executed in one or more counterparts, all
of which taken together shall constitute one contract.
15.6 The failure of any party hereto at any time to require
performance by another party of any provision of this Agreement shall not affect
the right of such party to require performance of that provision, and any waiver
by any party of any breach of any provision of this Agreement shall not be
construed as a waiver of any continuing or succeeding breach of such provision,
a waiver of the provision itself, or a waiver of any right under this Agreement.
15.7 The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall in no way restrict or
modify any of the terms or provisions hereof.
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15.8 The Company shall pay all fees and expenses necessarily
incurred by the Company in connection with the Plan and this Agreement and will
from time to time use its reasonable efforts to comply with all laws and
regulations which, in the opinion of counsel to the Company, are applicable
thereto.
15.9 All notices, consents, requests, approvals, instructions and
other communications provided for herein shall be in writing and validly given
or made when delivered, or on the second succeeding business day after being
mailed by registered or certified mail, whichever is earlier, to the persons
entitled or required to receive the same, at the addresses set forth at the
heading of this Agreement or to such other address as either party may designate
by like notice. Notices to the Company shall be addressed to the Chairman of the
Committee with a copy similarly sent to the General Counsel.
15.10 This Agreement and the award hereunder is subject to all the
restrictions, terms and provisions of the Plan which are incorporated herein by
reference. In the event of an inconsistency between any provision of the Plan
and this Agreement, unless otherwise indicated, the terms of the Plan shall
control. The capitalized terms in this Agreement that are not otherwise defined
shall have the same meaning as set forth in the Plan.
15.11 By executing this Agreement and by paying the price (if any)
required hereunder within 90 days after the day and year first above written,
the award of Restricted Stock shall be accepted by the Participant.
15.12 This Agreement shall be construed, interpreted and governed
and the legal relationships of the parties determined in accordance with the
internal laws of the State of Maryland without reference to rules relating to
conflicts of law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
AMERICAN SPECTRUM REALTY, INC.
By
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(Title)
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(Participant)
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