TRANSFEREE AGREEMENT
THIS TRANSFEREE AGREEMENT (this "Agreement") is made as of the 21st day of
January, 2000 by and between Insignia Financial Group, Inc. ("Transferor"), as
a Member of ERX Advisors, LLC, a Delaware limited liability company (the
"Company"), and ____________________, an individual who desires to become a
Member ("Transferee") pursuant to this Agreement. All capitalized terms used
but not defined herein have the same meanings as in the limited liability
company agreement of the Company, attached hereto as Annex A (the "LLC
Agreement").
WHEREAS, Transferor is a corporation and desires to enter into this
Agreement in order to incentivize and retain in its employ certain individuals
and to compensate them for their contributions to the growth and profits of
Transferor and thereby induce them to continue to make such contributions in
the future;
WHEREAS, Transferee is an employee of Transferor or a subsidiary of
Transferor;
WHEREAS, in furtherance thereof, and pursuant to and in accordance with
the LLC Agreement, this Agreement is designed to Transfer Units in the Company
from Transferor to Transferee, subject to forfeiture as provided herein; and
WHEREAS, the parties hereto desire to execute this Agreement to further
evidence the Transfer by Transferor;
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements contained herein, the parties hereto agree
as follows:
1. Definitions.
Whenever used herein, the following capitalized terms shall have the
meanings set forth below:
"Cause" means: (a) if Transferee has a written employment agreement with
Transferor or a subsidiary of Transferor containing a definition of the term
"Cause," such definition; otherwise, (b) (i) engaging in willful or gross
misconduct or neglect, (ii) repeatedly failing to adhere to the directions of
superiors or the written policies and practices of Transferor or a subsidiary
of Transferor, (iii) the commission of a felony or a crime of moral turpitude
or any crime involving Transferor or a subsidiary of Transferor, (iv) fraud,
misappropriation or embezzlement, (v) a material breach of Transferee's
employment agreement (if any) with Transferor or a subsidiary of Transferor, or
(vi) any other illegal act detrimental to Transferor or a subsidiary of
Transferor.
"Managing Member" means the managing member of the Company under the LLC
Agreement.
"Transferred Property" means the Units Transferred to Transferee pursuant
to this Agreement, together with all distributions received from the Company in
respect thereof, including distributions received in connection with a
dissolution of the Company.
"Unvested Transferred Property" means Transferred Property that continues
to be subject to forfeiture pursuant to Section 4 at the time in question.
"Vested Transferred Property" means Transferred Property that is no longer
subject to forfeiture pursuant to Section 4 at the time in question.
2. Transfer of Units.
(a) Transferor hereby Transfers ____ Units to Transferee, and Transferee
hereby accepts such Units, in each case subject to forfeiture as provided in
Section 4 hereof and the other terms and conditions of this Agreement.
(b) Transferee will be entered into the records of the Company as the
holder of the Units Transferred pursuant to this Agreement, and Transferee
shall be subject to the provisions and restrictions set forth in the LLC
Agreement.
3. Effective Date of Agreement.
This Agreement is effective as of the date first above written. As
required by the LLC Agreement, the Managing Member of the Company has approved
this Agreement and the Transfer of Units pursuant hereto as evidenced by his
signature on the signature page hereto.
4. Restrictions and Conditions; Forfeiture.
(a) The Transferred Property is subject to forfeiture back to Transferor
during such periods, in such percentage amounts and upon the occurrence of such
conditions and events as are set forth on Schedule I attached hereto.
(b) Except as provided in Section 4(a), Transferee shall have, in respect
of the Transferred Property, all of the rights of a Member of the Company,
including the right to vote and the right to receive distributions, until such
time (if ever) as such Transferred Property is forfeited back to Transferor.
(c) Upon forfeiture by Transferee of any Transferred Property back to
Transferor pursuant to Section 4(a), Transferee shall (A)(i) cease to be a
Member of the Company and shall have no further rights to distributions or
allocations of Profits and Losses of the Company, if as a result of such
forfeiture no Units continue to be held by Transferee, or (ii) continue to be a
Member of the Company but shall have no further rights to distributions or
allocations of Profits and Losses of the Company in respect of such forfeited
Units, if Transferee continues to hold other Units, and (B) be obligated to
transfer and deliver to Transferor, without any additional consideration
therefor, all other Transferred Property that has been forfeited. Any
forfeiture of Units shall, without any further action by the Managing Member,
Transferor, Transferee, the Company or any other Person, result in an automatic
Transfer of the Units so forfeited hereunder from Transferee to Transferor.
5. Section 83(b) Tax Election.
On the date of Transfer of Units to Transferee pursuant to this Agreement,
Transferee shall execute three copies of a Section 83(b) Tax Election Form,
substantially in the form attached as Annex B hereto with respect to the Units
received. Transferee shall promptly file one copy of the Section 83(b) Tax
Election Form with the IRS and deliver one copy of the Section 83(b) Tax
Election Form to the Special Member. Upon receipt of such duly executed form,
the Special Member shall cause such copy to be filed in the records maintained
by the Company. Notwithstanding anything contained in this Agreement to the
contrary, Transferee's execution and delivery of the Section 83(b) Tax Election
Form shall be a condition precedent to Transferor's obligation as may otherwise
be provided hereunder to
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Transfer Units to Transferee, and the failure of Transferee to satisfy such
requirement with respect to the Units shall cause such Units to be forfeited in
accordance with Section 4 hereof.
6. Nontransferability of Unvested Transferred Property.
Unvested Transferred Property may not be Transferred by Transferee in any
manner whatsoever. Vested Transferred Property may be Transferred if and to the
extent permitted by Article V of the LLC Agreement.
7. Miscellaneous.
(a) Without limiting any power and authority otherwise possessed by
Transferor, the Managing Member shall have the full power and authority to
interpret and administer this Agreement and any other instrument or agreements
relating to this Agreement. The Managing Member's actions in this regard shall
be final, conclusive and binding upon all persons, including without limitation
Transferor, Transferee and Transferee's beneficiaries.
(b) The failure of Transferor, Transferee or the Company to insist upon
strict compliance with any provision of this Agreement, or to assert any right
Transferor, Transferee or the Company, respectively, may have under this
Agreement, shall not be deemed to be a waiver of such provision or right or any
other provision or right of this Agreement or the LLC Agreement.
(c) Nothing in this Agreement shall confer on Transferee any right to
continue in the employ or other service of Transferor or interfere in any way
with the right of Transferor to terminate Transferee's employment or other
service at any time.
(d) The Company is an express third-party beneficiary of this Agreement.
(e) TRANSFEREE EXPRESSLY ACKNOWLEDGES THAT PURSUANT TO SECTION 2.10 OF THE
LLC AGREEMENT, EXCEPT AS EXPRESSLY SET FORTH IN THE LLC AGREEMENT THE MANAGING
MEMBER HAS NO DUTY TO TRANSFEREE, FIDUCIARY OR OTHERWISE, AND MAY TAKE WHATEVER
ACTIONS HE DEEMS APPROPRIATE IN HIS SOLE AND ABSOLUTE DISCRETION, AND
TRANSFEREE HEREBY CONFIRMS AND AGREES TO SUCH LIMITATION ON THE DUTY OF THE
MANAGING MEMBER.
8. Notices.
All notices under this Agreement shall be in writing and delivered
personally or by recognized overnight courier, as follows:
if to Transferor:
Insignia Financial Group, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
if to Transferee:
---------------------------------
---------------------------------
---------------------------------
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if to the Company:
ERX Advisors, LLC
c/o Insignia Financial Group, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
with a copy to:
Insignia Financial Group, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Such addresses may be changed at any time by written notice to the other
party given in accordance with this Section 8.
9. Captions.
The use of captions in this Agreement is for convenience. The captions are
not intended to and do not provide substantive rights.
10. Amendment; Waiver; Severability.
This Agreement may not be amended or modified except by a written
agreement executed by the parties hereto or their respective successors and
legal representatives. No waiver of any provision of this Agreement shall be
valid unless it is in writing and signed by the party charged therewith. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
11. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF DELAWARE, WITHOUT
REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS.
12. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, and all of which taken together shall
constitute one and the same agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
TRANSFEROR:
INSIGNIA FINANCIAL GROUP, INC.
By:
---------------------------------
Name:
Title:
TRANSFEREE:
Name:
AS REQUIRED BY THE LLC AGREEMENT,
THIS AGREEMENT AND THE TRANSFER
OF UNITS PURSUANT HERETO IS HEREBY
APPROVED BY THE MANAGING MEMBER
OF THE COMPANY:
XXXXXX X. XXXXXX, in his capacity as
Managing Member of ERX Advisors, LLC
--------------------------------------
Xxxxxx X. Xxxxxx
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SCHEDULE I
VESTING AND FORFEITURE
DEFINITIONS
For purposes of this Schedule I, the following terms have the meanings set
forth below:
"Award" means a transfer or other direct or indirect grant (by means of
direct or indirect transfer, contractual arrangement or otherwise) of Base ERX
Equity made by Transferor or a subsidiary thereof, at the direction of the
Chief Executive Officer of Transferor, pursuant to and in accordance with the
resolutions adopted by the Compensation Committee of the Board of Directors of
Transferor on January 14, 2000.
"Base ERX Equity" means the capital stock of EdificeRex originally issued
to Transferor in exchange for or as a result of the actual or deemed (for
accounting purposes) contributions made to the equity capital of EdificeRex by
Transferor and its subsidiaries, regardless of whether such contributions are
made in the form of cash, tangible property or other assets (such as services),
but only to the extent that the aggregate amount of such contributions does not
exceed $7,500,000 (or such greater amount as may be approved by the
Compensation Committee of the Board of Directors of Transferor).
"Change of Control" means, with respect to EdificeRex, any of the
following events, provided such event occurs following satisfaction of the
Third-Party Investment Condition: (i) the sale of all or substantially all of
the outstanding equity securities of EdificeRex to one or more persons or
entities not controlled by Transferor; or (ii) a merger, consolidation or
similar transaction involving EdificeRex if as a result thereof the
equityholders of EdificeRex immediately prior to such transaction own equity
securities representing less than 50% of either the common equity securities of
the surviving or resultant entity or the combined voting power of all
outstanding securities of the surviving or resultant entity.
"EdificeRex" means XxxxxxxXxx.xxx, Inc., a Delaware corporation, or any
successor thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Liquidity Event" means any of the following events: (i) a sale by
EdificeRex of all or substantially all of its assets to one or more persons or
entities not controlled by Transferor, in exchange for consideration consisting
primarily of cash, Marketable Securities or a combination of both; (ii) a sale
of all or substantially all of the outstanding equity securities of EdificeRex
to one or more persons or entities not controlled by Transferor, in exchange
for consideration consisting primarily of cash, Marketable Securities or a
combination of both; (iii) the closing of an initial underwritten public
offering of common stock of EdificeRex; (iv) a merger or consolidation of
EdificeRex with another entity, as a result of which the holders of the common
stock of EdificeRex receive consideration consisting primarily of cash,
Marketable Securities or a combination of both; or (v) a liquidation of
EdificeRex.
"Marketable Security" means any security (A) of a class (or series of a
class) that is (i) registered under Section 12 of the Exchange Act and (ii)
traded or listed on a national securities exchange or The NASDAQ Stock Market,
or (B) exchangeable or exercisable for or convertible into a security of a
class (or series of a class) that is (i) registered under Section 12 of the
Exchange Act and (ii) traded or listed on a national securities exchange or The
NASDAQ Stock Market.
"Minimum Return Condition" means the condition that the value of the
portion of Base ERX Equity not subject to any outstanding Award (regardless of
whether such Base ERX Equity is still owned
by Transferor or one or more of its subsidiaries at such time) is at least
equal to the aggregate amount of actual or deemed (for accounting purposes)
contributions made to the equity capital of EdificeRex in exchange for the Base
ERX Equity, plus an annual, compounded 10% return thereon.
"Third-Party Investment Condition" means the condition that one or more
persons or entities not controlled by Transferor shall have made equity
"investments" in EdificeRex in an aggregate amount at least equal to the
aggregate amount of actual or deemed (for accounting purposes) contributions
made to the equity capital of EdificeRex made by the Company and its
subsidiaries in exchange for the Base ERX Equity. For this purpose, (i) the
term "investments" shall be broadly interpreted to include any and all
contributions of cash or property to the equity capital of EdificeRex,
including pursuant to a merger or similar transaction or an initial
underwritten public offering of the common stock of EdificeRex, and (ii)
contributions of property other than cash shall be valued at fair market value
at the time of contribution.
TIME VESTING AND RELATED FORFEITURE EVENTS
Vesting
(1) Transferred Property which is subject to forfeiture back to Transferor
upon the occurrence of a forfeiture event specified in this section is
hereinafter referred to as "Non-Time-Vested Transferred Property"), and
Transferred Property which is not subject to forfeiture back to Transferor
upon the occurrence of a forfeiture event specified in this section is
hereinafter referred to as "Time-Vested Transferred Property".
(2) Initially, 94% of the Transferred Property is Non-Time-Vested Transferred
Property, and 6% of the Transferred Property is Time-Vested Transferred
Property. Subject to the following provisions providing for accelerated
time-based vesting of Transferred Property under certain circumstances,
until the earlier of (i) such time as all of the Transferred Property
becomes Time-Vested Transferred Property or (ii) such time as
Non-Time-Vested Transferred Property is forfeited back to Transferor
pursuant to this Agreement, on the last day of each calendar month
following the date of this Agreement, the percentage of Transferred
Property that is Non-Time-Vested Transferred Property shall be decreased
by 2% (in absolute terms), and the percentage of Transferred Property that
is Time-Vested Transferred Property shall be increased by 2% (in absolute
terms).
(3) In the event of a Change of Control of EdificeRex, simultaneously with the
occurrence thereof 100% of the then Non-Time-Vested Transferred Property
shall automatically become Time-Vested Transferred Property.
(4) In the event of an underwritten initial public offering of common stock of
EdificeRex, and provided that the managing underwriter(s) of such offering
do not object in writing, simultaneously with the closing thereof 50% of
the then Non-Time-Vested Transferred Property shall automatically vest and
become Time-Vested Transferred Property, and the balance of the
Non-Time-Vested Transferred Property shall continue to vest over time in
accordance with (2) above.
(5) If Transferee's employment (or other service, if applicable) with
Transferor is terminated by Insignia for any reason other than Cause, then
all then Non-Time-Vested Transferred Property shall immediately and
automatically become Time-Vested Transferred Property.
Forfeiture
If Transferee's employment (or other service, if applicable) with Transferor is
terminated (i) by Transferor for Cause, (ii) by Transferee for any reason or
(iii) as a result of the death or disability of Transferee, then all then
Non-Time-Vested Transferred Property shall thereupon, and with no further
action, be forfeited by Transferee back to Transferor (notwithstanding that
such Transferred Property may be Performance-Vested Transferred Property at the
time).
PERFORMANCE VESTING AND RELATED FORFEITURE EVENTS
Performance Vesting
(1) Transferred Property which is subject to forfeiture back to Transferor
upon the occurrence of a forfeiture event specified in this section is
hereinafter referred to as "Non-Performance-Vested Transferred Property",
and Transferred Property which is not subject to forfeiture back to
Transferor upon the occurrence of a forfeiture event specified in this
section is hereinafter referred to as "Performance-Vested Transferred
Property".
(2) If a Liquidity Event occurs and simultaneously therewith or at some point
within the 360-day period following the occurrence thereof the Minimum
Return Condition is satisfied, 100% of the Transferred Property shall
automatically become Performance-Vested Transferred Property
simultaneously with the satisfaction of the Minimum Return Condition.
Forfeiture
If (i) a Liquidity Event does not occur within ten (10) years from the date of
this Agreement, (ii) a Liquidity Event occurs but the Third-Party Investment
Condition has not been or is not satisfied prior to or simultaneously with the
occurrence of such Liquidity Event or (iii) a Liquidity Event occurs but the
Minimum Return Condition is not satisfied either simultaneously with or at some
point within the 360-day period following the occurrence thereof, then all
Non-Performance-Vested Transferred Property shall thereupon, and with no
further action, be forfeited by Transferee back to Transferor (notwithstanding
that such Transferred Property may be Time-Vested Transferred Property at the
time); provided, however, that in the event of the circumstances described in
the foregoing clause (iii), Transferor shall afford Transferee a fair
opportunity (as determined by the Compensation Committee of the Board of
Directors of Transferor in good faith) to forfeit an appropriate portion of the
Non-Performance-Vested Transferred Property back to Transferor in lieu of
actual satisfaction of the Minimum Return Condition, and if Transferor accepts
such opportunity and forfeits the applicable portion of the
Non-Performance-Vested Transferred Property, the Minimum Return Condition shall
be deemed satisfied and the balance of the Transferred Property shall
automatically become Performance-Vested Transferred Property.
EMPLOYMENT AGREEMENT CONTROLS
If at any given time of determination Transferee is a party to a written
employment agreement with Transferor (or a subsidiary of Transferor) containing
terms that are more favorable to Transferee than those set forth in this
Schedule I, then the more favorable terms of such employment agreement shall
control.
SCHEDULE II
MEMBER UNITS
Xxxxxx X. Xxxxxx 80
Xxxxx X. Xxxxxx 4
Xxxxxx Xxxxxx 4
Xxxxx X. Aston 4
Xxxxx X. Xxxxxxxx 4
Xxxx X. Xxxxxxx 4
Xxxxxxx X. Xxxxx 4
Xxxxxx X. Xxxxxx 1
Xxxx Xxxxxx 1
Xxxx Xxxxxxx 1
Xxx Mecshner 1
Xxxxxxx Xxxxxxx 1
Xxx X'Xxxxxx 2
Xxxxx Xxxxxxx 1
Xxxx Xxxxxxxx 1
