Exhibit 10.8.6
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT is made as of the first day of May, 1996 between Great
Lakes REIT, Inc., a Maryland corporation (the "Company"), and Xxxxxxx Xxxxx
("Employee").
WITNESSETH:
WHEREAS, the Board of Directors believes it to be in the best interests
of the Company's stockholders for certain officers and employees of the Company
to own stock in the Company in order that they will have a greater incentive to
manage the Company's affairs in such a way that its shares may become more
valuable; and
WHEREAS, Employee is a Senior Vice President of Acquisitions and a key
contributor to the success of the Company; and
WHEREAS, the Board of Directors has determined that as an inducement for
Employee to remain employed with the Company, it is in the best interests of the
Company and its stockholders to award shares of the Company's common stock to
Employee, which shares shall be subject to certain vesting and transfer
restrictions as set forth herein; and
WHEREAS, Employee and the Company wish to memorialize the terms of such
award.
NOW, THEREFORE, in consideration of the premises set forth herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. AWARD OF SHARES. The Company hereby awards Employee and Employee
hereby accepts the Company's award of Ten Thousand (10,000) shares (the
"Restricted Shares") of common stock, $.01 par value per share, of the Company
("Common Stock"), subject to the terms and conditions set forth in this
Agreement (the "Award").
2. AWARD DATE. The issuance of the Restricted Shares to Employee
shall occur simultaneously with the execution of this Agreement (the "Award
Date"). Concurrently with the execution of this Agreement, Employee shall
notify the Company if he has elected to file a Section 83(b) election with
respect to his receipt of the Restricted Shares. If he has made such an
election, Employee shall, within 30 days of the date hereof, deliver to the
Company a copy of such Section 83(b) election.
3. RESTRICTIONS.
(a) RESTRICTED SHARES. The Restricted Shares are being
awarded to Employee subject to the transfer and forfeiture restrictions set
forth below (the "Restrictions"), which shall lapse after the expiration of the
periods described (and as otherwise provided) in Section 4 below. Restricted
Shares for which Restrictions have lapsed shall constitute "Vested Shares".
(b) TRANSFER. Employee may not directly or indirectly,
by operation of law or otherwise, voluntarily or involuntarily, anticipate,
alienate, attach, sell, assign, pledge, encumber, charge or otherwise transfer
(any of which shall constitute a "Transfer") any of the Restricted Shares still
subject to Restrictions without the prior written consent of the Company.
(c) FORFEITURE. Subject to the provisions of Section 4
below, at such time as Employee is no longer employed by the Company other than
as a result of a consolidation, merger or asset sale which does not constitute a
"Change-In-Control" of the Company under Section 4(c) hereof, all Restricted
Shares still subject to Restrictions shall be returned to or canceled by the
Company, appropriately adjusted for any change in the stock of the Company by
reason of any stock dividend, split, or distribution, recapitalization,
reorganization, merger, consolidation, split-up, combination or exchange of
shares, or any similar change affecting the stock of the Company, which has
occurred after the date hereof, and shall be deemed to have been forfeited by
Employee. The Company will neither owe nor pay Employee any amount for any
forfeited Restricted Share upon any forfeiture of Employee's Restricted Shares.
4. LAPSE OF RESTRICTIONS.
(a) SCHEDULED VESTING. The Restrictions shall remain
fully (100%) in place until the fifth anniversary of the Award Date, at which
time 2,500 of the Restricted Shares awarded hereunder shall become Vested
Shares. On each subsequent anniversary of the Award Date, an additional 2,500
of the Restricted Shares shall become Vested Shares. The Restrictions on all
remaining Restricted Shares awarded hereunder shall lapse on the eighth
anniversary of the Award Date, at which time all such remaining Restricted
Shares shall become Vested Shares.
(b) EARLY VESTING. Notwithstanding anything in this
Section 4 to the contrary, all Restricted Shares awarded hereunder and not
previously forfeited by Employee shall become Vested Shares upon the earliest of
the following: (i) Employee's death, (ii) Employee's total and permanent
disability (as determined by a physician selected by Company's Board of
Directors), (iii) a Change-In-Control of the Company, or (iv) a dismissal of
Employee by the Company other than a Dismissal For Cause.
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(c) CHANGE-IN-CONTROL. For purposes of Section
4(b)(iii) above, a "Change-In-Control" shall mean any of the following events
occurring after the Award Date:
(i) a consolidation or merger of the Company in which the Company is
not the continuing or surviving corporation or other entity or
pursuant to which shares of the Common Stock of the Company
("Company Common Stock") would be converted into cash, securities
or other property, other than a consolidation or merger of the
Company in which the holders of Company Common Stock immediately
prior to the consolidation or merger have substantially the same
proportionate equity ownership of the surviving corporation or
other entity immediately after the consolidation or merger or;
(ii) a sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all, or substantially all, of
the assets of the Company other than a sale, lease, exchange or
other transfer to an entity in which the Company owns, directly or
indirectly, at least eighty percent (80%) of the outstanding
voting securities after such transfer; or
(iii) a complete liquidation or dissolution of the Company; or
(iv) any xxxxxx (as such term is used in Sections 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934, hereinafter the "1934 Act"),
other than one or more trusts established by the Company for the
benefit of employees of the Company or a corporation controlled by
the Company or the Company's stockholders, shall become the
beneficial owner (within the meaning of rule 13d-3 under the Act)
of fifty percent (50%) or more of the Company's outstanding Common
Stock.
(d) DISMISSAL FOR CAUSE. For purposes of Section
4(b)(iv) above, "Dismissal For Cause" shall mean a termination of Employee's
employment by the Company for one or more of the following reasons:
(i) the commission by Employee of any grossly negligent, fraudulent,
or dishonest act in connection with his employment with the
Company;
(ii) the commission by Employee of any act of embezzlement, theft,
fraud, or dishonesty, of any act constituting a felony, or of any
crime involving moral turpitude;
(iii) Employee's gross dereliction of duty, malfeasance in the
performance of the duties and responsibilities reasonably assigned
by an appropriate officer of the Company or the Board of
Directors, or chronic insubordination (the refusal to perform such
duties or responsibilities);
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(iv) Employee's diversion, for his own direct or indirect benefit, of
any business opportunity of the Company involving any business
that is substantially similar to that in which the Company is then
engaged or is then actively considering; or
(v) a material breach by Employee of his duties or obligations to the
Company under this Agreement or under the Company's policy
statements or manuals, not cured within fifteen days of the
receipt by Employee of notice of the breach from the Company.
5. ADJUSTMENTS.
(a) ADJUSTMENT FOR PARTICULAR TRANSACTIONS; NO
FRACTIONAL SHARES. In the event of any change in the outstanding shares of
Common Stock by reason of any stock dividend, split, distribution,
recapitalization, reorganization, merger, consolidation, split-up, combination
or exchange of shares or other similar change affecting the stock of the
Company, the aggregate number and class of shares which are to be delivered to
Employee hereunder shall be proportionately adjusted by the Board of Directors
of the Company, and any such additional shares or securities to be issued with
respect to Restricted Shares shall be subject to the same restrictions and shall
be included within the definition of "Restricted Shares" for all purposes
hereunder. Further, if there is an adjustment in the number of shares, no
fractional share shall be delivered with respect to any Restricted Share awarded
hereunder, although the Company shall pay, in lieu thereof, the Fair Market
Value (measured as of the date the restrictions lapse) of such fractional share
to Employee or Employee's estate. Any shares of stock or other securities
credited to Employee with respect to Employee's Restricted Shares shall be
subject to the same restrictions.
(b) FAIR MARKET VALUE. For purposes of this Section 5,
Fair Market Value means the most recent determination by the Board of Directors
of the per share Net Asset Value of the Company's Common Stock or, if the
Company shall then be a publicly traded company (when shares of its Common Stock
are actively traded on a national or regional securities exchange or the NASDAQ
system), the current per share market price of the Company's Common Stock based
on
(i) if the Company's Common Stock is actively traded on either a
national or regional securities exchange, then the average of the
closing prices of the Company's Common Stock over the 30 day
period ending three days before the day the Fair Market Value of
the Company's Common Stock is being determined; or
(ii) if the Company's Common Stock is actively traded over-the-counter,
the average of the closing bid and asked prices of the Company's
Common Stock quoted on the NASDAQ system (or similar system) over
the 30 day period ending three days before the day the Fair Market
Value of the Company's Common Stock is being determined.
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The Fair Market Value per share shall be computed on the basis of the total
number of outstanding shares.
(c) NET ASSET VALUE. For purposes of this Section 5,
Net Asset Value means the fair market value of the Company, as determined by the
Board of Directors from time to time. The parties acknowledge and agree that in
determining Net Asset Value, the Board of Directors may (but is not obligated)
(i) to consider the financial statements of the Company for prior years, cash
flow projections for current and future property operations, interest rate
trends, the availability of financing, and the return available on alternative
investments (including but not limited to public real estate investment trusts),
appraisals of the Company's real properties, and various other appropriate
factors, and (ii) to obtain the opinion of a valuation firm regarding the Board
of Directors' Net Asset Value determination. The Net Asset Value per share
shall be computed on the basis of the total number of outstanding shares.
6. RESTRICTIVE LEGEND. Employee shall be issued a stock certificate
representing the Restricted Shares. Such certificate shall be registered in
Employee's name and shall be inscribed with a legend evidencing the Restrictions
and forfeiture provisions hereof, and such additional legend as may be required
to comply with the Securities Act of 1933, as amended, and any stockholders
agreement that Employee may be subject to with respect to ownership of Company
Stock.
7. PROCEDURE UPON TRIGGER OF RESTRICTIONS.
(a) TRANSFER. Employee agrees, acknowledges, and
understands that any Transfer or attempted Transfer of the Restricted Shares in
violation of Section 3(b) shall be of no force and effect and the Company shall
be under no obligation to register any such Transfer on the stock ledger of the
Company.
(b) FORFEITURE. Upon receipt of a notice of forfeiture
from the Company, with respect to some or all of the Restricted Shares, Employee
shall immediately deliver to the Company the certificates or certificates
representing such forfeited Restricted Shares and if the certificate(s) are not
received by the Company promptly after Employee's receipt of the forfeiture
notice, then the Company shall be authorized to cancel such Restricted Shares on
the stock ledger of the Company and to re-issue a certificate for any Shares not
subject to the Restrictions, if any, represented by the same certificate(s) as
the forfeited Restricted Shares. The Company may condition the re-issuance of a
new certificate on the receipt from Employee of the original stock
certificate(s), or upon the delivery of an affidavit accompanied by security
deemed adequate by the Company with respect to any lost, stolen, or destroyed
certificates representing such forfeited Restrictive Shares.
8. WITHHOLDING TAXES. The sale or other transfer of the Restricted
Shares, and the lapse of Restrictions on the Restricted Shares, shall be
conditioned further on any applicable withholding taxes having been collected by
lump sum payroll deduction or direct payment to the Company.
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9. VOTING RIGHTS; EMPLOYMENT RIGHTS.
(a) STOCKHOLDER RIGHTS. Except as otherwise
specifically provided herein, upon issuance of the Restricted Shares in
Employee's name, Employee shall have all of the rights and status as a
stockholder of the Company in respect of the Restricted Shares, including the
right to vote such shares and to receive dividends or other distributions
thereon.
(b) NO RIGHT TO EMPLOYMENT. Neither the granting of the
Restricted Shares nor the execution of this Agreement shall be construed to
confer upon Employee any right to continued employment with the Company.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefits of the Company, its successors or assigns, by operation of
law or otherwise, including without limitation any corporation or other entity
or person which shall succeed (whether direct or indirect, by purchase, merger,
consolidation, or otherwise) to all or substantially all of the business and
assets of the Company, and the Company will require any successor, by agreement
in form and substance satisfactory to Employee, expressly to assume and agree to
perform the Agreement. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit as Employee, and his legal
representatives, heirs, and assigns.
11. SEVERABILITY. In the event that any provision of this Agreement
shall be determined to be invalid or unenforceable for any reason, the remaining
provisions of this Agreement shall be uneffected thereby and shall remain in
full force and effect.
12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be original but all of which
together constitute one and the same instrument.
13. APPLICABLE LAW. This Agreement shall be construed and enforced in
accordance with, and governed by, the law of the State of Illinois, without
application of any choice of law principles that would apply any law other than
the law of Illinois.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
effective as of the day and year first above written.
EMPLOYEE: Great Lakes REIT, Inc.
By:
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Its:
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