AMENDED AND RESTATED RESTRICTED STOCK UNIT AGREEMENT
EXHIBIT 10.3
AMENDED AND RESTATED RESTRICTED STOCK UNIT AGREEMENT
This AMENDED AND RESTATED RESTRICTED STOCK UNIT AGREEMENT (“Agreement”) dated December 22, 2008, is made by and between Avatar Holdings Inc., a Delaware corporation (the “Company”), and Xxxxxxx X. Xxxx (the “Participant”), and amends and restates in their entirety and consolidates the three Restricted Stock Unit Agreements, by and between the Company and the Participant, each dated April 15, 2005 (each, an “Original Agreement” and collectively, the “Original Agreements”) that specify a minimum price of $65.00 per share, $72.50 per share and $80.00 per share, respectively, in the Hurdle Price Condition (as defined in the respective Original Agreement).
WHEREAS, under the Avatar Holdings Inc. Amended and Restated 1997 Incentive and Capital Accumulation Plan (2005 Restatement), as the same has been or may be amended, restated, modified or supplemented (the “Plan”), the Company has granted the Participant an aggregate of 75,000 Performance Conditioned Restricted Stock Units (“Units”) pursuant to the Original Agreements;
1. CONVERSION OF UNITS TO RESTRICTED STOCK; CERTIFICATES.
(a) The Committee hereby converts the Units into 75,000 shares of Common Stock as of the date hereof, subject to the terms and conditions of the Plan and subject further to the terms and conditions herein set forth (the “Restricted Stock”).
(b) The certificate or certificates for shares of Common Stock representing the Restricted Stock shall be issued by the Company and shall be registered in the name of the Participant on the stock transfer books of the Company promptly following execution of this Agreement by the Participant, except that no certificate need be issued with respect to the shares to be vested in connection with the 83(b) Election described in Section 3 hereof. Such certificate or certificates shall bear, until the shares of Restricted Stock vest, a legend substantially in the following form:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO TERMS AND CONDITIONS (INCLUDING FORFEITURE AND RESTRICTIONS ON TRANSFER) SET FORTH IN AMENDED AND RESTATED 1997 INCENTIVE AND CAPITAL ACCUMULATION PLAN (2005 RESTATEMENT), AS THE SAME HAS BEEN OR MAY BE AMENDED, RESTATED, MODIFIED OR SUPPLEMENTED, AND THAT CERTAIN AMENDED AND RESTATED RESTRICTED STOCK UNIT AGREEMENT, AS THE SAME MAY BE AMENDED, RESTATED, MODIFIED OR SUPPLEMENTED, BETWEEN AVATAR HOLDINGS INC. AND THE REGISTERED OWNER OF THIS CERTIFICATE (OR SUCH OWNER’S PREDECESSOR IN INTEREST), WHICH AGREEMENT IS BINDING UPON ANY AND ALL OWNERS OF ANY INTEREST IN SUCH SHARES. SUCH PLAN AND AGREEMENT ARE AVAILABLE FOR INSPECTION WITHOUT CHARGE AT THE PRINCIPAL OFFICE OF AVATAR HOLDINGS INC. AND COPIES THEREOF WILL BE FURNISHED WITHOUT CHARGE TO ANY OWNER OF SUCH SHARES UPON REQUEST.
(a) Until shares of unvested Restricted Stock vest or forfeit:
(i) | the Participant shall have all rights of a stockholder with respect to such unvested shares of Restricted Stock (including, without limitation, voting rights), subject to Section 2(d) hereof and except as otherwise provided herein; and |
(ii) | the certificate or certificates evidencing unvested shares of Restricted Stock shall be held in the custody of the Company and remain in the Company’s possession and control. |
(b) On the date hereof, the Participant shall deliver to the Secretary of the Company a duly-executed blank stock power in a form acceptable to the Company, which shall be effective as to the certificate or certificates representing unvested Restricted Stock. The Participant also agrees to deliver to the Company from time to time such other documents or instruments as it may reasonably request.
(c) Until shares of Restricted Stock vest, unvested shares of Restricted Stock and any interest of the Participant therein may not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of. Any attempt to transfer unvested Restricted Stock in contravention of this Agreement is void ab initio. Unvested Restricted Stock shall not be subject to execution, attachment or other process. Notwithstanding the foregoing, with the written consent of the Committee, the Participant shall be permitted to transfer shares of unvested Restricted Stock to members of the Participant’s immediate family (i.e., children, grandchildren or spouse), trusts for the benefit of such family members, and partnerships whose only partners are such family members; provided, however, that no consideration can be paid for the transfer of the Restricted Stock and the transferee of the Restricted Stock shall be subject to all conditions applicable to the Restricted Stock (including all of the terms and conditions of this Agreement) prior to transfer.
(d) If any dividend or distribution is declared and paid in shares of Common Stock in respect of shares of Restricted Stock, such shares of Common Stock shall be subject to the same terms and conditions as the shares of Restricted Stock to which it relates. If any dividend or distribution is declared and paid in respect of shares of Restricted Stock other than in shares of Common Stock, then such dividend or distribution shall be subject to the same terms and conditions as the shares of Restricted Stock to which it relates and shall not be paid to the Participant unless and until such shares of Restricted Stock vest. The Participant shall forfeit any dividend or distribution in respect of shares of unvested Restricted Stock that are forfeited by the Participant.
(e) Shares of unvested Restricted Stock or other property (including dividends and distributions), in either case, that are forfeited by the Participant pursuant to this Agreement or the Plan shall be deemed transferred by the Participant to the Company on such date of forfeiture, and the Company shall not be required to pay any consideration therefor.
4. TERMINATION OF EMPLOYMENT; CHANGE IN CONTROL.
(a) For purposes of this Section 4, the terms “Cause”, “Without Cause,” “Good Reason,” “Without Good Reason” and “Disability” shall have the meanings ascribed to such terms in the Participant’s amended and restated employment agreement with Avatar Properties Inc., dated as of December 22, 2008, as amended or restated from time to time; provided, however, if the Participant is no longer employed pursuant to such employment agreement, each such term shall have the meaning ascribed to it in the employment agreement last in effect which contains such defined term.
(b) If the Participant’s employment with the Company is terminated by the Company for Cause or by the Participant Without Good Reason, the Participant shall forfeit all unvested Restricted Stock, if any, as of the date of termination of employment.
(c) If the Participant’s employment with the Company is terminated by the Company Without Cause, or is terminated by the Participant for Good Reason, all unvested Restricted Stock, if any, shall vest upon such date of termination of employment.
(d) If the Participant’s employment with the Company is terminated due to the Participant’s death or Disability, the number of shares of unvested Restricted Stock, if any, shall vest which equals the product of (x) a fraction the numerator of which is the number of completed whole months elapsed from January 1, 2005 to the date of death or Disability, as the case may be (whichever is sooner), and the denominator of which is seventy-two (72) and (y) the result of 75,000 minus the number of shares of Restricted Stock that has vested pursuant to Section 3 hereof as a result of the 83(b) Election, and any portion of the Restricted Stock then remaining unvested shall be forfeited.
(e) In the event of a Change in Control, all unvested Restricted Stock, if any, shall vest on the Change in Control Date. For purposes hereof, “Change in Control” shall mean any of the following events: (a) a person or entity or group of persons or entities, acting in concert, becomes the direct or indirect beneficial owner (within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as amended) of securities of the Company representing ninety percent (90%) or more of the combined voting power of the issued and outstanding Common Stock; (b) the Board of Directors of the Company approves any merger, consolidation or like business combination or reorganization of the Company, the consummation of which would result in the occurrence of the event described in clause (a) above, and such transaction shall have been consummated; or (c) the Company ceases to be engaged, directly or indirectly, and does not intend to be engaged at any time in the foreseeable future, in any real estate business. The date on which a Change in Control is consummated, with respect to clauses (a) and (b), or occurs, with respect to clause (c), is herein referred to as the “Change in Control Date.”
13. NOTICES. Any notice required or permitted under this Agreement shall be deemed given when delivered personally, or when deposited in a United States Post Office, postage prepaid, addressed, as appropriate, (i) to the Participant at the last address specified in Participant’s employment records, or such other address as the Participant may designate in writing to the Company, or (ii) to the Company, Avatar Holdings Inc., 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000, Attention: Corporate Secretary, or such other address as the Company may designate in writing to the Participant.
15. GOVERNING LAW. This Agreement shall be governed by and construed according to the laws of the State of Delaware, without regard to the conflicts of laws provisions thereof.
(signature page follows)
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.
AVATAR HOLDINGS INC. |
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By:
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/s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx Title: Chief Executive Officer |
/s/ Xxxxxxx X. Xxxx |
Xxxxxxx X. Xxxx |