EXHIBIT 10.1
PULTE HOMES, INC.
RESTRICTED STOCK AWARD AGREEMENT
Pulte Homes, Inc., a Michigan corporation (the "Company"),
hereby grants to ___________ (the "Holder") as of _________ (the "Grant Date"),
pursuant to the provisions of the Pulte Homes, Inc. Senior Management Annual
Incentive Plan ("SM Plan") and the 2004 Stock Incentive Plan (the "Plan"), a
restricted stock award (the "Award") of ________ shares of the Company's Common
Stock, $.01 par value ("Shares"), upon and subject to the restrictions, terms
and conditions set forth below and Compensation Committee ("Committee")
certification of SM Plan goal achievement for ________. Capitalized terms not
defined herein shall have the meanings specified in the Plan.
1. Award Subject to Acceptance of Agreement. The Award shall be null and
void unless the Holder shall (a) accept this Agreement by executing it in the
space provided below and returning it to the Company and (b) if requested by the
Company, execute and return one or more irrevocable stock powers to facilitate
the transfer to the Company (or its assignee or nominee) of the Shares subject
to the Award if Shares are forfeited pursuant to Section 4 hereof or if required
under applicable laws or regulations. As soon as practicable after the Holder
has executed this Agreement and, if requested by the Company, such stock power
or powers, and returned the same to the Company, the Company shall cause to be
issued in the Holder's name the total number of Shares subject to the Award.
2. Rights as a Stockholder. The Holder shall have the right to vote the
Shares subject to the Award and to receive dividends and other distributions
thereon unless and until such Shares are forfeited pursuant to Section 4 hereof;
provided, however, that a dividend or other distribution with respect to such
Shares (including, without limitation, a stock dividend or stock split), other
than a regular cash dividend, shall be subject to the same restrictions as the
Shares with respect to which such dividend or other distribution was made (and
if the Holder shall have received such dividend or other distribution, the
Holder shall deliver the same to the Company and shall, if requested by the
Company, execute and return one or more irrevocable stock powers related
thereto).
3. Custody and Delivery of Certificates Representing Shares. The Shares
subject to the Award shall be held by the Company or by a custodian in book
entry form, with restrictions on the Shares duly noted, until such Award shall
have vested pursuant to Section 4 hereof, and as soon thereafter as practicable,
subject to Section 5.3 hereof, the vested Shares shall be delivered to the
Holder as the Holder shall direct. Alternatively, in the sole discretion of the
Company, the Company shall hold a certificate or certificates representing the
Shares subject to the Award until such Award shall have vested, in whole or in
part, pursuant to Section 4 hereof, and the Company shall as soon thereafter as
practicable, subject to Section 5.3 hereof, deliver the certificate or
certificates for the vested Shares to the Holder and destroy the stock power or
powers relating to the vested Shares delivered by the Holder pursuant to Section
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hereof. If such stock power or powers also relate to unvested Shares, the
Company may require, as a condition precedent to delivery of any certificate
pursuant to this Section 3, the execution and delivery to the Company of one or
more stock powers relating to such unvested Shares.
4. Vesting.
(a) The Award shall vest (i) on the third anniversary of the Grant Date, or
(ii) earlier pursuant to Section 4(b) or 4(d) hereof or in the event of a Change
in Control (as defined in Section 4(f) hereof).
(b) If the Holder's employment by the Company terminates by reason of
retirement with the consent of the Company, or terminates by reason of the
Holder's death or disability, the Award shall become fully vested as of the
effective date of the Holder's termination of employment or the date of death,
as the case may be.
(c) If the Holder's employment by the Company is terminated by the Company
for Cause, the portion of the Award which is not vested as of the effective date
of the Holder's termination of employment shall be forfeited by the Holder and
shall be transferred, without payment of any consideration to the Holder, to the
Company (or its assignee or nominee).
(d) If the Holder's employment by the Company terminates for any reason
other than a reason specified in Section 4(b) or 4(c) hereof, the portion of the
Award which is not vested as of the effective date of the Holder's termination
of employment shall be forfeited by the Holder and shall be transferred, without
payment of any consideration to the Holder, to the Company (or its assignee or
nominee); provided, however, that the Committee may, in its discretion, make a
determination that part or all of such unvested portion of the Award shall
become fully vested as of the effective date of the Holder's termination of
employment.
(e) As used herein, "Cause" shall mean a determination by the Company that
the Holder has (i) willfully and continuously failed to substantially perform
the duties assigned by the Company or a Subsidiary with which the Holder is
employed (other than a failure resulting from the Holder's disability), (ii)
willfully engaged in conduct which is demonstrably injurious to the Company or
any Subsidiary, monetarily or otherwise, including conduct that, in the
reasonable judgment of the Company, does not conform to the standard of the
Company's executives or employees, or (iii) engaged in any act of dishonesty,
the commission of a felony, or a significant violation of any statutory or
common law duty of loyalty to the Company or any Subsidiary.
(f) As used herein, "Change in Control" shall mean:
(1) the acquisition by any individual, entity or group (a "Person"),
including any "person" within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934 (the "Exchange Act"), of beneficial
ownership within the meaning of Rule 13d-3 promulgated under the Exchange
Act, of 40% or more of either (i) the then outstanding shares of common stock
of the Company (the "Outstanding Common Stock") or (ii) the combined voting
power of the then outstanding securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Voting
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Securities"); excluding, however, the following: (A) any acquisition directly
from the Company (excluding any acquisition resulting from the exercise of an
exercise, conversion or exchange privilege unless the security being so
exercised, converted or exchanged was acquired directly from the Company),
(B) any acquisition by the Company, (C) any acquisition by an employee
benefit plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, (D) any acquisition by any corporation
pursuant to a transaction which complies with clauses (i), (ii) and (iii) of
subsection (3) of this Section 4(f) or (E) any acquisition by any one or more
of Xxxxxxx X. Xxxxx, his spouse, any trust or other entity established for
the benefit of either or both of such persons, or any charitable organization
established by either or both of such persons ("Exempt Persons"); provided
further, that for purposes of clause (B), if any Person (other than the
Company, any one or more Exempt Persons or any employee benefit plan (or
related trust) sponsored or maintained by the Company or any corporation
controlled by the Company) shall become the beneficial owner of 40% or more
of the Outstanding Common Stock or 40% or more of the Outstanding Voting
Securities by reason of an acquisition by the Company, and such Person shall,
after such acquisition by the Company, become the beneficial owner of any
additional shares of the Outstanding Common Stock or any additional
Outstanding Voting Securities and such beneficial ownership is publicly
announced, such additional beneficial ownership shall constitute a Change in
Control;
(2) individuals who, as of the date hereof, constitute the Board of
Directors of the Company (the "Incumbent Board") cease for any reason to
constitute at least a majority of such Board of Directors; provided that any
individual who becomes a director of the Company subsequent to the date
hereof whose election, or nomination for election by the Company's
stockholders, was approved by the vote of at least a majority of the
directors then comprising the Incumbent Board shall be deemed a member of the
Incumbent Board; and provided further, that any individual who was initially
elected as a director of the Company as a result of an actual or threatened
solicitation by a Person other than the Board of Directors for the purpose of
opposing a solicitation by any other Person with respect to the election or
removal of directors, or any other actual or threatened solicitation of
proxies or consents by or on behalf of any Person other than the Board of
Directors shall not be deemed a member of the Incumbent Board;
(3) the consummation of a reorganization, merger or consolidation or sale
or other disposition of all or substantially all of the assets of the Company
(a "Corporate Transaction"); excluding, however, a Corporate Transaction
pursuant to which (i) all or substantially all of the individuals or entities
who are the beneficial owners, respectively, of the Outstanding Common Stock
and the Outstanding Voting Securities immediately prior to such Corporate
Transaction will beneficially own, directly or indirectly, more than 60% of,
respectively, the outstanding shares of common stock, and the combined voting
power of the outstanding securities entitled to vote generally in the
election of directors, as the case may be, of the corporation resulting from
such Corporate Transaction (including, without limitation, a corporation
which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or indirectly) in
substantially the same proportions relative to each other as their ownership,
immediately prior to such Corporate Transaction, of the Outstanding
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Common Stock and the Outstanding Voting Securities, as the case may be, (ii)
no Person (other than: the Company; any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation controlled
by the Company; the corporation resulting from such Corporate Transaction;
and any Person which beneficially owned, immediately prior to such Corporate
Transaction, directly or indirectly, 40% or more of the Outstanding Common
Stock or the Outstanding Voting Securities, as the case may be) will
beneficially own, directly or indirectly, 40% or more of, respectively, the
outstanding shares of common stock of the corporation resulting from such
Corporate Transaction or the combined voting power of the outstanding
securities of such corporation entitled to vote generally in the election of
directors and (iii) individuals who were members of the Incumbent Board will
constitute at least a majority of the members of the board of directors of
the corporation resulting from such Corporate Transaction; or
(4) the consummation of a plan of complete liquidation or dissolution of
the Company.
5. Additional Terms and Conditions of Award.
5.1. Nontransferability of Award. Prior to the vesting of the Shares
subject to the Award, such Shares may not be transferred by the Holder other
than by will, the laws of descent and distribution or pursuant to beneficiary
designation procedures approved by the Company. Except to the extent permitted
by the foregoing, such unvested Shares may not be sold, transferred, assigned,
pledged, hypothecated, encumbered or otherwise disposed of (whether by operation
of law or otherwise) or be subject to execution, attachment or similar process.
5.2. Investment Representation. The Holder hereby represents and covenants
that (a) any Shares acquired upon the vesting of the Award will be acquired for
investment and not with a view to the distribution thereof within the meaning of
the Securities Act of 1933, as amended (the "Securities Act"), unless such
acquisition has been registered under the Securities Act and any applicable
state securities law; (b) any subsequent sale of any such Shares shall be made
either pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws, or pursuant to an exemption from
registration under the Securities Act and such state securities laws; and (c) if
requested by the Company, the Holder shall submit a written statement, in form
satisfactory to the Company, to the effect that such representation (x) is true
and correct as of the date of acquisition of any Shares hereunder or (y) is true
and correct as of the date of any sale of any such Shares, as applicable. As a
further condition precedent to the delivery to the Holder of any Shares subject
to the Award, the Holder shall comply with all regulations and requirements of
any regulatory authority having control of or supervision over the issuance of
the Shares and, in connection therewith, shall execute any documents which the
Board or the Committee shall in its sole discretion deem necessary or advisable.
5.3. Withholding Taxes. (a) As a condition precedent to the delivery to
the Holder of any Shares subject to the Award, the Holder shall, upon request by
the Company, pay
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to the Company such amount of cash as the Company may be required, under all
applicable federal, state, local or other laws or regulations, to withhold and
pay over as income or other withholding taxes (the "Required Tax Payments") with
respect to the Award. If the Holder shall fail to advance the Required Tax
Payments after request by the Company, the Company may, in its discretion,
deduct any Required Tax Payments from any amount then or thereafter payable by
the Company to the Holder or withhold shares.
(b) The Holder may elect to satisfy his or her obligation to advance the
Required Tax Payments by any of the following means: (1) a cash payment to the
Company pursuant to Section 5.3(a), (2) delivery (either actual delivery or by
attestation procedures established by the Company) to the Company of previously
owned whole Shares (which the Holder has held for at least six months prior to
the delivery of such Shares or which the Holder purchased on the open market and
for which the Holder has good title, free and clear of all liens and
encumbrances) having a Fair Market Value, determined as of the date the
obligation to withhold or pay taxes first arises in connection with the Award
(the "Tax Date"), equal to the Required Tax Payments, (3) authorizing the
Company to withhold from the Shares otherwise to be delivered to the Holder
pursuant to the Award, a number of whole Shares having a Fair Market Value,
determined as of the Tax Date, equal to the Required Tax Payments, or (4) any
combination of (1), (2) and (3). Shares to be delivered or withheld may not have
a Fair Market Value in excess of the minimum amount of the Required Tax
Payments. Any fraction of a Share which would be required to satisfy such an
obligation shall be disregarded and the remaining amount due shall be paid in
cash by the Holder. No certificate representing Shares shall be delivered until
the Required Tax Payments have been satisfied in full.
5.4. Compliance with Applicable Law. The Award is subject to the condition
that if the listing, registration or qualification of the Shares subject to the
Award upon any securities exchange or under any law, or the consent or approval
of any governmental body, or the taking of any other action is necessary or
desirable as a condition of, or in connection with, the vesting or delivery of
such Shares, the Shares subject to the Award shall not vest or be delivered, in
whole or in part, unless such listing, registration, qualification, consent or
approval shall have been effected or obtained, free of any conditions not
acceptable to the Company. The Company agrees to use reasonable efforts to
effect or obtain any such listing, registration, qualification, consent or
approval.
5.5. Delivery of Certificates. Subject to Section 5.3, upon the vesting of
the Award, in whole or in part, the Company shall deliver or cause to be
delivered one or more certificates representing the number of vested Shares. The
Company shall pay all original issue or transfer taxes and all fees and expenses
incident to such delivery, except as otherwise provided in Section 5.3.
5.6. Award Confers No Rights to Continued Employment. In no event shall
the granting of the Award or its acceptance by the Holder give or be deemed to
give the Holder any right to continued employment by the Company or any
affiliate of the Company.
5.7. Decisions of Board or Committee. The Pulte Homes, Inc Board of
Directors or the Compensation Committee shall have the right to resolve all
questions which may arise in connection with the Award. Any interpretation,
determination or other action made or
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taken by the Board or the Committee regarding the Plan or this Agreement shall
be final, binding and conclusive.
5.8. Agreement Subject to the Plan. This Agreement is subject to the
provisions of the Plan and the SM Plan and shall be interpreted in accordance
therewith. The Holder hereby acknowledges receipt of a copy of the Plan and the
SM Plan.
6. Miscellaneous Provisions.
6.1. Employment by Subsidiary. References in this Agreement to employment
by the Company shall also mean employment by a Subsidiary.
6.2. Successors. This Agreement shall be binding upon and inure to the
benefit of any successor or successors of the Company and any person or persons
who shall, upon the death of the Holder, acquire any rights hereunder in
accordance with this Agreement or the Plan.
6.3. Notices. All notices, requests or other communications provided for
in this Agreement shall be made, if to the Company, to Pulte Homes, Inc., 000
Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000,
Attention: SVP and General Counsel and if to the Holder, to the last known
mailing address of the Holder contained in the records of the Company. All
notices, requests or other communications provided for in this Agreement shall
be made in writing either (a) by personal delivery, (b) by facsimile with
confirmation of receipt, (c) by mailing in the United States mails or (d) by
express courier service. The notice, request or other communication shall be
deemed to be received upon personal delivery, upon confirmation of receipt of
facsimile transmission, or upon receipt by the party entitled thereto if by
United States mail or express courier service; provided, however, that if a
notice, request or other communication is not received during regular business
hours, it shall be deemed to be received on the next succeeding business day of
the Company.
6.4. Governing Law. This Agreement, the Award and all determinations made
and actions taken pursuant hereto and thereto, to the extent not otherwise
governed by the laws of the United States, shall be governed by the laws of the
State of Michigan and construed in accordance therewith without giving effect to
conflicts of laws principles.
6.5. Counterparts. This Agreement may be executed in two counterparts each
of which shall be deemed an original and both of which together shall constitute
one and the same instrument.
PULTE HOMES, INC.
By:___________________________________
Name:_________________________
Title:________________________
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Acknowledgment, Acceptance and Agreement:
By signing below and returning this Agreement to Pulte Homes, Inc. at the
address stated herein, I hereby acknowledge receipt of the Agreement, the Plan,
and the SM Plan, accept the Award granted to me and agree to be bound by the
terms and conditions of this Agreement, the Plan and the SM Plan.
__________________________________________
Holder
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