Exhibit 10.1
CAPITAL TRUST, INC.
AMENDED AND RESTATED
2004 LONG-TERM INCENTIVE PLAN
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Award Agreement granting
Performance Units
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Award No. 2005-[__]
You (the "Participant") are hereby awarded two Performance Unit
awards subject to the terms and conditions set forth in this agreement
(collectively, the "Award") and in the Capital Trust, Inc. Amended and Restated
2004 Long-Term Incentive Plan ("Plan"), which is attached hereto as Exhibit A. A
summary of the Plan appears in its Prospectus, which is attached hereto as
Exhibit B.
By executing this Award, you agree to be bound by all of the
Plan's terms and conditions as if they had been set out verbatim in this Award.
In addition, you recognize and agree that all determinations, interpretations,
or other actions respecting the Plan and this Award will be made by the
Committee that administers the Plan, and shall (unless arbitrary and capricious)
be final, conclusive and binding on all parties, including you and your
successors in interest. Capitalized terms are defined in the Plan or in this
Award.
1. General Terms of Your Award.
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Name of Participant
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Date of Award _________, 20__
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2. Performance Unit. The first Performance Unit portion of this
Award is being granted pursuant to Section 10 of the Plan, and shall have the
terms set forth in the table below, subject, absolutely, to the terms of the
Plan and to the Committee's discretion to interpret the Plan and this Award in
any manner that the Committee may deem reasonably necessary or appropriate in
order for this Award to satisfy the requirements for "performance-based
compensation" within the meaning of Section 162(m)(4) of the Code, and
associated tax regulations and rulings. The Performance Unit set forth in the
table below provides that you may qualify to receive an amount of cash that
falls within the range specified in the table below, such amount to be
determined based on the extent to which, if at all, the Performance Measures for
Determining Qualification have been satisfied and in accordance with the weights
assigned thereto.
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Range in Amount of Cash Threshold: $__________
Target: $__________
Maximum: $__________
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Performance Period _________, 20__ to ________, 20__
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Performance Units Award
Capital Trust, Inc.
Amended and Restated 2004 Long-Term Incentive Plan
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Performance Measures to See Schedule A attached hereto.
Determine Qualification and
Amount
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Qualification Subject to treatment (including, as applicable,
acceleration) upon termination of employment as provided in
the Plan, on _________, 20__, you shall qualify to receive
such amount of cash that corresponds to the extent to which
the above Performance Measures for Determining
Qualification are satisfied and the weights assigned
thereto as set forth on Schedule A.
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3. Performance Unit. The second Performance Unit portion of this
Award is being granted pursuant to Section 10 of the Plan, and shall have the
terms set forth in the table below; subject, absolutely, to the terms of the
Plan and to the Committee's discretion to interpret the Plan and this Award in
any manner that the Committee may deem reasonably necessary or appropriate in
order for this Award to satisfy the requirements for "performance-based
compensation" within the meaning of Section 162(m)(4) of the Code, and
associated tax regulations and rulings. The Performance Unit set forth in the
table below provides that you may qualify to receive, subject to further
vesting, a number of Shares with a value that falls within the range of values
specified in the table below, such value to be determined based on the extent to
which, if at all, the Performance Measures for Determining Qualification have
been satisfied and the weights assigned thereto.
2
Performance Units Award
Capital Trust, Inc.
Amended and Restated 2004 Long-Term Incentive Plan
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Range in Value of Shares Threshold: $________
Target: $________
Maximum: $________
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Performance Period for ________, 20__ to _________, 20__
Qualification
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Performance Measures to See Schedule B attached hereto.
Determine Qualification and
Value
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Pricing Date to Determine __________, 20__
Number of Shares
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Qualification Subject to the treatment (including, as applicable,
acceleration) upon termination of employment as provided in
the Plan, on ________, 20___, you may qualify to receive a
number of Shares equal in value to (based on the closing
price on the Pricing Date) such value that corresponds to
the extent to which the above Performance Measures for
Determining Qualification are satisfied and the weights
assigned thereto as set forth on Schedule B. The Shares, if
any, you qualify to receive will be issued as of the Pricing
Date, but shall be subject to further vesting as set forth
below.
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Performance Period for Further ____________, 20__ to ____________, 20__
Vesting
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Performance Measure for The Total Shareholder Return (dividends plus stock price
Determining Further Vesting appreciation) of the Company must equal or exceed __% per
annum for the entire Performance Period for Further Vesting.
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Further Vesting Subject to treatment (including, as applicable,
acceleration) upon termination of employment as provided in
the Plan, (a) with respect to __% of the Shares, such shares
shall vest in equal _____ installments at the end of each
calendar quarter during the ____-year period commencing on
_____, 20__ and ending on __________, 20__ and (b) with
respect to __% of the shares, 100% of such shares shall vest
on ________, 20__ provided that the Performance Measure for
Determining Further Vesting is satisfied.
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4. Issuance of Shares. If you qualify to receive any Shares that
remain subject to further vesting, the stock certificates evidencing such Shares
that will be issued as of the Pricing Date will bear the following legend that
shall remain in place and effective until all other vesting restrictions lapse
and new certificates are issued pursuant to Section 6(b) below:
3
Performance Units Award
Capital Trust, Inc.
Amended and Restated 2004 Long-Term Incentive Plan
"The sale or other transfer of the Shares represented by this
certificate, whether voluntary, involuntary, or by operation of law, is
subject to certain restrictions on transfer set forth in the Amended and
Restated 2004 Long-Term Incentive Plan of Capital Trust, Inc., in the
rules and administrative procedures adopted pursuant to such Plan and in
a related Award Agreement. A copy of the Plan, such rules and procedures
and such Award Agreement may be obtained from the Secretary of Capital
Trust, Inc."
5. Unvested Shares. You will be reflected as the owner of record on
the Company's books and records of any Shares issued pursuant to this Award. The
Company will hold the stock certificates for safekeeping until such shares have
become vested and non-forfeitable. You must deliver to the Company, as soon as
practicable after the date any Shares are issued, a stock power, endorsed in
blank, with respect to any such shares. If you forfeit any Shares, the stock
power will be used to return the certificates for the forfeited shares to the
transfer agent for cancellation. As the owner of record of any Shares you
qualify to receive pursuant to this Award, you will be entitled to all rights of
a stockholder of the Company, including the right to vote shares and the right
to the payment of any cash dividends and other distributions (including those
paid in stock) following the date of issuance of such shares and to the extent
paid in stock, such stock shall be subject to the same restrictions contained in
Section 4, subject in each case to the treatment of the Award upon termination
of employment before the particular record date for determining stockholders of
record entitled to the payment of the dividend or distribution.
6. Qualification and Vesting. After the Performance Period for the
Performance Units:
(a) If you qualify to receive an amount of cash pursuant to the
Performance Unit set forth in Section 2 as determined and
calculated by the Committee, you shall be paid such cash amount
in conformity with the Company's bonus payment practices
generally applicable to senior executives of the Company.
(b) If you qualify to receive any Shares pursuant to the Performance
Unit set forth in Section 3, subject to further vesting, as the
further vesting restrictions become satisfied over time or upon
satisfaction of the relevant performance measures, the Company
shall cause new stock certificates for such shares so vested to
be delivered to you, with such legends the Company determines to
be appropriate. New certificates shall not be delivered to you
unless you have made arrangements satisfactory to the Committee
to satisfy tax-withholding obligations. By executing this Award,
you acknowledge and agree that your rights upon a termination of
employment before full vesting of this Award will be determined
under Section __ of your employment agreement with the Company,
dated as of _________, 20__ (the "Employment Agreement").
7. Not a Contract of Employment. By executing this Award, you
acknowledge and agree that (i) any person who is terminated before full vesting
of an award, such as the one granted to you by this Award, could claim that he
or she was terminated to preclude vesting; (ii) you promise never to make such a
claim; (iii) nothing in this Award or the Plan confers on you any right to
continue an employment, service or consulting relationship with the Company, nor
shall it affect in any way your right or the Company's right to terminate your
employment, service, or consulting
4
Performance Units Award
Capital Trust, Inc.
Amended and Restated 2004 Long-Term Incentive Plan
relationship at any time, with or without Cause; and (iv) the Company would not
have granted this Award to you but for these acknowledgements and agreements.
Your rights with respect to this Award upon termination of employment with the
Company shall be governed by the Employment Agreement so long as such agreement
is in legal force and effect.
8. Severability. Subject to one exception, every provision of this
Award and the Plan is intended to be severable, and if any provision of the Plan
or this Award is held by a court of competent jurisdiction to be invalid and
unenforceable, the remaining provisions shall continue to be fully effective.
The only exception is that this Award shall be unenforceable if any provision of
the preceding section is illegal, invalid, or unenforceable.
9. Notices. Any notice, payment or communication required or
permitted to be given by any provision of this Award shall be in writing and
shall be delivered personally or sent by certified mail, return receipt
requested, addressed as follows:
(a) if to the Company, at the address set forth on the signature
page, to the attention of: Committee of the Capital Trust, Inc.
Amended and Restated 2004 Long-Term Incentive Plan;
(b) if to you, at the address set forth below your signature on the
signature page.
Each party may, from time to time, by notice to the other party hereto, specify
a new address for delivery of notices relating to this Award. Any such notice
shall be deemed to be given as of the date such notice is personally delivered
or properly mailed.
10. Binding Effect. Every covenant, term and provision of this Award
shall be binding upon and inure to the benefit of the parties hereto and their
respective beneficiaries, heirs, legatees, legal representatives, successors,
transferees, and assigns.
11. Designation of Beneficiary. Notwithstanding anything to the
contrary contained herein or in the Plan, following the execution of this Award,
the Participant may expressly designate a beneficiary (the "Beneficiary") to his
or her interest in the Performance Unit and Performance Units awarded hereby.
The Participant shall designate the Beneficiary by completing and executing a
designation of beneficiary agreement substantially in the form attached hereto
as Exhibit C (the "Designation of Beneficiary") and delivering an executed copy
of the Designation of Beneficiary to the Company. The Participant may, at any
time, change or revoke such designation. A Beneficiary designation, or
revocation of a prior Beneficiary designation, shall be effective only if it is
made in writing on a form provided by the Company, signed by the Participant and
received by the Company. If the Participant does not designate a Beneficiary or
the Beneficiary dies prior to having received all incentive compensation due
under this Award, such compensation shall be paid to the Participant's estate.
12. Headings. Headings shall be ignored in interpreting this Award.
13. Governing Law. The laws of the State of New York shall govern the
validity of this Award, the construction of its terms, and the interpretation of
the rights and duties of the parties hereto. Subject to the last sentence of
Section 7, any suit with respect to the Award will be brought
5
Performance Units Award
Capital Trust, Inc.
Amended and Restated 2004 Long-Term Incentive Plan
in the federal or state courts in the districts which include New York City, New
York, and you agree and submit to the personal jurisdiction and venue thereof.
14. Counterparts. This Award may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute the same
instrument.
15. Income Taxes and Deferred Compensation. The Participant is solely
responsible and liable for the satisfaction of all taxes and penalties that may
arise in connection with this Award (including any taxes arising under Section
409A of the Code), and the Company shall not have any obligation to indemnify or
otherwise hold any Participant harmless from any or all of such taxes. The
Administrator shall have the discretion to unilaterally modify this Award in a
manner that (i) conforms with the requirements of Section 409A of the Code with
respect to compensation that is deferred and that vests after December 31, 2004,
(ii) that voids any election of the Participant to the extent it would violate
Section 409A of the Code, and (iii) for any distribution election that would
violate Section 409A of the Code, to make distributions pursuant to the Award at
the earliest to occur of a distribution event that is allowable under Section
409A of the Code or any distribution event that is both allowable under Section
409A of the Code and is elected by the Participant, subject to any valid second
election to defer, provided that the Administrator permits second elections to
defer in accordance with Section 409A(a)(4)(C). The Administrator shall have the
sole discretion to interpret the requirements of the Code, including Section
409A, for purposes of the Plan and this Award.
6
Performance Units Award
Capital Trust, Inc.
Amended and Restated 2004 Long-Term Incentive Plan
BY YOUR SIGNATURE BELOW, along with the signature of the Company's
representative, you and the Company agree that this Award is being made under
and governed by the terms and conditions of this Award and the Plan.
CAPITAL TRUST, INC.
By:
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Name:
Title:
Company Address:
Capital Trust, Inc.
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
The undersigned Participant hereby accepts the terms of this Award and
the Plan.
By:
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Name of Participant:
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Participant Address:
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7
Exhibit A
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CAPITAL TRUST, INC.
AMENDED AND RESTATED
2004 LONG-TERM INCENTIVE PLAN
Exhibit B
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CAPITAL TRUST, INC.
AMENDED AND RESTATED
2004 LONG-TERM INCENTIVE PLAN
PROSPECTUS
Exhibit C
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Designation of Beneficiary Form
In connection with the Award Agreement granting Performance Units (the
"Award") entered into on ______________ _____, 20__ between Capital Trust, Inc.
(the "Company") and ___________, an individual residing at _______________ (the
"Participant"), the Participant hereby designates the person specified below as
the beneficiary of the Participant's interest in the Performance Units awarded
pursuant to the Award. This designation shall remain in effect until revoked in
writing by the Participant.
Name of Beneficiary:
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Address:
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Social Security No.:
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The Participant understands that this designation operates to entitle
the above-named beneficiary to the rights conferred by the Award from the date
this form is delivered to the Company until such date as this designation is
revoked in writing by the Participant, including by delivery to the Company of a
written designation of beneficiary executed by the Participant on a later date.
Date:
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By:
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[Participant Signature]
Sworn to before me this
____ day of ____________, 200_
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Notary Public
County of
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State of
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SCHEDULE A
Performance Measures to Determine Qualification for
Performance Unit
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Measure Threshold Target Maximum Weight
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1.
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2.
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3.
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Range of Award Amounts for Use in Calculation
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Threshold Award Amount Target Award Amount Maximum Award Amount
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Formula for Calculation
Calculate and add the following for each Measure to determine the cash amount
Participant qualifies to receive:
If actual performance of Measure is below Threshold, add $0.
If actual performance of Measure is at or above Threshold, but below Target, add
the amount obtained by multiplying the Weight by the sum of (i) the Threshold
Award Amount and (ii) the product obtained by multiplying (y) $________ by (z)
the quotient obtained by dividing the amount by which actual performance exceeds
Threshold by the amount by which Target exceeds Threshold.
If actual performance of Measure is at or above Target, but below Maximum, add
the amount obtained by multiplying the Weight by the sum of (i) the Target Award
Amount and (ii) the product obtained by multiplying (y) $________ by (z) the
quotient obtained by dividing the amount by which actual performance exceeds
Target by the amount by which Maximum exceeds Target.
If actual performance of Measure is at or above Maximum, add the amount obtained
by multiplying the Weight by the Maximum Award Amount.
SCHEDULE B
Performance Measures to Determine Qualification for
Performance Unit
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Measure Threshold Target Maximum Weight
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1.
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2.
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3.
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Range of Award Values for Use in Calculation
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Threshold Award Value Target Award Value Maximum Award Amount
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Formula for Calculation
Calculate and add the following for each Measure to determine value of Shares
subject to the Performance Unit Award Participant qualifies to receive:
If actual performance of Measure is below Threshold, add $0.
If actual performance of Measure is at or above Threshold, but below Target, add
the amount obtained by multiplying the Weight by the sum of (i) the Threshold
Award Amount and (ii) the product obtained by multiplying (y) $________ by (z)
the quotient obtained by dividing the amount by which actual performance exceeds
Threshold by the amount by which Target exceeds Threshold.
If actual performance of Measure is at or above Target, but below Maximum, add
the amount obtained by multiplying the Weight by the sum of (i) the Target Award
Amount and (ii) the product obtained by multiplying (y) $________ by (z) the
quotient obtained by dividing the amount by which actual performance exceeds
Target by the amount by which Maximum exceeds Target.
If actual performance of Measure is at or above Maximum, add the amount obtained
by multiplying the Weight by the Maximum Award Amount.