EXHIBIT 10.40
FEDERAL REALTY INVESTMENT TRUST
AMENDED AND RESTATED RESTRICTED SHARE AWARD AGREEMENT
This Restricted Share Award Agreement (this "Agreement") made as of
January 1, 1998 between Federal Realty Investment Trust, an unincorporated
business trust organized under the laws of the District of Columbia (the
"Trust"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual employee of the Trust (the "Key
Employee"), is amended and restated as of February 27, 1998 as set forth below.
WHEREAS, the Key Employee is eligible to receive a base salary payable
in cash for the year 1998 (the "1998 Salary") from the Trust;
WHEREAS, the Key Employee has agreed to forgo receipt of the 1998
Salary and to provide services to the Trust during the period from January 1,
1998 through December 31, 2002 in exchange for a grant from the Trust of the
number of shares of beneficial interest, no par value of the Trust (the
"Shares") equal to 133% of the 1998 Salary divided by the closing price per
Share on December 31, 1997 (the "Restricted Shares");
WHEREAS, the Compensation Committee of the Board of Trustees of the
Trust (the "Compensation Committee") has authorized the award by the Trust to
the Key Employee under the Trust's Amended and Restated 1993 Long-Term Incentive
Plan (the "Amended Plan") of a Restricted Share Award for the Restricted Shares;
and
WHEREAS, the parties hereto desire to set forth in this Agreement
their respective rights and obligations with respect to the Restricted Shares.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Award of Restricted Shares.
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1.1. The Trust hereby grants to the Key Employee, effective as of
January 1, 1998 (the "Award Date"), if the Key Employee is an employee of the
Trust as of such date, the Restricted Shares, subject to the restrictions and
other terms and conditions set forth herein and in the Amended Plan.
1.2. On or as soon as practicable after the Award Date, the Trust
shall cause one or more stock certificates representing the Restricted Shares to
be registered
in the name of the Key Employee. Such stock certificate or certificates shall
be subject to a stop-transfer order and such other restrictions as the Board of
Trustees or any committee thereof may deem advisable under the rules,
regulations, and other requirements of the Securities and Exchange Commission,
any stock exchange upon which the Shares are listed and any applicable federal
or state securities law, and the Trust may cause a legend or legends to be
placed on such certificate or certificates to make appropriate reference to such
restrictions.
1.3. The certificate or certificates representing the Restricted
Shares shall be held in custody by the Chief Financial Officer of the Trust
until the Restriction Period (as hereinafter defined in Paragraph 3) with
respect thereto shall have lapsed. Simultaneously with the execution and
delivery of this Agreement, the Key Employee shall deliver to the Trust one or
more undated stock powers endorsed in blank relating to the Restricted Shares.
The Trust shall deliver or cause to be delivered to the Key Employee or, in the
case of the Key Employee's death, to the Key Employee's Beneficiary, one or more
stock certificates for the appropriate number of Shares, free of all such
restrictions, as to which the restrictions herein shall have expired. Upon
forfeiture, in accordance with Paragraph 3, of all or any portion of the
Restricted Shares, the certificate or certificates representing the forfeited
Restricted Shares shall be canceled.
2. Restrictions Applicable to Restricted Shares.
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2.1. Beginning on the Award Date, the Key Employee shall have all
rights and privileges of a stockholder with respect to the Restricted Shares,
except that the following restrictions shall apply:
(a) none of the Restricted Shares may be assigned or
transferred (other than by will or the laws of descent and
distribution, or in the Committee's discretion, pursuant to a
domestic relations order within the meaning of Rule 16a-12 of the
Securities Exchange Act of 1934, as amended), pledged or sold by
the Key Employee during the Restriction Period (as hereinafter
defined in Paragraph 3);
(b) all or a portion of the Restricted Shares may be
forfeited in accordance with Paragraph 3; and
(c) any Shares distributed as a dividend or otherwise with
respect to any Restricted Shares as to which the restrictions have
not yet lapsed shall be subject to the same restrictions as such
Restricted Shares and shall be represented by book entry and held
in the same manner as the Restricted
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Shares with respect to which they were distributed.
2.2. Any attempt to dispose of Restricted Shares in a manner
contrary to the restrictions set forth in this Agreement shall be null, void and
ineffective. As the restrictions set forth in this Paragraph 2 hereof lapse in
accordance with the terms of this Agreement as to all or a portion of the
Restricted Shares, such shares shall no longer be considered Restricted Shares
for purposes of this Agreement.
3. Restriction Period.
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3.1. Subject to Paragraphs 3.2 through 3.4, the restrictions set
forth in Paragraph 2 shall apply for a period (the "Restriction Period") from
the Award Date until such Restriction Period lapses. The Restriction Period
shall lapse as to all Restricted Shares on the fifth anniversary of the Award
Date; provided, however, that the Restriction Period for any particular
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Restricted Shares shall not lapse on the date set forth above unless the Key
Employee tenders to the Trust (or the Trust otherwise withholds in accordance
with Paragraph 3.4) the amount of any state and federal withholding tax
obligation which will be imposed on the Trust by reason of the lapsing of the
Restriction Period for such Restricted Shares.
3.2.(a) The Restriction Period shall lapse as to all
Restricted Shares in the event (i) of the termination of the Key Employee due to
Disability (as defined in Paragraph 3.2(b)), (ii) that the Key Employee is
terminated by the Trust without Cause (as defined in Paragraph 3.2(b)) or (iii)
of the termination of the Key Employee due to his death, provided, however, that
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the Restriction Period shall not lapse as to any Restricted Shares unless the
Key Employee or his legal representative tenders (or the Trust otherwise
withholds in accordance with Paragraph 3.4) the amount of any state and federal
withholding tax obligation which will be imposed on the Trust by reason of the
lapsing of the Restriction Period for the Restricted Shares.
(b) For purposes of this Agreement, the terms "Cause" and
"Disability" shall have the meanings assigned to them in the Amended and
Restated Employment Agreement between the Trust and the Key Employee in effect
from time to time.
(c) Upon the occurrence of a Change in Control, the Restriction
Period shall lapse as to all Restricted Shares. In such event, if the Key
Employee tenders (or the Trust otherwise withholds in accordance with Paragraph
3.4), the amount of any state and federal withholding tax obligation which will
be imposed on the Trust by reason of the lapsing of the Restriction Period for
the Restricted Shares, the Trust shall deliver or cause to be delivered to the
Key Employee, within ten (10) business days after the
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Change in Control, one or more stock certificates representing those Shares as
to which the Restriction Period shall have lapsed.
(d) If the Key Employee's termination due to Disability or
termination without Cause occurs before the first anniversary of the Award Date,
or if a Change of Control occurs before such anniversary, any payments which the
Key Employee is entitled to receive pursuant to the Amended and Restated
Employment Agreement between the Trust and the Key Employee in effect from time
to time, in the event of the Key Employee's termination due to Disability or
termination without Cause or the Amended and Restated Executive Agreement
between the Trust and the Key Employee in effect from time to time, in the event
of a Change in Control, shall be setoff by the Trust by the following amount:
$39,583 times the number of months the Key Employee does not work in the year of
his termination or in the year in which a Change of Control occurs, (if the Key
Employee's employment terminated before the 16th day of a month, that month
shall be treated as a month in which he did not work)).
3.3. If the Key Employee (i) is terminated by the Trust for
Cause or (ii) voluntarily resigns from employment in all capacities with the
Trust before the fifth anniversary of the Award Date, then all rights of the Key
Employee to the Restricted Shares shall terminate and be forfeited.
3.4. In the event the Key Employee or his legal representative
fails to promptly tender to the Trust any required tax withholding amount in
accordance with this Paragraph 3, then the Trust shall retain a portion of the
Restricted Shares sufficient to meet its tax withholding obligation.
4. Miscellaneous.
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4.1. Definitions; Application of Amended Plan. Capitalized terms
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used in this Agreement, unless otherwise defined herein, have the respective
meanings given to such terms in the Amended Plan. The terms of the Amended Plan
are incorporated by reference as if set forth herein in their entirety and,
except as specifically provided herein, shall govern the terms of this
Restricted Share Award Agreement.
4.2. Notices. Any notice required or permitted to be given under
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this Agreement shall be in writing and shall be deemed to have been given when
delivered in person or when deposited in the U.S. mail, registered or certified,
postage prepaid, and mailed to the respective addresses set forth herein, unless
a party changes its address for receiving notices by giving notice in accordance
with this Paragraph, in which case, to the address specified in such notice.
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4.3. Continued Employment. This Agreement shall not confer upon
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the Key Employee any right with respect to continuance of employment by the
Trust.
4.4. Entire Agreement; Amendment. This Agreement constitutes the
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entire agreement of the parties with respect to the subject matter hereof and
shall supersede all prior agreements and understandings, oral or written,
between the parties with respect thereto. No provision of this Agreement may be
amended, modified or waived at any time unless such amendment, modification or
waiver shall be agreed to in writing and signed by both of the parties hereto.
4.5. Assignment. This Agreement shall be binding upon and inure
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to the benefit of the heirs and representatives of the Key Employee and the
assigns and successors of the Trust, but neither this Agreement nor any rights
hereunder, subject to Paragraph 2.1(a), shall be assignable or otherwise subject
to hypothecation by the Key Employee.
4.6. Severability. If, for any reason, any provision of this
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Agreement is held invalid, such invalidity shall not affect any other provision
of this Agreement not so held invalid, and each such other provision shall to
the full extent consistent with law continue in full force and effect. If any
provision of this Agreement shall be held invalid in part, such invalidity shall
in no way affect the rest of such provision not held so invalid, and the rest of
such provision, together with all other provisions of this Agreement, shall to
the full extent consistent with law continue in full force and effect.
4.7. Governing Law. This Agreement and its validity,
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interpretation, performance and enforcement shall be governed by the laws of the
District of Columbia other than the conflict of laws provisions of such laws,
and shall be construed in accordance therewith.
4.8. Certain References. References to the Key Employee in any
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provision of this Agreement under circumstances where the provision should
logically be construed to apply to the Key Employee's executors or the
administrators, or the person or persons to whom all or any portion of the
Restricted Shares may be transferred by will or the laws of descent and
distribution, shall be deemed to include such person or persons.
4.9. Headings. The headings of Paragraphs hereof are included
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solely for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
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4.10. Source of Payments. Payments provided under this Agreement,
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if any, shall be paid in cash from the general funds of the Trust, and no
special or separate fund shall be established and no other segregation of assets
shall be made to assure payment.
4.11. Exculpatory Clause. Neither the Trust's shareholders nor the
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Trustees, officers, employees or agents of the Trust shall be liable under this
Agreement, and the Key Employee shall look solely to the Trust's estate for the
payment of any claim under or for performance of this Agreement. The Trust is
organized pursuant to a Third Amended and Restated Declaration of Trust dated as
of May 24, 1984.
4.12. Counterparts. This Agreement may be executed in multiple
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counterparts with the same effect as if each of the signing parties had signed
the same document. All counterparts shall be construed together and constitute
the same instrument.
IN WITNESS WHEREOF, the Trust has caused this Agreement to be duly
executed and the Key Employee has hereunto set his hand effective as of the day
and year first above written.
FEDERAL REALTY INVESTMENT TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chair, Compensation Committee
Address:
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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6
FEDERAL REALTY INVESTMENT TRUST
AMENDED AND RESTATED RESTRICTED SHARE AWARD AGREEMENT
This Restricted Share Award Agreement (this "Agreement") made as of January
1, 1998 between Federal Realty Investment Trust, an unincorporated business
trust organized under the laws of the District of Columbia (the "Trust"), and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual employee of the Trust (the "Key Employee"), is
amended and restated as of February 27, 1998 as set forth below.
WHEREAS, the Key Employee is eligible to receive a cash bonus for the year
1997 (the "1997 Bonus");
WHEREAS, the Key Employee has agreed to forgo receipt of the 1997 Bonus and
to provide services to the Trust during the period from January 1, 1998 through
December 31, 2002 in exchange for a grant from the Trust of the number of shares
of beneficial interest, no par value of the Trust (the "Shares") equal to 133%
of the 1997 Bonus divided by the closing price per Share on December 31, 1997
(the "Restricted Shares");
WHEREAS, the Compensation Committee of the Board of Trustees of the Trust
(the "Compensation Committee") has authorized the award by the Trust to the Key
Employee under the Trust's Amended and Restated 1993 Long-Term Incentive Plan
(the "Amended Plan") of a Restricted Share Award for the Restricted Shares; and
WHEREAS, the parties hereto desire to set forth in this Agreement their
respective rights and obligations with respect to the Restricted Shares.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Award of Restricted Shares.
--------------------------
1.1. The Trust hereby grants to the Key Employee, as of the date of
the Compensation Committee's determination to award the Key Employee a bonus for
1997 (the "Award Date") the Restricted Shares, subject to the restrictions and
other terms and conditions set forth herein and in the Amended Plan.
1.2. On or as soon as practicable after the Award Date, the Trust
shall cause one or more stock certificates representing the Restricted Shares to
be registered in the name of the Key Employee. Such stock certificate or
certificates shall be subject
to a stop-transfer order and such other restrictions as the Board of Trustees or
any committee thereof may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission, any stock exchange upon
which the Shares are listed and any applicable federal or state securities law,
and the Trust may cause a legend or legends to be placed on such certificate or
certificates to make appropriate reference to such restrictions.
1.3. The certificate or certificates representing the Restricted
Shares shall be held in custody by the Chief Financial Officer of the Trust
until the Restriction Period (as hereinafter defined in Paragraph 3) with
respect thereto shall have lapsed. Simultaneously with the execution and
delivery of this Agreement, the Key Employee shall deliver to the Trust one or
more undated stock powers endorsed in blank relating to the Restricted Shares.
The Trust shall deliver or cause to be delivered to the Key Employee or, in the
case of the Key Employee's death, to the Key Employee's Beneficiary, one or more
stock certificates for the appropriate number of Shares, free of all such
restrictions, as to which the restrictions herein shall have expired. Upon
forfeiture, in accordance with Paragraph 3, of all or any portion of the
Restricted Shares, the certificate or certificates representing the forfeited
Restricted Shares shall be canceled.
2. Restrictions Applicable to Restricted Shares.
--------------------------------------------
2.1. Beginning on the Award Date, the Key Employee shall have all
rights and privileges of a stockholder with respect to the Restricted Shares,
except that the following restrictions shall apply:
(a) none of the Restricted Shares may be assigned or
transferred (other than by will or the laws of descent and
distribution, or in the Committee's discretion, pursuant to a domestic
relations order within the meaning of Rule 16a-12 of the Securities
Exchange Act of 1934, as amended), pledged or sold by the Key Employee
during the Restriction Period (as hereinafter defined in Paragraph 3);
(b) all or a portion of the Restricted Shares may be forfeited
in accordance with Paragraph 3; and
(c) any Shares distributed as a dividend or otherwise with
respect to any Restricted Shares as to which the restrictions have not
yet lapsed shall be subject to the same restrictions as such
Restricted Shares and shall be represented by book entry and held in
the same manner as the Restricted Shares with respect to which they
were distributed.
2
2.2. Any attempt to dispose of Restricted Shares in a manner contrary
to the restrictions set forth in this Agreement shall be null, void and
ineffective. As the restrictions set forth in this Paragraph 2 hereof lapse in
accordance with the terms of this Agreement as to all or a portion of the
Restricted Shares, such shares shall no longer be considered Restricted Shares
for purposes of this Agreement.
3. Restriction Period.
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3.1. Subject to Paragraphs 3.2 through 3.5, the restrictions set
forth in Paragraph 2 shall apply for a period (the "Restriction Period") from
the Award Date until such Restriction Period lapses. The Restriction Period
shall lapse as to all Restricted Shares on the fifth anniversary of the Award
Date; provided, however, that the Restriction Period for any particular
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Restricted Shares shall not lapse on the date set forth above unless the Key
Employee tenders to the Trust (or the Trust otherwise withholds in accordance
with Paragraph 3.5) the amount of any state and federal withholding tax
obligation which will be imposed on the Trust by reason of the lapsing of the
Restriction Period for such Restricted Shares.
3.2. (a) The Restriction Period shall lapse as to all Restricted
Shares (i) in the event of the termination of the Key Employee due to death or
Disability (as defined in Paragraph 3.2(b)) or (ii) in the event that the Key
Employee is terminated by the Trust without Cause (as defined in Paragraph
3.2(b)), provided, however, that the Restriction Period will not lapse as to any
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Restricted Shares unless the Key Employee or his legal representative tenders
(or the Trust otherwise withholds in accordance with Paragraph 3.5) the amount
of any state and federal withholding tax obligation which will be imposed on the
Trust by reason of the lapsing of the Restriction Period for such Restricted
Shares.
(b) For purposes of this Agreement, the terms "Cause" and
"Disability" shall have the meanings assigned to them in the Amended and
Restated Employment Agreement between the Trust and the Key Employee in effect
from time to time.
3.3. The Restriction Period shall lapse as to all Restricted Shares
upon the occurrence of a Change in Control. In such event, if the Key Employee
tenders (or the Trust otherwise withholds in accordance with Paragraph 3.5) the
amount of any state and federal withholding tax obligation which will be imposed
on the Trust by reason of the lapsing of the Restriction Period for such
Restricted Shares, the Trust shall deliver or cause to be delivered to the Key
Employee, within ten (10) business days after the Change in Control, one or more
stock certificates representing those Shares as to which the Restriction Period
shall have lapsed.
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3.4. If the Key Employee (i) is terminated by the Trust for Cause or
(ii) voluntarily resigns from employment in all capacities with the Trust, then
all rights of the Key Employee to the Restricted Shares shall terminate and be
forfeited.
3.5. In the event the Key Employee or his legal representative fails
to promptly tender to the Trust any required tax withholding amount in
accordance with this Paragraph 3, then the Trust shall retain a portion of the
Restricted Shares sufficient to meet its tax withholding obligation.
4. Miscellaneous.
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4.1. Definitions; Application of Amended Plan. Capitalized terms
----------------------------------------
used in this Agreement, unless otherwise defined herein, have the respective
meanings given to such terms in the Amended Plan. The terms of the Amended Plan
are incorporated by reference as if set forth herein in their entirety and,
except as specifically provided herein, shall govern the terms of this
Restricted Share Award Agreement.
4.2. Notices. Any notice required or permitted to be given under
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this Agreement shall be in writing and shall be deemed to have been given when
delivered in person or when deposited in the U.S. mail, registered or certified,
postage prepaid, and mailed to the respective addresses set forth herein, unless
a party changes its address for receiving notices by giving notice in accordance
with this Paragraph, in which case, to the address specified in such notice.
4.3. Continued Employment. This Agreement shall not confer upon the
--------------------
Key Employee any right with respect to continuance of employment by the Trust.
4.4. Entire Agreement; Amendment. This Agreement constitutes the
---------------------------
entire agreement of the parties with respect to the subject matter hereof and
shall supersede all prior agreements and understandings, oral or written,
between the parties with respect thereto. No provision of this Agreement may be
amended, modified or waived at any time unless such amendment, modification or
waiver shall be agreed to in writing and signed by both of the parties hereto.
4.5. Assignment. This Agreement shall be binding upon and inure to
----------
the benefit of the heirs and representatives of the Key Employee and the assigns
and successors of the Trust, but neither this Agreement nor any rights
hereunder, subject to Paragraph 2.1(a), shall be assignable or otherwise subject
to hypothecation by the Key Employee.
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4.6. Severability. If, for any reason, any provision of this
------------
Agreement is held invalid, such invalidity shall not affect any other provision
of this Agreement not so held invalid, and each such other provision shall to
the full extent consistent with law continue in full force and effect. If any
provision of this Agreement shall be held invalid in part, such invalidity shall
in no way affect the rest of such provision not held so invalid, and the rest of
such provision, together with all other provisions of this Agreement, shall to
the full extent consistent with law continue in full force and effect.
4.7. Governing Law. This Agreement and its validity, interpretation,
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performance and enforcement shall be governed by the laws of the District of
Columbia other than the conflict of laws provisions of such laws, and shall be
construed in accordance therewith.
4.8. Certain References. References to the Key Employee in any
------------------
provision of this Agreement under circumstances where the provision should
logically be construed to apply to the Key Employee's executors or the
administrators, or the person or persons to whom all or any portion of the
Restricted Shares may be transferred by will or the laws of descent and
distribution, shall be deemed to include such person or persons.
4.9. Headings. The headings of Paragraphs hereof are included solely
--------
for convenience of reference and shall not control the meaning or interpretation
of any of the provisions of this Agreement.
4.10. Source of Payments. Payments provided under this Agreement, if
------------------
any, shall be paid in cash from the general funds of the Trust, and no special
or separate fund shall be established and no other segregation of assets shall
be made to assure payment.
4.11. Exculpatory Clause. Neither the Trust's shareholders nor the
------------------
Trustees, officers, employees or agents of the Trust shall be liable under this
Agreement, and the Key Employee shall look solely to the Trust's estate for the
payment of any claim under or for performance of this Agreement. The Trust is
organized pursuant to a Third Amended and Restated Declaration of Trust dated as
of May 24, 1984.
4.12. Counterparts. This Agreement may be executed in multiple
------------
counterparts with the same effect as if each of the signing parties had signed
the same document. All counterparts shall be construed together and constitute
the same instrument.
5
IN WITNESS WHEREOF, the Trust has caused this Agreement to be duly executed
and the Key Employee has hereunto set his hand effective as of the day and year
first above written.
FEDERAL REALTY INVESTMENT TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chair, Compensation Committee
Address:
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Address:
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