Form of Share Option Award Agreement under the Centerline Holding Company 2007 Incentive Share Plan
EXHIBIT
4.2
Form
of Share Option Award Agreement
under
the
Centerline
Holding Company 2007 Incentive Share Plan
2007
INCENTIVE SHARE PLAN
_________________________
Non-Incentive
Share Option Award Agreement
_________________________
You are
hereby awarded share options (the “Options”) to purchase
Shares of Centerline Holding Company (the “Company”), subject to
the terms and conditions set forth in this Share Option Award Agreement (the
“Award
Agreement” or “Award”) and in the
Centerline Holding Company 2007 Incentive Share Plan (the “2007
Plan”). A copy of the 2007 Plan is attached hereto as Exhibit A, and a
summary of the 2007 Plan appears in the 2007 Plan Prospectus attached as Exhibit
B. You should carefully review these documents and consult
with your personal financial advisor, in order to fully understand the
implications of this Award Agreement, including your tax consequences upon
exercise of the Options.
By
executing this Award Agreement, you agree to be bound by all of the 2007 Plan’s
terms and conditions as if they had been set out verbatim below. In
addition, you recognize and agree that all determinations, interpretations, or
other actions respecting the 2007 Plan and this Award Agreement will be made by
the Company’s Board of Directors (the “Board”) or a
committee appointed by the Board to administer the 2007 Plan, and shall be
final, conclusive and binding on all parties, including you, your heirs, and
representatives. Capitalized terms are defined in the 2007 Plan or in
this Award Agreement.
| 1. | Specific Terms. Your Options have the following terms: |
|
Name
of Participant
|
|
|
Type
of Share Option
|
Non-Incentive
Stock Option
|
|
Number
of Shares Subject to Award
|
|
|
Option
Exercise Price per Share: 1
|
|
|
Grant
Date
|
|
|
Vesting
|
¨ ___%
on Grant Date.
¨ ___%
on each of the next ______ (#) annual anniversary dates of your Continuous
Service after the Grant Date.
(subject
to any employment agreement between you and the Manager); and provided
further that you will become 100% vested in this Award if your Continuous
Service ends due to your Retirement, your death, or your
Disability.
|
___________________________
1 The exercise price of a non-ISO must be
at least 100% of the Fair Market Value of the underlying Shares.
|
Expiration
Date
|
¨ ____
years after Grant Date; or
¨ 10
years after Grant Date
(at
5:00 p.m. (E.D.T. or E.S.T., as applicable) on the Expiration
Date)
|
|
Lifetime
Transfers
|
¨ Allowed in
accordance with Section 12(b) of the 2007 Plan.
¨ Not
allowed.
|
2. Manner of
Exercise. The Options shall be exercised in the manner set
forth in the 2007 Plan, using the exercise form attached hereto as Exhibit
C. The amount of Shares for which the Options may be exercised
is cumulative; that is, if you fail to exercise the Options for all of the
Shares vested under the Options during any period set forth above, then any
Shares subject to the Options that are not exercised during such period may be
exercised during any subsequent period, until the expiration or termination of
the Options pursuant to Sections 1 and 3 of this Award Agreement and the terms
of the 2007 Plan. Fractional Shares may not be
purchased.
3.
Termination
of Continuous Service. Subject to the
terms of any Employment Agreement between you and the Company and/or its
subsidiaries then in effect, this Award shall be canceled and become
automatically null and void immediately after termination of your Continuous
Service for any reason, but only to the extent you have not become vested,
pursuant to the foregoing terms, on or at the time your Continuous Service
ends.
4.
Designation
of Death Beneficiary. Notwithstanding anything to the contrary
contained herein or in the 2007 Plan, following the execution of this Award
Agreement, you may expressly designate a death beneficiary (the “Beneficiary”) to your
interest, if any, in this Award and any underlying Shares. You shall
designate the Beneficiary by completing and executing a designation of
beneficiary agreement substantially in the form attached hereto as Exhibit D (the “Designation of Death
Beneficiary”) and delivering an executed copy of the Designation of
Beneficiary to the Company. To the extent you do not duly designate a
beneficiary who survives you, your estate will automatically be your
beneficiary.
5.
Restrictions
on Transfer of Award. Your rights under this Award Agreement
may not be sold, pledged, or otherwise transferred without the prior written
consent of the Committee, except as hereinafter provided. If Section
1 allows you to make a transfer of the Restricted Shares subject to this Award,
you may transfer the Restricted Shares as follows:
|
(i)
|
by
instrument to an inter vivos or testamentary trust (or other entity) in
which each beneficiary is a Permitted Transferee, as defined in
subsection (ii) of this Section, or
|
|
(ii)
|
by
gift to charitable institutions or by gift or transfer for consideration
to any of the following relatives of yours: any child, stepchild,
grandchild, parent, stepparent, grandparent, spouse, former spouse,
domestic partner, sibling, niece, nephew, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law, and shall
include adoptive relationships (each a “Permitted
Transferee”).
|
- 2
-
Any
Permitted Transferee of your rights shall succeed and be subject to all of the
terms of this Award Agreement and the 2007 Plan.
6. Taxes. Except
to the extent otherwise specifically provided in an employment agreement between
you and the Manager, by signing this Award Agreement, you acknowledge that you
shall be solely responsible for the satisfaction of any taxes that may arise
pursuant to this Award (including taxes arising under Code Sections 409A
(regarding deferred compensation) or 4999 (regarding golden parachute excise
taxes), and that neither the Company nor the Administrator shall have any
obligation whatsoever to pay such taxes or to otherwise indemnify or hold you
harmless from any or all of such taxes. The Committee shall have the
sole discretion to interpret the requirements of the Code, including Section
409A, for purposes of the 2007 Plan and this Award Agreement.
7.
Notices. Any
notice or communication required or permitted by any provision of this Award
Agreement to be given to you shall be in writing and shall be delivered
electronically, personally, or sent by certified mail, return receipt requested,
addressed to you at the last address that the Company had for you on its
records. 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 Agreement. Any such notice shall be deemed to be given as of
the date such notice is personally or electronically delivered or properly
mailed.
8.
Binding
Effect. Except as otherwise provided in this Award Agreement
or in the 2007 Plan, every covenant, term, and provision of this Award Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, legatees, legal representatives, successors, transferees, and
assigns.
9.
Modifications. This
Award Agreement may be modified or amended at any time, in accordance with
Section 15 of the 2007 Plan and provided that you must consent in writing to any
modification that adversely and materially affects any rights or obligations
under this Award Agreement (with such an affect being presumed to arise from a
modification that would trigger a violation of Section 409A of the
Code).
10.
Headings. Section
and other headings contained in this Award Agreement are for reference purposes
only and are not intended to describe, interpret, define or limit the scope or
intent of this Award Agreement or any provision hereof.
11.
Severability. Every
provision of this Award Agreement and of the 2007 Plan is intended to be
severable. If any term hereof is illegal or invalid for any reason,
such illegality or invalidity shall not affect the validity or legality of the
remaining terms of this Award Agreement.
12.
Counterparts. This
Award Agreement 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 one and the same instrument.
13.
2007 Plan
Governs. By signing this Award Agreement, you acknowledge that
you have received a copy of the 2007 Plan and that your Award Agreement is
subject to all the provisions contained in the 2007 Plan, the provisions of
which are made a part of this Award Agreement and your Award is subject to all
interpretations, amendments, rules and regulations which from time to time may
be promulgated and adopted pursuant to the 2007 Plan. In the event of
a conflict between
- 3
-
the provisions of this Award Agreement and those of the 2007 Plan,
the provisions of the 2007 Plan shall control.
14.
Investment
Purposes. By executing this Award, you acknowledge that you
are receiving and will be holding your Restricted Shares for investment purposes
only for your own account, and not with a view to your resale in connection
with, or with your intent to participate directly or indirectly in, any
distribution of such Shares within the meaning of the Securities Act of 1933, as
amended
15.
Not a
Contract of Employment. By executing this Award Agreement, 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 Agreement or the 2007 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 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.
16.
Employment
Agreement Provision [INCLUDE IF EMPLOYEE HAS
AN EMPLOYMENT AGREEMENT THAT ADDRESSES AWARD VESTING] 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 and
________________________, dated as of ______________ _____, 20__. If there is a
conflict between this Award Agreement and your employment agreement, the terms
of your employment agreement will control.
17.
Securities
Law Restrictions. Regardless of whether the offering and sale
of Options or Shares under the 2007 Plan have been registered under the
Securities Act of 1933, as amended (the “Securities Act”), or
have been registered or qualified under the securities laws of any state, the
Company at its discretion may impose restrictions upon the sale, pledge or other
transfer of such Shares (including the placement of appropriate legends on stock
certificates or the imposition of stop-transfer instructions) if, in the
judgment of the Company, such restrictions are necessary or desirable in order
to achieve compliance with the Securities Act or the securities laws of any
state or any other law or to enforce the intent of this Award.
18.
Governing
Law. The laws of the State of Delaware shall govern the
validity of this Award Agreement, the construction of its terms, and the
interpretation of the rights and duties of the parties hereto.
BY YOUR
SIGNATURE BELOW, along with the signature of the Company’s representative, you
and the Company agree that the Options are awarded under and governed by the
terms and conditions of this Award Agreement and the 2007 Plan.
By: _______________________________
Name:
- 4
-
Title:
PARTICIPANT
The
undersigned Participant hereby accepts the terms of this Award Agreement and the
2007 Plan.
By: _______________________________
Name of
Participant: ___________________
- 5 -
EXHIBIT
A
2007
INCENTIVE SHARE PLAN
____________________________
Plan
Document
____________________________
EXHIBIT
B
2007
INCENTIVE SHARE PLAN
_______________________________
Plan
Prospectus
______________________________
EXHIBIT
C
2007
INCENTIVE SHARE PLAN
___________________________________________________
Form
of Exercise of Share Option Award Agreement
___________________________________________________
Attention: _______________________
_______________________
Dear Sir
or Madam:
The
undersigned elects to exercise his/her Incentive Share Option to purchase _____
shares of Common Stock of Centerline Holding Company (the “Company”) under and
pursuant to a Share Option Agreement dated as of ______________.
1. |_|
Delivered herewith is a certified or bank cashier’s or teller’s check and/or
shares of Common Stock held by the undersigned for at least six months*, valued
at the closing sale price of the stock on the business day prior to the date of
exercise, as follows:
| $ | in cash or check | ||
| $ | in the form of ____ shares of Common Stock, | ||
| valued at $___________ per share | |||
| $ | Total |
2. |_|
Delivered herewith are irrevocable instructions to a broker approved by the
Company to deliver promptly to the Company the amount of sale or loan proceeds
to pay the exercise price.**
If method
1 is chosen, the name or names to be on the stock certificate or certificates
and the address and Social Security Number of such person(s) is as
follows:
| Name: | |
| Address: | |
| Social Security Number |
| Very truly yours, | ||
| Date | ||
| Optionee |
*The
Committee may waive the six months’ requirement in its discretion.
**The
Committee must approve this method in writing before your election
EXHIBIT
D
CENTERLINE
HOLDING COMPANY
2007
INCENTIVE SHARE PLAN
_________________________________
Designation
of Death Beneficiary
_________________________________
In
connection with the Awards designated below that I have received pursuant to the
Centerline Holding Company 2007 Incentive Share Plan (the “2007 Plan”), I hereby
designate the person specified below as the beneficiary upon my death of my
interest in such Awards. This designation shall remain in effect
until revoked in writing by me.
| Name of Beneficiary: | |||
| Address: | |||
| Social Security No.: |
This
beneficiary designation relates to any and all of my rights under the following
Award or Awards:
¨ any
Award that I have received or ever receive under the 2007 Plan.
|
|
¨
|
the
_________________ Award that I received pursuant to an award agreement
dated _________ __, ____ between myself and the
Company.
|
I
understand that this designation operates to entitle the above named
beneficiary, in the event of my death, to any and all of my rights under the
Award(s) designated above from the date this form is delivered to the Company
until such date as this designation is revoked in writing by me, including by
delivery to the Company of a written designation of beneficiary executed by me
on a later date.
| Date: | ||
| By: | ||
| Name of Participant |
Sworn to
before me this
____day
of ____________, 200_
___________________________
Notary
Public
County
of _________________
State
of __________________
EXHIBIT
4.3
Form
of Restricted Share Units Award Agreement
under
the
Centerline
Holding Company 2007 Incentive Share Plan
CENTERLINE
HOLDING COMPANY
2007
INCENTIVE SHARE PLAN
_________________________________
Restricted
Share Unit Award Agreement
__________________________________
You are
hereby awarded Restricted Share Units (the “RSUs”) subject to the
terms and conditions set forth in this Restricted Share Unit Award Agreement
(the “Award
Agreement” or “Award”), and in the
Centerline Holding Company 2007 Incentive Share Plan (the “2007 Plan”) sponsored
by Centerline Holding Company (the “Company”). A
copy of the 2007 Plan is attached as Exhibit A, and a
summary of the 2007 Plan appears in the Plan Prospectus attached as Exhibit
B. You should carefully review these documents and consult
with your personal financial advisor, in order to fully understand the
implications of this Award Agreement, including your tax
consequences.
By
executing this Award Agreement, you agree to be bound by all of the 2007 Plan’s
terms and conditions as if they had been set out verbatim below. In
addition, you recognize and agree that all determinations, interpretations, or
other actions respecting the 2007 Plan and this Award Agreement will be made by
the Company’s Board of Directors (the “Board”) or a
committee appointed by the Board to administer the 2007 Plan, and shall be
final, conclusive and binding on all parties, including you, your heirs and
representatives. Capitalized terms are defined in the 2007 Plan or in
this Award Agreement.
1.
Specific
Terms. Your RSUs have the following terms:
|
Name
of Participant
|
|
|
Number of
RSUs
Subject to Award |
|
|
Purchase
Price per
Share (if applicable) |
Not
applicable.
|
|
Grant
Date
|
|
|
Vesting
|
Your
Award will vest at the rate of ____% on each of the next ____annual
anniversaries of the Grant Date, provided that your Continuous Service has
not ended before the vesting date (subject to any employment agreement
between you and the Manager); and provided further that you will become
100% vested in this Award if your Continuous Service ends due to your
Retirement, your death, or your Disability.
|
|
Deferral
Elections
|
□
Allowed in accordance with Section 8(g) and 9 of the 2007
Plan.
□
Not allowed.
|
2.
Termination
of Continuous Service. Subject to the terms of any Employment
Agreement between you and the Company and/or its subsidiaries then in effect,
this Award shall be canceled
2
Centerline
Holding Company 2007 Incentive Share Plan
Restricted Share Unit Award Agreement
Page 3
and become automatically null and void immediately after
termination of your Continuous Service for any reason, but only to the extent
you have not become vested, pursuant to the foregoing terms, on or at the time
your Continuous Service ends.
3.
Satisfaction
of Vesting Restrictions; Tax Withholding. No Shares will be
issued before you complete the requirements that are necessary for you to vest
in the Shares underlying your RSUs. As soon as practicable after the
later of (i) the date on which your RSUs vest in whole or in part or (ii) the
date or dates set forth in your deferral and distribution election forms (if
allowed under Section 1 and made by you), the Company will issue to you or your
duly-authorized transferee, free from vesting restrictions (but subject to such
legends as the Company determines to be appropriate), one Share for each vested
RSU with such number of Shares issued to you being reduced by a number of Shares
having a fair market value equal to the minimum statutory tax withholding
required in connection with the vesting of your RSUs, and with cash being
withheld from your pay for any additional withholding and employment taxes that
applicable tax laws may require. Certificates shall not be delivered
to you unless all applicable employment and tax-withholding obligations have
been satisfied. Fractional shares will not be issued, and cash will
be paid in lieu thereof.
4. Dividends. With
respect to each Common Share underlying an RSU granted through this Award, you
will be entitled to receive cash dividends which were declared and paid to the
holders of Common Shares between the Grant Date and the date such Common Share
is issued to you after your interest vests; subject to the treatment of the
Award upon termination of your Continuous Service before the particular record
date for determining shareholders of record entitled to the payment of the cash
or Share-based dividends. When Shares are delivered to you or your
duly-authorized transferee pursuant to the vesting of the RSUs, you or your
duly-authorized transferee shall also be entitled to receive, with respect to
each Common Share delivered, a number of Common Shares equal to the Share-based
dividends which were declared and paid to the holders of Common Shares between
the Grant Date and the date such Common Share is issued to you, after your
interest vests. To the extent that either (i) your Continuous Service
ends before vesting of the RSUs subject to this Award or (ii) your Continuous
Service does not result in full vesting of this Award, you will forfeit all
Share-based dividends (but not cash dividends) attributable to all such
non-vested RSUs.
5.
Designation
of Death Beneficiary. Notwithstanding anything to the contrary
contained herein or in the 2007 Plan, following the execution of this Award
Agreement, you may expressly designate a death beneficiary (the “Beneficiary”)
to your interest, if any, in this Award and any underlying
Shares. You 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 Death
Beneficiary”) and delivering an executed copy of the Designation of
Beneficiary to the Company. To the extent you do not duly designate a
beneficiary who survives you, your estate will automatically be your
beneficiary.
6.
Restrictions
on Transfer of Award. Your rights under this Award Agreement may not be
sold, pledged, or otherwise transferred without the prior written consent of the
Committee.
7.
Taxes. Except
to the extent otherwise specifically provided in an employment agreement between
you and the Manager, by signing this Award Agreement, you acknowledge that you
shall be
Centerline
Holding Company 2007 Incentive Share Plan
Restricted Share Unit
Award Agreement
Page
4
solely responsible for the satisfaction of any taxes that may
arise pursuant to this Award (including taxes arising under Code Sections 409A
(regarding deferred compensation) or 4999 (regarding golden parachute excise
taxes), and that neither the Company nor the Administrator shall have any
obligation whatsoever to pay such taxes or to otherwise indemnify or hold you
harmless from any or all of such taxes. The Committee shall have the
sole discretion to interpret the requirements of the Code, including Section
409A, for purposes of the 2007 Plan and this Award Agreement.
8.
Notices. Any
notice or communication required or permitted by any provision of this Award
Agreement to be given to you shall be in writing and shall be delivered
electronically, personally, or sent by certified mail, return receipt
requested, addressed to you at the last address that the Company had for you on
its records. 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 Agreement. Any such notice shall be deemed to be given as
of the date such notice is personally or electronically delivered or properly
mailed.
9.
Binding
Effect. Except as otherwise provided in this Award Agreement
or in the 2007 Plan, every covenant, term, and provision of this Award Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, legatees, legal representatives, successors, transferees, and
assigns.
10.
Modifications. This
Award Agreement may be modified or amended at any time, in accordance with
Section 15 of the 2007 Plan and provided that you must consent in writing to any
modification that adversely and materially affects any rights or obligations
under this Award Agreement (with such an affect being presumed to arise from a
modification that would trigger a violation of Section 409A of the
Code).
11.
Headings. Section
and other headings contained in this Award Agreement are for reference purposes
only and are not intended to describe, interpret, define or limit the scope or
intent of this Award Agreement or any provision hereof.
12.
Severability. Every
provision of this Award Agreement and of the 2007 Plan is intended to be
severable. If any term hereof is illegal or invalid for any reason,
such illegality or invalidity shall not affect the validity or legality of the
remaining terms of this Award Agreement.
13.
Counterparts. This
Award Agreement 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 one and the same instrument.
14.
Plan
Governs. By signing this Award Agreement, you acknowledge that
you have received a copy of the 2007 Plan and that your Award Agreement is
subject to all the provisions contained in the 2007 Plan, the provisions of
which are made a part of this Award Agreement and your Award is subject to all
interpretations, amendments, rules and regulations which from time to time may
be promulgated and adopted pursuant to the 2007 Plan. In the event of
a conflict between the provisions of this Award Agreement and those of the 2007
Plan, the provisions of the 2007 Plan shall control.
Centerline
Holding Company 2007 Incentive Share Plan
Restricted
Share Unit Award Agreement
Page
5
15.
Investment
Purposes. By executing this Award, you represent and warrant to the
Company that any Shares issued to you pursuant to your RSUs will be for
investment for your own account and not with a view to, for resale in connection
with, or with an intent of your participating directly or indirectly in, any
distribution of such Shares within the meaning of the Securities Act of 1933, as
amended.
16.
Not a
Contract of Employment. By executing this Award Agreement 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 Agreement or the 2007 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 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.
17. Employment
Agreement Provision [INCLUDE IF EMPLOYEE HAS
AN EMPLOYMENT AGREEMENT THAT ADDRESSES AWARD VESTING] 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 and
________________________, dated as of ______________ _____, 20__. If
there is a conflict between this Award Agreement and your employment agreement,
the terms of your employment agreement will control.
18.
Securities
Law Restrictions. Regardless of whether the offering and sale
of Shares under the 2007 Plan have been registered under the Securities Act of
1933, as amended (the “Securities Act”), or
have been registered or qualified under the securities laws of any state, the
Company at its discretion may impose restrictions upon the sale, pledge or other
transfer of such Shares (including the placement of appropriate legends on stock
certificates or the imposition of stop-transfer instructions) if, in the
judgment of the Company, such restrictions are necessary or desirable in order
to achieve compliance with the Securities Act or the securities laws of any
state or any other law or to enforce the intent of this Award.
19.
Governing
Law. The laws of the State of Delaware shall govern the
validity of this Award Agreement, the construction of its terms, and the
interpretation of the rights and duties of the parties hereto.
BY YOUR SIGNATURE BELOW, along with the
signature of the Company’s representative, you and the Company agree that the
RSUs are awarded under and governed by the terms and conditions of this Award
Agreement and the 2007 Plan.
CENTERLINE
HOLDING COMPANY
By: _______________________________
Name:
Title:
Centerline
Holding Company 2007 Incentive Share Plan
Restricted
Share Unit Award Agreement
Page
6
PARTICIPANT
The
undersigned Participant hereby accepts the terms of this Award Agreement and the
2007 Plan.
By: _______________________________
Name of
Participant: _______________________________
EXHIBIT
A
CENTERLINE
HOLDING COMPANY
2007
INCENTIVE SHARE PLAN
_______________________________
Plan
Document
______________________________
EXHIBIT B
CENTERLINE
HOLDING COMPANY
2007
INCENTIVE SHARE PLAN
_______________________________
Plan
Prospectus
______________________________
EXHIBIT
C
CENTERLINE
HOLDING COMPANY
2007
INCENTIVE SHARE PLAN
_________________________________
.
Designation
of Death Beneficiary
_________________________________
In
connection with the Awards designated below that I have received pursuant to the
Centerline Holding Company 2007 Incentive Share Plan (the “2007 Plan”), I hereby
designate the person specified below as the beneficiary upon my death of my
interest in such Awards. This designation shall remain in effect
until revoked in writing by me.
| Name of Beneficiary: | |
| Address: | |
| Social Security No.: |
This
beneficiary designation relates to any and all of my rights under the following
Award or Awards:
¨ any
Award that I have received or ever receive under the 2007 Plan.
|
|
¨
|
the
_________________ Award that I received pursuant to an award agreement
dated _________ __, ____ between myself and the
Company.
|
I
understand that this designation operates to entitle the above named
beneficiary, in the event of my death, to any and all of my rights under the
Award(s) designated above from the date this form is delivered to the Company
until such date as this designation is revoked in writing by me, including by
delivery to the Company of a written designation of beneficiary executed by me
on a later date.
| Date: | ||
| By: | ||
| Name of Participant |
Sworn to
before me this
____day
of ____________, 200_
___________________________
Notary
Public
County
of _________________
State
of __________________
EXHIBIT
4.4
Form
of Restricted Share Award Agreement
under
the
Centerline
Holding Company 2007 Incentive Share Plan
CENTERLINE
HOLDING COMPANY
2007
INCENTIVE SHARE PLAN
__________________________________
Restricted
Share Award Agreement
__________________________________
You are
hereby awarded Restricted Shares subject to the terms and conditions set forth
in this Award Agreement (the “Award Agreement” or
“Award”) and in
the Centerline Holding Company 2007 Incentive Share Plan (“2007 Plan”) sponsored
by Centerline Holding Company (the “Company”). A
copy of the 2007 Plan is attached as Exhibit A, and a
summary of the 2007 Plan appears in the Plan Prospectus attached as Exhibit
B. You should carefully review these documents and consult
with your personal financial advisor, in order to fully understand the
implications of this Award Agreement, including your tax
consequences.
By
executing this Award Agreement, you agree to be bound by all of the 2007 Plan’s
terms and conditions as if they had been set out verbatim below. In
addition, you recognize and agree that all determinations, interpretations, or
other actions respecting the 2007 Plan and this Award Agreement will be made by
the Company’s Board of Directors (the “Board”) or
a committee appointed by the Board to administer the 2007 Plan, and
shall be final, conclusive and binding on all parties, including you,
your heirs and representatives. Capitalized terms are defined in the
2007 Plan or in this Award Agreement.
1.
Specific
Terms. Your Restricted Shares have the following
terms:
|
Name
of Participant
|
|
|
Number
of Shares
Subject to Award |
|
|
Purchase
Price per
Share (if applicable) |
Not
applicable.
|
|
Grant
Date
|
|
|
Vesting
|
Your
Award will vest at the rate of __% on each of the next ___ annual
anniversaries of the Grant Date, provided that your Continuous Service has
not ended before the vesting date (subject to any employment agreement
between you and the Manager); and provided further that you will become
100% vested in this Award if your Continuous Service ends due to your
Retirement, your death, or your Disability.
|
|
Deferral
Elections
|
¨ Allowed in
accordance with Section 8(g) of the 2007 Plan. ¨ Not
allowed.
|
|
Lifetime
Transfers
|
¨ Allowed in
accordance with Section 12(b) of the 2007 Plan. ¨ Not
allowed.
|
Centerline
Holding Company 2007 Incentive Share Plan
Restricted
Share Award Agreement
Page
12
2.
Termination
of Continuous Service. Subject to the terms of any Employment
Agreement between you and the Company and/or its subsidiaries then in effect,
this Award shall be canceled and become automatically null and void immediately
after termination of your Continuous Service for any reason, but only to the
extent you have not become vested, pursuant to the foregoing terms, on or at the
time your Continuous Service ends.
3.
Dividends;
Voting Rights. As the owner of record of any Restricted
Shares you qualify to receive pursuant to this Award Agreement, you will be
entitled to receive cash dividends and to vote such Restricted Shares; subject
to the treatment of the Award upon termination of your Continuous Service before
the particular record date for determining shareholders of record entitled to
the payment of the cash or Share-based dividends or to vote.
With respect to any dividends that are paid in Shares between the date of this
Award and your receipt of Common Shares pursuant to a vesting event, such Shares
shall be subject to the same vesting restrictions contained in Section 1 as the
Restricted Shares with respect to which the dividend is paid. When
Shares are delivered to you or your duly-authorized transferee pursuant to the
vesting of the Restricted Shares, you or your duly-authorized transferee shall
also be entitled to receive, with respect to each Common Share delivered, a
number of Common Shares equal to the Share-based dividends which were declared
and paid to the holders of Common Shares between the Grant Date and the date
such Common Share is issued to you, after your interest vests. To the
extent that either (i) your Continuous Service ends before vesting of the
Restricted Shares subject to this Award or (ii) your Continuous Service does not
result in full vesting of this Award, you will forfeit all Share-based dividends
(but not cash dividends) attributable to all such non-vested Restricted
Shares.
4. Issuance
and Vesting of Restricted Shares. The Company will hold all
Restricted Shares in escrow, in book entry form, until vesting
occurs. You will be reflected as the owner of record on the Company’s
books and records of any Restricted Shares credited to you pursuant to this
Award Agreement. If you forfeit any Restricted Shares, they will be
transferred back to the Company. If the Restricted Shares vest, upon
satisfaction of any tax withholding requirements, your Restricted Shares will be
reflected on the Company’s books and records as vested Common
Shares. You may request a physical certificate for your vested Common
Shares, and the Committee, in its discretion, may honor such
request.
5.
Section
83(b) Election Notice. If you make an election under Section
83(b) of the Internal Revenue Code of 1986 (the “Code”), as amended,
with respect to the Shares underlying your Restricted Shares (a “Section 83(b)
election”), you agree to provide a copy of such election to the Company
within 10 days after filing that election with the Internal Revenue
Service. Exhibit C contains a
suggested form of Section 83(b) election.
6.
Designation
of Death Beneficiary. Notwithstanding anything to the contrary
contained herein or in the 2007 Plan, following the execution of this Award
Agreement, you may expressly designate a death beneficiary (the “Beneficiary”) to your
interest, if any, in this Award and any underlying Shares. You shall
designate the Beneficiary by completing and executing a designation of
beneficiary agreement substantially in the form attached hereto as Exhibit D (the “Designation of Death
Beneficiary”) and delivering an executed copy of the Designation of
Beneficiary to the
Centerline
Holding Company 2007 Incentive Share Plan
Restricted
Share Award Agreement
Page
13
Company. To the extent you do not duly designate a
beneficiary who survives you, your estate will automatically be your
beneficiary.
7.
Restrictions
on Transfer of Award. Your rights under this Award Agreement
may not be sold, pledged, or otherwise transferred without the prior written
consent of the Committee, except as hereinafter provided. If Section
1 allows you to make a transfer of the Restricted Shares subject to this Award,
you may transfer the Restricted Shares as follows:
|
(i)
|
by
instrument to an inter vivos or testamentary trust (or other entity) in
which each beneficiary is a Permitted Transferee, as defined in
subsection (ii) of this Section, or
|
|
(ii)
|
by
gift to charitable institutions or by gift or transfer for consideration
to any of the following relatives of yours: any child, stepchild,
grandchild, parent, stepparent, grandparent, spouse, former spouse,
domestic partner, sibling, niece, nephew, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law, and shall
include adoptive relationships (each a “Permitted
Transferee”).
|
Any
Permitted Transferee of your rights shall succeed and be subject to all of the
terms of this Award Agreement and the 2007 Plan.
8.
Taxes. Except
to the extent otherwise specifically provided in an employment agreement between
you and the Manager, by signing this Award Agreement, you acknowledge that you
shall be solely responsible for the satisfaction of any taxes that may arise
pursuant to this Award (including taxes arising under Code Sections 409A
(regarding deferred compensation) or 4999 (regarding golden parachute excise
taxes), and that neither the Company nor the Administrator shall have any
obligation whatsoever to pay such taxes or to otherwise indemnify or hold you
harmless from any or all of such taxes. The Committee shall have the
sole discretion to interpret the requirements of the Code, including Section
409A, for purposes of the 2007 Plan and this Award Agreement.
9.
Notices. Any
notice or communication required or permitted by any provision of this Award
Agreement to be given to you shall be in writing and shall be delivered
electronically, personally, or sent by certified mail, return receipt requested,
addressed to you at the last address that the Company had for you on its
records. 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 Agreement. Any such notice shall be deemed to be given as of
the date such notice is personally or electronically delivered or properly
mailed.
10.
Binding
Effect. Except as otherwise provided in this Award Agreement
or in the 2007 Plan, every covenant, term, and provision of this Award Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, legatees, legal representatives, successors, transferees, and
assigns.
11.
Modifications. This
Award Agreement may be modified or amended at any time, in accordance with
Section 15 of the 2007 Plan and provided that you must consent in writing to any
modification that adversely and materially affects any rights or obligations
under this Award
Centerline
Holding Company 2007 Incentive Share Plan
Restricted
Share Award Agreement
Page
14
Agreement (with such an affect being presumed to arise from a
modification that would trigger a violation of Section 409A of the Code).
12.
Headings. Section
and other headings contained in this Award Agreement are for reference purposes
only and are not intended to describe, interpret, define or limit the scope or
intent of this Award Agreement or any provision hereof.
13. Severability. Every
provision of this Award Agreement and of the 2007 Plan is intended to be
severable. If any term hereof is illegal or invalid for any reason,
such illegality or invalidity shall not affect the validity or legality of the
remaining terms of this Award Agreement.
14.
Counterparts. This
Award Agreement 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 one and the same instrument.
15.
Plan
Governs. By signing this Award Agreement, you acknowledge that
you have received a copy of the 2007 Plan and that your Award Agreement is
subject to all the provisions contained in the 2007 Plan, the provisions of
which are made a part of this Award Agreement and your Award is subject to all
interpretations, amendments, rules and regulations which from time to time may
be promulgated and adopted pursuant to the 2007 Plan. In the event of
a conflict between the provisions of this Award Agreement and those of the 2007
Plan, the provisions of the 2007 Plan shall control.
16. Investment
Purposes. By executing this Award, you acknowledge that you
are receiving and will be holding your Restricted Shares for investment purposes
only for your own account, and not with a view to your resale in connection
with, or with your intent to participate directly or indirectly in, any
distribution of such Shares within the meaning of the Securities Act of 1933, as
amended
17. Not a
Contract of Employment. By executing this Award Agreement 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 Agreement or the 2007 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 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.
18.
Employment
Agreement Provision [INCLUDE IF EMPLOYEE HAS
AN EMPLOYMENT AGREEMENT THAT ADDRESSES AWARD VESTING] 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 and
________________________, dated as of ______________ _____,
20__. If there is a conflict between this Award Agreement and
your employment agreement, the terms of your employment agreement will
control.
Centerline
Holding Company 2007 Incentive Share Plan
Restricted
Share Award Agreement
Page
15
19.
Securities
Law Restrictions. Regardless of whether the offering and sale
of Shares under the 2007 Plan have been registered under the Securities Act of
1933, as amended (the “Securities Act”), or
have been registered or qualified under the securities laws of any state, the
Company at its discretion may impose restrictions upon the sale, pledge or other
transfer of such Shares (including the placement of appropriate legends on stock
certificates or the imposition of stop-transfer instructions) if, in the
judgment of the Company, such restrictions are necessary or desirable in order
to achieve compliance with the Securities Act or the securities laws of any
state or any other law or to enforce the intent of this Award.
20.
Governing
Law. The laws of the State of Delaware shall govern the
validity of this Award Agreement, the construction of its terms, and the
interpretation of the rights and duties of the parties hereto.
[SIGNATURE
PAGE FOLLOWS]
Centerline
Holding Company 2007 Incentive Share Plan
Restricted
Share Award Agreement
Page
16
BY YOUR
SIGNATURE BELOW, along with the signature of the Company’s representative, you
and the Company agree that the Restricted Shares are awarded under and governed
by the terms and conditions of this Award Agreement and the 2007
Plan.
CENTERLINE
HOLDING COMPANY
By: _______________________________
Name:
Title:
PARTICIPANT
The
undersigned Participant hereby accepts the terms of this Award Agreement and the
2007 Plan.
By: _______________________________
Name of
Participant: _______________________________
EXHIBIT
A
CENTERLINE
HOLDING COMPANY
2007
INCENTIVE SHARE PLAN
_______________________________
Plan
Document
______________________________
EXHIBIT
B
CENTERLINE
HOLDING COMPANY
2007
INCENTIVE SHARE PLAN
_______________________________
Plan
Prospectus
______________________________
EXHIBIT
C
CENTERLINE
HOLDING COMPANY
2007
INCENTIVE SHARE PLAN
_______________________________
Section
83(b) Election Form
______________________________
Attached
is an Internal Revenue Code Section 83(b) Election Form. IF YOU WISH TO MAKE A SECTION 83(B)
ELECTION, YOU MUST DO SO WITHIN 30 DAYS AFTER THE DATE THE RESTRICTED SHARES
COVERED BY THE ELECTION WERE TRANSFERRED TO YOU. In order to
make the election, you must completely fill out the attached form and file one
copy with the Internal Revenue Service office where you file your tax
return. In addition, one copy of the statement also must be submitted
with your income tax return for the taxable year in which you make this
election. Finally, you also must submit a copy of the election form
to the Company within 10 days after filing that election with the Internal
Revenue Service. A Section 83(b) election normally cannot be
revoked.
CENTERLINE
HOLDING COMPANY
2007
INCENTIVE SHARE PLAN
________________________________________________________
Election
to Include Value of Restricted Shares in Gross Income
in
Year of Transfer Under Internal Revenue Code Section 83(b)
_________________________________________________________
Pursuant
to Section 83(b) of the Internal Revenue Code, I hereby elect within 30 days
after receiving the property described herein to be taxed immediately on its
value specified in item 5 below.
1. My
General Information:
| Name: | |||
| Address: | |||
| S.S.N. | |||
| or T.I.N.: |
2. Description
of the property with respect to which I am making this election:
____________________
shares of ___________ stock of Centerline Holding Company (the “Restricted
Shares”).
|
3.
|
The
Restricted Shares were transferred to me on ______________ ___,
20__. This election relates to the 20____ calendar taxable
year.
|
4. The
Restricted Shares are subject to the following restrictions:
The
Restricted Shares are forfeitable until they are earned in accordance with the
Restricted Share Award Agreement (“Award Agreement”)
made under the Centerline Holding Company 2007 Incentive Share Plan (“2007
Plan”). The Restricted Shares generally are not transferable
until my interest becomes vested and nonforfeitable, pursuant to the Award
Agreement and the 2007 Plan.
5. Fair
market value:
The fair
market value at the time of transfer (determined without regard to any
restrictions other than restrictions which by their terms never will lapse) of
the Restricted Shares with respect to which I am making this election is $_____
per share.
6. Amount
paid for Restricted Shares:
The
amount I paid for the Restricted Shares is $____ per share.
7. Furnishing
statement to employer:
A copy of
this statement has been furnished to my employer, ______________. If
the transferor of the Restricted Shares is not my employer, that entity also has
been furnished with a copy of this statement.
8. Award
Agreement or 2007 Plan not affected:
Nothing
contained herein shall be held to change any of the terms or conditions of the
Award Agreement or the 2007 Plan.
Dated:
____________ __, 200_.
______________________________
Taxpayer
EXHIBIT
D
CENTERLINE
HOLDING COMPANY
2007
INCENTIVE SHARE PLAN
_________________________________
Designation
of Death Beneficiary
_________________________________
In
connection with the Awards designated below that I have received pursuant to the
Centerline Holding Company 2007 Incentive Share Plan (the “2007 Plan”), I hereby
designate the person specified below as the beneficiary upon my death of my
interest in such Awards. This designation shall remain in effect
until revoked in writing by me.
| Name of Beneficiary: | |
| Address: | |
| Social Security No.: |
This
beneficiary designation relates to any and all of my rights under the following
Award or Awards:
¨ any
Award that I have received or ever receive under the 2007 Plan.
|
|
¨
|
the
_________________ Award that I received pursuant to an award agreement
dated _________ __, ____ between myself and the
Company.
|
I
understand that this designation operates to entitle the above named
beneficiary, in the event of my death, to any and all of my rights under the
Award(s) designated above from the date this form is delivered to the Company
until such date as this designation is revoked in writing by me, including by
delivery to the Company of a written designation of beneficiary executed by me
on a later date.
| Date: | ||
| By: | ||
| Name of Participant |
Sworn to
before me this
____day
of ____________, 200_
___________________________
Notary
Public
County
of _________________
STATE
OF ____________