Exhibit 10.20
PERFORMANCE VESTING
LTIP UNIT AGREEMENT
(Second Amended & Restated 2015 Stock Award and Incentive Plan)
(LTIP II Units)
This PERFORMANCE VESTING LTIP UNIT AGREEMENT, dated as of [______________] (the “Agreement”), is by and among Apartment Investment and Management Company, a Maryland corporation (the “Company”), Aimco OP L.P., a Delaware limited partnership (the "Partnership"), and [______________] (the “Recipient”). Capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings set forth in the Apartment Investment and Management Company Second Amended and Restated 2015 Stock Award and Incentive Plan (the “Plan”), and the Partnership Unit Designation relating to LTIP Units in the Partnership Agreement (the “Partnership Unit Designation” or “PUD”).
WHEREAS, effective [______________] (the “Date of Grant”), pursuant to the Plan and the amended and Restated Agreement of Limited Partnership of the Partnership, as amended (the “Partnership Agreement”), the Compensation and Human Resources Committee (the “Committee”) of the Board of Directors (the “Board”) of the Company granted the Recipient this LTIP Award and hereby causes the Partnership to issue to the Recipient the maximum number of LTIP Units set forth below, having the rights, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption and conversion set forth herein, in the Plan and in the Partnership Agreement.
NOW, THEREFORE, in consideration of the Recipient’s services to the Company and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
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Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because any person (a “Subject Person”) acquired Beneficial Ownership of more than the permitted amount of the outstanding Voting Securities as a result of the acquisition of Voting Securities by the Company that, by reducing the number of Voting Securities outstanding, increases the proportional number of shares Beneficially Owned by such Subject Person, provided that if a Change in Control would occur (but for the operation of this sentence) as a result of the acquisition of Voting Securities by the Company, and after such share acquisition by the Company, such Subject Person becomes the Beneficial Owner of any additional Voting Securities that increases the percentage of the then outstanding Voting Securities Beneficially Owned by such Subject Person, then a Change in Control shall occur.
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For purposes of this Section 4(b), no act, or failure to act, on the part of the Recipient shall be considered “willful” unless done, or omitted to be done, by the Recipient in bad faith and without reasonable belief that his or her action or omission was in the best interest of the Company. Any termination shall be treated as a termination for Cause only if (i) the Recipient is given at least five (5) business days’ written notice of termination specifying the alleged Cause event and shall have the opportunity to appear (with counsel) before the full Board to present information regarding his or her views on the Cause event, and (ii) after such hearing, the Recipient is terminated for Cause by at least a majority of the Board. After providing the notice of termination in the foregoing sentence, the Board may suspend the Recipient with full pay and benefits until a final determination pursuant to this Section 4(b) has been made. Notwithstanding the foregoing provisions of this Section 4(b), if the Recipient is party to an employment agreement with the Company that provides a definition of Cause, such definition shall apply instead of the foregoing provisions of this Section 4(b).
BY SIGNING THIS AGREEMENT, THE RECIPIENT REPRESENTS THAT HE OR SHE HAS REVIEWED WITH HIS OR HER OWN TAX ADVISORS THE FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THAT HE OR SHE IS RELYING SOLELY ON SUCH ADVISORS AND NOT ON ANY STATEMENTS OR REPRESENTATIONS OF THE COMPANY OR ANY OF ITS AGENTS. THE RECIPIENT UNDERSTANDS AND AGREES THAT HE OR SHE (AND NOT THE COMPANY) SHALL BE RESPONSIBLE FOR ANY TAX LIABILITY THAT MAY ARISE AS A RESULT OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By: __________________________
AIMCO OP L.P.
By: AIMCO OP GP, LLC,
Its General Partner
By: _________________________
Name:
Title:
Recipient:
By: ___________________________
Name:
Address: _______________________
_______________________
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Section 6(f) Representation. Please initial or check ALL of the boxes which correctly describe the Recipient.
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EXHIBIT A
FORM OF LIMITED PARTNER SIGNATURE PAGE
The Participant, desiring to become one of the within named Limited Partners of Aimco OP, L.P., hereby becomes a party to the Amended and Restated Agreement of Limited Partnership of Aimco OP L.P., as amended through the date hereof (the “LP Agreement”).
The Participant constitutes and appoints the General Partner and its authorized officers and attorneys-in-fact, and each of those acting singly, in each case with full power of substitution, as the Participant’s true and lawful agent and attorney-in-fact, with full power and authority in the Participant’s name, place and stead to carry out all acts described in Section 2.4.A of the Partnership Agreement, such power of attorney to be irrevocable and a power coupled with an interest pursuant to Section 2.4.B of the LP Agreement.
The Participant agrees that this signature page may be attached to any counterpart of the Partnership Agreement.
[PARTICIPANT] |
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By: _____________________________
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Name: |
Date: |
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Address of Participant: |
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EXHIBIT B
This Exhibit sets forth the calculation methodology with respect to the Agreement. Certain defined terms may be found at the end of this Exhibit B. Terms not defined on this Exhibit B shall have the meaning set forth in the body of the Agreement.
Maximum LTIP Units: [______________]
With respect to one-third of the LTIP Units:
Performance Level | Relative TSR vs. NAREIT Apartment Index TSR: Performance vs. Index Over Performance Period | Portion of Target Award Vesting (“Vesting Portion”) |
Threshold | [ ] bps | [ ] % |
Target | [ ] bps | [ ] % |
Maximum | [ ] bps | [ ] % |
With respect to one-third of the LTIP Units:
Performance Level | Relative TSR vs. Russell 2000 Value Index TSR: Performance vs. Index Over Performance Period | Portion of Target Award Vesting (“Vesting Portion”) |
Threshold | [ ] bps | [ ] % |
Target | [ ] bps | [ ] % |
Maximum | [ ] bps | [ ] % |
With respect to one-third of the LTIP Units:
Performance Level | Relative TSR vs. Custom Performance Peers TSR: Performance vs. Index Over Performance Period | Portion of Target Award Vesting (“Vesting Portion”)
|
Threshold | [ ] Percentile | [ ] % |
Target | [ ] Percentile | [ ] % |
Maximum | [ ] Percentile | [ ] % |
TSR results above the Threshold level and below the Maximum level shall result in a Vesting Portion that is interpolated between the Threshold and Maximum Vesting Portions set forth on this Exhibit A. TSR results below the Threshold level will cause the LTIP Units to be forfeited to the Company without payment of any consideration by the Company, and neither the Recipient nor any of his or her successors, heirs, assigns or personal representatives shall thereafter have any further rights or interests in such shares of LTIP Units.
If the performance level is above Target but as of the Determination Date the Company has negative absolute TSR with respect to the Performance Period, then the LTIP Units shall vest at the Target level as of the dates set forth in Section 2(b) of the Agreement, with the Vesting Portion in excess of Target (the “Excess Portion”) vesting only (a)
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with respect to 50% of the Excess Portion, upon the Company’s achievement of positive absolute TSR with respect to the period beginning on the first day of the Performance Period; and (b) with respect to the remaining 50% of the Excess Portion, on the later of (i) the Company’s achievement of positive absolute TSR with respect to the period beginning on the first day of the Performance Period and (ii) the Second Vesting Date; provided, however, that if the Company has not achieved positive absolute TSR with respect to the period beginning on the first day of the Performance Period as of the third anniversary of the Determination Date, then the Excess Portion shall be forfeited to the Company without payment of any consideration by the Company, and neither the Recipient nor any of his or her successors, heirs, assigns or personal representatives shall thereafter have any further rights or interests in such shares of LTIP Units.
For purposes of these calculations:
When measuring the TSR of the Company, the calculation shall be adjusted as deemed appropriate by the Committee to reflect any change in corporate structure of the nature referenced in Section 3.4 of the Plan.
Measurement of the TSR of the NAREIT Apartment Index, the Russell 2000 Value Index, and the companies set forth in the custom peer group for purposes of comparison to the Company’s TSR shall be as reported by SNL Financial or another third party judged by the Committee to be a reputable third party, which measurement shall be confirmed by the Committee.
“bps” shall mean basis points, each of which shall equal 1/100th of 1%.
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ANNEX I
NOTICE OF CONVERSION OF LTIP UNITS
To: Aimco OP L.P.
c/o Aimco OP GP, LLC
4582 South Ulster Street, Suite 1450 Denver, Colorado 80237
Attention: Investor Relations
The undersigned holder of LTIP Units hereby irrevocably elects to convert the number of LTIP Units in Aimco OP L.P. (the “Partnership”) set forth below into Converted LTIP Units in accordance with the terms of the Amended and Restated Agreement of Limited Partnership of Aimco OP L.P., dated as of December 14, 2020, as it may be amended and supplemented from time to time, and the Performance Vesting LTIP Unit Agreement, dated as of ___________ (the “Award Agreement”), between Apartment Investment and Management Company, the Partnership, and ____________. All capitalized terms used herein and not otherwise defined shall have the respective meanings ascribed thereto in the Award Agreement. The undersigned hereby represents, warrants, and agrees that: (i) the undersigned holder of LTIP Units has, and at the Conversion Date will have, good, marketable and unencumbered title to such LTIP Units, free and clear of the rights or interests of any other person or entity; (ii) the undersigned holder of LTIP Units has, and at the Conversion Date will have, the full right, power and authority to convert such LTIP Units as provided herein; and (iii) the undersigned holder of LTIP Units has obtained the consent or approval of all persons and entities, if any, having the right to consent to or approve such conversion.
Name of Holder:
Dated:
Number of LTIP Units to be converted:
Conversion Date:
(Signature of Holder)
(Street Address)
(City) (State) (Zip Code)
Medallion Guarantee:
THE SIGNATURE SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS), WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM PURSUANT TO SEC RULE 17Ad-15.
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