Exhibit 10.5.9
20__ STOCK RESTRICTION AGREEMENT
This 20__ Stock Restriction Agreement (the "Agreement") is made as of the
____ day of May, 20__ (the "Agreement Date"), by and between CBL & ASSOCIATES
PROPERTIES, INC., a Delaware corporation (the "Company"), and _________________
(the "Employee").
The Employee's date of receipt of the Stock Award set forth in this
Agreement shall be and is May __, 20__ (the "Receipt Date").
WHEREAS, pursuant to the Plan (as hereinafter defined) and subject to the
terms of this Agreement, the Company desires to grant to the Employee _________
shares of Common Stock, par value $.01 per share (the "Common Stock"), of the
Company.
NOW, THEREFORE, in connection with the mutual covenants hereinafter set
forth and for other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions; Conflicts. Capitalized terms used and not otherwise defined
herein shall have the meanings ascribed thereto in the Amended and Restated CBL
& Associates Properties, Inc. Stock Incentive Plan (the "Plan"). The terms and
provisions of the Plan are incorporated herein and in the event of any conflict
or inconsistency between the terms and provisions of the Plan and the terms and
provisions of this Agreement, the terms and provisions of the Plan shall govern
and control.
2. Grant of Common Stock. Subject to the terms and conditions of this
Agreement, the Company hereby grants to the Employee all right, title and
interest in ____________ shares of Common Stock (the "Stock Award").
3. Vesting. The Stock Award, subject to the terms, conditions and
limitations contained herein (including but not limited to the provisions of
Paragraph 4 below), shall vest in accordance with the following installments:
Twenty percent (20%) on the first anniversary of the Agreement Date hereof, and
an additional twenty percent (20%) on each of the succeeding four (4)
anniversaries of the Agreement Date hereof (the "Vesting Period"); provided
that, with respect to each such installment, the Employee has remained in
continuous employment with the Company from the Agreement Date through the date
such installment is designated to vest.
4. Termination of Employment. (a) General. Except as set forth in Paragraph
4(b) below, if the Employee's employment terminates for any reason, any
non-vested portion of the Stock Award shall thereupon be deemed forfeited and
the Employee shall have no further right, title and/or interest in the
non-vested portion of the shares of Common Stock subject to the Stock Award.
(b) Death or Disability. If the Employee's employment terminates for
reasons of the Employee's death or disability (as defined herein), the portion
of the Stock Award that is non-vested on the date of such termination shall
immediately, on the date of such termination of employment, thereupon vest in
the Employee or his/her estate. For purposes hereof, the term "disability"
refers to the complete and permanent disability of the Employee as defined by
the Company's health insurance plans or as otherwise defined by the Company from
time to time. The Employee acknowledges and agrees that the determination of
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disability shall be within the sole, absolute and exclusive discretion of the
Company.
5. Rights as a Shareholder. The Employee shall have all of the rights as a
shareholder with respect to any shares of Common Stock issued pursuant to the
Stock Award subject only to the transfer restrictions set forth in Paragraph 6
below and forfeiture provisions set forth above. The Employee's rights as a
shareholder shall include the rights to receive all dividends on the Common
Stock and to exercise any voting rights attributable to the Common Stock for so
long as the Employee shall own the Common Stock but such rights shall cease as
to any non-vested portion of the shares of Common Stock subject to the Stock
Award that are forfeited pursuant to the terms of this Agreement.
6. Non-Transferability of Stock Award. Except for any transfers that may be
required by law, including pursuant to any domestic relations order or
otherwise, no non-vested portion of the Common Stock making up the Stock Award
may be transferred by the Employee until the termination of the Vesting Period
(or immediate vesting pursuant to the provisions of Paragraph 4(b) above on
terminations of employment for death or disability) and any non-permitted
attempted transfer by the Employee of any such non-vested portion prior to the
termination of the Vesting Period shall be null and void. Any transferee who may
receive any of such non-vested portion of the Common Stock making up the Stock
Award pursuant to a transfer required by law as set forth above shall be subject
to all the terms and provisions of this Agreement and any termination of the
employment of the Employee prior to the termination of the Vesting Period
(except for terminations of employment pursuant to Paragraph 4(b) above on death
or disability) shall cause the forfeiture of any non-vested shares of the Common
Stock making up the Stock Award even if such shares are in the hands of a
transferee.
7. Certificate Legend. All shares of non-vested Common Stock issued to the
Employee pursuant to the Stock Award (if any of such shares are issued prior to
the vesting thereof) in certificate form shall bear the legend stating that said
shares are subject to and their transferability restricted by the terms and
provisions of this Agreement. The Company agrees to remove said legend from the
referenced shares of Common Stock in the event and at the time the Employee's
right to said shares of Common Stock shall vest. As set forth in Paragraph 14
below, upon the vesting of shares of Common Stock making up the Stock Award,
such vested shares shall be issued in certificate form to the Employee without
the above-stated legend thereon.
8. No Enlargement of Employee Rights. Nothing in this Agreement shall be
construed to confer upon the Employee any right to continued employment or to
restrict in any way the right of the Company or any Subsidiary or Affiliate to
terminate the Employee's employment at any time.
9. Income Tax Withholding. The Company, in its sole discretion, shall make
such provisions and take such steps as it may deem necessary or appropriate for
the withholding of all Federal, state, local and other taxes required by law to
be withheld with respect to the shares of Common Stock issued pursuant to the
Stock Award (as such shares vest or if certain tax elections are made by the
Employee, i.e., a Section 83(b) election under applicable provisions of the
Internal Revenue Code of 1986, as amended (the "Code")) and any dividends paid
on any portion of non-vested shares of Common Stock, including, but not limited
to, the following: (i) deducting the amount of any such withholding taxes
therefrom or from any other amounts then or thereafter payable to the Employee
by the Company or any of its Subsidiaries or Affiliates; (ii) requiring the
Employee, or the beneficiary or legal representative of the Employee, to pay to
the Company the amount required to be withheld or to execute such documents as
the Company deems necessary or desirable to enable the Company to satisfy its
withholding obligations; and/or (iii) withholding from the shares of Common
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Stock otherwise payable and/or deliverable one or more of such shares having an
aggregate Fair Market Value, determined as of the date the withholding tax
obligation arises, less than or equal to the amount of the total withholding tax
obligation.
10. Restricted Stock. The Stock Award granted hereunder is intended to be a
grant of restricted property to the Employee that is subject to a "substantial
risk of forfeiture" as defined in Section 83 of the Code.
11. Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
12. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Delaware without reference to the
principles of conflicts of laws thereof.
13. Headings. Headings are for the convenience of the parties and are not
deemed to be part of this Agreement.
14. Power of Attorney; Restricted Stock Account. The Employee, by execution
of this Agreement, does hereby appoint the Company as the Employee's
attorney-in-fact for the limited purposes of executing any documents or
instruments necessary in conjunction with the shares of Common Stock issued to
the Employee pursuant to the Stock Award while such shares are subject to the
restrictions provided by this Agreement. The Employee understands and
acknowledges that the shares of Common Stock issued to the Employee pursuant to
the Stock Award will be held in an uncertificated form in an account maintained
by the Company's stock transfer agent until such time as such shares of Common
Stock are no longer subject to the restrictions set forth in this Agreement. The
Employee understands and acknowledges that as the shares of Common Stock issued
to the Employee pursuant to the Stock Award shall vest during the Vesting
Period, the Company shall cause such vested shares to be issued out of the
above-stated account and delivered to the Employee in certificated form (less
any applicable employment taxes) and such vested shares shall no longer be
subject to the terms and provisions of this Agreement. The Employee understands
and acknowledges that in the event the Employee's employment with the Company,
its Subsidiaries or Affiliates, is terminated at any time during the Vesting
Period, any non-vested shares of Common Stock making up the Stock Award shall
then be cancelled and/or returned to the Company and that the Company shall be
entitled to take such action on behalf of the Employee in the form of executing
such documents or instruments to authorize the cancellation of such shares
and/or return of same to the Company.
15. Section 83(b) Election. By execution of this Agreement, the Employee is
acknowledging that he/she understands that he/she may make a Section 83(b)
Election with respect to the Stock Award pursuant to applicable provisions of
the Code but that such election must be made on or before the date that is
thirty (30) days from the Receipt Date set forth above.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the Agreement Date first written above.
CBL & ASSOCIATES PROPERTIES, INC.
By: /s/ Stephen D. Lebovitz
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Stephen D. Lebovitz,
President
EMPLOYEE:
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