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EXHIBIT D2.2
THE MILLS CORPORATION
RESTRICTED STOCK AWARD AGREEMENT
This RESTRICTED STOCK AWARD AGREEMENT (the "Agreement") is entered into as of
_________, (the "Date of Grant") by and between THE MILLS CORPORATION, a
Delaware corporation (the "Company") and _________ (the "Grantee").
RECITALS
The Company has adopted the Mills Corporation 1999 Stock Option Plan
(which plan, as amended from time to time, is referred to as the "1999 Plan")
which provides for the grant under certain circumstances of shares of common
stock of the Company (the "Shares"), which Shares have a par value of $0.01 per
share. Capitalized terms used but not defined herein shall have the meanings
assigned to them in the 1999 Plan.
Grantee is a key employee of the Company. The Company has granted to
Grantee Shares under the Plan (the "Restricted Stock Award"), subject to the
terms and conditions set forth below, in connection with the Company's
employment of the Grantee.
In consideration of the grant of the Restricted Stock Award and other
benefits, the Grantee is willing to accept the Restricted Stock Award provided
for in this Agreement and is willing to abide by the obligations imposed on
Grantee under this Agreement.
NOW THEREFORE, in consideration of the mutual benefits hereinafter
provided, and each intending to be legally bound, the Company and the Grantee
hereby agree as follows:
SECTION 1. EFFECT OF THE PLAN. The Grantee will abide by, and the
Restricted Stock Award granted to the Grantee will be subject to, all of the
provisions of the 1999 Plan and of this Agreement, together with all rules and
determinations from time to time issued by the Company's Executive Compensation
Committee (the "Committee") and by the Board of Directors of the Company (the
"Board") pursuant to the 1999 Plan. The Company hereby reserves the right to
amend, modify, restate, supplement or terminate the 1999 Plan without the
consent of Grantee, so long as such amendment, modification, restatement or
supplement shall not materially reduce the rights and benefits available to
Grantee hereunder, and this Agreement shall be subject, without further action
by the Company or the Grantee, to such amendment, modification, restatement or
supplement.
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SECTION 2. GRANT. Subject to the terms and conditions of this Agreement,
the Company hereby grants and issues to Grantee _______ Shares ("Awarded
Shares").
SECTION 3. AWARDED SHARES.
SECTION 3.1 VESTING SCHEDULE; SERVICE REQUIREMENT. Grantee's
ownership of Awarded Shares shall become vested (i.e. nonforfeitable) if the
Grantee has been employed as an Employee continuously from the Date of Grant to
the applicable Vesting Date set forth in the following vesting schedule:
PERCENTAGE OF VESTING DATE
SHARES VESTED
33 1/3 First Anniversary of
April 1, 2000
66 2/3 Second Anniversary of
April 1, 2000
100 Third Anniversary of
April 1, 2000
If (a) the Company terminates Grantee's employment, and (b) such termination
does not constitute a Termination for Cause (as hereinafter defined), then the
Awarded Shares shall become fully vested as of the date of such termination.
Upon a Change of Control (as defined in the 1999 Plan), all Restricted Stock
shall become fully vested, subject to Section 10 of the 1999 Plan. "Termination
for Cause" shall mean termination of employment by the Company following the
occurrence of any one of the following events: (i) the Grantee commits an act of
fraud with respect to the Company or any one of its affiliates, (ii) the Grantee
is convicted of any felony (iii) the Grantee continually fails to substantially
perform Grantee's duties in the course of Grantee's employment (other than any
such failure resulting from the Company's act or failure to act of the Permanent
Disability of Grantee) for a period of thirty days after receipt by Grantee of
written notice from the Company of such failure, which notice shall identify in
reasonable detail in the nature of Grantee's failure to perform.
Except as otherwise provided in the preceding paragraph, no additional
vesting shall occur after Grantee incurs a termination from employment with the
Company for any reason. For purposes of this Agreement, termination from
employment shall be deemed to occur on the last day actually worked by Grantee,
rather than the last day Grantee is on the payroll of the Company. The Committee
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shall determine whether a leave of absence shall constitute a termination of
employment.
SECTION 3.2 LIMITATION PERIOD. The period commencing on the Date of
Grant during which the Awarded Shares are subject to forfeiture is referred to
herein as the "Limitation Period". Awarded Shares that have not vested or become
nonforfeitable during the Limitation Period are referred to herein as
"Restricted Stock." Except as otherwise determined by the Committee, during the
Limitation Period the Grantee may not sell, transfer, assign, pledge or
otherwise encumber or dispose of Restricted Stock. Any such action by Grantee in
violation of this Section 3.2 shall be void and no force or effect, and shall
result in the immediate forfeiture of all Restricted Stock. If a certificate
representing Restricted Stock has been issued, the certificate shall be affixed
with a legend setting forth the restrictions applicable to the transfer of such
Shares and otherwise conforming to the requirements of Section 7.6(b)(iv) of the
Plan. When the restrictions applicable to Restricted Stock shall lapse, a new
certificate for such Shares shall be delivered to the Grantee free of such
restrictions. Restricted Stock that is forfeited shall be immediately
transferred to the Company without any payment by the Company; the Company shall
have the full right to cancel certificates evidencing such forfeited shares
automatically upon such forfeiture, whether or not such certificates shall have
been surrendered to the Company. Following such forfeiture, the Grantee shall
have no further rights with respect to such forfeited Shares.
SECTION 3.3 DEATH OR DISABILITY. If before the end of the Limitation
Period, the Grantee sustains a Permanent Disability or dies, all Restricted
Stock shall become vested Awarded Shares, and the Company shall grant and issue
to the Grantee, the Grantee's legal guardian, or the executor or administrator
of the estate of the Grantee or the person or persons to whom rights under this
Agreement shall have passed by bequest or inheritance, as the case may be, a
stock certificate for such Awarded Shares free of the restrictions set forth in
Section 7.6(b)(iv) of the 1999 Plan.
SECTION 3.4 NON-TRANSFERABILITY. This Restricted Stock Award may not
be transferred, assigned, pledged or disposed of in any manner whatsoever,
except that it may be transferred by will or the laws of descent and
distribution. Any attempt at any transfer, assignment, pledge, or other
disposition shall be null and void and without effect and shall cause the
immediate termination of the entire Restricted Stock Award.
SECTION 4. DIVIDEND AND VOTING RIGHTS. Subject to the restrictions
contained in this Agreement, Grantee shall have the rights of a shareholder with
respect to the Awarded Shares, including the right to vote all such Shares,
including Restricted Stock, and to receive all dividends, cash or stock, paid or
delivered thereon, from and after the earlier of the date hereof. The forfeiture
of
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Restricted Stock pursuant to Section 3.2 hereof shall not create any
obligation to repay dividends received as to such Restricted Stock during the
Limitation Period, nor shall such forfeiture invalidate any votes given by
Grantee with respect to such Shares prior to forfeiture.
SECTION 5. WITHHOLDING OF TAXES. The parties hereto recognize that the
Company, a subsidiary or an affiliate may be obligated to withhold federal,
state and local income taxes and social security taxes to the extent that the
Grantee realizes ordinary income in connection with the vesting of the
Restricted Stock or the payment of dividends on the Restricted Stock. The
Grantee agrees that the company, a subsidiary or an affiliate may withhold
amounts needed to cover such taxes from payments otherwise due and owing to the
Grantee, and also agrees that upon demand the Grantee will promptly pay to the
Company, a subsidiary or an affiliate having such obligation any additional
amounts as may be necessary to satisfy such withholding tax obligation. Such
payment shall be made in cash or cash equivalent.
SECTION 6. NOTICES. Any notice to be given to the Company shall be
addressed to the Treasurer of the Company at the Company's principal executive
office, and any notice to be given to Grantee shall be addressed to Grantee at
the address then appearing on the personnel records of the Company or the
subsidiary of the Company by which he or she is employed, or at such other
address as either party hereafter may designate in writing to the other. Any
such notice shall be deemed to have been duly given when deposited in the United
States mail, addressed as aforesaid, registered or certified mail, and with
proper postage and registration or certification fees prepaid.
SECTION 7. GOVERNING LAW. The law of the State of Delaware, except its
law with respect to choice of law, shall be controlling in all matters relating
to this Agreement.
SECTION 8. NO EMPLOYMENT RIGHTS. Grantee acknowledges and agrees that
nothing herein or in the 1999 Plan, nor any of the rights granted hereunder or
thereunder to Grantee, shall be construed to (a) give Grantee the right to
remain employed by the Company, the Limited Partnership or to any of their
affiliates or to any benefits specifically provided hereunder or under the 1999
Plan, or (b) in any manner modify the right of the Company, the Limited
Partnership or any of their affiliates to modify, amend or terminate any of its
employee benefit plans.
SECTION 9. NATURE OF PAYMENTS. Any and all grants or deliveries of Shares
hereunder shall constitute special incentive payments to the Grantee and shall
not be taken into account in computing the amount of salary or compensation of
the Grantee for the purpose of determining any pension, retirement, death or
other benefits under (a) any pension, retirement, profit-sharing, bonus, life
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insurance or other employee benefit plan of the Company, the Limited Partnership
or any of their affiliates, or (b) any agreement between the Company, the
Limited Partnership or any of their affiliates on the one hand, and the Grantee
on the other hand, except as such plan or agreement shall otherwise expressly
provide.
SECTION 10. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement embodies
the entire agreement of the parties hereto with respect to the Restricted Stock
Award, the Awarded Shares, and all other matters contained herein. This
Agreement supersedes and replaces any and all prior oral or written agreements
with respect to the subject matter hereof. This Agreement may be amended, and
any provision hereof waived, but only in writing signed by the party against
whom such amendment or waiver is sought to be enforced. A waiver on one occasion
shall not be deemed to be a waiver of the same or any other breach on a future
occasion. If there is any inconsistency between the provisions of this Agreement
and of the 1999 Plan, the provisions of the 1999 Plan shall govern.
IN WITNESS WHEREOF, the Company and the Grantee have caused this
Agreement to be duly executed as of the date first above written.
Company: THE MILLS CORPORATION,
a Delaware corporation
By:
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Thomas E. Frost
Executive Vice President
Grantee:
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[NAME]
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