UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) April 30, 2007
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
(Exact name of registrant as specified in its charter)
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MARYLAND
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1-13232
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84-1259577
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(State or other jurisdiction
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(Commission
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(I.R.S. Employer
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of incorporation or
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File Number)
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Identification No.)
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organization)
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4582 SOUTH ULSTER STREET PARKWAY
SUITE 1100, DENVER, CO
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80237
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone
number, including area code (303) 757-8101
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NOT APPLICABLE
(Former name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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ITEM 5.02.
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Departure of Directors or Principal Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers.
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Adoption of 2007 Stock Award and Incentive Plan
On April 30, 2007, the stockholders of Apartment Investment and Management Company (Aimco)
approved the 2007 Stock Award and Incentive Plan (the 2007 Plan), which provides for the
reservation of 3,000,000 shares of Aimco Class A Common Stock available for issuance thereunder.
The 2007 Plan is the successor to the 1997 Stock Award and Incentive Plan, which expired on April
24, 2007. The 2007 Plan was filed as Appendix A to Aimcos Proxy Statement on Schedule 14A filed
with the Securities and Exchange Commission on March 20, 2007, and is incorporated herein and as
Exhibit 10.1 hereto by reference thereto. The forms of restricted stock agreement and
non-qualified stock option agreement pursuant to which awards may be made under the 2007 Plan are
filed as Exhibits 10.2 and 10.3, respectively, hereto. The administrator, as provided for in the
2007 Plan, has the authority to determine the terms and conditions, not inconsistent with
the terms of the 2007 Plan, of any award granted pursuant thereto.
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ITEM 9.01.
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Financial Statements and Exhibits.
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(d) The
following exhibits are filed with this report:
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Exhibit Number
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Description
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10.1
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2007 Stock Award and Incentive Plan (incorporated by reference to
Appendix A to Aimcos Proxy Statement on Schedule 14A
filed with the Securities and Exchange Commission on
March 20, 2007)
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10.2
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Form of Restricted Stock Agreement
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10.3
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Form of Non-Qualified Stock Option Agreement
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the
Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly
authorized.
Dated: May 4, 2007
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APARTMENT INVESTMENT AND MANAGEMENT
COMPANY
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/s/ Thomas M. Herzog
Thomas M. Herzog
Executive Vice President and Chief
Financial Officer
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EXHIBIT INDEX
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Exhibit Number
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Description
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10.1
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2007 Stock Award and Incentive Plan (incorporated by reference to
Appendix A to Aimcos Proxy Statement on Schedule 14A
filed with the Securities and Exchange Commission on
March 20, 2007)
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10.2
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Form of Restricted Stock Agreement
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10.3
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Form of Non-Qualified Stock Option Agreement
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Exhibit 10.2
FORM
OF RESTRICTED STOCK AGREEMENT
(2007 Stock Award and Incentive Plan)
This RESTRICTED STOCK AGREEMENT, dated as of
(the Agreement), by and between
Apartment Investment and Management Company, a Maryland corporation (the Company), and
(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
2007 Stock Award and Incentive Plan (the Plan).
WHEREAS, effective
(the Date of Grant), the Compensation and Human Resources
Committee (the Committee) of the Board of Directors (the Board) of the Company granted the
Recipient a Restricted Stock Award, pursuant to which the Recipient shall receive shares of the
Companys Class A Common Stock, par value $0.01 per share (Common Stock), pursuant to and subject
to the terms and conditions of the Plan.
NOW, THEREFORE, in consideration of the Recipients 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:
1.
Number of Shares and Share Price
. The Company hereby grants the Recipient a
Restricted Stock Award (the Stock Award)
of
shares of Common Stock (the Restricted
Stock) pursuant to the terms of this Agreement and the provisions of the Plan.
2.
Restrictions and Restricted Period
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(a)
Restrictions
. Shares of Restricted Stock granted hereunder may not be sold,
assigned, transferred, pledged, hypothecated or otherwise disposed of and shall be subject to a
risk of forfeiture until the lapse of the Restricted Period (as defined below). The Company shall
not be required (i) to transfer on its books any shares of Restricted Stock which shall have been
sold or transferred in violation of any of the provisions set forth in this Agreement, or (ii) to
treat as owner of such shares or to accord the right to vote as such owner or to pay dividends to
any transferee to whom such shares shall have been so transferred.
(b)
Lapse of Restrictions; Restricted Period
. The restrictions set forth above shall
lapse and the Restricted Stock shall become freely transferable (
provided
,
that
such transfer is otherwise in accordance with federal and state securities laws) and
non-forfeitable as follows: as to
percent (
%) of the
Restricted Stock on
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as to
percent (
%) of the Restricted Stock on
; as to
percent
(
%) of the Restricted Stock
on
;
and
as to
percent (
%) of the Restricted
Stock on
(the Restricted Period). In order to enforce the foregoing restrictions, the
Board may (i) require that the certificates representing the shares of Restricted Stock remain in
the physical custody of the Company or in book entry until any or all of such restrictions expire
or have been removed, and (ii) may cause a legend or legends to be placed on the certificates which
make appropriate reference to the restrictions imposed under the Plan.
(c)
Rights of a Stockholder
. From and after the Date of Grant and for so long as the
Restricted Stock is held by or for the benefit of the Recipient, the Recipient shall have all the
rights of a stockholder of the Company with respect to the Restricted Stock, including but not
limited to the right to receive dividends and the right to vote such shares, subject to the
provisions of paragraph 2(d) hereof.
(d)
Dividends
. Dividends paid on Restricted Stock shall be paid at the dividend
payment date for the Common Stock, or be deferred for payment to such date as determined by the
Committee; provided such deferral is in compliance with Section 409A of the Code, in cash, shares
of Common Stock or other property. Stock distributed in connection with a Common Stock split or
Common Stock dividend, and other property distributed as a dividend (excluding cash), shall be
subject to restrictions and a risk of forfeiture to the same extent as the Restricted Stock with
respect to which such Common Stock or other property has been distributed.
3.
Termination of Employment
. In the event that Recipient ceases to be employed by
the Company for any reason prior to the lapse of the Restricted Period, then the Restricted Stock
and any accrued but unpaid dividends that are at that time subject to restrictions set forth
herein, 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 Restricted Stock or
certificates. In the event that Recipients employment with the Company is terminated due to his
death or total and permanent disability then the Restricted Period set forth in Section 2(b) hereof
shall immediately lapse as to all shares of Restricted Stock and the Restricted Stock shall become
immediately fully vested. For purposes of this Section 3, Recipients employment will have
terminated by reason of total and permanent disability if, in the reasonable and good faith
judgment of the Company, the Recipient is totally and permanently disabled and is unable to return
to or perform his or her duties on a full-time basis.
4.
Change of Control
. All unvested shares of Restricted Stock issued hereunder shall,
in addition to any provisions relating to vesting contained in this Agreement, become immediately
fully vested upon the occurrence of a Change of Control (as defined below).
For purposes of this Agreement, a Change in Control shall mean the occurrence of
any
of the following events:
(a) an acquisition (other than directly from the Company) of any voting securities of the
Company (the Voting Securities) by any person (as the term person is used for purposes of
Section 13(d) or Section 14(d) of the Securities Exchange Act of 1934, as amended (the Exchange
Act)) immediately after which such person has beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) (Beneficial Ownership) of 50% or more of the combined
voting power of the Companys then outstanding Voting Securities; provided, however, in determining
whether a Change in Control has occurred, Voting Securities that are acquired in a Non-Control
Acquisition (as hereinafter defined) shall not constitute an acquisition that would cause a Change
in Control. Non-Control Acquisition shall mean an acquisition (A) by or
under an employee benefit plan (or a trust forming a part thereof) maintained by (1) the
Company or (2) any corporation, partnership or other person of which a majority of its voting power
or its equity
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securities or equity interest is owned directly or indirectly by the Company or in
which the Company serves as a general partner or manager (a Subsidiary), (B) by the Company or
any Subsidiary, or (C) by any person in connection with a Non-Control Transaction (as hereinafter
defined). Non-Control Transaction shall mean a merger, consolidation, share exchange or
reorganization involving the Company, in which (1) the stockholders of the Company, immediately
before such merger, consolidation, share exchange or reorganization, own, directly or indirectly
immediately following such merger, consolidation, share exchange or reorganization, at least 50% of
the combined voting power of the outstanding voting securities of the corporation that is the
successor in such merger, consolidation, share exchange or reorganization (the Surviving Company)
in substantially the same proportion as their ownership of the Voting Securities immediately before
such merger, consolidation, share exchange or reorganization, and (2) the individuals who were
members of the Board of Directors of the Company immediately prior to the execution of the
agreement providing for such merger, consolidation, share exchange or reorganization constitute at
least 50% of the members of the board of directors of the Surviving Company;
(b) the individuals who constitute the Board as of the date hereof (the Incumbent Board)
cease for any reason to constitute at least 50% of the Board; provided, however, that if the
election, or nomination for election by the Companys stockholders, of any new director was
approved by a vote of at least two-thirds of the Incumbent Board, such new director shall be
considered as a member of the Incumbent Board; provided, further, that no individual shall be
considered a member of the Incumbent Board if such individual initially assumed office as a result
of either an actual or threatened election contest (as described in Rule 14a-11 promulgated under
the Exchange Act) (an Election Contest) or other actual or threatened solicitation of proxies or
consents by or on behalf of a person other than the Board of Directors (a Proxy Contest)
including by reason of any agreement intended to avoid or settle any Election Contest or Proxy
Contest; or
(c) the consummation of any of the following: (A) a merger, consolidation, share exchange or
reorganization involving the Company (other than a Non-Control Transaction); (B) a complete
liquidation or dissolution of the Company; or (C) an agreement for the sale or other disposition of
all or substantially all of the assets of the Company to any person (other than a transfer to a
Subsidiary).
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.
5.
Tax Withholding; Tax Treatment
.
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(a)
Tax Withholding
. Notwithstanding anything to the contrary, the release of the
shares of Restricted Stock hereunder shall be conditioned upon the Recipient making adequate
provision for federal, state or other withholding obligations, if any, which may arise upon the
vesting of the Restricted Stock.
(b)
Tax Treatment
. Set forth below is a brief summary as of the Date of Grant of
certain United States federal tax consequences of the award of Restricted Stock. THIS SUMMARY DOES
NOT ADDRESS SPECIFIC STATE, LOCAL OR FOREIGN TAX CONSEQUENCES THAT MAY BE APPLICABLE TO THE
RECIPIENT. THE RECIPIENT UNDERSTANDS THAT THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS
AND REGULATIONS ARE SUBJECT TO CHANGE.
TO ENSURE COMPLIANCE WITH TREASURY DEPARTMENT REGULATIONS, WE ADVISE YOU THAT, UNLESS OTHERWISE
EXPRESSLY INDICATED, ANY FEDERAL TAX ADVICE CONTAINED IN THIS AGREEMENT WAS NOT INTENDED OR WRITTEN
TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE
CODE OR (II) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTERS
ADDRESSED HEREIN.
Unless the Recipient has filed a Section 83(b) election as discussed below, the Recipient
shall recognize ordinary income at the time or times the Restricted Stock vests in an amount equal
to the aggregate Fair Market Value of such shares on each such date.
The Recipient hereby acknowledges that he or she has been informed that, with respect to the
grant of Restricted Stock, an election may be filed by the Recipient with the Internal Revenue
Service, within 30 days of the Date of Grant, electing pursuant to Section 83(b) of the Internal
Revenue Code of 1986, as amended (the Code), to be taxed currently on the aggregate Fair Market
Value of the Restricted Stock as of the Date of Grant.
THE RECIPIENT ACKNOWLEDGES THAT IT IS THE RECIPIENTS SOLE RESPONSIBILITY AND NOT THE
COMPANYS TO FILE TIMELY THE ELECTION UNDER SECTION 83(b) OF THE CODE, EVEN IF THE RECIPIENT
REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO MAKE THIS FILING ON THE RECIPIENTS BEHALF.
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.
6.
Miscellaneous
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(a)
Entire Agreement
. This Agreement and the Plan contain the entire understanding
and agreement of the Company and the Recipient concerning the subject matter hereof, and supersede
all earlier negotiations and understandings, written or oral, between the parties with respect
thereto.
(b)
Captions
. The captions and section numbers appearing in this Agreement are
inserted only as a matter of convenience. They do not define, limit, construe or describe the
scope or intent of the provisions of this Agreement.
(c)
Counterparts
. This Agreement may be executed in counterparts, each of which when
signed by the Company or the Recipient will be deemed an original and all of which together will be
deemed the same agreement.
(d)
Notices
. Any notice or communication having to do with this Agreement must be
given by personal delivery or by certified mail, return receipt requested, addressed, if to the
Company or the Committee, to the attention of the General Counsel of the Company at the principal
office of the Company and, if to the Recipient, to the Recipients last known address contained in
the personnel records of the Company.
(e)
Succession and Transfer
. Each and all of the provisions of this Agreement are
binding upon and inure to the benefit of the Company and the Recipient and their permitted
successors, assigns and legal representatives.
(f)
Amendments
. Subject to the provisions of the Plan, this Agreement may be amended
or modified at any time by an instrument in writing signed by the parties hereto.
(g)
Governing Law
. This Agreement and the rights of all persons claiming hereunder
will be construed and determined in accordance with the laws of the State of Maryland without
giving effect to the choice of law principles thereof.
(h)
Plan Controls
. This Agreement is made under and subject to the provisions of the
Plan, and all of the provisions of the Plan are hereby incorporated by reference into this
Agreement. In the event of any conflict between the provisions of this Agreement and the
provisions of the Plan, the provisions of the Plan shall govern. By signing this Agreement, the
Recipient confirms that he or she has received a copy of the Plan and has had an opportunity to
review the contents thereof.
(i)
No Guarantee of Continued Service
. The Recipient acknowledges and agrees that
nothing herein, including the opportunity to make an equity investment in the Company, shall be
deemed to create any implication concerning the adequacy of the Recipients services to the
Company, any Company Subsidiary or any Partnership or Partnership Subsidiary shall be construed as
an agreement by the Company, any Company Subsidiary or any Partnership or Partnership Subsidiary,
express or implied, to employ the Recipient or contract for the Recipients services, to
restrict the right of the Company, any Company Subsidiary or any Partnership or Partnership
Subsidiary, as applicable, to discharge the Recipient or cease contracting for the Recipients
services
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or to modify, extend or otherwise affect in any manner whatsoever, the terms of any
employment agreement or contract for services that may exist between the Recipient and the Company,
any Company Subsidiary or any Partnership or Partnership Subsidiary, as applicable.
{Signature page follows}
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
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APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
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By:
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Name:
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Title:
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RECIPIENT:
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By:
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Exhibit 10.3
FORM
OF NON-QUALIFIED STOCK OPTION AGREEMENT
(2007 Stock Award and Incentive Plan)
NON-QUALIFIED STOCK OPTION AGREEMENT, dated as of
(the Agreement),
by and between Apartment Investment and Management Company, a Maryland corporation (the Company),
and
(the Optionee). Capitalized terms used but not otherwise defined in
this Agreement shall have the respective meanings set forth in the Apartment Investment and
Management Company 2007 Stock Award and Incentive Plan, as amended (the Plan).
WHEREAS, on
(the Grant Date) the Compensation Committee (the
Committee) of the Board of Directors (the Board) of the Company awarded the Optionee a
non-qualified stock option, exercisable to purchase shares of the Companys Class A Common Stock,
par value $.01 per share (Common Stock), pursuant to, and subject to the terms and provisions of,
the Plan.
NOW, THEREFORE, in consideration of the Optionees 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:
1.
Number of Shares and Purchase Price
. The Company hereby grants the Optionee a
non-qualified stock option (the Option) to purchase
shares of Common Stock
(the Option Shares) at a purchase price per share equal
to $
the Exercise
Price), pursuant to the terms of this Agreement and the provisions of the Plan.
2.
Period of Option and Conditions of Exercise.
(a) Unless the Option is previously terminated pursuant to this Agreement or the Plan, the
Option shall terminate on the tenth anniversary of the Date of Grant (the Expiration Date). Upon
the termination of the Option, all rights of the Optionee hereunder shall cease.
(b) Subject to the provisions of the Plan and this Agreement, the Option shall become
exercisable: (i) as to
% of the Option Shares on
;
(ii) as to
% of the Option
Shares on
;
(iii) as to
% of the Option Shares on
; and (iv) as to
%
of the Option Shares on
.
3.
Change of Control.
All unexercised and unvested stock options issued hereunder shall, in addition to any
provisions relating to exercisability contained in this Agreement, become immediately fully vested
and exercisable by the Optionee upon the occurrence of a Change of Control (as defined below).
For purposes of this Agreement, a Change in Control shall mean the occurrence of
any
of the following events:
(a) an acquisition (other than directly from the Company) of any voting securities of the
Company (the Voting Securities) by any person (as the term person is used for purposes of
Section 13(d) or Section 14(d) of the Securities Exchange Act of 1934, as amended (the Exchange
Act)) immediately after which such person has beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) (Beneficial Ownership) of 50% or more of the combined
voting power of the Companys then outstanding Voting Securities; provided, however, in determining
whether a Change in Control has occurred, Voting Securities that are acquired in a Non-Control
Acquisition (as hereinafter defined) shall not constitute an acquisition that would cause a Change
in Control. Non-Control Acquisition shall mean an acquisition (A) by or under an employee
benefit plan (or a trust forming a part thereof) maintained by (1) the Company or (2) any
corporation, partnership or other person of which a majority of its voting power or its equity
securities or equity interest is owned directly or indirectly by the Company or in which the
Company serves as a general partner or manager (a Subsidiary), (B) by the Company or any
Subsidiary, or (C) by any person in connection with a Non-Control Transaction (as hereinafter
defined);
(b) the individuals who constitute the Board of Directors of the Company as of the date hereof
(the Incumbent Board) cease for any reason to constitute at least 50% of the Board of Directors;
provided, however, that if the election, or nomination for election by the Companys stockholders,
of any new director was approved by a vote of at least two-thirds of the Incumbent Board, such new
director shall be considered as a member of the Incumbent Board; provided, further, that no
individual shall be considered a member of the Incumbent Board if such individual initially assumed
office as a result of either an actual or threatened election contest (as described in Rule
14a-11 promulgated under the Exchange Act) (an Election Contest) or other actual or threatened
solicitation of proxies or consents by or on behalf of a person other than the Board of Directors
(a Proxy Contest) including by reason of any agreement intended to avoid or settle any Election
Contest or Proxy Contest; or
(c) the consummation of any of the following: (A) a merger, consolidation, share exchange or
reorganization involving the Company,
unless
(1) the stockholders of the Company,
immediately before such merger, consolidation, share exchange or reorganization, own, directly or
indirectly immediately following such merger, consolidation, share exchange or reorganization, at
least 50% of the combined voting power of the outstanding voting securities of the corporation that
is the successor in such merger, consolidation, share
exchange or reorganization (the Surviving Company) in substantially the same proportion as
their ownership of the Voting Securities immediately before such merger, consolidation, share
exchange or reorganization, and (2) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for such merger, consolidation, share
exchange or reorganization constitute at least 50% of the members of the board of directors of the
Surviving Company; (B) a complete liquidation or dissolution of the Company; or (C) an agreement
for the sale or other disposition of all or substantially all of the assets of the Company to any
person (other than a transfer to a Subsidiary).
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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.
4.
Termination of Employment.
(a) Except as provided in this Section 4, the Option may not be exercised after the Optionee
has ceased to be employed by the Company or one of its affiliates. In the event that the Optionee
ceases to be employed by the Company or one of its affiliates, the Option may be exercised
following such termination, as follows:
(i) if the Optionees termination of employment is due to his or her death or Disability (as
defined below), all unexercised and unvested stock options issued hereunder shall become
immediately fully vested and exercisable by the Optionee and the Option shall remain exercisable
until the Expiration Date for all Option Shares;
(ii) if the Optionee ceases to be employed by the Company or an affiliate other than due to
death, Disability or termination for Cause, the Option shall remain exercisable for a period of
ninety (90) days following such termination (but in no event later than the Expiration Date) with
respect to all Option Shares for which the Option was otherwise exercisable as of the date of such
termination, and shall thereafter terminate; and
(iii) if the Optionees termination is by the Company or one of its affiliates for Cause (as
defined below), the Option shall terminate immediately on the date of the such termination.
5.
Exercise of Option
.
(a) The Option may be exercised only by the Optionee or, in the event of the death or
incapacity of the Optionee, the Optionees successor, heir or legal representative. The Option
shall be exercised by delivery to the Company of (i) a written notice, substantially in the form
attached hereto as
Exhibit A
, specify the number of Option Shares for which the Option is
being exercised to purchase, and (ii) full payment of the Exercise Price for such number of Option
Shares being purchased (in respect of such Option Shares, the Total Exercise Price), in the
manner provided below, and any transfer or withholding taxes applicable thereto.
(b) Payment of the Exercise Price for any Option Shares being purchased shall be made as
follows:
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(i) The Optionee may satisfy all or any portion of the Total Exercise Price by delivery to the
Company of cash, by certified or cashiers check, or
(ii) The Optionee may satisfy all of any portion of the Total Exercise Price by (A)
assignment, transfer and delivery to the Company, free of any liens, claims or encumbrances, of
shares of Common Stock that the Optionee owns, or (B) assignment and transfer to the Company, free
of any liens, claims or encumbrances, of common partnership units of AIMCO Properties, L.P. (OP
Units) that the Optionee owns. If the Optionee pays by assignment, transfer and delivery of
shares of Common Stock, the Optionee must include with the notice of exercise the certificates for
such shares of Common Stock, either duly endorsed for transfer or accompanied by an appropriately
executed stock power in favor of the Company. If the Optionee pays by assignment and transfer of
OP Units, the Optionee must include with the notice of exercise a duly executed assignment of all
of the Optionees interest in such OP Units. For purposes of this Agreement, the value of all such
shares of Common Stock delivered by the Optionee will be their Fair Market Value, and the value of
all OP Units assigned by the Optionee will be the Fair Market Value of the number of shares of
Common Stock for which such OP Units are then subject to exchange upon a redemption of such OP
Units. If the value of the shares of Common Stock delivered, or OP Units assigned, by the Optionee
exceeds the amount required to be paid pursuant to this Section 4, the Company will provide to the
Optionee, as soon as practicable, cash or a check in an amount equal to the value of any fractional
portion of a share of Common Stock or OP Unit, and will issue a certificate to the Optionee for any
whole share(s) of Common Stock or OP Units exceeding the number of shares of Common Stock or OP
Units required to pay the Exercise Price for all Option Shares being purchased; or
(iii) At the discretion of the Administrator, the Optionee may satisfy all of any portion of
the Total Exercise Price by means of a cashless exercise procedure.
(c) Not less than 100 shares of Common Stock may be purchased at any time upon the exercise of
the Option, unless the number of shares of Common Stock so purchased constitutes the total number
of Option Shares for which the Option is then exercisable. The Option may be exercised only to
purchase whole shares of Common Stock, and in no case may a fractional share of Common Stock be
purchased. The right of the Optionee to purchase Option Shares for which the Option is then
exercisable may be exercised, in whole or in part, at any time or from time to time, prior to the
Expiration Date.
(d) The Company may require the Optionee to pay, prior to the delivery of any Option Shares to
which the Optionee shall be entitled upon exercise of the Option, an amount equal to the Federal,
state and local income taxes and other amounts required by law to be withheld by the Company with
respect thereto. Alternatively, the Optionee may authorize the Company to withhold from the number
of Option Shares he or she would otherwise receive upon exercise of the Option, that number of
Option Shares having a Fair Market Value equal to the minimum statutory withholding taxes with
respect thereto.
(e) This Option may not be exercised unless such exercise is in compliance with the Securities
Act of 1933, as amended (the Securities Act) and all applicable state securities laws as they are
in effect on the date of exercise and the requirements of any stock
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exchange or national market
system on which the Common Stock may be listed at the time of exercise. The Optionee understands
that the Company is under no obligation to register, qualify or list the Option Shares with the
Securities Exchange Commission, any state securities commission or any stock exchange or national
market system to effect such compliance.
6.
Definitions
. For purposes of this Agreement:
(a) Cause shall mean the termination of employment of the Optionee with the Company or a
Subsidiary as a result of (i) the performance by the Optionee of any activity involving fraud or
dishonesty, (ii) the conviction of the Optionee of a felony or crime involving moral turpitude,
(iii) the failure or refusal of the Optionee to reasonably or satisfactorily perform any material
duties or responsibilities reasonably required of him or her by the Company, (iv) the gross
negligence or willful neglect or malfeasance by the Optionee in the performance or non-performance
of his or her duties or responsibilities to the Company, or (v) any unauthorized act or omission by
the Optionee that is injurious in any material respect to the financial condition or business
reputation of the Company.
(b) The Optionees employment will have terminated by reason of Disability if, in the
reasonable and good faith judgment of the Company, the Optionee is totally and permanently disabled
and is unable to return to or perform his or her duties on a full-time basis.
7.
Tax Withholding
. The Company shall have the power and the right to deduct or
withhold, or require the Optionee to remit to the Company, an amount sufficient to satisfy any
Federal, state, and local taxes (including the Optionees FICA obligation) required by law to be
withheld as a result of any taxable event arising in connection with the Option, in accordance with
the terms of the Plan and applicable law.
8.
No Right to Employment
. Nothing in the Plan or this Agreement shall confer on the
Optionee any right to continue in the employ of, or other relationship with, the Company, any
Company Subsidiary, the Partnership or any Partnership Subsidiary or limit in any way the right of
the Company, any Company Subsidiary, the Partnership or any Partnership Subsidiary to terminate the
Optionees employment or other relationship at any time, with or without cause.
9.
No Rights as a Stockholder
. Neither the Optionee nor any of the Optionees
successors in interest shall have any rights as a stockholder of the Company with respect to any
shares of Stock subject to the Stock Option until the date such shares are credited in electronic
form in an account by the Companys transfer agent or other designee or the date of issuance of a
stock certificate for such shares.
10.
Miscellaneous
.
(a)
Entire Agreement
. This Agreement and the Plan contain the entire understanding
and agreement of the Company and the Optionee concerning the subject matter
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hereof, and supersede
all earlier negotiations and understandings, written or oral, between the parties with respect
thereto.
(b)
Captions
. The captions and section numbers appearing in this Agreement are
inserted only as a matter of convenience. They do not define, limit, construe or describe the
scope or intent of the provisions of this Agreement.
(c)
Counterparts
. This Agreement may be executed in counterparts, each of which when
signed by the Company or the Optionee will be deemed an original and all of which together will be
deemed the same agreement.
(d)
Notices
. Any notice or communication having to do with this Agreement must be
given by personal delivery or by certified mail, return receipt requested, addressed, if to the
Company or the Committee, to the attention of the Legal Department of the Company at the principal
office of the Company and, if to the Optionee, to the Optionees last known address contained in
the personnel records of the Company.
(e)
Succession and Transfer
. Each and all of the provisions of this Agreement are
binding upon and inure to the benefit of the Company and the Optionee and their successors, assigns
and legal representatives; provided, however, that the Option granted hereunder shall not be
transferable by the Optionee (or the Optionees successor or legal representative) other than by
will or by the laws of descent and distribution and may be exercised during the lifetime of the
Optionee, only by the Optionee or by his or her guardian or legal representative.
(f)
Amendments
. Subject to the provisions of the Plan, this Agreement may be amended
or modified at any time by an instrument in writing signed by the parties hereto.
(g)
Governing Law
. This Agreement and the rights of all persons claiming hereunder
will be construed and determined in accordance with the laws of the State of Maryland without
giving effect to the choice of law principles thereof.
(h)
Plan Controls
. This Agreement is made under and subject to the provisions of the
Plan, and all of the provisions of the Plan are hereby incorporated by reference into this
Agreement. In the event of any conflict between the provisions of this Agreement and the
provisions of the Plan, the provisions of the Plan shall govern. By signing this Agreement, the
Optionee confirms that he or she has received a copy of the Plan and has had an opportunity to
review the contents thereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
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APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
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By:
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Name:
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Title:
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OPTIONEE:
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By:
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Name:
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Exhibit A
NOTICE OF EXERCISE OF STOCK OPTION
, 20__
Apartment Investment and Management Company
4582 South Ulster Street Parkway
Suite 1100
Denver, CO 80237
Attn: General Counsel
Ladies and Gentlemen:
Reference is made to that certain Non-Qualified Stock Option Agreement, dated as of
(the Agreement), by and between Apartment Investment and Management Company
(the Company) and
.
I am hereby exercising the Option to purchase
option shares at the exercise price
of
$
per share, for a total exercise price of $
.
I am paying
100%
of the total exercise price with respect to the option shares as follows:
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By enclosing cash and/or a check payable to the Company in the amount of
$_
.
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By enclosing a stock certificate duly endorsed for transfer or accompanied by
an appropriately executed stock power in favor of the Company, representing
shares of Common Stock.
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By enclosing a duly executed assignment of
units of limited
partnership interest in AIMCO Properties, L.P. (OP Units) in favor of the Company and
a certificate representing such OP Units.
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By cashless same-day sale. I authorize my broker to pay out of my account to
AIMCO, the total exercise amount listed above and, if applicable, all taxes due for a
Non-Qualified stock option.
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I am paying
100%
of the local, state and Federal withholding taxes and/or all other taxes that
the Company has advised me are due as follows:
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By enclosing cash and/or a certified or cashiers check payable to the Company
in the amount of $
.
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By hereby authorizing and directing the Company to withhold all amounts that
the Company has advised me are due ($
).
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I acknowledge that the Company has no obligation to issue a certificate evidencing any option
shares purchasable by me until the total exercise price of such option shares being exercised
hereby and all applicable taxes are fully paid.
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Very truly yours,
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(Signature)
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Name:
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Address:
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Phone:
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SSN:
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