EXHIBIT 10.12
DIVIDEND EQUIVALENT RIGHTS AGREEMENT
UNDER THE SHARE INCENTIVE PLAN OF
SUNSET CAPITAL INVESTMENTS, INC.
This Dividend Equivalent Rights Agreement (the "Agreement") is made and
entered into as of the ___ day of ________, 2003, by and between SUNSET CAPITAL
INVESTMENTS, INC., a Maryland corporation (the "Company"), and the person who
has signed this Agreement and has acquired the Dividend Equivalent Rights
("DERs") pursuant to the grant under this Agreement and all the terms and
conditions thereof (the "Grantee").
1. TERMS OF GRANT OF DERS. The Company hereby grants to the Grantee
DERs with respect to _______ common shares of the Company ("Shares"). The DERs
granted hereunder shall entitle the Grantee to receive a payment equal to the
quarterly dividend (if any) declared and paid by the Company on such number of
Shares. Any dividends that are payable to the Grantee under this Agreement shall
be payable annually on or before December 31 of each calendar year. The term of
the DERs granted hereunder shall be for a period equal to the lesser of 10 years
from the date hereof unless earlier terminated in accordance with the Plan.
2. AWARD GRANTED PURSUANT TO THE PLAN. The DERs awarded pursuant to
this Agreement are issued pursuant to the 2003 Share Incentive Plan of Sunset
Capital Investments, Inc. (the "Plan"). The terms and provisions of the Plan are
incorporated herein by reference, and in the event of any conflict between the
terms and provisions of this Agreement and those of the Plan, the terms and
provisions of the Plan, including, without limitation, the powers of the
Committee thereunder, shall prevail and be controlling.
3. RESTRICTIONS ON TRANSFER. Except as otherwise provided herein, the
DERs issued pursuant to this Agreement, and rights and privileges conferred
hereby, may not be transferred, assigned, pledged, hypothecated or encumbered in
any way (whether by operation of law or otherwise) and shall not be subject to
execution, attachment or similar process. Upon any attempt to transfer, assign,
pledge, hypothecate, encumber or otherwise dispose of the DERs, or any right or
privilege conferred hereby, contrary to the provisions hereof, such DERs shall
automatically be forfeited by the Grantee and returned to the Company.
4. FORFEITURE OF DERS. Except as limited by Section 6 of this
Agreement, in the event that the Grantee's employment with the Company is
terminated for any reason, to the extent set forth in the Plan, all DERs shall
immediately be forfeited by the Grantee to the Company.
5. WITHHOLDING OF APPLICABLE TAXES. The Company shall have the right to
withhold from any transfer or payment made to the Grantee under this Agreement,
all federal, state, city or other taxes as may be required pursuant to any
statute or governmental regulation or ruling. In connection with such
withholding, the Company may make arrangements consistent with this Agreement as
it may deem appropriate.
6. CHANGE IN CONTROL. Notwithstanding anything to the contrary
contained in this Agreement, upon the occurrence of a "Change in Control," all
DERs shall become fully vested in Grantee and shall vest in Grantee or Grantee's
designated beneficiary or estate, on the same
conditions (other than vesting) as would have applied had the Change in Control
not occurred. For purposes of this Agreement, the term "Change in Control" shall
have the meaning assigned to such term under the Plan.
7. NO AGREEMENT OF EMPLOYMENT OR SERVICE. Nothing in this Agreement
shall be construed as giving the Grantee an agreement or understanding, express
or implied, that the Company shall continue the employment or service of such
individual.
8. AMENDMENT AND TERMINATION OF THIS AGREEMENT. This Agreement may be
amended or terminated in whole or in part by the Board of Directors, in its sole
discretion, but no such action shall adversely affect or alter any right or
obligation existing prior to such amendment or termination.
9. BENEFIT OF THIS AGREEMENT. The terms and provisions of this
Agreement shall be binding upon, and shall inure to the benefit of, the Grantee
and his or her executors or administrators, heirs and personal and legal
representatives.
10. GOVERNING LAW. This Agreement shall be construed and interpreted
according to, and governed by, the laws of the State of Maryland, regardless of
the laws that might otherwise govern under the applicable principles of
conflicts of law of the State of Maryland, and all matters pertaining hereto
shall be deemed to be performable in Jacksonville, Florida.
11. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law, such
provisions shall be fully severable, and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, the remaining provisions of this Agreement shall remain
in full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom, and in lieu of such
provision, there shall be added automatically as a part of this Agreement, a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible, and the Company and
Grantee hereby request the court or any arbitrator to whom disputes relating to
this Agreement are submitted to reform the otherwise unenforceable covenant in
accordance with the proceeding provision.
12. NOTICES. Any notice required or permitted under this Agreement
shall be deemed given when delivered personally, or when deposited /in a United
States Post Office, postage prepaid, addressed, as appropriate, to Grantee
either at the address set forth in the records of the Company or such other
address as Grantee may designate in writing to the Board, or to the Board at
0000 Xxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 or such other address as the Board
may designate in writing to Grantee.
13. TRANSFER OF RIGHTS UNDER THIS AGREEMENT. The Company may at any
time transfer and assign its rights and delegate its obligations under this
Agreement to any other person, corporation, firm or entity, with or without
consideration.
-2-
14. SUCCESSORS AND ASSIGNS. Except to the extent specifically limited
by the terms and provisions of this Agreement, this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors, assigns, heirs and personal representatives.
15. MISCELLANEOUS. Titles and captions contained in this Agreement are
inserted for convenience of reference only and do not constitute a part of this
Agreement for any other purpose. Except as specifically provided herein, neither
this Agreement nor any right pursuant hereto or interest herein shall be
assignable by any of the parties hereto without the prior written consent of the
other party hereto.
IN WITNESS WHEREOF, each party hereto has executed and delivered this
Agreement as of the date first written above.
COMPANY:
SUNSET CAPITAL INVESTMENTS, INC.
By:
----------------------------------------
[Name and Title]
GRANTEE
--------------------------------------------
Address:
-----------------------------------
-3-
