EXHIBIT 10.4
LONG TERM INCENTIVE PLAN
UNIT VESTING AGREEMENT
UNDER THE VINTAGE WINE TRUST INC.
2005 EQUITY INCENTIVE PLAN
AGREEMENT by and between Vintage Wine Trust Inc., a Maryland corporation
(the "Company"), and ______________ (the "Grantee"), dated as of the 23rd day of
March, 2005.
WHEREAS, the Company maintains the Vintage Wine Trust Inc. 2005 Equity
Incentive Plan (as amended from time to time, the "Plan") (capitalized terms
used but not defined herein shall have the respective meanings ascribed thereto
by the Plan);
WHEREAS, Vintage Wine Trust LP (the "Partnership") was formed and is
operated in accordance with the First Amended and Restated Agreement of Limited
Partnership of Vintage Wine Trust LP (the "Partnership Agreement");
WHEREAS, as of the date hereof the Company owns indirectly 100% of the
general partnership interests and substantially all of the limited partnership
interests in the Partnership;
WHEREAS, the Grantee is an employee of the Company; and
WHEREAS, the Committee has determined that it is in the best interests of
the Company and its shareholders to grant LTIP Units to the Grantee subject to
the terms and conditions set forth below.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Grant of LTIP Units.
The Company hereby grants the Grantee __________ LTIP Units (as defined in
the Partnership Agreement, the "LTIP Units") subject to the following terms and
conditions and subject to the provisions of the Plan. The Plan is hereby
incorporated herein by reference as though set forth herein in its entirety.
2. Restrictions and Conditions.
(a) The LTIP Units awarded pursuant to this Agreement and the Plan shall
be subject to the following restrictions and conditions:
(i) Subject to the provisions of the Plan and this Agreement, during
the Restriction Period, the Grantee shall not be permitted voluntarily
or involuntarily to sell, transfer, pledge, anticipate, alienate,
encumber or assign the LTIP Units (or have such LTIP Units attached or
garnished). Subject to clauses (iii), (iv), (v) and (vi) below, the
period of restriction with respect to LTIP Units granted hereunder
(the "Restriction Period") shall begin on the date hereof and lapse on
the following schedule:
Vesting Date Number of LTIP Units
Notwithstanding the foregoing, unless otherwise expressly provided by
the Committee, the Restriction Period with respect to such LTIP Units
shall only lapse as to whole LTIP Units.
(ii) Except as provided in the foregoing clause (i), below in this
clause (ii) or in the Plan, the Grantee shall have, in respect of the
LTIP Units, all of the rights of a holder of OP Units, as set forth in
the Partnership Agreement. Distributions on and allocations with
respect to the LTIP Units shall be made to the Grantee in accordance
with the terms of the Partnership Agreement.
(iii) Subject to clauses (iv), (v) and (vi) below, if the Grantee has
a Termination of Service by the Company and its Subsidiaries for
Cause, or by the Grantee for any reason, during the Restriction
Period, then LTIP Units that have not vested at that time will be
forfeited to the Company without payment of any consideration by the
Company, and neither the Grantee nor his successors, heirs, assigns,
or personal representatives will thereafter have any further rights or
interests in such LTIP Units.
(iv) In the event the Grantee has a Termination of Service on account
of death Disability, or Retirement, or the Grantee has a Termination
of Service by the Company and its Subsidiaries for any reason other
than Cause, or in the event of a Change in Control (regardless of
whether a termination follows thereafter), during the Restriction
Period, then the Restriction Period will immediately lapse on all LTIP
Units granted to the Grantee and not forfeited previously.
(v) If the Grantee commences or continues service as a Director or
consultant of the Company or one of its Subsidiaries upon termination
of employment, such continued service shall be treated as continued
employment hereunder (and for purposes of the Plan), and the
subsequent termination of service shall be treated as the applicable
termination of employment for purposes of this Agreement.
(vi) If the Grantee is party to an employment agreement which provides
that LTIP Units subject to restriction shall be subject to terms other
than those set forth above, the terms of such employment agreement
shall apply with respect to the LTIP Units granted hereby and shall,
to the extent applicable, supersede the terms hereof.
(b) The Grantee shall have no rights with respect to this Agreement unless
he or she shall have accepted this Agreement prior to the close of
business on the date specified above by (i) signing and delivering to
the Partnership a copy of this Agreement and (ii) unless the Grantee
is already a Limited Partner (as defined in the Partnership
Agreement), signing, as a Limited Partner, and delivering to the
Partnership a counterpart signature page to the Partnership Agreement
(attached hereto as Annex A).
3. Certain Terms of LTIP Units.
(a) Upon acceptance of this Agreement by the Grantee, Exhibit A of the
Partnership Agreement shall be amended to reflect the issuance to the
Grantee of the LTIP Units so accepted.
(b) (i) Notwithstanding the foregoing, so long as the Grantee holds any
LTIP Units, the Grantee shall disclose to the Company or the
Partnership, as applicable, in writing such information as may be
reasonably requested with respect to ownership of LTIP Units as
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the Company or the Partnership, as applicable, may deem reasonably
necessary to ascertain and establish compliance with provisions of the
Internal Revenue Code of 1986, as amended (the "Code"), applicable to
the Company or the Partnership, as applicable, or to comply with
requirements of any other appropriate taxing authority.
(ii) The Grantee hereby agrees to make an election under Section 83(b)
of the Code with respect to the LTIP Units awarded hereunder, and has
delivered with this Agreement a completed, executed copy of the
election form attached hereto as Annex B. The Grantee agrees to file
the election (or to permit the Company or the Partnership to file such
election on the Grantee's behalf) within 30 days after the award of
the LTIP Units hereunder with the IRS Service Center at which such
Grantee files his or her personal income tax returns, and to file a
copy of such election with the Grantee's U.S. federal income tax
return for the taxable year in which the LTIP Units are awarded to the
Grantee.
4. Miscellaneous.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO ANY PRINCIPLES
OF CONFLICTS OF LAW WHICH COULD CAUSE THE APPLICATION OF THE LAWS OF
ANY JURISDICTION OTHER THAN THE STATE OF CALIFORNIA.
(b) The captions of this Agreement are not part of the provisions hereof
and shall have no force or effect. This Agreement may not be amended
or modified except by a written agreement executed by the parties
hereto or their respective successors and legal representatives. The
invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision
of this Agreement.
(c) The Committee may make such rules and regulations and establish such
procedures for the administration of this Agreement as it deems
appropriate. Without limiting the generality of the foregoing, the
Committee may interpret the Plan and this Agreement, with such
interpretations to be conclusive and binding on all persons and
otherwise accorded the maximum deference permitted by law, provided
that the Committee's interpretation shall not be entitled to deference
on and after a Change in Control except to the extent that such
interpretations are made exclusively by members of the Committee who
are individuals who served as Committee members before the Change in
Control and take any other actions and make any other determinations
or decisions that it deems necessary or appropriate in connection with
the Plan, this Agreement or the administration or interpretation
thereof. In the event of any dispute or disagreement as to
interpretation of the Plan or this Agreement or of any rule,
regulation or procedure, or as to any question, right or obligation
arising from or related to the Plan or this Agreement, the decision of
the Committee shall be final and binding upon all persons.
(d) All notices hereunder shall be in writing, and if to the Company or
the Committee, shall be delivered to the Board or mailed to its
principal office, addressed to the attention of the Board; and if to
the Grantee, shall be delivered personally, sent by facsimile
transmission or mailed to the Grantee at the address appearing in the
records of the Company. Such addresses may be changed at any time by
written notice to the other party given in accordance with this
paragraph 4(d).
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(e) The failure of the Grantee or the Company to insist upon strict
compliance with any provision of this Agreement or the Plan, or to
assert any right the Grantee or the Company, respectively, may have
under this Agreement or the Plan, shall not be deemed to be a waiver
of such provision or right or any other provision or right of this
Agreement or the Plan.
(f) Nothing in this Agreement shall confer on the Grantee any right to
continue in the employ or other service of the Company or its
Subsidiaries or interfere in any way with the right of the Company or
its affiliates to terminate the Grantee's employment or other service
at any time.
(g) This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior
agreements, written or oral, with respect thereto, other than the
Employment Agreement if and to the extent the Employment Agreement is
in effect at the relevant time.
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IN WITNESS WHEREOF, the Company and the Grantee have executed this
Agreement as of the day and year first above written.
VINTAGE WINE TRUST INC.
By:
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Name:
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Title:
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