TRANSFEREE AGREEMENT
THIS TRANSFEREE AGREEMENT (this "Agreement") is made as of the 24th day of
November, 1999, by and between Insignia Internet Initiatives, Inc.
("Transferor"), as a Member of IIII-OSA Holdings, LLC, a Delaware limited
liability company (the "Company"), and ____________________, an individual who
desires to become a Member ("Transferee") pursuant to this Agreement. All
capitalized terms used but not defined herein have the same meanings as in the
limited liability company agreement of the Company, attached hereto as Annex A
(the "LLC Agreement").
WHEREAS, Transferor is a wholly-owned subsidiary of Insignia Financial
Group, Inc., a Delaware corporation (collectively with its subsidiaries,
"Insignia"), and Insignia is causing Transferor to enter into this Agreement;
WHEREAS, Insignia desires to incentivize and retain in the employ of
Insignia certain individuals and to compensate them for their contributions to
the growth and profits of Insignia and thereby induce them to continue to make
such contributions in the future;
WHEREAS, Transferee is an employee of Insignia;
WHEREAS, in furtherance thereof, and pursuant to and in accordance with
the LLC Agreement, this Agreement is designed to Transfer Units in the Company
from Transferor to Transferee, subject to forfeiture as provided herein; and
WHEREAS, the parties hereto desire to execute this Agreement to further
evidence the Transfer by Transferor;
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements contained herein, the parties hereto agree
as follows:
1. Definitions.
Whenever used herein, the following capitalized terms shall have the
meanings set forth below:
"Cause" means: (a) if Transferee has a written employment agreement with
Insignia containing a definition of the term "Cause," such definition;
otherwise, (b) (i) engaging in willful or gross misconduct or neglect, (ii)
repeatedly failing to adhere to the directions of superiors or the written
policies and practices of Insignia, (iii) the commission of a felony or a crime
of moral turpitude or any crime involving Insignia, (iv) fraud,
misappropriation or embezzlement, (v) a material breach of Transferee's
employment agreement (if any) with Insignia, or (vi) any other illegal act
detrimental to Insignia.
"Managing Member" means Insignia Internet Initiatives, Inc., a Delaware
corporation, in its capacity as the managing member of the Company.
"Unvested Unit" means a Unit that was Transferred to Transferee pursuant
to this Agreement which continues to be subject to forfeiture pursuant to
Section 4 at the time in question.
"Vested Unit" means a Unit that was Transferred to Transferee pursuant to
this Agreement which is no longer subject to forfeiture pursuant to Section 4
at the time in question.
2. Transfer of Units.
(a) Transferor hereby Transfers ____ Units to Transferee, and Transferee
hereby accepts such Units, in each case subject to forfeiture as provided in
Section 4 hereof and the other terms and conditions of this Agreement.
(b) Transferee will be entered into the records of the Company as the
holder of the Units Transferred pursuant to this Agreement, and Transferee
shall be subject to the provisions and restrictions set forth in the LLC
Agreement.
3. Effective Date of Agreement.
This Agreement is effective as of the date first above written. As
required by the LLC Agreement, the Managing Member of the Company has approved
this Agreement and the Transfer of Units pursuant hereto as evidenced by its
signature on the signature page hereto.
4. Restrictions and Conditions; Forfeiture.
(a) The Units are subject to forfeiture back to Transferor during such
periods, in such percentage amounts and upon the occurrence of such conditions
and events as are indicated on Schedule I attached hereto.
(b) Except as provided in Section 4(a), Transferee shall have, in respect
of the Units, all of the rights of a Member of the Company, including the right
to vote the Units and the right to receive and retain any cash distributions in
respect of such Units, until such time (if ever) as such Units are forfeited
back to the Company. Transferee shall not be required to return to Transferor
any distributions received in respect of subsequently forfeited Units.
(c) Upon forfeiture of Units held by Transferee back to Transferor
pursuant to Section 4(a), Transferee shall (i) cease to be a Member of the
Company and shall have no further rights to distributions or allocations of
Profits and Losses of the Company, if as a result of such forfeiture no Units
continue to be held by Transferee, or (ii) continue to be a Member of the
Company but shall have no further rights to distributions or allocations of
Profits and Losses of the Company in respect of such forfeited Units, if
Transferee continues to hold other Units. Any forfeiture of Units shall,
without any further action by Managing Member, Transferee, the Company or any
other Person, result in an automatic Transfer of the Units so forfeited
hereunder from Transferee to Transferor.
5. Section 83(b) Tax Election.
On the date of Transfer of Units to Transferee pursuant to this Agreement,
Transferee shall execute three copies of a Section 83(b) Tax Election Form,
substantially in the form attached as Annex B hereto with respect to the Units
received. Transferee shall promptly file one copy of the Section 83(b) Tax
Election Form with the IRS and deliver one copy of the Section 83(b) Tax
Election Form to the Special Member. Upon receipt of such duly executed form,
the Special Member shall cause such copy to be filed in the records maintained
by the Company. Notwithstanding anything contained in this Agreement to the
contrary, Transferee's execution and delivery of the Section 83(b) Tax Election
Form shall be a condition precedent to Transferor's obligation as may otherwise
be provided hereunder to Transfer Units to Transferee, and the failure of
Transferee to satisfy such requirement with respect to the Units shall cause
such Units to be forfeited in accordance with Section 4 hereof.
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6. Nontransferability of Unvested Units.
Unvested Units shall not be transferred or assigned by Transferee in any
manner whatsoever. Vested Units will be transferable if and to the extent
permitted by Article V of the LLC Agreement.
7. Miscellaneous.
(a) Without limiting any power and authority otherwise possessed by
Transferor, Transferor shall have the full power and authority to interpret and
administer this Agreement and any other instrument or agreements relating to
this Agreement. The Managing Member's actions in this regard shall be final,
conclusive and binding upon all persons, including without limitation
Transferee and Transferee's beneficiaries.
(b) The failure of Transferor, Transferee or the Company to insist upon
strict compliance with any provision of this Agreement, or to assert any right
Transferor, Transferee or the Company, respectively, may have under this
Agreement, shall not be deemed to be a waiver of such provision or right or any
other provision or right of this Agreement or the LLC Agreement.
(c) Nothing in this Agreement shall confer on Transferee any right to
continue in the employ or other service of Insignia or interfere in any way
with the right of Insignia to terminate Transferee's employment or other
service at any time.
(d) The Company is an express third-party beneficiary of this Agreement.
(e) TRANSFEREE EXPRESSLY ACKNOWLEDGES THAT PURSUANT TO SECTION 2.10 OF THE
LLC AGREEMENT, EXCEPT AS EXPRESSLY SET FORTH IN THE LLC AGREEMENT THE MANAGING
MEMBER HAS NO DUTY TO TRANSFEREE, FIDUCIARY OR OTHERWISE, AND MAY TAKE WHATEVER
ACTIONS IT DEEMS APPROPRIATE IN ITS SOLE AND ABSOLUTE DISCRETION, AND TRANSFEREE
HEREBY CONFIRMS AND AGREES TO SUCH LIMITATION ON THE DUTY OF THE MANAGING
MEMBER.
8. Notices.
All notices under this Agreement shall be in writing and delivered
personally or by recognized overnight courier, as follows:
if to Transferor:
Insignia Internet Initiatives, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: President
if to Transferee:
---------------------------------
---------------------------------
---------------------------------
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if to the Company:
IIII-OSA Holdings, LLC
c/o Insignia Internet Initiatives, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: President
Such addresses may be changed at any time by written notice to the other
party given in accordance with this Section 8.
9. Captions.
The use of captions in this Agreement is for convenience. The captions are
not intended to and do not provide substantive rights.
10. Amendment; Waiver; Severability.
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. No waiver of any provision of this Agreement shall be
valid unless it is in writing and signed by the party charged therewith. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
11. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF DELAWARE, WITHOUT
REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS.
12. Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, and all of which taken together shall constitute
one and the same agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
TRANSFEROR:
INSIGNIA INTERNET INITIATIVES, INC.
By:
---------------------------------
Name:
Title:
TRANSFEREE:
---------------------------------
Name:
AS REQUIRED BY THE LLC AGREEMENT,
THIS AGREEMENT AND THE TRANSFER
OF UNITS PURSUANT HERETO IS HEREBY
APPROVED BY THE MANAGING MEMBER
OF THE COMPANY:
INSIGNIA INTERNET INITIATIVES, INC.
By:
---------------------------------
Name:
Title:
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SCHEDULE I
VESTING AND FORFEITURE
VESTING
Initially, 98% of the Units are subject to forfeiture back to Transferor under
the circumstances hereinafter described (i.e., such Units are "Unvested"), and
2% of the Units are not subject to forfeiture back to Transferor (i.e., such
Units are "Vested").
Subject to the following provision providing for accelerated time-based vesting
of Units under certain circumstances, until the earlier of (i) such time as all
of the Units become Vested or (ii) such time as Unvested Units are forfeited
back to Transferor pursuant to this Agreement, on the last day of each calendar
month following the date of this Agreement, the percentage of Units that is
Unvested (and thus subject to forfeiture back to Transferor) shall be decreased
by 2% (in absolute terms), and the percentage of Units that is Vested shall be
increased by 2% (in absolute terms).
If Transferee's employment (or other service, if applicable) with Insignia is
terminated by Insignia for any reason other than Cause, then all of the Units
that are Unvested at such time shall immediately and automatically become
Vested.
FORFEITURE
If Transferee's employment (or other service, if applicable) with Transferor is
terminated (i) by Insignia for Cause, (ii) by Transferee for any reason or
(iii) as a result of the death or disability of Transferee, then all Units that
are Unvested at such time shall thereupon, and with no further action, be
forfeited by Transferee back to Transferor.
EMPLOYMENT AGREEMENT CONTROLS
If at any given time of determination Transferee is a party to a written
employment agreement with Insignia (or a subsidiary of Insignia) containing
terms that are more favorable to Transferee than those set forth in this
Schedule I, then the more favorable terms of such employment agreement shall
control.
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SCHEDULE II
MEMBER UNITS
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Xxxxxx X. Xxxxxx 70
Xxxxx X. Xxxxxx 10
Xxxxxx Xxxxxx 8
Xxxxx X. Aston 4
Xxxxx X. Xxxxxxxx 4
Xxxx X. Xxxxxxx 4
Xxxxxxx X. Xxxxx 8
Xxxx Xxxxx 8
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