exv10w5



 






Exhibit 10.5




TMSF REIT, INC.

2006 STOCK OPTION, DEFERRED STOCK

AND RESTRICTED STOCK PLAN




RESTRICTED STOCK AWARD AGREEMENT

(EMPLOYEE)




Participant Name:                                        



This
AGREEMENT dated as of the      day of
        ,       between TMSF REIT, Inc., a Maryland
corporation (the “Company”) and
                                         (the “Participant”).




RECITALS




     WHEREAS, the Company’s Board of Directors adopted the 2006 Stock Option, Deferred Stock and
Restricted Stock Plan (the “Plan”) as of
                                        ,
2006, which was approved by the
Company’s stockholders as of                                         , 2006, and



     WHEREAS, pursuant to the provisions of said Plan, the Administrator has granted to the
Participant by action duly taken on
                                        ,
200   , (the “Award Date”) a restricted stock
award (the “Restricted Stock Award”) based upon the terms and conditions set forth herein.



     NOW, THEREFORE, in consideration of services rendered and to be rendered by the Participant
and the mutual promises made herein, the mutual benefits to be derived therefrom and other good and
valuable consideration, the parties agree as follows:



AGREEMENT



1. Grant. Subject to the terms of this Agreement, the Company grants to the Participant the
following:




     Restricted Stock Award:



                               shares of Common Stock of the Company (the “Restricted Stock”)




          Price
(optional):
$                     per share




     Release of Company’s Repurchase Option Schedule:



          Number of Shares




          Expiration Date of Company’s Repurchase Option



2. Restricted Stock.





(a) Restriction. Subject to the provisions of the Plan, Participant is not permitted to
sell, transfer, pledge or assign the shares of Restricted Stock during the Restricted
Period.




(b) Certificates and Legend. Participant shall be issued a stock certificate in respect of
such shares of Restricted Stock; and such certificate shall be registered in the name of
Participant, and shall bear an appropriate legend referring to the terms, conditions, and
restrictions applicable to such Restricted Stock Award, substantially in the following form:



-1-









 







The transferability of this certificate and the shares of stock represented hereby are
subject to the terms and conditions (including forfeiture) of the TMSF REIT, Inc. 2006 Stock
Option, Deferred Stock and Restricted Stock Plan and a Restricted Stock Award Agreement
entered into between the registered owner and TMSF REIT, Inc. Copies of such Plan and
Agreement are on file in the offices of TMSF REIT, Inc.




The stock certificates evidencing such shares shall be held in the custody of the Company
until the restrictions thereon shall have lapsed, and that, as a condition of any Restricted
Stock Award, Participant shall have delivered a stock power, endorsed in blank, relating to
the Stock covered by such Award, a form of which is attached here to as Exhibit A.




(c) Voting Rights. Except as provided herein, Participant shall have all of the rights of a
shareholder of the Company, including the right to vote the shares, and the right to receive
any dividends thereon during the Restricted Period.


3. Repurchase Option





(a) In the event of any voluntary or involuntary termination of the Participant’s employment
by the Company or Participant, as applicable, for any or no reason, including death or
disability (a “Termination”) before all of the shares of Restricted Stock are released from
the Company’s repurchase option (see Section 4 below), the Company shall, upon the date of a
Termination (as reasonably fixed and determined by the Company) have an irrevocable,
exclusive option (the “Repurchase Option”) for a period of ninety (90) days from such date
to repurchase all (but not less than all) of the shares of Restricted Stock that shall
constitute the Unreleased Shares (defined herein as any of the shares of Restricted Stock
that have not yet been released from the Repurchase Option) at such time, at the price paid
by the Participant at the time of issuance (the “Repurchase Price”);




(b) The Repurchase Option shall be exercised by the Company by written notice to the
Participant and, at the Company’s option, (i) by delivery to the Participant with such
notice of a check in the amount of the purchase price for the shares of Restricted Stock
being repurchased, (ii) by cancellation by the Company of an amount of the Participant’s
indebtedness to the Company equal to the purchase price for the shares of Restricted Stock
being repurchased, or (iii) by a combination of (i) and (ii) so that the combined payment
and cancellation of indebtedness equals the aggregate Purchase Price. Upon delivery of such
notice and the payment of the purchase price of any of the ways described above, the Company
shall become the legal and beneficial owner of the shares of Restricted Stock being
repurchased and all rights and interests therein or relating thereto, and the Company shall
have the right to retain and transfer to its own name the number of shares of Restricted
Stock being repurchased by the Company.




(c) Whenever the Company shall have the right to repurchase shares of Restricted Stock
hereunder, the Company may designate and assign one or more employees, officers, directors,
or shareholders of the Company or other persons or organizations to exercise all or a part
of the Company’s purchase rights under this Agreement and purchase all or a part of such
shares of Restricted Stock. If the fair market value of the shares of Restricted Stock to be
repurchased on the date of such designation or assignment (the “Repurchase FMV”) exceeds the
aggregate Repurchase Price of such shares of Restricted Stock, then each such designee or
assignee shall pay the Company cash equal the difference between the Repurchase FMV and the
aggregate Repurchase Price of such shares of Restricted Stock.


4. Release of Shares From Repurchase Option 





(a) Shares of Restricted Stock shall be released from Company’s Repurchase Option according
to the schedule set forth in Section 1 above; provided in each case that the Participant has
not ceased to be an employee of the Company prior to the date of any such release, but in
which case the Participant shall get vesting credit for the number of days in the final
month that the Employee is either an employee or director of or a consultant to the Company.



-2-









 







(b) Notwithstanding anything set forth in Section 4(a) above, in the event, within twelve
(12) months after a Change in Control, the Participant’s employment terminates other than
(i) for Cause, (ii) voluntary termination by the Participant, or (iii) death or disability
of the Participant, fifty percent (50%) of the Unreleased Shares shall be released from the
Company’s Repurchase Option upon the date of such termination.




For the purposes of the foregoing, a “Change in Control” shall have the meaning set forth in
Section 9(b) of the Plan. For purposes of this Agreement, “Cause” shall mean (i) an act of
dishonesty in connection with the Participant’s responsibilities as an employee of the
Company; (ii) the Participant’s conviction of, or plea of nolo contendere to, a felony or a
crime involving moral turpitude, (iii) the Participant’s misconduct which has an adverse
effect on the Company, or (iv) the Participant’s failure to perform his or her employment
duties.


5. Governing Plan. This Agreement hereby incorporates by reference the Plan and all of the
terms and conditions of the Plan as heretofore amended and as the same may be amended from time to
time hereafter in accordance with the terms thereof, but no such subsequent amendment shall
adversely affect Participant’s rights under this Agreement and the Plan except as may be required
by applicable law. Participant expressly acknowledges and agrees that the provisions of this
Agreement are subject to the Plan; the terms of this Agreement shall in no manner limit or modify
the controlling provisions of the Plan, and in case of any conflict between the provisions of the
Plan and this Agreement, the provisions of the Plan shall be controlling and binding upon the
parties hereto. Participant also hereby expressly acknowledges, represents and agrees as follows:





(a) Acknowledges receipt of a copy of the Plan, a copy of which is attached hereto and by
reference incorporated herein, and represents that he/she is familiar with the terms and
provisions of said Plan, and hereby accepts this Agreement subject to all the terms and
provisions of said Plan.




(b) Agrees to accept as binding, conclusive and final all decisions or interpretations of
the Administrator upon any questions arising under the Plan.




(c) Acknowledges that he/she is familiar with Sections of the Plan regarding the issuance of
the Restricted Stock.


6. Representations and Warranties. As a condition to the issuance of any portion of shares
of Restricted Stock the Company may require Participant receiving such shares to make any
representation and/or warranty to the Company as may, in the judgment of counsel to the Company, be
required under any applicable law or regulation, including but not limited to a representation and
warranty that the shares are being acquired only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company, such a
representation is required under the Securities Act of 1933 or any other applicable law, regulation
or rule of any governmental agency. Participant hereby represents to the Company that the shares
issuable pursuant to this Agreement are being acquired only for investment and without any present
intention to sell or distribute such securities.



7. No Enlargement of Employee Rights. Nothing in this Agreement shall be construed to
confer upon Participant (if an employee) any right to continued employment with the Company, any
Parent or Subsidiary, or to restrict in any way the right of the Company, a Subsidiary or Parent to
terminate his/her employment. Participant acknowledges that in the absence of an express written
employment agreement to the contrary, Participant’s employment with the Company may be terminated
by the Company at any time, with or without cause.



8. Execution and Delivery. Participant acknowledges that Participant shall have no rights
with respect to any Award granted by the Company unless and until Participant executes an Award
Agreement and delivers it to the Company within sixty days of such award (or such other period as
the Participant may specify after the Award Date).




-3-









 







9. Withholding of Taxes. Participant authorizes the Company to withhold, in accordance with
any applicable law, from any compensation payable to him any taxes required to be withheld by
federal, state or local law as a result of the grant of Restricted Stock Award.



10. Laws Applicable to Construction. This Agreement shall be construed and enforced in
accordance with the laws of the State of California.



11. Agreement Binding on Successors. The terms of this Agreement shall be binding upon the
executors, administrators, heirs, successors, transferees and assignees of the Participant.



12. Costs of Litigation. In any action at law or in equity to enforce any of the provisions
or rights under this Agreement or the Plan, the unsuccessful party to such litigation, as
determined by the court in a final judgment or decree, shall pay the successful party or parties
all costs, expenses and reasonable attorneys’ fees incurred by the successful party or parties
(including without limitation costs, expenses end fees on any appeals), and if the successful party
recovers judgment in any such action or proceeding such costs, expenses and attorneys’ fees shall
be included as part of the judgment.



13. Necessary Acts. The Participant agrees to perform all acts and execute and deliver any
documents that may be reasonably necessary to carry out the provisions of this Agreement, including
but not limited to all acts and documents related to compliance with federal and/or state
securities laws.



14. Counterparts. For convenience this Agreement may be executed in any number of identical
counterparts, each of which shall be deemed a complete original in itself and may be introduced in
evidence or used for any other purpose without the production of any other counterparts.



15. Invalid Provisions. In the event that any provision of this Agreement is found to be
invalid or otherwise unenforceable under any applicable law, such invalidity or unenforceability
shall not be construed as rendering any other provisions contained herein invalid or unenforceable,
and all such other provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.




-4-









 








     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written. By Participant’s execution of this Agreement, Participant agrees to the terms and
conditions hereof and of the Plan.



	 	 	 	 	 
	TMSF REIT, INC.

	 	PARTICIPANT
	 	 
	By:
	 	 	 	 
	Name:
	 	 	 	 
	Title:

	 	(Signature)	 	 
	 

	 	Print Name:	 	 
	 

	 	Address of Optionee:	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Social Security:	 	 






     By his or her signature below, the spouse of the Participant, of such Participant be legally
married as of the date of his execution of this Agreement, acknowledges that he or she has read
this Agreement and the Plan and is familiar with the terms and provisions thereof, and agrees to be
bound by all the terms and conditions of said Agreement and said Plan document.



	 	 	 	 	 
	 

	 	Spouse:
	 	 
	 

	 	Dated:	 	 






     By his or her signature below the Participant represents that he or she is not legally married
as of the date of execution of this Agreement.



	 	 	 	 	 
	 

	 	Participant
	 	 
	 

	 	Dated:	 	 






-5-









 






EXHIBIT A




STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE




FOR VALUE RECEIVED, the undersigned hereby sell, assign and transfer unto:




PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE




	 	 	 	 	 	 	 	 	 
	 	 

	 	 	 
	 	 	 	 
	 





      




 ____________


      




 ____________


Shares of the _____________________________




Stock of the _______________________________________________________________ Corporation




standing in ________________________________________ name(s) on the books of said Corporation




represented by certificate(s) No.______________________________________________________




herewith and do hereby irrevocably constitute and appoint __________________________________




_____________________________________________________________________________ attorney



to transfer the said stock on the books of the within named Corporation with full power of
substitute.




Dated _______________________________________________________________________




THE SIGNATURE(S) ON THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) ON THE FACE OF THE CERTIFICATE
IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT, OR ANY CHANGE.




-6-