ddr-ex1014_960.htm



Exhibit 10.14

DDR CORP.

RESTRICTED SHARE UNITS AWARD MEMORANDUM

 

 


		
	
1.Holder:
	
Thomas F. August (the “Holder”)

	
2.Plan:
	
DDR Corp. 2012 Equity and Incentive Compensation Plan (the “Plan”)

	
3.Date of Grant:
	
December 1, 2016 (the “Date of Grant”)

	
4.Number of Restricted Share Units:
	
107,100

	
5.Purchase Price:
	
$0





	
6.
	
Vesting Schedule:  If you are then and have been continuously employed by the Company (subject to the terms of this Restricted Share Units Award Memorandum (the “Award Memorandum”), the attached Restricted Share Units Terms (the “Agreement”) and the Plan), the Restricted Share Units subject hereto (the “RSUs”) shall vest as follows:




 


	
 
	
•
	
14,875 RSUs shall vest at the end of the Date of Grant; and





	
 
	
•
	
92,225 RSUs shall vest in 31 equal monthly installments beginning on January 1, 2017 and ending on July 1, 2019.




 

Additional provisions regarding the vesting of the RSUs, and other terms and conditions of the RSUs, are specified in the Agreement.  Capitalized terms not defined in this Award Memorandum shall have the meaning as defined in the Agreement, or if not defined therein, in the Plan.

 

 

ACCEPTANCE OF AWARD

 

I accept the RSUs granted to me on the Date of Grant as specified in this Award Memorandum, and I agree to be bound by the terms and conditions of the Award Memorandum, the Agreement and the Plan.

 

 


			
	
DDR CORP., an Ohio corporation
	
 
	
HOLDER

	
 
	
 
	
 

	
 
	
 
	
 

	
By: /s/ David E. Weiss  

Name:  David E. Weiss

Title:  Executive Vice President
	
 
	
/s/ Thomas F. August  

Name:  Thomas F. August







 



 

RESTRICTED SHARE UNITS TERMS

 

 

DDR Corp., an Ohio corporation (the “Company”), has granted to the Holder named in the Award Memorandum the number of RSUs set forth in the Award Memorandum effective as of Date of Grant specified in the Award Memorandum.  Each RSU shall represent the right of the Holder to receive one Common Share subject to and upon these terms and conditions (the “Agreement”).  The RSUs have been granted pursuant to the Plan and are subject to all provisions of the Plan and the Award Memorandum, which are hereby incorporated herein by reference, and to the following provisions of this Agreement (capitalized terms not defined in this Agreement shall have the meaning as defined in the Award Memorandum, or if not defined therein, in the Plan):

 

1.Vesting.   Except as otherwise provided in Section 4, the RSUs will vest in accordance with the vesting schedule set forth in the Award Memorandum.

 

2.Purchase Price.   The purchase price for the RSUs is set forth the Award Memorandum.

 

3.Transferability.   The Holder may transfer RSUs prior to vesting, during his or her lifetime (a) to one or more members of such Holder’s family, (b) to one or more trusts for the benefit of one or more of such Holder’s family, or (c) to a partnership or partnerships of members of such Holder’s family, provided that no consideration is paid for the transfer and that the transfer would not result in the loss of any exemption under Rule 16b-3 of the Exchange Act with respect to the RSUs.  The RSUs are also transferable by will or the laws of descent and distribution or pursuant to a qualified domestic relations order (as defined in the Code or the Employee Retirement Income Security Act of 1974, as amended).  The transferee of any RSUs will be subject to all restrictions, terms, and conditions applicable to the RSUs.

 

4.Termination of Employment; Change in Control.   If the Holder’s employment by the Company or any Subsidiary terminates and/or a Change in Control occurs prior to all of the RSUs vesting, the unvested RSUs will vest or be forfeited as follows:

 

(a)Certain Qualifying Terminations.  If the Holder’s employment with the Company or any Subsidiary terminates due to death, termination by the Company due to Disability, termination by the Company or a Subsidiary without Cause, or termination by the Holder for Good Reason, then all unvested RSUs shall vest on the date of such termination of employment.

 

(b)Change in Control.  

 

(i)If at any time before all of the RSUs have vested or been forfeited, and while the Holder is continuously employed by the Company or a Subsidiary, a Change in Control occurs, then any unvested RSUs will become vested on the date of the Change in Control, except to the extent that a Replacement Award is provided to the Holder in accordance with Section 4(b)(ii) to continue, replace or assume the RSUs covered by this Agreement (the “Replaced Award”).

 

(ii)For purposes of this Agreement, a “Replacement Award” means an award (A) of the same type (e.g., time-based restricted stock units that vest on a monthly basis) as the Replaced Award, (B) that has a value at least equal to the value of the Replaced Award, (C) that relates to publicly traded equity securities of the Company or its successor in the Change in Control or another entity that is affiliated with the Company or its successor following the Change in Control, (D) if the Holder holding the Replaced Award is subject to U.S. federal income tax under the Code, the tax consequences of which to such Holder under the Code are not less 

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favorable to such Holder than the tax consequences of the Replaced Award, and (E) the other terms and conditions of which are not less favorable to the Holder holding the Replaced Award than the terms and conditions of the Replaced Award (including the provisions that would apply for certain qualifying terminations as set forth in Section 4(a) or in the event of a subsequent Change in Control).  A Replacement Award may be granted only to the extent it does not result in the Replaced Award or Replacement Award failing to comply with or be exempt from Section 409A of the Code.  Without limiting the generality of the foregoing, the Replacement Award may take the form of a continuation of the Replaced Award if the requirements of the two preceding sentences are satisfied.  The determination of whether the conditions of this Section 4(b)(ii) are satisfied will be made by the Committee, as constituted immediately before the Change in Control, in its reasonable sole discretion.

 

(iii)If a Replacement Award is provided, notwithstanding anything in this Agreement to the contrary, any outstanding RSUs that at the time of the Change in Control are not subject to a "substantial risk of forfeiture" (within the meaning of Section 409A of the Code) will be deemed to be vested at the time of such Change in Control.

 

(c)Other Termination.  Unless otherwise determined by the Committee (subject to Section 10 of this Agreement), if the Holder’s employment with the Company or any Subsidiary terminates other than in the circumstances described in paragraph (a) of this Section 4, any RSUs which are unvested at the time of termination will be forfeited upon termination.

 

5.Certain Defined Terms.  For purposes of this Agreement, notwithstanding anything to the contrary in the Plan, the following terms have the following definitions:

 

(a)“Cause” shall have the meaning ascribed to such term in the Employment Agreement, dated as of December 1, 2016, by and between the Holder and the Company (including any successor agreement, the “Employment Agreement”).

 

(b)“Disability” shall have the meaning ascribed to the term “Total Disability” in the Employment Agreement.

 

(c)“Good Reason” shall have the meaning ascribed to such term in the Employment Agreement.

 

6.Form and Time of Payment of RSUs.

 

(a)Payment for the RSUs, after and to the extent they have become vested, shall be made in the form of Common Shares.  Payment shall be made within 10 days following the date that the RSUs become vested pursuant to Section 1 or Section 4 hereof.

 

(b)Except to the extent provided by Section 409A of the Code and permitted by the Committee, no Common Shares may be issued to the Holder at a time earlier than otherwise expressly provided in this Agreement.

 

(c)The Company’s obligations to the Holder with respect to the RSUs will be satisfied in full upon the issuance of Common Shares corresponding to such RSUs.

 

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7.Dividend Equivalents; Voting and Other Rights.

 

(a)The Holder shall have no rights of ownership in the Common Shares underlying the RSUs and no right to vote the Common Shares underlying the RSUs until the date on which the Common Shares underlying the RSUs are issued or transferred to the Holder pursuant to Section 6 above.

 

(b)From and after the Date of Grant and until the earlier of (i) the time when the RSUs become vested and are paid in accordance with Section 6 hereof or (ii) the time when the Holder’s right to receive Common Shares in payment of the RSUs is forfeited in accordance with Section 4 hereof, on the record date for the Company paying a cash dividend (if any) to holders of Common Shares generally (a “Cash Dividend”), the Holder shall become entitled to cash per RSU equal to the amount of such Cash Dividend.  Such dividend equivalents (if any) shall be paid in cash to the Holder on the date that the Company pays the related Cash Dividend to holders of Common Shares generally.  Further, as soon as practicable following the Date of Grant, the Holder shall be paid cash per RSU equal to the amount of any Cash Dividend for which the record date was on or after July 8, 2016 but prior to the Date of Grant.

 

(c)The obligations of the Company under this Agreement will be merely that of an unfunded and unsecured promise of the Company to deliver Common Shares in the future, and the rights of the Holder will be no greater than that of an unsecured general creditor. No assets of the Company will be held or set aside as security for the obligations of the Company under this Agreement.

 

8.Taxes.  The Holder hereby agrees to pay to the Company, in accordance with the terms of the Plan, any federal, state or local taxes of any kind required by law to be withheld and remitted by the Company with respect to the RSUs.  The Holder and the Committee hereby agree that such tax obligation, in whole, will be satisfied by the Company withholding a portion of the Common Shares otherwise to be delivered with a fair market value equal to the amount of such taxes.  Additionally, the Company shall have the right to withhold from any payment of any kind otherwise due to the Holder from the Company, any federal, state or local taxes of any kind required by law to be withheld with respect to the award or vesting of the RSUs so long as such withholding does not result in any adverse tax consequences under Section 409A of the Code.

 

9.Subject to the Plan.  This Agreement is made and the RSUs evidenced hereby are granted under and pursuant to, and they are expressly made subject to all of the terms and conditions of, the Plan, notwithstanding anything herein to the contrary.  The RSUs and the terms and conditions of the grant evidenced by this Agreement are subject to mandatory adjustment under Section 12 of the Plan.  The Holder hereby acknowledges receipt of a copy of the Plan and that the Holder has read and understands the terms and conditions of the Plan.  In the event of a conflict between the terms of this Agreement, the Award Memorandum and the Plan, the terms of the Plan shall govern.  In the event of a conflict between the terms of this Agreement and the Award Memorandum, the terms of this Agreement shall govern.

 

10.Restrictive Covenants.  In the event the Holder breaches any of the restrictive covenants set forth in the Employment Agreement while such restrictive covenants are in effect, the Holder will forfeit any right to the RSUs, to the extent the RSUs have not been paid pursuant to Section 6, as of the date of such breach.

 

11.Section 409A of the Code.  To the extent applicable, it is intended that this Agreement, the Award Memorandum and the Plan comply with or be exempt from the provisions of Section 409A of the Code.  This Agreement, the Award Memorandum and the Plan shall be administered in a manner consistent with this intent, and any provision that would cause this Agreement or the Plan to fail to be comply with or be exempt from Section 409A of the Code shall have no force or effect until amended to 

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comply with or be exempt from Section 409A of the Code (which amendment may be retroactive to the extent permitted by Section 409A of the Code and may be made by the Company without the consent of the Holder).  Any reference in this Agreement to Section 409A of the Code will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service.

 

12.Amendments.  Any amendment to the Plan shall be deemed to be an amendment to this Agreement to the extent that the amendment is applicable hereto; provided, however, that (a) no amendment shall adversely affect the rights of the Holder under this Agreement without the Holder’s written consent, and (b) the Holder’s consent shall not be required to an amendment that is deemed necessary by the Company to ensure exemption from or compliance with Section 409A of the Code.

 

13.Securities Law Compliance.

 

(a)The Holder agrees that the Company may impose such restrictions on the Common Shares issuable pursuant to the RSUs as are deemed advisable by the Company, including, without limitation, restrictions relating to listing or trading requirements.  The Holder further agrees that certificates representing the Common Shares issuable pursuant to the RSUs, if any, may bear such legends and statements as the Company shall deem appropriate or advisable to assure, among other things, compliance with applicable securities laws, rules and regulations.

 

(b)The Holder agrees that any Common Shares which the Holder may acquire by virtue of this Agreement may not be transferred, sold, assigned, pledged, hypothecated or otherwise disposed of by the Holder unless (i) a registration statement or post-effective amendment to a registration statement under the Securities Act of 1933, as amended, with respect to such Common Shares has become effective so as to permit the sale or other disposition of such Common Shares by the Holder, or (ii) there is presented to the Company an opinion of counsel satisfactory to the Company to the effect that the sale or other proposed disposition of such Common Shares by the Holder may lawfully be made otherwise than pursuant to an effective registration statement or post-effective amendment to a registration statement relating to such Common Shares under the Securities Act of 1933, as amended.

 

14.Rights of the Holder.  The grant of the RSUs under this Agreement to the Holder is a voluntary, discretionary award being made on a one-time basis and it does not constitute a commitment to make any future awards.  The grant of the RSUs and any payments made hereunder will not be considered salary or other compensation for purposes of any severance pay or similar allowance, except as otherwise required by law.  The granting of the RSUs shall in and of itself not confer any right of the Holder to continue in the employ of the Company and shall not interfere in any way with the right of the Company to terminate the Holder’s employment at any time, subject to the terms of the Employment Agreement.

 

15.Relation to Other Benefits.  Any economic or other benefit to the Holder under this Agreement or the Plan shall not be taken into account in determining any benefits to which the Holder may be entitled under any profit-sharing, retirement or other benefit or compensation plan maintained by the Company or any of its Subsidiaries and shall not affect the amount of any life insurance coverage available to any beneficiary under any life insurance plan covering employees of the Company or any of its Subsidiaries.

 

16.Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, except to the extent otherwise governed by Federal law.

 

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17.Severability.  If any provision of this Agreement or the Award Memorandum or the application of any provision hereof or thereof to any person or circumstances is held invalid or unenforceable, the remainder of this Agreement and the Award Memorandum and the application of such provision in any other person or circumstances shall not be affected, and the provisions so held to be invalid or unenforceable shall be reformed to the extent (and only to the extent) necessary to make it enforceable and valid.

 

18.Electronic Delivery.  The Company may, in its sole discretion, deliver any documents related to the RSUs and the Holder’s participation in the Plan, or future awards that may be granted under the Plan, by electronic means or request the Holder’s consent to participate in the Plan by electronic means.  The Holder hereby consents to receive such documents by electronic delivery and, if requested, agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

 

19.Successors and Assigns.  Without limiting Section 3 hereof, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, administrators, heirs, legal representatives and assigns of the Holder, and the successors and assigns of the Company.

 

20.Acknowledgements.  By accepting the RSUs, the Holder hereby:

 

(a)acknowledges that he/she has received a copy of the Plan and a copy of the Company’s most recent Annual Report and other communications routinely distributed to the Company’s shareholders;

 

(b)accepts this Agreement and the RSUs granted to him/her under this Agreement subject to all provisions of the Plan and this Agreement;

 

(c)represents and warrants to the Company that he/she is acquiring the RSUs for his/her own account, for investment, and not with a view to or any present intention of selling or distributing the RSUs either now or at any specific or determinable future time or period or upon the occurrence or nonoccurrence of any predetermined or reasonably foreseeable event;  and

 

(d)agrees that no transfer of the RSUs will be made unless the RSUs have been duly registered under all applicable Federal and state securities laws pursuant to a then-effective registration which contemplates the proposed transfer or unless the Company has received the written opinion of, or satisfactory to, its legal counsel that the proposed transfer is exempt from such registration.

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