EX-10.(BY) RESTRICTED STOCK UNTI AGREEMENT



 





Exhibit 10(by)




RESTRICTED STOCK UNIT AGREEMENT




          This RESTRICTED STOCK UNIT AGREEMENT (“Agreement”), dated November 8, 2006, by and
between Avatar Holdings Inc., a Delaware corporation (the “Company”) and Patricia Kimball
Fletcher (the “Participant”).



     1. AWARD. Pursuant to the provisions of the Avatar Holdings Inc. Amended and Restated 1997
Incentive and Capital Accumulation Plan (2005 Restatement), as the same may be amended, restated,
modified or supplemented (the “Plan”), the Committee (as defined in the Plan, the
“Committee”) hereby awards to the Participant, on January 1, 2007, subject to the
Participant commencing employment with the Company pursuant to the employment agreement between the
Company and the Employee, dated as of the dated hereof, and further subject to the terms and
conditions of the Plan and the terms and conditions set forth herein, an opportunity to receive
18,900 Performance Conditioned Restricted Stock Units (“Units”). Capitalized terms used
but not defined herein shall have the meanings assigned to them in the Plan. This award is
intended to constitute a Performance-Based Award within the meaning of the Plan.



     2. TERMS AND CONDITIONS. The award evidenced by this Agreement is subject to the following
terms and conditions:



     (a) Subject to Section 4 hereof, the Participant shall be granted, automatically and without
further authorization on the part of the Committee, 18,900 Units upon satisfaction of the following
condition (the date on which such condition is satisfied is hereinafter referred to as the
“Grant Date”): (i) the closing stock price of the Common Stock on its principal trading
market shall have been at least $72.50 per share for twenty (20) trading days out of thirty (30)
consecutive trading days or (ii) the Company consummates a transaction which results in the
stockholders of the Company receiving cash, securities, or other property (or any combination
thereof) having a “value” as determined by the Committee of at least $72.50 per share in either
case, during the period beginning on January 1, 2007 and ending on December 31, 2009 (the
“Hurdle Price Condition”); provided, however, that, except as provided in
Sections 4(c) and 4(d), no Units shall be granted if the Participant’s employment with the Company
has terminated for any reason on or prior to the time the Hurdle Price Condition is satisfied. For
purposes of this Section 2(a), “value” shall mean the amount received by the stockholders
of the Company taking into account the net present value of any debt, securities, future payments,
contingent rights or other non-cash consideration to be paid to such stockholders.



     (b) The Participant shall not possess any incidents of ownership (including, without
limitation, dividend, interest and voting rights) in shares of Common Stock in respect of the Units
or the Change in Control Amount, as applicable, until such Units or the Change in Control Amount,
as applicable, shall have vested and been distributed to the Participant in the form of shares of
Common Stock or, in the case of a Change in Control Amount, a single, lump sum cash payment, in
accordance with Sections 3 and 4 hereof.



 









 





     (c) Except as provided in this Section 2(c), the Units and any interest of the Participant
therein may not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of.
Any attempt to transfer Units in contravention of this Section 2(c) is void ab initio.
Units shall not be subject to execution, attachment or other process. Notwithstanding the
foregoing, with the written consent of the Committee, the Participant shall be permitted to
transfer such Units to members of his immediate family (i.e., children, grandchildren or
spouse), trusts for the benefit of such family members, and partnerships whose only partners are
such family members; provided, however, that no consideration can be paid for the
transfer of the Units and the transferee of the Units shall be subject to all conditions applicable
to the Units (including all of the terms and conditions of this Agreement) prior to transfer.



     (d) Each reference contained in this Agreement to:




     “Anniversary” shall mean, with respect to any date, the annual recurrence of
such date.




     “Change in Control” shall mean any of the following events: (a) a person or
entity or group of persons or entities, acting in concert, becomes the direct or indirect
beneficial owner (within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934,
as amended) of securities of the Company representing 50.1% or more of the combined voting
power of the issued and outstanding Common Stock; (b) the Board of Directors of the Company
approves any merger, consolidation or like business combination or reorganization of the
Company, the consummation of which would result in the occurrence of the event described in
clause (a) above, and such transaction shall have been consummated; (c) the Company ceases
to be engaged, directly or indirectly, and does not intend to be engaged at any time in the
foreseeable future, in any real estate business; or (d) the Company sells, transfers or
otherwise disposes of all or substantially all of its assets in one transaction or a series
of transactions. The date on which a Change in Control is consummated, with respect to
clauses (a) and (b), or occurs, with respect to clauses (c) and (d), is herein referred to
as the “Change in Control Date.”




     “Change in Control Amount” shall have the meaning set forth in Section 4(e)
hereof.




     “Common Stock” shall mean common stock, par value $1.00 per share, of the
Company.




     “Fair Market Value” shall mean the average of the closing prices of the Common
Stock for the fifteen trading days ending with and including the measuring date if the
Common Stock is readily tradeable on a national securities exchange, the National
Association of Securities Dealers Automated Quotation System or other national market
system, provided, however, if such exchange or system is not open for business on any day
during such period or the Common Stock was not traded on any day during such period, the
Fair Market Value shall be determined as of the most recent fifteen (15) trading days
ending with and



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including the measuring date on which such exchange or system shall have been open for
business and the Common Stock was traded, and if the Common Stock is not readily tradable
as set forth above, Fair Market Value shall mean the amount determined in good faith by the
Committee as the fair market value of the Common Stock of the Company.



     3. VESTING AND CONVERSION OF UNITS. On December 31, 2009, the Units granted to the
Participant pursuant to Section 2(a) hereof, if any, shall vest in full and such vested Units shall
be converted into an equivalent number of shares of Common Stock that will be immediately
distributed to the Participant; provided, however, that subject to the provisions
of Section 4 hereof, no Units shall vest or be converted and distributed to the Participant unless
the Participant is an employee of the Company on December 31, 2009.



     Upon the distribution of the shares of Common Stock in respect of the Units, the Company shall
issue to the Participant or the Participant’s personal representative a stock certificate
representing such shares of Common Stock, free of any restrictions, subject to Section 8 hereof.



     4. TERMINATION OF EMPLOYMENT; CHANGE IN CONTROL.



     (a) For purposes of this Section 4, the terms Cause, Without Cause, Good Reason, Without Good
Reason and Disability shall have the meanings ascribed to such terms in the Participant’s
employment agreement with the Company, dated as of the date hereof, as amended or restated from
time to time; provided, however, if the Participant is no longer employed pursuant
to such employment agreement, each such term shall have the meaning ascribed to it in the
employment agreement last in effect which contains such defined term.



     (b) If the Participant’s employment with the Company is terminated by the Company for Cause or
by the Participant Without Good Reason, the Participant shall forfeit all Units granted to the
Participant pursuant to Section 2(a) hereof (or, in the event a Change in Control has occurred, the
Change in Control Amount), if any, as of the date of termination of employment.



     (c) If the Participant’s employment with the Company is terminated by the Company Without
Cause, or is terminated by the Participant for Good Reason, (i)(A) all Units granted to the
Participant pursuant to Section 2(a) hereof, if any, shall vest, be converted into shares of Common
Stock and be immediately distributed to the Participant, and (B) any additional Units that satisfy
the Hurdle Price Condition on or before December 31, 2009, if any, shall vest on the date the
Hurdle Price Condition is satisfied, be converted into shares of Common Stock and be immediately
distributed to the Participant, or, (ii) in the event a Change in Control has occurred, the
Participant shall be entitled to receive the Change in Control Amount, if any, upon the date of
termination of employment.



     (d) If the Participant’s employment with the Company is terminated due to the Participant’s
death or Disability, the number of Units granted to the Participant pursuant



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to Section 2(a) hereof, if any, which equals the greater of (i) the product of (x) a fraction
the numerator of which is the number of completed whole months elapsed from January 1, 2007 to the
date of death or Disability, as the case may be (whichever is sooner), and the denominator of which
thirty-six (36) and (y) 18,900 or (ii) 9,450 Units, shall vest, be converted into shares of Common
Stock and be immediately distributed to the Participant (or the executor or administrator of the
deceased Participant’s estate or the person or persons to whom the deceased Participant’s rights
shall pass by will or the laws of descent or distribution, as applicable), and any portion of the
Units then remaining unvested shall be forfeited. If the Participant’s employment with the Company
is terminated by Participant’s death or Disability prior to the Grant Date and the Hurdle Price
Condition is satisfied on or before the first Anniversary of Participant’s termination for death or
Disability, 9,450 Units shall be granted and shall vest, be converted into shares of Common Stock
and be immediately distributed to the Participant (or the executor or administrator of the deceased
Participant’s estate or the person or persons to whom the deceased Participant’s rights shall pass
by will or the laws of descent or distribution, as applicable), and any portion of the Units then
remaining unvested shall be forfeited. Notwithstanding the foregoing, if a Change in Control has
occurred prior to such termination for death or Disability, the Participant (or the executor or
administrator of the deceased Participant’s estate or the person or persons to whom the deceased
Participant’s rights shall pass by will or the laws of descent or distribution, as applicable)
shall be entitled to receive the Change in Control Amount, if any, upon the date of termination of
employment.



     (e) In the event of a Change in Control, all Units granted to the Participant pursuant to
Section 2(a) hereof, if any, shall be converted into shares of Common Stock immediately prior to
the consummation of the Change in Control and, upon consummation of the Change in Control, shall be
converted into such amount of cash, securities or other property (or any combination thereof)
received by the stockholders of the Company in connection with the Change in Control (the
“Change in Control Amount”). The Change in Control Amount shall be distributed to the
Participant on or promptly following the Change in Control Date.



     5. DEFERRAL. With the prior written consent of the Committee, and on such terms as the
Committee may prescribe (which terms shall be in compliance with Section 409A of the Internal
Revenue Code of 1986, as amended), the Participant may elect to defer the receipt of Common Stock
upon the vesting of the Units granted to the Participant pursuant to Section 2(a) hereof and for
the Company to continue to maintain such Units on its books of account.



     6. EQUITABLE ADJUSTMENT. If there shall be any change in the Common Stock of the Company,
through merger, consolidation, reorganization, recapitalization, stock dividend, stock split,
reverse stock split, split up, spinoff, combination of shares, exchange of shares, dividend in kind
or other like change in capital structure or distribution (other than normal cash dividends) to
stockholders of the Company, in order to prevent dilution or enlargement of the Participant’s
rights under this Agreement and the Plan, the Committee may, in an equitable manner, adjust the
number and kind of shares that may be issued under this Agreement and make any other



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appropriate adjustments in the terms of the Units and this Agreement to reflect such changes
or distributions.



     7. TAXES. Any distribution of Common Stock pursuant to this Agreement shall be net of any
amounts required to be withheld pursuant to applicable federal, state and local tax withholding
requirements. In connection with any such distribution, the Company may require the Participant to
remit to it an amount sufficient to satisfy such tax withholding requirements prior to the delivery
of any certificates for such Common Stock. In lieu thereof, the Company shall have the right to
withhold the amount of such taxes from any other sums due or to become due from the Company to the
Participant as the Committee shall prescribe. The Committee may, in its discretion and subject to
such rules as it may adopt (including any as may be required to satisfy applicable tax and/or
non-tax regulatory requirements), permit the Participant to pay all or a portion of the federal,
state and local withholding taxes arising in connection with the Units granted hereunder and any
distribution of shares of Common Stock in respect thereof by electing to have the Company withhold
shares of Common Stock having a Fair Market Value equal to the amount of tax to be withheld, such
tax calculated at rates prescribed by statute or regulation.



     8. FORFEITURE OF UNITS AND PROFITS. At the discretion of the Committee, all or any portion of
the shares of Common Stock issued to the Participant in respect of Units awarded pursuant to
Section 2(a) hereof, if any, and all or any portion of the proceeds received from the sale of such
shares of Common Stock (or, in the event of Change in Control, all or any portion of the Change in
Control Amount) shall be subject to forfeiture in accordance with the provisions of 15 U.S.C. §
7243 (Section 304 of the Sarbanes-Oxley Act of 2002), or any successor statute, as if the
Participant were subject to such statute; provided, however, that the provisions of
this Section 8 shall no be applicable on or after a Change in Control Date.



     9. REGULATORY COMPLIANCE AND LISTING. The issuance or delivery of any stock certificates
representing shares of Common Stock issuable pursuant to this Agreement may be postponed by the
Committee for such period as may be required to comply with any applicable requirements under the
federal or state securities laws, any applicable listing requirements of any national securities
exchange or the NASDAQ Stock Market Inc., and any applicable requirements under any other law, rule
or regulation applicable to the issuance or delivery of such shares, and the Company shall not be
obligated to deliver any such shares of Common Stock to the Participant if either delivery thereof
would constitute a violation of any provision of any law or of any regulation of any governmental
authority, any national securities exchange or the NASDAQ Stock Market Inc., or the Participant
shall not yet have complied fully with the provisions of Section 7 hereof.



     10. INVESTMENT REPRESENTATIONS AND RELATED MATTERS. The Participant hereby represents that
the Common Stock issuable pursuant to this Agreement is being acquired for investment and not for
sale or with a view to distribution thereof. The Participant acknowledges and agrees that any sale
or distribution of shares of Common Stock issued pursuant to this Agreement may be made only
pursuant to either (a) a registration statement on an appropriate form under the Securities Act of



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     1933, as amended (the “Securities Act”), which registration statement has become
effective and is current with regard to the shares being sold, or (b) a specific exemption from the
registration requirements of the Securities Act that is confirmed in a favorable written opinion of
counsel, in form and substance satisfactory to counsel for the Company, prior to any such sale or
distribution. The Participant hereby consents to such action as the Committee or the Company deems
necessary or appropriate from time to time to prevent a violation of, or to perfect an exemption
from, the registration requirements of the Securities Act or to implement the provisions of this
Agreement, including but not limited to placing restrictive legends on certificates evidencing
shares of Common Stock issued pursuant to this Agreement and delivering stop transfer instructions
to the Company’s stock transfer agent.



     11. NO RIGHT TO CONTINUED EMPLOYMENT. This Agreement does not confer upon the Participant any
right to continued employment by the Company or any of its subsidiaries or affiliated companies,
nor shall it interfere in any way with the right of the Participant’s employer to terminate the
Participant’s employment at any time for any reason or no reason.



     12. CONSTRUCTION. The Plan and this Agreement will be construed by and administered under the
supervision of the Committee, and all determinations of the Committee will be final and binding on
the Participant.



     13. 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, (i) to the Participant at the last address specified in Participant’s employment
records, or such other address as the Participant may designate in writing to the Company, or (ii)
to the Company, Avatar Holdings Inc., 201 Alhambra Circle, 12th Floor, Coral Gables, Florida 33134,
Attention: Corporate Secretary, or such other address as the Company may designate in writing to
the Participant.



     14. FAILURE TO ENFORCE NOT A WAIVER. The failure of either party hereto to enforce at any
time any provision of this Agreement shall in no way be construed to be a waiver of such provision
or of any other provision hereof.



     15. GOVERNING LAW. This Agreement shall be governed by and construed according to the laws of
the State of Delaware, without regard to the conflicts of laws provisions thereof.



     16. INCORPORATION OF PLAN. The Plan is hereby incorporated by reference and made a part of
this Agreement, and this Agreement shall be subject to the terms of the Plan, as the Plan may be
amended from time to time.



     17. COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which
shall be an original but all of which together shall represent one and the same agreement.



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     18. MISCELLANEOUS. This Agreement cannot be modified or terminated orally. This Agreement,
the Plan and the letter agreement, dated as of the date hereof, among the Company, Avatar
Properties and the Participant, contain the entire agreement between the parties relating to the
subject matter hereof. The section headings herein are intended for reference only and shall not
affect the interpretation hereof.



(signature page follows)




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     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	AVATAR HOLDINGS INC.

 	 
	 	By:  	/s/ Gerald D. Kelfer
 	 
	 	 	Name:  	Gerald D. Kelfer 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	 	 	 
	 	                                                             /s/ Patricia Kimball Fletcher
 	 
	 	Patricia Kimball Fletcher 	 
	 	 	 
	 




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