INDUS Realty Trust, Inc. Director Deferred Compensation Plan effective June 3, 2021
INDUS REALTY TRUST, INC.
DIRECTOR DEFERRED COMPENSATION PLAN
Section 1.Purpose and Effective Date
The purpose of this Director Deferred Compensation Plan (the “Plan”) is to provide the non-employee members of the Board of Directors (the “Board”) of INDUS Realty Trust, Inc. (the “Company”) with an opportunity to elect the date on which their Director Award RSUs granted pursuant to the Company’s Equity Plan will be settled and paid, including any deferral thereon (in addition to any vesting requirements set forth in the RSU Grant Agreement) and to establish the terms for such elections and deferrals. The Plan shall be effective as of June 3, 2021 (the “Effective Date”).
Any member of the Board who is not an officer or employee of the Company or a subsidiary of the Company (a “Director”) is eligible to participate in the Plan.
Section 3.Elections With Respect to a Director Award RSU
(a) Normal Time of Election. Elections under this Plan with respect to any Director Award RSUs for a Plan Year shall be made no later than the date specified by the Plan Administrator, but no later than December 31 of the Plan Year prior to the Plan Year in which the applicable services are performed. Any such election shall be effective for Director Award RSUs earned in the following Plan Year.
(b)Initial Election. Notwithstanding Section 3(a):
(c) Manner of Election . Unless otherwise determined by the Board, a participant may elect to defer receipt of 100% of such participant’s Director Award RSUs within the time periods prescribed under this Section 4 by giving written notice to the Chief Financial Officer of the Company (or his or her designee) on an election form provided by the Company, which notice shall specify (to the extent applicable) the Settlement Date elected under Section 4.
(d) Duration and Effect of Election. An election to defer Director Award RSUs shall become effective and binding on the participant once the Plan Year to which the election applies has commenced and, except as provided by this paragraph, once made, is irrevocable and may not be changed. An election for a Plan Year may be cancelled upon demonstration of an “unforeseeable emergency” (within the meaning of Section 409A) and with the concurrence of the Plan Administrator. The Plan Administrator may in its discretion provide that elections may be evergreen and apply to all future Plan Years until revoked according to such procedures established by the Plan Administrator. However, except as set forth in this Section 3(d), any revocation will only apply to a future Plan Year.
Section 4.Settlement Date Election
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Section 5.Death or Disability Prior to Receipt
In the event of a participant’s death or Disability prior to the date elected by the participant to receive the Shares underlying a grant of Director Award RSUs deferred hereunder, then such Shares shall be paid to the participant (or the participant’s estate or personal representative, as applicable) in a lump sum within sixty (60) days following the date of the participant’s death or Disability.
Section 6.Participant's Rights Unsecured
Nothing in this Plan shall require the segregation of any assets of the Company or any type of funding by the Company, it being the intention of the parties that the Plan be an unfunded arrangement for federal income tax purposes. No participant shall have any rights to or interest in any specific assets or Shares by reason of the Plan, and any participant’s rights to enforce payment of the obligations of the Company hereunder shall be those of a general creditor of the Company.
No right to receive payments hereunder shall be transferable or assignable by a participant, except by will or by the laws of descent and distribution. A participant may not sell, assign, transfer, pledge or otherwise encumber any interest in the participant’s Director Award RSUs and any attempt to do so shall be void against, and shall not be recognized by, the Company.
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Section 9. Section 409A
To the extent applicable to a participant, the Plan and each deferral election thereunder shall incorporate the terms and conditions required by Section 409A. To the extent applicable, the Plan and each deferral election hereunder shall be interpreted in accordance with Section 409A. Notwithstanding any provision of the Plan or any deferral election to the contrary, the Board may (but is not obligated to), without a participant’s consent, adopt such amendments to the Plan or deferral election or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Board determines are necessary or appropriate to comply with the requirements of Section 409A and thereby avoid the application of any penalty taxes under Section 409A. The Company makes no representations or warranties as to the tax treatment of any deferral hereunder under Section 409A or otherwise. The Company shall have no obligation under this Section 9 or otherwise to take any action (whether or not described herein) to avoid the imposition of taxes, penalties or interest under Section 409A with respect to any deferral hereunder and shall have no liability to any participant or any other person if any deferral under the Plan is determined to constitute non-compliant, “nonqualified deferred compensation” subject to the imposition of taxes, penalties and/or interest under Section 409A.
Section 10.Governing Law
The laws of the State of Delaware shall govern all questions of law arising with respect to the Plan, without regard to the choice of law principles of any jurisdiction that would result in the application of the laws of another jurisdiction. If any provision of the Plan is held to be illegal or void, such illegality or invalidity shall not affect the remaining provisions of the Plan, but shall be fully severable, and the Plan shall be construed and enforced as if the illegal or invalid provision had never been inserted.
The Plan may at any time or from time to time be amended, modified or terminated by the Board. No amendment, modification or termination shall, without the consent of the participant, adversely affect any Director Award RSUs deferred under this Plan, except that (a) the Board may terminate the Plan and distribute the Shares underlying any Director Award RSUs deferred under this Plan to participants in accordance with and subject to the rules of Treas. Reg. Section 1.409A-3(j)(4)(ix), or successor provisions, and any generally applicable guidance issued by the Internal Revenue Service permitting such termination and distribution and (b) the Board shall be entitled to take any actions contemplated by Section 9.
Section 12.Delay of Payments
To the extent permitted under Section 409A, the Plan Administrator may, in its sole discretion, delay payment under any of the following circumstances, provided that the Plan Administrator treats all payments to similarly situated participants on a reasonably consistent basis:
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