EXHIBIT 10.1
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement"), made this ____ day of
___________, 20__ between Health Care REIT, Inc., a Delaware corporation (the
"Corporation"), and _____________________ (the "Participant").
WITNESSETH:
WHEREAS, the Participant is an employee and executive officer of the
Corporation; and
WHEREAS, the Corporation adopted the Health Care REIT, Inc. 1995 Stock
Incentive Plan (the "Plan") in order to provide select key employees with
additional incentives to achieve long-term corporate objectives; and
WHEREAS, the Compensation Committee of the Corporation's Board of
Directors decided that the Participant should be granted stock options to
purchase shares of the Corporation's common stock, $1.00 par value per share
("Common Stock"), on the terms and conditions set forth below, and in accordance
with the terms of the Plan.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained and intending to be legally bound hereby, the parties hereto agree as
follows:
1. GRANT OF OPTIONS.
Subject to the terms and conditions of this Agreement, the
Corporation hereby grants to the Participant the right and option to purchase up
to a total of ____________________ (_____) shares of the Common Stock of the
Corporation, at the option price of $______ per share (the "Options").
The Options shall consist of options to purchase _____ shares
of Common Stock intended to qualify as incentive stock options ("ISOs") within
the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), and options to purchase _____ shares of Common Stock not intended to
qualify as ISOs ("Nonstatutory Options").
2. PERIOD OF EXERCISE.
The Options shall become exercisable by the Participant in
five installments. Subject to the accelerated vesting provided for in Sections
9, 10 and 11 below, at any time during the term of the Options, the maximum
number of shares of Common Stock the Participant may purchase by exercising
Nonstatutory Options, and the maximum number which the Participant may purchase
by exercising ISOs, shall be limited as specified in the following schedule:
MAXIMUM NUMBER OF MAXIMUM NUMBER OF
SHARES THAT MAY BE SHARES THAT MAY BE
PURCHASED BY EXERCISING PURCHASED BY
PERIOD NONSTATUTORY OPTIONS EXERCISING ISOs
------ -------------------- ---------------
From _________, 20__ to Up to _____ shares None
_________, 20__
From _________, 20__ to Up to _____ shares (less any shares None
_________, 20__ previously purchased by exercising
Nonstatutory Options)
From _________, 20__ to Up to _____ shares (less any shares None
_________, 20__ previously purchased by exercising
Nonstatutory Options)
From _________, 20__ to Up to _____ shares (less any shares Up to _____ shares
_________, 20__ previously purchased by exercising
Nonstatutory Options)
From _________, 20__ to Up to _____ shares (less any shares Up to _____ shares (less any
_________, 20__ previously purchased by exercising shares previously purchased by
Nonstatutory Options) exercising ISOs)
If, during any of these periods, the Participant fails to
exercise the Options with respect to all or any portion of the shares that may
be acquired at such time, the Participant shall be entitled to exercise the
Options with respect to the remaining portion of such shares at any subsequent
time prior to the termination date of the Options.
The Options intended to be ISOs are subject to the $100,000
annual limit on vesting of ISOs as set forth in Section 422(d) of the Code. To
the extent the aggregate fair market value (determined at the date of grant) of
the shares of Common Stock with respect to which those ISOs first become
exercisable by the Participant during any calendar year under this Section 2
(when aggregated with any prior ISOs granted to the Participant under stock
option plans of the Corporation) exceeds $100,000, whether by reason of
accelerated vesting under Sections 9, 10 or 11 or otherwise, the Options shall
consist of ISOs for the maximum number of shares that may be covered by ISOs
without violating Section 422(d) of the Code, and the remaining Options becoming
exercisable in that year shall be treated as Nonstatutory Options.
3. TERMINATION DATE OF OPTIONS.
The Options granted herein, and the related Dividend
Equivalent Rights under Section 8 below, shall terminate on _________, 20__, the
tenth anniversary of the date of grant, and the Participant shall have no right
to exercise the Options at any time thereafter.
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4. MANNER OF EXERCISE.
If the Participant elects to exercise the Options to purchase
shares of Common Stock, the Participant shall give written notice of such
exercise to the Corporate Secretary of the Corporation. The notice of exercise
shall state the number of shares of Common Stock as to which the Options are
being exercised, and the Corporation shall determine whether the Options
exercised are ISOs or Nonstatutory Options.
The Participant may exercise the Options to purchase all, or
any lesser whole number, of the number of shares of Common Stock that the
Participant is then permitted to purchase under Section 2.
5. PAYMENT FOR SHARES.
Full payment of the option price for the shares of Common
Stock purchased by exercising the Options shall be due at the time the notice of
exercise is delivered pursuant to Section 4. Such payment may be made (i) in
cash, (ii) by delivery of shares of Common Stock currently owned by the
Participant with a fair market value equal to the option price, or (iii) in any
other form acceptable to the Corporation.
Alternatively, the Participant shall be deemed to have paid
the full option price due upon exercise of the Options, if the Participant's
notice of exercise is accompanied by an irrevocable instruction to the
Corporation to deliver the shares of Common Stock issuable upon exercise of the
Options (less any shares withheld to satisfy the Participant's tax obligations
pursuant to Section 7 below) promptly to a broker-dealer designated by
Participant, together with an irrevocable instruction to such broker-dealer to
sell at least that portion of the shares necessary to pay the option price (and
any tax withholding related expenses specified by the parties), and that portion
of the sale proceeds needed to pay the option price is delivered directly to the
Corporation no later than the close of business on the settlement date.
6. ISSUANCE OF STOCK CERTIFICATES FOR SHARES.
The stock certificates for any shares of Common Stock issuable
to the Participant upon exercise of the Options shall be delivered to the
Participant (or to the person to whom the rights of the Participant shall have
passed by will or the laws of descent and distribution) as promptly after the
date of exercise as is feasible, but not before the Participant has paid the
option price for such shares and made any arrangements for tax withholding, as
required by Section 7.
7. TAX WITHHOLDING.
Whenever the Participant exercises Options, the Corporation
shall notify the Participant of the amount of tax (if any) that must be withheld
by the Corporation under all applicable federal, state and local tax laws. With
respect to each exercise of the Options, the Participant agrees to make
arrangements with the Corporation to (a) remit the required amount to the
Corporation in cash, (b) authorize the Corporation to withhold a portion of the
shares of
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Common Stock otherwise issuable upon the exercise with a value equal to the
required amount, (c) deliver to the Corporation shares of Common Stock with a
value equal to the required amount, (d) authorize the deduction of the required
amount from the Participant's compensation, or (e) otherwise provide for payment
of the required amount in any other manner satisfactory to the Corporation.
8. DIVIDEND EQUIVALENT RIGHTS.
The Participant is hereby granted rights to receive deferred
payments equivalent in value to the dividends that would have been payable on
the shares of Common Stock issuable under the Options if such shares were
outstanding on the dividend record dates between the date the Options were
granted to the Participant and the date the Options are exercised to acquire
such shares ("Dividend Equivalent Rights"). An unfunded bookkeeping account
shall be created for the Participant and the Participant's rights to the
balances credited to such account shall be no greater than those of an
unsecured creditor of the Corporation.
On each dividend record date occurring after the date of grant
of the Options and while any Options remain outstanding and unexercised, the
Participant's account shall be credited with a dollar amount equal to the
dividends that would have been payable with respect to the shares of Common
Stock issuable under the Options if such shares were outstanding on the dividend
record date:
(a) In the case of a cash dividend declared on the Common
Stock, the amount credited to the Participant's account with respect
thereto shall be equal to the dividend declared per share of Common
Stock multiplied by the number of shares of Common Stock subject to the
unexercised portion of the Options as of the dividend record date; and
(b) In the case of a stock dividend declared on the Common
Stock, the amount credited to the Participant's account with respect
thereto shall be equal to the dividend declared per share of Common
Stock multiplied by (i) the number of shares of Common Stock subject to
the unexercised portion of the Options and (ii) the current fair market
value of a share of Common Stock on the dividend payment date.
When the Options with respect to which the Participant has
been granted Dividend Equivalent Rights first become exercisable (whether under
Section 2 above or Sections 9, 10 or 11 below), the Participant shall be
entitled to receive from the Corporation a distribution equal to (i) the dollar
amount then accumulated in his or her account, as described above, and not
previously distributed as provided in this paragraph, multiplied by (ii) a
fraction the numerator of which shall be the number of shares subject to the
Options that first become exercisable on such date and the denominator of which
shall be the sum of such number and the total number of shares subject to
Options that have not yet become exercisable; plus after shares have become
exercisable (iii) distributions equal to the quarterly dividend declared per
share of Common Stock multiplied by the number of shares of Common Stock that
have become exercisable, which distributions shall be paid quarterly on or about
the time of the dividend pay dates. The Participant's account shall be debited
by a dollar amount equal to the distribution. This distribution shall be
delivered to the Participant in the form of a cash payment. No distribution
shall be made until the Participant has made arrangements with the Corporation
to withhold all applicable payroll taxes from the
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distribution, or to satisfy the tax withholding obligations in some other
manner, as described in Section 7 above.
Upon expiration or termination of the Options, all rights and
claims to the Dividend Equivalent Rights will be terminated.
9. TERMINATION OF EMPLOYMENT; CHANGE IN CORPORATE CONTROL.
In the event of a Change in Corporate Control (as described
below), or if the Participant's employment with the Corporation is terminated
before the Options expire or have been exercised with respect to all of the
shares of Common Stock subject to the Options (as provided in subsections (a)
and (b) below), the Participant shall have the right to exercise the Options
during a period of ninety (90) days following the date of the Change in
Corporate Control or termination of employment (as applicable), but in no event
later than _________, 20__, and the Options shall expire at the end of such
period.
(a) In the event of a Change in Corporate Control, or if the
Participant's employment is terminated involuntarily without "Cause"
(as defined in the Participant's Employment Agreement), any portion of
the Options not previously exercisable under Section 2 shall become
immediately exercisable and the Participant shall be entitled to
receive a cash payment of any balance then credited to the
Participant's Dividend Equivalent Rights account pursuant to Section 8.
(b) In the case of an involuntary termination not described in
subsection (a) above, or a voluntary termination by the Participant not
following a Change in Corporate Control, the maximum number of shares
the Participant may purchase by exercising the Options shall be the
number of shares which could be purchased at the date of termination
pursuant to Section 2. Participant shall not be entitled to receive a
cash payment of any balance then credited to the Participant's Dividend
Equivalent Rights account pursuant to Section 8.
For purposes of this Section 9, termination of employment as a
result of the expiration of the Participant's Employment Agreement shall be
considered a voluntary termination if the notice of non-renewal was delivered by
the Participant and an involuntary termination if the notice of non-renewal was
delivered by the Corporation and in both instances, the Participant is no longer
employed by the Corporation.
For purposes of this Section 9, a "Change in Corporate
Control" shall include any of the following events:
(i) The acquisition in one or more transactions of more than
twenty percent of the Corporation's outstanding Common Stock (or the
equivalent in voting power of any class or classes of securities of the
Corporation entitled to vote in elections of directors) by any
corporation, or other person or group (within the meaning of Section
14(d)(3) of the Securities Exchange Act of 1934, as amended);
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(ii) Any transfer or sale of substantially all of the assets
of the Corporation, or any merger or consolidation of the Corporation
into or with another corporation in which the Corporation is not the
surviving entity;
(iii) Any election of persons to the Board of Directors which
causes a majority of the Board of Directors to consist of persons other
than "Continuing Directors". For this purpose, those persons who were
members of the Board of Directors on May 1, 1995, shall be "Continuing
Directors". Any person who is nominated for election as a member of the
Board after May 1, 1995 shall also be considered a "Continuing
Director" for this purpose if, and only if, his or her nomination for
election to the Board of Directors is approved or recommended by a
majority of the members of the Board (or of the relevant Nominating
Committee) and at least five (5) members of the Board are themselves
Continuing Directors at the time of such nomination; or
(iv) Any person, or group of persons, announces a tender offer
for at least twenty percent (20%) of the Corporation's Common Stock.
10. EFFECT OF DEATH.
If the Participant dies before the Options expire or have been
exercised with respect to all of the shares of Common Stock subject to the
Options, any portion of the Options not previously exercisable under Section 2
shall become exercisable, and the Participant's executor, administrator, or any
person to whom the Options may be transferred by the Participant's will or by
the laws of descent and distribution, shall have the right to (i) exercise the
Options, to the extent not previously exercised, at any time prior to the first
anniversary of the date of death, but in no event later than _________, 20__,
and (ii) to receive a cash payment of any balance then credited to the
Participant's Dividend Equivalent Rights account pursuant to Section 8 above.
For this purpose, the terms of this Agreement shall be deemed to apply to such
person as if he or she was the Participant.
11. EFFECT OF PERMANENT AND TOTAL DISABILITY OR RETIREMENT AFTER
AGE 65.
If the termination of the Participant's employment occurs
after a finding of the Participant's permanent and total disability, or as a
result of retirement after age 65, (i) any portion of the Options not previously
exercisable under Section 2 shall become exercisable, and the Options may be
exercised at any time during the period of twelve (12) months following the date
of termination of employment or retirement, as the case may be, but in no event
later than _________, 20__, and (ii) the Participant shall be entitled to
receive a cash payment of any balance then credited to the Participant's
Dividend Equivalent Rights account pursuant to Section 8.
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12. NONTRANSFERABILITY.
The Participant's rights under this Agreement may not be
assigned or transferred by the Participant other than by will or the laws of
descent and distribution. The Options may not be exercised by anyone other than
the Participant or, in the case of the Participant's death, by the person to
whom the rights of the Participant shall have passed by will or the laws of
descent and distribution.
13. SECURITIES LAWS.
The Corporation may from time to time impose any conditions on
the exercise of the Options as it deems necessary or advisable to ensure that
the Options granted hereunder, and each exercise thereof, satisfy the applicable
requirements of federal and state securities laws. Such conditions to satisfy
applicable federal and state securities laws may include, without limitation,
the partial or complete suspension of the right to exercise the Options until
the offering of the shares covered by the Options have been registered under the
Securities Act of 1933, as amended, or the printing of legends on all stock
certificates issued to the Participant describing the restrictions on transfer
of such shares.
14. RIGHTS PRIOR TO ISSUANCE OF CERTIFICATES.
Neither the Participant nor any person to whom the rights of
the Participant shall have passed by will or the laws of descent and
distribution shall have any of the rights of a stockholder with respect to any
shares of Common Stock until the date of the issuance to him or her of
certificates for such Common Stock as provided in Section 6 above.
15. OPTIONS NOT TO AFFECT EMPLOYMENT.
Neither this Agreement nor the Options granted hereunder shall
confer upon the Participant any right to continued employment with the
Corporation. This Agreement shall not in any way modify or restrict any rights
the Corporation may have to terminate such employment under the terms of the
Participant's Employment Agreement.
16. MISCELLANEOUS.
(a) This Agreement may be executed in one or more counterparts
all of which taken together will constitute one and the same instrument.
(b) The terms of this Agreement may only be amended, modified
or waived by a written agreement executed by both of the parties hereto.
(c) The validity, performance, construction and effect of this
Agreement shall be governed by the laws of the State of Ohio, without giving
effect to principles of conflicts of law; provided, however, that matters of
corporate law, including the issuance of shares of the Common Stock, shall be
governed by the Delaware General Corporation Law.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
ATTEST: HEALTH CARE REIT, INC.
By:
--------------------------------- -------------------------------
Vice President and Chairman and
Corporate Secretary Chief Executive Officer
--------------------------------- ------------------------------------
Name:
------------------------------
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