Exhibit 10.2
FORM OF
LTIP UNIT AGREEMENT
UNDER THE
PROVIDENT SENIOR LIVING TRUST
LONG TERM INCENTIVE PLAN
Name of Grantee:
Number of LTIP Units:
Purchase Price per LTIP Unit:
Grant Date:
Final Acceptance Date:
Pursuant to the Provident Senior Living Trust Long Term Incentive Plan,
as in effect from time to time (the "Plan"), and the Amended and Restated
Agreement of Limited Partnership of PSLT OP, L.P., dated as of August 3, 2004,
as amended from time to time (the "Partnership Agreement"), the Compensation
Committee (the "Committee") of Provident Senior Living Trust ("Provident
Trust"), a Maryland real estate investment trust and the sole member of PSLT
GP, LLC ("GP") the general partner of PSLT OP, L.P. (the "Partnership"),
hereby grants to the Grantee named above an award (an "Award") in the form of,
and by causing the Partnership to issue to the Grantee named above, a
Partnership Interest (as defined in the Partnership Agreement) having the
rights, voting powers, restrictions, limitations as to distributions,
qualifications and terms and conditions of redemption and conversion set forth
herein and in the Partnership Agreement, such Partnership Interest to be
expressed as a number of LTIP Units (as defined in the Plan and the
Partnership Agreement). Upon acceptance of this LTIP Unit Agreement (this
"Agreement"), the Grantee shall receive the number of LTIP Units specified
above, subject to the restrictions and conditions set forth herein, in the
Plan and in the Partnership Agreement.
1. Acceptance of Agreement. The Grantee shall have no rights with respect
to this Agreement unless he or she shall have accepted this Agreement prior to
the close of business on the Final Acceptance Date specified above by (i)
making a contribution to the capital of the Partnership by certified or bank
check or other instrument acceptable to the Committee of the Purchase Price
per LTIP Unit specified above, multiplied by the number of LTIP Units to be
issued to the Grantee as part of this Award, (ii) signing and delivering to
the Partnership a copy of this Agreement and (iii) unless the Grantee is
already a Limited Partner (as defined in the Partnership Agreement), signing,
as a Limited Partner, and delivering to the Partnership a counterpart
signature page to the Partnership Agreement (attached hereto as Annex A). The
Purchase Price per LTIP Unit paid by the Grantee shall be deemed a
contribution to the capital of the Partnership upon the terms and conditions
set forth herein and in the Partnership Agreement. Upon acceptance of this
Agreement by the Grantee, the Partnership Agreement shall be amended to
reflect the issuance to the Grantee of the LTIP Units so accepted, and the
Partnership shall deliver to the Committee (to be held for the benefit of the
Grantee) a certificate certifying the number of LTIP Units then issued to the
Grantee. Thereupon, the Grantee shall have all the rights of a Limited Partner
of the Partnership with respect to the number of LTIP Units specified
above, as set forth in the Partnership Agreement, subject, however, to the
restrictions and conditions specified in Section 2 below, in the Plan and in
the Partnership Agreement.
2. Restrictions and Conditions.
(a) The records of the Partnership evidencing the LTIP Units granted
herein shall bear an appropriate legend, as determined by the Partnership in
its sole discretion, to the effect that such LTIP Units are subject to
restrictions as set forth herein, in the Plan and in the Partnership
Agreement.
(b) LTIP Units granted herein may not be sold, assigned,
transferred, pledged or otherwise encumbered or disposed of by the Grantee
prior to vesting in accordance herewith.
(c) If the Grantee's service with Provident Trust and all of its
Affiliates (as defined in the Plan) is voluntarily or involuntarily terminated
for any reason prior to the full vesting of the LTIP Units granted herein, the
Partnership shall have the right, at the discretion of the Committee, to
repurchase any such unvested LTIP Units from the Grantee or the Grantee's
legal representative at the Purchase Price per LTIP Unit. The Partnership must
exercise such right of repurchase or forfeiture by written notice to the
Grantee or the Grantee's legal representative not later than 90 days following
such termination of service.
3. Vesting of LTIP Units. The restrictions and conditions in Section 2 of
this Agreement shall lapse on the Vesting Date or Dates specified in the
following schedule, so long as the Grantee remains in continuous service with
Provident Trust or any of its Affiliates through such Vesting Date or Dates.
If a series of Vesting Dates is specified, then the restrictions and
conditions in Section 2 shall lapse only with respect to the percentage of
LTIP Units accepted by the Grantee hereunder that is specified as vested on
such date.
Percentage of
LTIP Units Vested Vesting Date
Subsequent to such Vesting Date or Dates, the LTIP Units on which all
restrictions and conditions have lapsed shall no longer be deemed restricted
or forfeitable.
4. Acceleration of Vesting in Special Circumstances. If, before the
Vesting Date on which all of the LTIP Units granted hereby become fully
vested, the Grantee's service with Provident Trust and all of its Affiliates
is terminated by reason of (i) the death of the Grantee, or (ii) the
incapacity of the Granteee due to physical or mental illness or disability
which qualifies the Grantee to receive benefits under Provident Trust's
long-term disability plan, or (iii) the
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termination of the Grantee's service by Provident Trust and its Affiliates
without Cause (as defined in the Employment Agreement between the Grantee and
Provident Trust), or (iv) the termination of the Grantee's service by the
Grantee for Good Reason (as defined in the Employment Agreement between the
Grantee and Provident Trust), then the Grantee shall be treated as if he had
remained in continuous service with Provident Trust and its Affiliates through
the next scheduled Vesting Date following the date on which such termination
of service occurs.
5. Distributions. Distributions on the LTIP Units shall be paid currently
to the Grantee in accordance with the terms of the Partnership Agreement and
the Plan.
6. Incorporation of Plan and Partnership Agreement. Notwithstanding
anything herein to the contrary, this Agreement shall be subject to and
governed by all of the terms and conditions of the Plan and the Partnership
Agreement. Capitalized terms used in this Agreement shall have the meaning
specified in the Plan, unless a different meaning is specified herein.
7. Covenants. The Grantee hereby covenants as follows:
(a) At all times that the Grantee holds any LTIP Units, the Grantee
shall disclose to the Partnership in writing such information as may be
reasonably requested with respect to ownership of LTIP Units as the
Partnership may deem reasonably necessary to ascertain and to establish
compliance with provisions of the Internal Revenue Code of 1986, as amended
(the "Code"), applicable to the Partnership or to comply with requirements of
any other appropriate taxing authority.
(b) The Grantee may, at the Grantee's election, make an election
under Section 83(b) of the Code with respect to the LTIP Units awarded
hereunder. If the Grantee makes such election, the Grantee shall deliver with
this Agreement a completed, executed copy of the election form attached hereto
as Annex B. The Grantee agrees to file any such election (or to permit the
Partnership to file such election on the Grantee's behalf) within thirty (30)
days after the award of the LTIP Units hereunder with the IRS Service Center
at which such Grantee files his or her personal income tax returns, and to
file a copy of such election with the Grantee's U.S. federal income tax return
for the taxable year in which the LTIP Units are awarded to the Grantee.
8. Transferability. This Agreement is personal to the Grantee, is
non-assignable and is not transferable in any manner, by operation of law or
otherwise, other than by will or the laws of descent and distribution.
9. Amendment. The Grantee acknowledges that the Plan may be amended or
discontinued in accordance with its terms and that this Agreement may be
amended or canceled by the Committee, on behalf of the Partnership, for the
purpose of satisfying changes in law or for any other lawful purpose, provided
that no such action shall adversely affect the Grantee's rights under this
Agreement without the Grantee's written consent.
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10. No Obligation to Continue Employment. Neither Provident Trust nor any
Affiliate is obligated by or as a result of the Plan or this Agreement to
continue the Grantee in employment, and neither the Plan nor this Agreement
shall interfere in any way with the right of Provident Trust or any Affiliate
to terminate the employment of the Grantee at any time for any reason.
11. Notices. Notices hereunder shall be mailed or delivered to the
Partnership at its principal place of business and shall be mailed or
delivered to the Grantee at the address on file with the Partnership or, in
either case, at such other address as one party may subsequently furnish to
the other party in writing.
12. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, applied without regard to
conflict of law principles. The parties hereto agree that any action or
proceeding arising directly, indirectly or otherwise in connection with, out
of, related to or from this Agreement, any breach hereof or any action covered
hereby, shall be resolved within the State of New York and the parties hereto
consent and submit to the jurisdiction of the federal and state courts located
within the City of New York, New York. The parties hereto further agree that
any such action or proceeding brought by either party to enforce any right,
assert any claim, obtain any relief whatsoever in connection with this
Agreement shall be brought by such party exclusively in federal or state
courts located within the State of New York.
Provident Senior Living Trust
By:
-------------------------------------
PSLT OP, L.P.
By: PSLT GP, LLC,
its general partner
By: Provident Senior Living Trust,
its sole member
By:
---------------------------------
The foregoing Agreement is hereby accepted and the terms and conditions
thereof hereby agreed to by the Grantee.
-----------------------------------------
Grantee
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ANNEX A
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FORM OF LIMITED PARTNER SIGNATURE PAGE
The Grantee, desiring to become one of the within named Limited Partners
of PSLT OP, L.P., hereby becomes a party to the Agreement of Limited
Partnership of PSLT OP, L.P. The Grantee agrees that this signature page may
be attached to any counterpart of said Agreement of Limited Partnership.
_________________________________________
Name:____________________________________
Address: _______________________________
_______________________________
_______________________________
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ANNEX B
ELECTION TO INCLUDE IN GROSS INCOME IN YEAR OF
TRANSFER OF PROPERTY PURSUANT TO SECTION 83(b)
OF THE INTERNAL REVENUE CODE
The undersigned hereby makes an election pursuant to Section 83(b) of the
Internal Revenue Code with respect to the property described below and
supplies the following information in accordance with the regulations
promulgated thereunder:
1. The name, address and taxpayer identification number of the
undersigned are:
Name (the "Taxpayer"): ___________________________________________
Address: ___________________________________________
___________________________________________
___________________________________________
Social Security Number: ___________________________________________
2. Description of property with respect to which the election is being
made:
The election is being made with respect to 35,000 LTIP Units
(restricted partnership interests) in PSLT OP, L.P. (the "Partnership").
3. The date on which the LTIP Units were transferred is September 7,
2004. The taxable year to which this election relates is calendar year 2004.
4. Nature of restrictions to which the LTIP Units are subject:
(a) Until the LTIP Units become vested, the Taxpayer may not transfer
in any manner any portion of the LTIP Units.
(b) The Taxpayer's LTIP Units are subject to time-based vesting with
33-1/3% vesting on September 7, 2005, 33-1/3% vesting on September 7,
2006 and 33-1/3% vesting on September 7, 2007, subject to accelerated
vesting in the event of the termination of the Taxpayer's employment
with the Partnership and its affiliates in certain circumstances.
(c) Unvested LTIP Units will be forfeited and repurchased by the
Partnership at cost in the event of the termination of the Taxpayer's
employment with the Partnership and its affiliates prior to an
applicable vesting date
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5. The fair market value at time of transfer (determined without regard
to any restrictions other than restrictions which by their terms will never
lapse) of the LTIP Units with respect to which this election is being made was
$0.25 per LTIP Unit.
6. The amount paid by the Taxpayer for the LTIP Units was $0.25 per LTIP
Unit.
7. A copy of this statement has been furnished to the Partnership and to
Provident Senior Living Trust, the sole member of PSLT GP, LLC, the general
partner of the Partnership.
Date: ________ __, _____ _________________________________
Name:____________________________
Spousal Consent
The undersigned hereby consents to the making, by the undersigned's
spouse, of the foregoing election pursuant to Section 83(b) of the Internal
Revenue Code.
Date: ________ __, _____ _________________________________
Name:____________________________
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