ASSISTED LIVING CONCEPTS, INC.
EXHIBIT 10.1
ASSISTED LIVING CONCEPTS, INC.
2007 CASH INCENTIVE COMPENSATION AWARD AGREMENT
THIS CASH INCENTIVE COMPENSATION AWARD AGREEMENT (the “Award Agreement”) is entered into as of
March 30, 2007, between Assisted Living Concepts, Inc. (“ALC”) and (“Employee”). In consideration
of the mutual promises and covenants made in this Agreement and the mutual benefits to be derived
from this Agreement, ALC and Employee agree as follows.
This Award Agreement sets forth the terms and conditions of a cash incentive award of
performance compensation (the “Award”) that is granted to you under the 2006 Omnibus Incentive
Compensation Plan (the “Plan”) and is a Performance Compensation Award. This Award provides you
with the opportunity to earn, subject to the terms of this Award Agreement, cash compensation as
set forth in Section 3 below.
THIS AWARD IS SUBJECT TO ALL TERMS AND CONDITIONS OF THE PLAN AND THIS AWARD AGREEMENT,
INCLUDING, WITHOUT LIMITATION, THE DISPUTE RESOLUTION PROVISIONS SET FORTH IN SECTION 9 OF THIS
AWARD AGREEMENT. BY SIGNING YOUR NAME BELOW, YOU WILL HAVE CONFIRMED YOUR ACCEPTANCE OF THE TERMS
AND CONDITIONS OF THIS AWARD AGREEMENT.
1. The Plan. This Award is made pursuant to the Plan, all the terms of which are hereby
incorporated in this Award Agreement. In the event of any conflict between the terms of the Plan
and the terms of this Award Agreement, the terms of this Award Agreement shall govern. In the
event of any conflict between the terms of this Award Agreement and the terms of any individual
employment agreement between you and ALC or any of its Affiliates (an “Employment Agreement”), the
terms of your Employment Agreement will govern.
2. Definitions. Capitalized terms used in this Award Agreement that are not defined in
this Award Agreement have the meanings as used or defined in the Plan. As used in this Award
Agreement, the following terms have the meanings set forth below:
“Business Day” means a day that is not a Saturday, a Sunday or a day on which banking
institutions are legally permitted to be closed in the City of New York.
“Committee” means the Compensation/ Nominating/ Governance committee of the Board of Directors
of ALC (the “Board”) or such other committee of the Board as may be designated by the Board from
time to time to administer the Plan.
“Determination Date” means the date during the first quarter of 2008, as determined by the
Committee, on which the Committee determines whether Performance Goals with respect to the
Performance Period have been achieved.
“Performance Goals” means the performance goals set forth on Exhibit A to this Award
Agreement.
“Performance Period” means the period from January 1, 2007 through December 31, 2007.
3. (o Performance-Based Right to Payment. The amount of cash compensation payable pursuant
to the Award shall be determined based on the achievement of the Performance Goals. On the
Determination Date, the Committee in its sole discretion shall determine whether you are entitled
to payment with respect to all or a portion of your Award subject to this Award Agreement. Except
as otherwise provided in your Employment Agreement, the payment of cash compensation with respect
to your Award is contingent on the attainment of the Performance Goals. Accordingly, unless
otherwise provided in your Employment Agreement, you will not become entitled to payment with
respect to the Award subject to this Award Agreement on the Determination Date unless the Committee
determines that the Performance Goals with respect to the Determination Date have been attained.
Upon such determination by the Committee and subject to the provisions of the Plan and this Award
Agreement, you shall have the right to payment of the cash compensation as set forth on Exhibit A.
Pursuant to Section 4 and except as otherwise provided in your Employment Agreement, in order to be
entitled to payment with respect to any Award on the Determination Date, you must be employed by
ALC or an Affiliate on the Determination Date.
(b) Payment of Award. Payments made pursuant to this Award Agreement shall be payable
in cash as soon as administratively practicable following the Determination Date. The Committee
and ALC shall use commercially reasonable efforts to make such payments by March 15, 2008.
4. (a) Forfeiture of Award. Unless the Committee determines otherwise, and except as
otherwise provided in your Employment Agreement, if your rights with respect to any Award awarded
to you pursuant to this Award Agreement have not become payable prior to the date on which your
employment with ALC and its Affiliates terminates, your rights with respect to such Award shall
immediately terminate, and you will be entitled to no further payments or benefits with respect
thereto. If pursuant to Section 3 the Committee determines in its sole discretion that the
Performance Goals with respect to the Determination Date have not been attained, your rights with
respect to such Award shall immediately terminate, and you will be entitled to no further payments
or benefits with respect thereto.
(b) Recovery of Award Following Restatement. If ALC’s financial statements are the
subject of a restatement due to error or misconduct, to the extent permitted by governing law, in
all appropriate cases, Employee shall on demand from ALC repay all excess incentive cash
compensation paid under this Award Agreement. For purposes of this Award Agreement, excess
incentive cash compensation means the positive difference, if any, between (i) the Award made to
Employee and (ii) the Award that would have been made to Employee had the Award been calculated
based on ALC’s financial statements as restated. ALC will not be required to award Employee an
additional Award should the restated financial statements result in a higher calculated Award. The
repayment of excess incentive cash compensation is in addition to and separate from any other
relief available to ALC due to the Employee’s error or misconduct
5. Non-Transferability of Award. Unless otherwise provided by the Committee in its
discretion, the Award may not be sold, assigned, alienated, transferred, pledged, attached or
otherwise encumbered except as provided in Section 9(a) of the Plan. Any purported sale,
assignment, alienation, transfer, pledge, attachment or other encumbrance of a Performance Award in
violation of the provisions of this Section 5 and Section 9(a) of the Plan shall be void.
6. Withholding. The payment of cash compensation pursuant to Section 3(b) is conditioned
on satisfaction of any applicable withholding taxes in accordance with Section 9(d) of the Plan.
7. Successors and Assigns of ALC. The terms and conditions of this Award Agreement shall
be binding upon and shall inure to the benefit of ALC and its successors and assigns.
8. Committee Discretion. Subject to your Employment Agreement, the Committee shall have
full and plenary discretion with respect to any actions to be taken or determinations to be made in
connection with this Award Agreement, and its determinations shall be final, binding and
conclusive.
9. Dispute Resolution.
(a) Jurisdiction and Venue. Notwithstanding any provision in your Employment
Agreement, you and ALC irrevocably submit to the exclusive jurisdiction of (i) the United States
District Court for the Eastern District of Wisconsin and (ii) the courts of the State of Wisconsin
for the purposes of any suit, action or other proceeding arising out of this Award Agreement or the
Plan. You and ALC agree to commence any such action, suit or proceeding either in the United
States District Court for the Eastern District of Wisconsin or, if such suit, action or other
proceeding may not be brought in such court for jurisdictional reasons, in the courts of the State
of Wisconsin. You and ALC further agree that service of any process, summons, notice or document
by U.S. registered mail to the other party’s address set forth below shall be effective service of
process for any action, suit or proceeding in Wisconsin with respect to any matters to which you
have submitted to jurisdiction in this Section 9o. You and ALC irrevocably and unconditionally
waive any objection to the laying of venue of any action, suit or proceeding arising out of this
Award Agreement or the Plan in (A) the United States District Court for the Eastern District of
Wisconsin or (B) the courts of the State of Wisconsin, and hereby and thereby further irrevocably
and unconditionally waive and agree not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient forum.
(b) Waiver of Jury Trial. You and ALC hereby waive, to the fullest extent permitted
by applicable law, any right either of you may have to a trial by jury in respect to any litigation
directly or indirectly arising out of, under or in connection with this Award Agreement or the
Plan.
(c) Confidentiality. You hereby agree to keep confidential the existence of, and any
information concerning, a dispute described in this Section 9, except that you may disclose
information concerning such dispute to the court that is considering such dispute or to your legal
counsel or other advisors (provided that such counsel or other advisors agree not to disclose any
such information other than as necessary to the prosecution or defense of the dispute).
10. Notice. All notices, requests, demands and other communications required or permitted
to be given under the terms of this Award Agreement shall be in writing and shall be deemed to have
been duly given when delivered by hand or overnight
courier or three Business Days after they have been mailed by U.S. registered mail, return receipt
requested, postage prepaid, addressed to the other party as set forth below:
If to ALC:
|
Assisted Living Concepts, Inc. | |
| 000 Xxxx Xxxxxxxx Xxxxxx | ||
| Xxxxxxxxx, XX 00000 | ||
| Attn: Corporate Secretary |
If to you:
The parties may change the address to which notices under this Award Agreement shall be sent by
providing written notice to the other in the manner specified above.
11. Headings. Headings are given to the Sections and subsections of this Award Agreement
solely as a convenience to facilitate reference. Such headings shall not be deemed in any way
material or relevant to the construction or interpretation of this Award Agreement or any provision
thereof.
12. Amendment of this Award Agreement. The Committee may waive any conditions or rights
under, amend any terms of, or alter, suspend, discontinue, cancel or terminate this Award Agreement
prospectively or retroactively; provided, however, that any such waiver, amendment, alteration,
suspension, discontinuance, cancellation or termination that would materially and adversely impair
your rights under this Award Agreement shall not to that extent be effective without your consent.
13. Counterparts. This Award Agreement may be signed in counterparts, each of which shall
be an original, with the same effect as if the signatures thereto and hereto were upon the same
instrument.
IN WITNESS WHEREOF, the parties have duly executed this Award Agreement as of the date first
written above.
