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EXHIBIT 10.9
HCR MANOR CARE
AMENDED RESTRICTED STOCK PLAN
RESTRICTED STOCK AGREEMENT
THIS AMENDED RESTRICTED STOCK AGREEMENT, dated as of ______, _____, is
made by and between MANOR CARE, INC., a Delaware corporation (the "Company"),
and ________________, an officer of the Company (the "Employee"):
WHEREAS, the Company has established the HCR Manor Care Amended
Restricted Stock Plan, as further amended from time to time (the "Plan"); and
WHEREAS, the Plan provides for the issuance of shares of the Company's
Common Stock, subject to certain restrictions thereon and to other conditions
stated herein; and
WHEREAS, the Compensation Committee of the Board of Directors
("Committee") has determined that it would be to the advantage and best interest
of the Company and its stockholders to issue the shares of Restricted Stock
provided for herein to the Employee in partial consideration of services
rendered, or to be rendered, to the Company and/or its subsidiaries; and
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
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Whenever the following terms are used in this Agreement, they shall
have the meaning specified below unless the context clearly indicates to the
contrary. Capitalized terms not otherwise defined herein shall have the meanings
set forth in the Plan. The masculine pronoun shall include the feminine and
neuter, and the singular the plural, where the context so indicates.
SECTION 1.1 - COMMON STOCK
"Common Stock" shall mean the Company's common stock, $.01 par value.
SECTION 1.2 - EXCHANGE ACT
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
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SECTION 1.3 - FAIR MARKET VALUE
"Fair Market Value" of a share of the Company's stock as of a given
date shall be: (i) the closing price of a share of the Company's stock on the
principal exchange on which shares of the Company's stock are then trading, if
any, on the day previous to such date, or, if shares were not traded on the day
previous to such date, then on the next preceding trading day during which a
sale occurred; or (ii) if such stock is not traded on an exchange but is quoted
on NASDAQ or a successor quotation system, (1) the last sales price (if the
stock is then listed as a National Market Issue under the NASD National Market
System), or (2) the mean between the closing representative bid and asked prices
(in all other cases) for the stock on the day previous to such date as reported
by NASDAQ or such successor quotation system; or (iii) if such stock is not
publicly traded on an exchange and not quoted on NASDAQ or a successor quotation
system, the mean between the closing bid and asked prices for the stock, on the
day previous to such date, as determined in good faith by the Committee; or (iv)
if the Company's stock is not publicly traded, the fair market value established
by the Committee acting in good faith.
SECTION 1.4 - PARENT CORPORATION
"Parent Corporation" shall mean any corporation in an unbroken chain of
corporations ending with the Company if each of the corporations other than the
Company then owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain.
SECTION 1.5 - PLAN
"Plan" shall mean the HCR Manor Care Amended Restricted Stock Plan, as
further amended from time to time.
SECTION 1.6 - RESTRICTIONS
"Restrictions" shall mean the reacquisition and transferability
restrictions imposed upon Restricted Stock under this Agreement.
SECTION 1.7 - RESTRICTED STOCK
"Restricted Stock" shall mean Common Stock of the Company issued under
this Agreement and subject to the Restrictions imposed hereunder.
SECTION 1.8 - RULE 16b-3
"Rule 16b-3" shall mean that certain Rule 16b-3 under the Exchange Act,
as such Rule may be amended in the future.
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SECTION 1.9 - SECRETARY
"Secretary" shall mean the Secretary of the Company.
SECTION 1.10 - SECURITIES ACT
"Securities Act" shall mean the Securities Act of 1933, as amended.
SECTION 1.11 - SUBSIDIARY
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing 50% or
more of the total combined voting power of all classes of stock in one of the
other corporations in such chain. "Subsidiary" shall also mean any partnership
in which the Company and/or any Subsidiary owns more than 50% of the capital or
profits interests.
SECTION 1.12 - TERMINATION OF EMPLOYMENT
"Termination of Employment" shall mean the time when the
employee-employer relationship between the Employee and the Company, a Parent
Corporation or a Subsidiary is terminated for any reason, with or without cause,
including, but not by way of limitation, a termination by resignation,
discharge, death, total disability or retirement, but excluding: (i) any
termination where there is a simultaneous reemployment by the Company, a Parent
Corporation or a Subsidiary; or (ii) any termination where the Employee
continues a relationship (e.g., as a director or as a consultant) with the
Company, a Parent Corporation or a Subsidiary. The Committee, in its absolute
discretion, shall determine the effect of all other matters and questions
relating to Termination of Employment, including, but not by way of limitation,
all questions of whether a leave of absence or other discontinuation of
employment constitutes Termination of Employment for the purposes of this
Agreement. Notwithstanding any other provision of this Agreement, the Company or
any of its subsidiaries has an absolute and unrestricted right to terminate the
Employee's employment at any time for any reason whatsoever, with or without
cause.
ARTICLE II
ISSUANCE OF RESTRICTED STOCK
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SECTION 2.1 - ISSUANCE OF RESTRICTED STOCK
In consideration of the past services rendered to the Company and for
other good and valuable consideration which the Committee has determined to be
equal to the par value of its Common Stock, on the date hereof the Company
issues to the Employee _________ shares of its Common Stock, par value $.01 per
share, upon the terms and conditions set forth in this Agreement.
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SECTION 2.2 - NO RIGHT TO CONTINUED EMPLOYMENT
Nothing in this Agreement or in the Plan shall confer upon the Employee
any right to continue in the employ of the Company, any Parent Corporation or
any Subsidiary or shall interfere with or restrict in any way the rights of the
Company, any Parent Corporation or any Subsidiary, which are hereby expressly
reserved, to discharge the Employee at any time for any reasons whatsoever, with
or without cause.
ARTICLE III
RESTRICTIONS
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SECTION 3.1 - REACQUISITION OF RESTRICTED STOCK
All shares of Restricted Stock issued to the Employee pursuant to this
Agreement are subject to reacquisition by the Company immediately upon a
Termination of Employment except in the event of a Termination of Employment
which occurs at a time when the Employee is eligible for normal retirement,
early retirement with unreduced retirement benefits or total disability (each as
determined by the Committee in accordance with Company plans and policies), or
occurs on account of death, in which event all shares of Restricted Stock shall
immediately fully vest and all Restrictions with respect to such shares of
Restricted Stock shall immediately expire. In the event an Employee's employment
is terminated but there is a simultaneous reemployment or the continuation of a
relationship within the meaning of subsections (i) or (ii) of Section 1.12, the
subsequent termination of such reemployment or of the continuing relationship
("Subsequent Termination") shall not result in the reacquisition of the
Employee's Restricted Stock if, at the time of the Subsequent Termination, the
Employee would have been eligible for normal retirement or early retirement with
unreduced retirement benefits assuming the period of time during the
reemployment and/or the continuing relationship had been considered credited
service under the Company's retirement plans; all shares of Restricted Stock
shall immediately vest upon such Subsequent Termination. Following any
reacquisition by the Company pursuant to this Section 3.1, the Company shall
promptly pay to the Employee an amount equal to the product of $.01 times the
number of shares of Restricted Stock reacquired.
SECTION 3.2 - LEGEND
Certificates representing shares of Restricted Stock issued pursuant to
this Agreement shall, until all restrictions lapse and new certificates are
issued pursuant to Section 3.3, bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
VESTING REQUIREMENTS AND MAY BE SUBJECT TO REACQUISITION BY THE COMPANY
UNDER THE TERMS OF THAT CERTAIN RESTRICTED STOCK AGREEMENT BY AND
BETWEEN MANOR
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CARE, INC. (THE "COMPANY") AND THE HOLDER OF THE SECURITIES. PRIOR TO
VESTING OF OWNERSHIP IN THE SECURITIES, THEY MAY NOT BE, DIRECTLY OR
INDIRECTLY, OFFERED, TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED
OR OTHERWISE DISPOSED OF UNDER ANY CIRCUMSTANCES. COPIES OF THE ABOVE
REFERENCED AGREEMENT ARE ON FILE AT THE OFFICES OF THE COMPANY AT 000
X. XXXXXX XX., XXXXXX, XXXX 00000.
SECTION 3.3 - LAPSE OF RESTRICTIONS
The shares of Restricted Stock shall vest and all restrictions thereon
shall terminate upon the Employee's Termination of Employment if, at the time of
such termination, the Employee is eligible for normal retirement, early
retirement with unreduced retirement benefits or total disability (each as
determined by the Committee in accordance with Company plans and policies) or if
termination occurs on account of death. In the event an Employee's employment is
terminated but there is a simultaneous reemployment or the continuation of a
relationship within the meaning of subsections (i) or (ii) of Section 1.12, all
shares of Restricted Stock shall vest and all restrictions thereon shall
terminate upon the subsequent termination of such reemployment or of the
continuing relationship ("Subsequent Termination") if, at the time of the
Subsequent Termination, the Employee would have been eligible for normal
retirement or early retirement with unreduced retirement benefits assuming the
period of time during the reemployment and/or the continuing relationship had
been considered credited service under the Company retirement plans. Upon the
vesting of the shares and subject to Section 4.3, the Company shall cause new
certificates to be issued with respect to such Vested Shares and delivered to
the Employee or his legal representative, free from the legend provided for in
Section 3.2 and any of the other Restrictions. Such Vested Shares shall cease to
be considered Restricted Stock subject to the terms and conditions of this
Agreement.
SECTION 3.4 - MERGER, CONSOLIDATION, ACQUISITION, LIQUIDATION OR DISSOLUTION
Notwithstanding any other provision of this Agreement, upon the merger
or consolidation of the Company into another corporation, the acquisition by
another corporation or person (excluding any employee benefit plan of the
Company or any trustee or other fiduciary holding securities under an employee
benefit plan of the Company) of all or substantially all of the Company's assets
or 50% or more of the Company's then outstanding voting stock, or the
liquidation or dissolution of the Company, the Committee shall then provide by
resolution adopted prior to such event that, at some time prior to the effective
date of such event, all shares of Restricted Stock not previously reacquired
pursuant to Section 3.1 shall fully vest and all Restrictions with respect to
such shares of Restricted Stock shall immediately expire.
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SECTION 3.5 - RESTRICTIONS ON NEW SHARES
In the event that the outstanding shares of the Company's Common Stock
are changed into or exchanged for a different number or kind of shares or other
securities of the Company or of another corporation pursuant to a merger of the
Company into another corporation, or the exchange of all or substantially all of
the assets of the Company for the securities of another corporation, or the
acquisition by another corporation or person (excluding any employee benefit
plan of the Company or any trustee or other fiduciary holding securities under
an employee benefit plan of the Company) of 50% or more of the Company's then
outstanding voting stock, or the liquidation or dissolution of the Company, or a
stock split-up or stock dividend, such new, additional or different shares or
securities which are held or received by the Employee in his capacity as a
holder of Restricted Stock shall be considered to be Restricted Stock and shall
be subject to all of the Restrictions, unless the Committee provides, pursuant
to Section 3.4, for the accelerated vesting and expiration of the Restrictions
on the shares of Restricted Stock underlying the distribution of the new,
additional or different shares or securities.
ARTICLE IV
MISCELLANEOUS
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SECTION 4.1 - ADMINISTRATION
The Committee shall have the power to interpret the Plan, this
Agreement and all other documents relating to Restricted Stock and to adopt such
rules for the administration, interpretation and application of the Plan as are
consistent therewith and to interpret or revoke any such rules. All actions
taken and all interpretations and determinations made by the Committee in good
faith shall be final and binding upon the Employee, the Company and all other
interested persons. No member of the Committee shall be personally liable for
any action, determination or interpretation made in good faith with respect to
the Plan or the Restricted Stock and all members of the Committee shall be fully
protected by the Company in respect to any such action, determination or
interpretation. The Board shall have no right to exercise any of the rights or
duties of the Committee under the Plan and this Agreement.
SECTION 4.2 - RESTRICTED STOCK NOT TRANSFERABLE
No Restricted Stock or any interest or right therein or part thereof
shall be liable for the debts, contracts or engagements of the Employee or his
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, hypothecation, encumbrance, assignment or any
other means, whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect; PROVIDED, HOWEVER, that this
Section 4.2 shall not prevent transfers by will or by the applicable laws of
descent and distribution.
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SECTION 4.3 - CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES
The Company shall not be required to issue or deliver any certificate
or certificates for shares of stock pursuant to this Agreement prior to
fulfillment of all of the following conditions:
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other qualification
of such shares under any state or federal law or under rulings or regulations of
the Securities and Exchange Commission or of any other governmental regulatory
body, which the Committee shall, in its absolute discretion, deem necessary or
advisable; and
(c) The obtaining of any approval or other clearance from any
state or federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) Subject to the provisions of Section 4.10, the payment by
the Employee of all amounts required to be withheld, under federal, state and
local tax laws, with respect to the issuance of Restricted Stock and/or the
lapse or removal of any of the Restrictions; and
(e) The lapse of such reasonable period of time as the
Committee may from time to time establish for reasons of administrative
convenience.
SECTION 4.4 - ESCROW
The Secretary or such other escrow holder as the Committee may appoint
shall retain physical custody of the certificates representing Restricted Stock,
including shares of Restricted Stock issued pursuant to Section 3.5, until all
of the Restrictions expire or shall have been removed; provided, however, that
in no event shall the Employee retain physical custody of any certificates
representing Restricted Stock issued to him.
SECTION 4.5 - NOTICES
Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Secretary, and any notice to be
given to the Employee shall be addressed to him at the address given beneath his
signature hereto. By a notice given pursuant to this Section 4.5, either party
may hereafter designate a different address for notices to be given to it or
him. Any notice which is required to be given to the Employee shall, if the
Employee is then deceased, be given to the Employee's personal representative if
such representative has previously informed the Company of his status and
address by written notice under this Section 4.5. Any notice shall be deemed
duly given when enclosed in a properly sealed envelope or wrapper addressed as
aforesaid, deposited (with postage prepaid) in a post office or branch post
office regularly maintained by the United States Postal Service.
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SECTION 4.6 - RIGHTS AS STOCKHOLDER
Upon delivery of the shares of Restricted Stock to the escrow holder
pursuant to Section 4.4, the Employee shall have all the rights of a stockholder
with respect to said shares, subject to the restrictions herein (including the
provisions of Section 4.10), including the right to vote the shares and to
receive all dividends or other distributions paid or made with respect to the
shares.
SECTION 4.7 - TITLES
Titles are provided herein for convenience only and are not to serve as
a basis for interpretation or construction of this Agreement.
SECTION 4.8 - CONFORMITY TO SECURITIES LAWS
This Agreement is intended to conform to the extent necessary with all
provisions of the Securities Act and the Exchange Act and any and all
regulations and rules promulgated by the Securities and Exchange Commission
thereunder, including without limitation Rule 16b-3. Notwithstanding anything
herein to the contrary, this Agreement shall be administered, and the Restricted
Stock shall be issued, only in such a manner as to conform to such laws, rules
and regulations. To the extent permitted by applicable law, this Agreement and
the Restricted Stock issued hereunder shall be deemed amended to the extent
necessary to conform to such laws, rules and regulations.
SECTION 4.9 - AMENDMENT
This Agreement may be amended only by a writing executed by the parties
hereto which specifically states that it is amending this Agreement.
SECTION 4.10 - TAX WITHHOLDING
The Company's obligation: (i) to issue or deliver to the Employee any
certificate or certificates for unrestricted shares of stock; or (ii) to pay to
the Employee any dividends or make any distributions with respect to the
Restricted Stock, is expressly conditioned upon receipt from the Employee, on or
prior to the date reasonably specified by the Company of:
(a) Full payment (in cash or by check) of any amount that must
be withheld by the Company for federal, state and/or local tax purposes; or
(b) Subject to the Committee's consent and Section 4.10(c),
full payment by delivery to the Company of unrestricted shares of the Company's
Common Stock previously owned by the Employee duly endorsed for transfer to the
Company by the Employee with an aggregate Fair Market Value (determined, as
applicable, as of the date of the lapse of the restrictions or vesting, or as of
the date of the distribution) equal to the amount that must be withheld by the
Company for federal,
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state and/or local tax purposes; or
(c) With respect to the withholding obligation for shares of
Restricted Stock that become unrestricted shares of stock as of a certain date
(the "Vesting Date"), subject to the Committee's consent, full payment by
retention by the Company of a portion of such shares of Restricted Stock which
become unrestricted or vested with an aggregate Fair Market Value (determined as
of the Vesting Date) equal to the amount that must be withheld by the Company
for federal, state and/or local tax purposes; or
(d) Subject to the Committee's consent, any combination of
payments provided for in the foregoing subsections (a), (b) or (c).
SECTION 4.11 - GOVERNING LAW
The laws of the State of Delaware shall govern the interpretation,
validity, administration, enforcement and performance of the terms of this
Agreement regardless of the law that might be applied under principles of
conflicts of laws.
IN WITNESS HEREOF, this Agreement has been executed and delivered by
the parties hereto.
MANORCARE, INC.
By: ________________________________
Its: ________________________________
_______________________________
Employee
_______________________________
_______________________________
Address
Officers
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