EXHIBIT 10.89
SUNRISE ASSISTED LIVING HOLDINGS, L.P.
CLASS A LIMITED PARTNER UNIT AGREEMENT
This Class A Limited Partner Unit Agreement (this "Agreement") is
entered into between Sunrise Assisted Living Holdings, L.P., a Delaware limited
partnership (the "Partnership"), and ___________________ ("Participant")
pursuant to the allocation of Class A Limited Partner Points to Participant as
of September 24, 2001 (the "Date of Grant") under the Limited Partnership
Agreement of the Partnership, dated as of September 24, 2001 (the "Partnership
Agreement"), attached hereto as Exhibit A. In consideration of the mutual
promises and covenants made herein and the terms and conditions of the
Partnership Agreement, which is wholly incorporated herein by reference, the
parties hereby agree as follows:
1. Definitions. Except as is expressly provided herein, all terms
defined within the Partnership Agreement shall have the same meaning herein.
(a) "Cause" shall mean with respect to any individual: (i)
the conviction of the individual of, or the entry of a plea of guilty or nolo
contendere by the individual to, (A) any felony, or (B) any crime involving
dishonesty or moral turpitude; (ii) fraud, misappropriation or embezzlement by
the individual; (iii) the individual's unsatisfactory performance of his
assigned duties for the Employer, which continues after (A) the individual has
received written notice of his unsatisfactory performance, and (B) the
individual has had a reasonable opportunity to cure such unsatisfactory
performance; (iv) the individual's willful failure to abide by any lawful
directive of the Employer; (v) the individual's breach of any fiduciary
obligation to the Employer; (vi) any act or omission by the individual that has
an adverse impact on the reputation for honesty and fair dealing of the Employer
(and, if different from the Employer, the Partnership); (vii) any material
breach by the individual of any published policy of the Employer (and, if
different from the Employer, the Partnership); or (viii) the breach by the
individual of any material term of an agreement pursuant to which he provides
services to the Employer.
(b) "Committee" means the General Partner.
(c) "Disability" means a physical or mental condition of an
individual that, (i) in the judgment of the Committee, permanently prevents such
individual from being able to continue to serve actively in a capacity
comparable to that in which the individual served prior to the disability, or
(ii) causes the individual to become eligible for long-term disability benefits
under any long-term disability insurance plan then in effect with the Employer.
(d) "Employer" means the Partnership, the Subsidiary
Entities, the Operating Companies, Sunrise or any Affiliate thereof that employs
the Participant or for which the Participant serves as a director.
(e) "Fair Market Value" means, on any given date, the
current fair market value of the Points as determined by the Committee using a
reasonable method in good faith.
(f) "Points" means the Class A Limited Partner Points
allocated to Participant pursuant to Section 2.9 of the Partnership Agreement.
(g) "Termination of Employment" means with respect to an
individual, the last to occur of the date the individual ceases to be (i)
employed by the Employer or (ii) a member of the board of directors of the
Employer.
(h) "Unvested Points" means Points that are subject to
forfeiture pursuant to the terms of this Agreement.
(i) "Vested Points" means Points that are not subject to
forfeiture pursuant to the terms of this Agreement.
2. Total Points Awarded and Purchase Price. Pursuant to the
Partnership Agreement, Participant holds Sixty-six and two-thirds (66 2/3)
Points in exchange for $282.
3. Vesting. Seventy five percent (75%) of the Points shall be
Vested Points as of the Date of Grant and the remaining twenty-five percent
(25%) of the Points shall become Vested Points as of July 30, 2002, provided
that Participant has not incurred a Termination of Employment prior to July 30,
2002. The Committee may decide to what extent leaves of absence for governmental
or military service, illness, temporary disability, or other reasons shall not
be deemed to be Termination(s) of Employment.
(a) In the event of a Change of Control of Sunrise or the
exercise of the Purchase Option, Participant shall vest in the Points as of the
day before the above-described event and no portion of the Points shall be
Unvested Points.
(b) In the event of a Termination of Employment on account
of death, Participant shall immediately vest in the Points and no portion of the
Points shall be Unvested Points.
(c) In the event of a Termination of Employment on account
of Disability, Participant shall immediately vest in the amount of Points in
which Participant would vest if Participant was continuously employed by the
Employer for the year following the termination. After application of the
preceding sentence, all Unvested Points shall immediately and without notice be
forfeited and Participant shall have no rights with respect to such Unvested
Points.
(d) In the event Participant voluntarily incurs a
Termination of Employment or is terminated by the Employer with or without
Cause, all Unvested Points shall immediately and without notice be forfeited and
Participant shall have no rights with respect to such Unvested Points.
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4. Limited Partner Rights. The Participant shall have all rights of
a Class A Limited Partner of the Partnership with respect to Vested and Unvested
Points, except that (i) upon request by the Committee, the Participant will
deliver to the Partnership a power of attorney, endorsed in blank, with respect
to Unvested Points, and (ii) in the event that the Participant forfeits Unvested
Points, the Participant shall also forfeit any distributions relating to such
Points that are held by the Partnership in the Segregated Reserve Account in
accordance with Section 8.4 of the Partnership Agreement.
5. Repurchase upon Termination of Employment. If the Participant
incurs a Termination of Employment for any reason, within ninety (90) days of
the Termination of Employment the Partnership may elect to purchase as
hereinafter provided any or all of the Vested Points by giving written notice
thereof to the Participant. Failure of the Partnership to elect to purchase the
Points under this section shall not affect its rights (or the rights of any
other party) to purchase the same Points under any other section of this
Agreement or the Partnership Agreement.
(a) In the event that the Participant's termination is with
Cause, the exercise price of the Partnership's right of purchase shall be the
lower of the original purchase price paid by the Participant for the Vested
Points or the Fair Market Value of the Vested Points as of the Participant's
Termination of Employment. In the event that the Participant's termination is
without Cause or is by reason of death or Disability, or is a voluntary
termination by the Participant, the exercise price for the Partnership's right
of purchase shall be the Fair Market Value of the Vested Points as of the
Termination of Employment.
(b) The Partnership shall pay the purchase price of the
Vested Points in cash or by certified or bank checks. However, if the
Partnership shall, in the opinion of the Committee, be unable or believes it to
be undesirable to pay in cash the full purchase price of the Vested Points, the
Partnership may pay all or a portion of the purchase price in such installment
amounts and dates and bearing such interest as is determined by the Committee.
(c) The closing of the purchase of Vested Points by the
Partnership shall be on a date mutually agreeable to the Participant and the
Committee within sixty (60) days from the date of receipt of the Partnership's
notice of intent to purchase the Points.
(d) All notices and elections hereunder shall be in writing
and shall be delivered or sent by registered or certified mail, postage prepaid.
If notice is to be given to the Partnership, such notice shall be delivered or
mailed to the General Partner. If notice is to be given to the Participant, such
notice shall be delivered or mailed to his or her most recent address as listed
in the books and records of the Partnership. All notices shall be treated as
received on the earlier of the date of delivery or the fifth business day after
being deposited postage pre-paid in the United States mails.
6. Repurchase upon a Transfer by Operation of Law. In the event
that the Participant (i) files a voluntary petition under any bankruptcy or
insolvency law or a
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petition for the appointment of a receiver or makes an assignment for the
benefit of creditors, or (ii) is subjected involuntarily to such a petition or
assignment or to an attachment or other legal or equitable interest with respect
to his Points and such involuntary petition or assignment or attachment is not
discharged within sixty (60) days after its date, or (iii) is subject to a
transfer of his Points by operation of law, the Partnership shall have the right
to elect to purchase any or all of the Points which are owned by the Participant
or his transferee for Fair Market Value determined as of the date of the
petition under bankruptcy or other insolvency law, the appointment of a
receiver, the assignment for benefit of creditors, or the transfer by operation
of law. Failure of the Partnership to elect to purchase the Points under this
section shall not affect its right (or the rights of any other party) to
purchase the same Points under any other section of this Agreement or under the
Partnership Agreement.
7. Nontransferability. The Participant may not sell, transfer,
pledge, exchange, hypothecate, or otherwise dispose of (collectively referred to
as "Transfer") Unvested Points. No right or interest of the Participant in
Points, whether vested or unvested, shall be liable for, or subject to, any
lien, obligation, or liability of such Participant. The Participant's right to
Transfer Vested Points shall be as is set forth in the Partnership Agreement.
8. Disposition of Unvested Points in Violation of this Agreement.
If any Transfer of Unvested Points is made or attempted, such Transfer shall be
null and void and of no force and effect. In addition to any other legal or
equitable remedies which it may have, the Partnership may enforce its rights by
action for specific performance (to the extent permitted by law), and the
Partnership may refuse to recognize any transferee as a Class A Limited Partner
for any purpose, including without limitation for purposes of voting rights,
until compliance with all applicable provisions of this Agreement and the
Partnership Agreement have occurred.
9. Heirs, Representatives, Successors and Assigns. Except as
provided in this Agreement, this Agreement shall be binding upon the Partnership
and the Participant and their heirs, representatives, successors and assigns.
10. Participant Representations. Participant represents and warrants
to the Partnership that Participant is acquiring all of the Points for
Participant's own account for investment and not with a view to or for sale in
connection with any distribution of the Points. The Participant shall, at the
request of the Committee, be required to represent and warrant in writing that
any subsequent resale or distribution of Points by the Participant shall be made
only pursuant to a specific exemption from the registration requirements of the
Securities Act of 1933, as amended, but in claiming such exemption the
Participant shall, prior to any offer of sale or sale of such Points, obtain a
prior favorable written opinion of counsel, in form and substance satisfactory
to counsel for the Partnership, as to the application of such exemption thereto.
11. Effect on Employment and Service. Neither the terms of this
Agreement nor any documents describing or referring to this Agreement (or any
part thereof) shall confer upon Participant any right to continue in the employ
or service as a director of the
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Employer or in any way affect any right and power of the Employer to terminate
the employment or service as a director of Participant at any time with or
without assigning a reason therefor.
12. Administration. This Agreement shall be administered by the
Committee. The Committee may, in its sole discretion, accelerate the time at
which Points may become transferable or nonforfeitable. The Committee may modify
the Agreement provided that no modification shall, without the Participant's
consent, adversely affect any rights of the Participant. The Committee shall
have complete authority to interpret all provisions of this Agreement; to adopt,
amend, and rescind rules and regulations pertaining to the administration of the
Agreement; to determine Fair Market Value for any purpose of this Agreement,
provided that the Committee uses a reasonable method and acts in good faith,
except as is otherwise expressly provided in the Agreement or the Partnership
Agreement; and to make all other determinations necessary or advisable for the
administration of this Agreement. The express grant in this Agreement or the
Partnership Agreement of any specific power to the Committee shall not be
construed as limiting any power or authority of the Committee; provided that the
Committee may not exercise any right or power reserved to the Management
Committee. Any decision made, or action taken, by the Committee or the
Management Committee or in connection with the administration of this Agreement
shall be final and conclusive on all persons having an interest in the
Agreement. No member of the Committee or the Management Committee shall be
liable for any act done in good faith with respect to this Agreement. To the
extent not prohibited by law or the Partnership Agreement, the Committee, in its
sole discretion, may delegate to one or more employees of the Partnership all or
part of the Committee's authority and duties with respect to administration of
this Agreement.
13. Withholding. The Partnership shall have the right to deduct or
withhold from any payment owed to the Participant any amount that is necessary
in order to satisfy any withholding requirement that the Partnership in good
faith believes is imposed upon it in connection with Federal, state, or local
taxes as a result of the issuance of, or lapse of restrictions on, Points, or
otherwise require the Participant to make provision for payment of any such
withholding amount. Subject to such conditions as may be established by the
Committee, the Committee may permit the Participant to (i) have Points otherwise
issuable withheld to the extent necessary to comply with minimum statutory
withholding rate requirements for supplemental income, (ii) tender back to the
Partnership Points received to the extent necessary to comply with minimum
statutory withholding rate requirements for supplemental income, (iii) deliver
to the Partnership previously acquired Points, (iv) have funds withheld from
payments of wages, salary or other cash compensation due the Participant, or (v)
pay the Partnership in cash, in order to satisfy part or all of the obligations
for any taxes required to be withheld or otherwise deducted and paid by the
Partnership with respect to the Points.
14. Rules of Construction. Headings are given to the sections of
this Agreement solely as a convenience to facilitate reference. The reference to
any statute, regulation, or other provision of law shall be construed to refer
to any amendment to or successor of such provision of law.
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15. Choice of Law. This Agreement and all agreements entered into
shall be interpreted under the law of the state of Delaware.
16. Amendment. No amendment shall, without the Participant's
consent, adversely affect any rights of such Participant under any award of
Points outstanding at the time such amendment is made.
17. Acceptance of Agreement. The Points are subject to all of the
applicable terms and provisions of the Partnership Agreement and this Agreement.
The terms and provisions of the Partnership Agreement are incorporated by
reference herein. Participant accepts and agrees to be bound by all the terms
and conditions hereof.
18. Notice. Any notice, request, consent or other communication to
be given under this Agreement to the Participant shall be in writing and may
either be delivered personally, sent by overnight courier or mailed, by
registered or certified mail, return receipt requested to
_______________________________.
19. Power of Attorney. The Participant hereby irrevocably
constitutes and appoints Sunrise Assisted Living Investments, Inc., the general
partner of the Partnership (the "General Partner") as its true and lawful agent
and attorney-in-fact with full power of substitution, and with power to act in
its name and on its behalf, to make, execute and deliver, swear to, acknowledge,
file and record (1) the Partnership Agreement, (2) any amendment or supplement
to or restatement of the Partnership Agreement, provided that such amendment,
supplement or restatement shall not adversely affect any rights of the
Participant under any award of Points outstanding at the time such amendment,
supplement or restatement is made, and (3) such other certificates or
instruments as may be required, or as the General Partner may deem necessary or
advisable, in each case having the power to execute such instruments on the
Participant's behalf. The power of attorney granted herein is a special power of
attorney coupled with an interest and is irrevocable.
[Remainder of page left intentionally blank.]
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Executed as of the ___th day of __________________, 2001.
Sunrise Assisted Living Holdings, L.P.
By: Sunrise Assisted Living Investments, Inc., its General
Partner
By:
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Name:
Title:
Participant:
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