Contract
Exhibit
10.73
AMERICAN
RETIREMENT CORPORATION
This
RESTRICTED STOCK AGREEMENT (the “Agreement”) is by and between American
Retirement Corporation, a Tennessee corporation (the “Company”), and
________________ (the “Grantee”).
Section
1.
Restricted
Stock Award.
The
Grantee is hereby granted the right to receive ________ shares (the “Restricted
Stock”) of the Company’s common stock, par value $0.01 per share (the “Common
Stock”), subject to the terms and conditions of this Agreement and the American
Retirement Corporation 1997 Stock Incentive Plan (as amended, the “Plan”).
Capitalized terms used but not otherwise defined herein shall have the
meanings
ascribed thereto in the Plan.
Section
2.
Vesting
of the Award.
Subject
to Sections
5
and
9
hereof,
the shares of Restricted Stock granted pursuant to Section
1
hereof
shall vest at such times and in the percentages set forth below:
a. The
shares
of Restricted Stock granted hereunder shall vest, if at all, in three
(3) equal
tranches (each, a “Tranche”) on March 31, 2006, March 31, 2007 and March 31,
2008 (each, a “Vesting Date”), such that a maximum of thirty-three and one-third
percent (33 1/3%) of the shares of Restricted Stock granted hereunder
may vest
on each Vesting Date. Any unvested shares of any Tranche of Restricted
Stock
that do not vest on a Vesting Date pursuant to the remaining provisions
of this
Section
2
shall be
immediately forfeited and the Grantee shall have no further rights with
respect
to such shares of Restricted Stock. Notwithstanding anything herein to
the
contrary, no fractional shares shall be issuable upon any Vesting
Date.
b. The
number
of shares of any Tranche of Restricted Stock that shall vest on any Vesting
Date
shall be determined by the achievement or partial achievement of the
following
three performance measures:
i. certain
targets to be established for such Tranche by the Compensation Committee
of the
Company’s Board of Directors (the “Compensation Committee”) with respect to Same
Community NOI Growth (as defined by the Compensation Committee in its
sole and
absolute discretion) for the fiscal year ending on the December 31 immediately
preceding the Vesting Date for such Tranche.
ii. certain
targets to be established for such Tranche by the Compensation Committee
with
respect to Adjusted EBITDAR Growth (as defined by the Compensation Committee
in
its sole and absolute discretion) for the fiscal year ending on the December
31
immediately preceding the Vesting Date for such Tranche.
iii. certain
targets to be established for such Tranche by the Compensation Committee
with
respect to Cash Earnings Growth (as defined by the Compensation Committee
in its
sole and absolute discretion) for the fiscal year ending on the December
31
immediately preceding the Vesting Date for such Tranche.
c. Promptly
following the establishment of the targets for each Tranche, the Compensation
Committee will cause the targets to be distributed to the Grantee, along
with a
summary showing the method of calculating the number of shares to vest
(if at
all) in such Tranche upon the achievement or partial achievment of such
targets.
Section
3.
Distribution
of Restricted Stock.
Certificates representing the shares of Restricted Stock that have vested
under
Section
2
will be
distributed to the Grantee as soon as practicable after each Vesting
Date. The
Certificates representing the Restricted Stock shall be subject to the
restrictions on transfer set forth in Section
6
hereof.
Section
4.
Voting
Rights and Dividends.
Prior to
the distribution of the Restricted Stock, certificates representing shares
of
Restricted Stock will be held by the Company (the “Custodian”) in the name of
the Grantee. The Custodian will take such action as is necessary and
appropriate
to enable the Grantee to vote the Restricted Stock. All cash dividends
received
by the Custodian, if any, with respect to the Restricted Stock will be
remitted
to the Grantee. Stock dividends issued with respect to the Restricted
Stock
shall be treated as additional shares of Restricted Stock that are subject
to
the same restrictions and other terms and conditions that apply to the
shares of
Restricted Stock. Notwithstanding the foregoing, no voting rights or
dividend
rights shall inure to the Grantee following the forfeiture of the Restricted
Stock pursuant to Section
5
or with
respect to any shares of Restricted Stock that do not vest pursuant to
Section
2.
Section
5.
Termination.
In the
event that Grantee’s employment by the Company (or any Subsidiary or Affiliate
of the Company) terminates for any reason, all shares of Restricted Stock
that
have not vested prior to the date of termination shall be immediately
forfeited
and Grantee shall have no further rights with respect to such shares
of
Restricted Stock. Notwithstanding the foregoing, if the Grantee dies
while
employed by the Company (or any Subsidiary or Affiliate of the Company)
or if
the Grantee’s employment is terminated by reason of Disability, the Grantee’s
shares of Restricted Stock shall vest to the extent that the performance
measures established for each fiscal year pursuant to Section
2(b)
are
achieved (or partially achieved).
Section
6.
No
Transfer or Pledge of Restricted Stock.
No
shares of Restricted Stock may be Transferred (as hereinafter defined)
prior to
the date such shares have vested, if at all, on any Vesting Date. Thereafter,
the Grantee may not Transfer more than twenty-five percent (25%) of all
of the
Grantee’s vested Restricted Stock in any calendar quarter. In
addition, any Transfer of vested Restricted Stock shall be subject to
the
Company’s determination that, after giving effect to such Transfer, the Grantee
will remain in compliance with the provisions of any stock ownership
policy
applicable to the Grantee that is then in existence. As used herein,
the term
“Transfer” shall mean any transfer, sale, conveyance, pledge, encumbrance,
hypothecation or disposition of any kind, whether voluntary or
involuntary.
Section
7.
Tax
Election.
The
Grantee may, but is not required to, elect to apply the tax rules of
Section
83(b) of the Internal Revenue Code of 1986, as amended (the “Code”), to the
issuance of the Restricted Stock. If the Grantee makes an affirmative
election
under Section 83(b) of the Code, the Grantee shall deliver a copy of
such
election to the Company in accordance with the requirements of the Code
and the
Regulations promulgated thereunder. The Grantee acknowledges that the
decision
to make, or refrain from making, an election to apply Section 83(b) of
the Code
is his individual decision, based upon the Grantee’s personal analysis and
personal tax advice. The Grantee acknowledges that the Company has not
attempted
to influence the Grantee, or provided the Grantee with any advice, in
connection
with the Grantee’s determination of whether to make an election to apply Section
83(b) of the Code. The Grantee is urged to consult with his individual
tax
advisors in making the determinations described in this section.
Section
8.
Tax
Withholding.
The
Company may withhold from any distribution of Restricted Stock an amount
of
Common Stock equal to such federal, state or local taxes as shall be
required to
be withheld pursuant to any applicable law or regulation, unless the
Company
agrees to accept a payment of cash (or to withhold from other wages payable
to
Grantee) in the amount of such withholding taxes.
Section
9.
Change
of Control.
Upon the
occurrence of a Change in Control or a Potential Change in Control, all
Restricted Stock shall be deemed vested and the restrictions under the
Plan and
this Agreement with respect to the Restricted Stock, including the restriction
on transfer set forth in Section
6
hereof,
shall automatically expire and shall be of no further force or
effect.
Section
10. Stock
Subject to Award.
In the
event that the shares of Common Stock of the Company should, as a result
of a
stock split or stock dividend or combination of shares or any other change,
redesignation, merger, consolidation, recapitalization or otherwise,
be
increased or decreased or changed into or exchanged for a different number
or
kind of shares of stock or other securities of the Company or of another
corporation, the number of shares of Restricted Stock that have been
awarded to
Grantee shall be appropriately adjusted to reflect such action. If any
such
adjustment shall result in a fractional share, such fraction shall be
disregarded.
Section
11. Stock
Power.
Concurrently with the execution of this Agreement, the Grantee shall
deliver to
the Company a stock power, endorsed in blank, relating to the shares
of
Restricted Stock. Such stock power shall be in a form satisfactory to
the
Company.
Section
12. Legend.
Each
certificate representing Restricted Stock shall bear a legend in substantially
the following form:
THIS
CERTIFICATE AND THE SHARES OF STOCK REPRESENTED HEREBY ARE SUBJECT TO
THE TERMS
AND CONDITIONS (INCLUDING FORFEITURE AND RESTRICTIONS AGAINST TRANSFER)
CONTAINED IN THE AMERICAN RETIREMENT CORPORATION 1997 STOCK INCENTIVE
PLAN (AS
AMENDED, THE “PLAN”) AND THE RESTRICTED STOCK AGREEMENT (THE “AGREEMENT”)
BETWEEN THE OWNER OF THE RESTRICTED STOCK REPRESENTED HEREBY AND AMERICAN
RETIREMENT CORPORATION (THE “COMPANY”). THE RELEASE OF SUCH STOCK FROM SUCH
TERMS AND CONDITIONS SHALL BE MADE ONLY IN ACCORDANCE WITH THE PROVISIONS
OF THE
PLAN AND THE AGREEMENT, COPIES OF WHICH ARE ON FILE AT THE COMPANY.
Section
13. Restrictive
Agreement.
As a
condition to the distribution of any vested shares of Restricted Stock,
the
Grantee (or his legal representative or estate or any third party transferee),
if the Company so requests, will execute an agreement in form satisfactory
to
the Company in which the Grantee or such other recipient of the shares
represents that he is acquiring the shares without a view to distribution
thereof.
Section
14. No
Right to Continued Employment.
This
Agreement shall not be construed as giving the Grantee the right to be
retained
in the employ of the Company (or any Subsidiary or Affiliate of the Company),
and the Company (or any Subsidiary or Affiliate of the Company) may at
any time
dismiss the Grantee from employment, free from any liability or any claim
under
the Plan.
Section
15. Governing
Provisions.
This
Agreement is made under and subject to the provisions of the Plan, and
all of
the provisions of the Plan are also provisions of this Agreement. If
there is a
difference or conflict between the provisions of this Agreement and the
provisions of the Plan, the provisions of the Plan will govern. By signing
this
Agreement, the Grantee confirms that he or she has received a copy of
the
Plan.
Section
16. Miscellaneous.
16.1
Entire
Agreement.
This
Agreement and the Plan contain the entire understanding and agreement
between
the Company and the Grantee concerning the Restricted Stock granted hereby,
and
supersede any prior or contemporaneous negotiations and understandings.
The
Company and the Grantee have made no promises, agreements, conditions,
or
understandings relating to the Restricted Stock, either orally or in
writing,
that are not included in this Agreement or the Plan.
16.2
Captions.
The
captions and section numbers appearing in this Agreement are inserted
only as a
matter of convenience. They do not define, limit, construe, or describe
the
scope or intent of the provisions of this Agreement.
16.3
Counterparts.
This
Agreement may be executed in counterparts, each of which when signed
by the
Company and the Grantee will be deemed an original and all of which together
will be deemed the same Agreement.
16.4
Notice.
Any
notice or communication having to do with this Agreement must be given
by
personal delivery or by certified mail, return receipt requested, addressed,
if
to the Company, to the principal office of the Company, and, if to the
Grantee,
to the Grantee’s last known address provided by the Grantee to the
Company.
16.5
Amendment.
This
Agreement may be amended by the Company, provided that unless the Grantee
consents in writing, the Company cannot amend this Agreement if the amendment
will materially change or impair the Grantee’s rights under this Agreement and
such change is not to the Grantee’s benefit.
16.6
Successors
and Assignment.
Each and
all of the provisions of this Agreement are binding upon and inure to
the
benefit of the Company and the Grantee and their heirs, successors, and
assigns.
However, the Grantee may not Transfer this Agreement or the Grantee’s rights
hereunder. Furthermore, the Grantee may Transfer the Restricted Stock
distributed to the Grantee pursuant to this Agreement only as set forth
in this
Agreement.
16.7
Governing
Law.
This
Agreement shall be governed and construed exclusively in accordance with
the
laws of the State of Tennessee applicable to agreements to be performed
in the
State of Tennessee.
[Signature
page to follow.]
IN
WITNESS
WHEREOF, the Company and the Grantee have executed this Agreement to
be
effective as of September, __ 2005.
AMERICAN
RETIREMENT CORPORATION
By:_________________________________
Name:_______________________________
Title:________________________________
Grantee:
____________________________________
Name:_______________________________
