EXHIBIT 10.4
PERFORMANCE RESTRICTED STOCK UNIT AWARD AGREEMENT
THIS PERFORMANCE
RESTRICTED STOCK UNIT AWARD AGREEMENT
(the “Agreement”), made this ______ day of _____________, 2015, between Health
Care REIT, Inc., a Delaware corporation (the “Corporation”), and
___________________ (the “Participant”).
WITNESSETH:
WHEREAS, the Participant is an employee and executive officer of the
Corporation; and
WHEREAS, the Corporation adopted the Amended and Restated Health Care REIT,
Inc. 2005 Long-Term Incentive Plan (the “Plan”) and the 2015-2017 Long-Term
Incentive Plan (the “LTIP”) in order to provide select officers and key employees
with incentives to achieve long-term corporate objectives; and
WHEREAS, the Compensation Committee of the Corporation’s Board of Directors
has determined that the Participant should be granted a performance restricted
stock unit award payable in shares of the Corporation’s common stock, $1.00 par
value per share (“Common Stock”), on the terms and conditions set forth below
and in accordance with the terms of the LTIP.
NOW, THEREFORE, in consideration of the past and future services
provided to the Corporation by the Participant and the various covenants and
agreements herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
1.
Grant of Target Award.
The Corporation hereby grants to the
Participant ________ performance restricted stock units (the “Target Award”) on
______________, 2015, payable in shares of Restricted Stock, subject to
satisfaction of the restrictions, vesting conditions and other terms set forth
in this Agreement. The Participant shall not be required to provide the
Corporation with any payment (other than his or her past and future services to
the Corporation) in exchange for the Target Award or in exchange for the
issuance of shares of Restricted Stock upon the determination of the Earned
Award.
2.
Deferred Delivery of Shares.
The Participant shall not be entitled to the
issuance of shares of Restricted Stock or to receive any distributions with
respect to the Target Award until the determination of the Earned Award as
provided in the LTIP and in Section 3 or 6 below. Further, the Participant
shall not have any of the rights and privileges of a stockholder of the
Corporation (including voting rights and the right to receive dividends) until
the shares of Restricted Stock are issued to the Participant.
3.
Earned Award and Vesting.
At the end of the Performance Period, the
Compensation Committee shall determine the percentage of the Participant’s
Target Award earned pursuant to the provisions of Section 4 of the LTIP (the
“Earned Award”).
The Participant’s Target Award may not be
sold, transferred, assigned, pledged or otherwise encumbered or disposed of by
the Participant, and the underlying shares of Common Stock potentially issuable
to the Participant under this Agreement may not be sold, transferred, assigned,
pledged or otherwise encumbered by the Participant until such shares are so
issued and cease to be subject to a risk of forfeiture. Any attempt to dispose
of the Participant’s Target Award or shares issued thereunder in a manner
contrary to the restrictions set forth in this Agreement shall be ineffective.
4.
Issuance of Shares.
On the Issuance Date, the Corporation shall
issue to the Participant (or such Participant’s estate or beneficiary, if
applicable) a number of shares of Restricted Stock equal to the Earned Award.
Except as otherwise provided in Section 6 of the LTIP, one-third of such shares
shall be immediately vested and nonforfeitable, one-third of such shares shall
become fully vested and nonforfeitable on December 31, 2018, and one-third of
such shares shall become fully vested and nonforfeitable on December 31, 2019,
subject to continued employment of the Participant through each such date. On
the Issuance Date for the Performance Period, the Corporation shall also pay in
cash to the Participant (or such Participant’s estate or beneficiary, if
applicable) an amount equal to the Dividend Value for the Performance Period
multiplied by the number of shares issued pursuant to this Section 4.
5.
Tax Withholding.
The Participant shall, not later than the
date as of which vesting or payment in respect of the Award becomes a taxable
event for Federal income tax purposes, pay to the Corporation or make
arrangements satisfactory to the Corporation for payment of any Federal, state
and local taxes required by law to be withheld on account of such taxable
event. The Corporation shall have the authority to cause the required minimum
tax withholding obligation to be satisfied by withholding a number of Shares to
be issued to a Participant with an aggregate Fair Market Value that would
satisfy the withholding amount due. The Corporation’s obligation to deliver
stock certificates (or evidence of book entry) to any Participant is subject to
and conditioned on tax withholding obligations being satisfied by such Participant.
6.
Termination of Employment.
If the Participant’s employment with the
Corporation is involuntarily terminated for “Cause” during the term of this
Agreement, or if the Participant voluntarily terminates his or her employment
with the Corporation without “Good Reason,” then the Participant’s Target Award
or shares of Restricted Stock which have not previously become vested as of the
termination date shall be forfeited.
In the event of termination of the
Participant’s employment by reason of a Qualified Termination prior to the end
of the Performance Period, then the Compensation Committee shall determine the
Participant’s outstanding Award in accordance with the computation described in
Section 4(b) of the LTIP as if the Performance Period ended on the calendar
quarter end immediately preceding the date of the Participant’s Qualified
Termination; provided, however, that the Earned Award of such terminated
Participant for the Performance Period shall be multiplied by a fraction, the
numerator of which shall be the number of full and partial months in which the
Participant was employed by the Corporation in the Performance Period and the
denominator of which shall be 36. The pro-rated Earned Award shall be paid out
in shares of Common Stock that are not subject to any risk of forfeiture. Such
terminated Participant shall also receive a cash payment in an amount
determined pursuant to the provisions of Section 7(b) of the LTIP but taken
into account only dividends paid through the date of the Qualified Termination.
In the event of termination of the
Participant’s employment by reason of a Qualified Termination after the end of
the Performance Period, any Restricted Stock granted to the Participant under
this Program shall become fully vested and nonforfeitable.
7.
Definitions.
Capitalized terms used herein without
definitions shall have the meanings given to those terms in the LTIP.
8.
Securities Laws.
The Corporation may from time to time impose
such conditions on the vesting of the Target Award, and/or the issuance of
shares of Common Stock upon vesting of the Target Award, as it deems reasonably
necessary to ensure that any grant of the Target Award and issuance of shares
under this Agreement will satisfy the applicable requirements of federal and
state securities laws. Such conditions may include, without limitation, the
partial or complete suspension of the right to receive shares of Common Stock upon
the vesting of the Target Award until the Common Stock has been registered
under the Securities Act of 1933, as amended. In all events, if the issuance
of any shares of Common Stock is delayed by application of this Section 8, such
issuance shall occur on the earliest date on which it would not violate
applicable law.
9.
Grant Not to Affect
Employment.
Neither this Agreement nor the Target Award
granted hereunder shall confer upon the Participant any right to continued
employment with the Corporation. This Agreement shall not in any way modify or
restrict any rights the Corporation may have to terminate such employment under
the terms of the Participant’s Employment Agreement with the Corporation.
10.
Adjustments to Target Award.
In the event of any change or changes in the
outstanding Common Stock by reason of any stock dividend, recapitalization,
reorganization, merger, consolidation, split-up, combination or any similar
transaction, the Target Award granted to the Participant under this Agreement
shall be adjusted by the Compensation Committee pursuant to Section 11.2 of the
Plan in such manner as the Compensation Committee deems appropriate to prevent
substantial dilution or enlargement of the rights granted to the Participant.
11.
Miscellaneous.
(a) This
Agreement may be executed in one or more counterparts, all of which taken
together will constitute one and the same instrument.
(b) The
terms of this Agreement may only be amended, modified or waived by a written
agreement executed by both of the parties hereto.
(c) The
provisions of the Plan are hereby made a part of this Agreement. In the
event of any conflict between the provisions of this Agreement and those of the
Plan, the provisions of this Agreement shall control.
(d) The
Target Award granted under this Agreement are intended to be exempt from the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”), under the exemption for “short-term deferrals” under Treasury
Regulation Section 1.409A-1(b)(4), and shall be interpreted in a manner
consistent with the requirements for such exemption. To the extent that
changes are necessary to ensure that the Target Award and the related dividend
equivalent rights comply with any additional requirements for such exemption
imposed by future IRS guidance on the application of Section 409A of the
Code, the Participant and the Corporation agree to cooperate and work together
in good faith to timely amend this Agreement so that the Target Award and
dividend equivalent rights will not be treated as deferred compensation subject
to the requirements of Section 409A of the Code.
(e) The
validity, performance, construction and effect of this Agreement shall be
governed by the laws of the State of Ohio, without giving effect to principles
of conflicts of law; provided, however, that matters of corporate law,
including the issuance of shares of Common Stock, shall be governed by the
Delaware General Corporation Law.
IN WITNESS WHEREOF, the
parties have executed this Agreement on the date and year first above written.
ATTEST: HEALTH
CARE REIT, INC.
By:
Executive
Vice President, Head of Title
Human
Capital and Corporate Secretary
