EXHIBIT 10.34
FORM OF
AGREEMENT
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This Agreement (this "Agreement") is made and entered into this ___ day of
_______, 1997, by and between The Prime Group, Inc. ("PGI"), Xxxxxx X. Xxxxxxxx,
Xx. ("Xxxxxxxx") and Xxxx X. Xxxxxxx ("Xxxxxxx").
WITNESSETH
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A. Contemporaneously with the execution of this Agreement, Xxxxxxxx is
entering into an Employment Agreement (the "Employment Agreement") with
Brookdale Living Communities, Inc. ("Employer"), of which PGI is a stockholder
and Xxxxxxx is the President and Chief Executive Officer and a stockholder.
B. As stockholders of Employer, PGI and Xxxxxxx will both benefit from the
unique skills, experience and background which Xxxxxxxx will bring to Employer.
C. In order to induce Xxxxxxxx to enter into the Employment Agreement, PGI
and Xxxxxxx have each agreed to transfer and assign to Xxxxxxxx certain shares
of common stock of Employer held by them upon satisfaction of certain
conditions.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
herein set forth, and for other good and valuable consideration, the parties
hereby agree as follows:
1. Subject to Section 2 hereof, in the event that Employer's after-tax
earnings per share plus depreciation and amortization on a fully diluted basis
for the period commencing on the date hereof through December 31, 1998 (the
"Measurement Period"), determined on a cumulative basis in accordance with
generally accepted accounting principals and auditing standards and practices,
consistently applied, equals or exceeds the earnings per share plus depreciation
and amortization set forth in Employer's Board of Directors approved annual
basis plans for the Measurement Period (the "EPS Target"), then PGI and Xxxxxxx
each agrees to transfer and assign to Xxxxxxxx, subject to any applicable
withholding tax requirements, 22,500 shares and 2,500 shares, respectively, of
the common stock of Employer (collectively, the "Incentive Stock") within thirty
(30) days after the conclusion of the Measurement Period.
2. In the event that Xxxxxxxx'x employment with Employer is terminated
pursuant to Section 5(a)(ii) or 5(b)(ii) of the Employment Agreement prior to
the conclusion of the Measurement Period, Xxxxxxxx shall forfeit any and all
rights to receive the Incentive Stock. In the event that Xxxxxxxx'x employment
with Employer is terminated pursuant to Section 5(b)(i) of the Employment
Agreement prior to the conclusion of the Measurement Period, subject to any
applicable withholding tax requirements, Xxxxxxxx shall be entitled to receive
the Incentive Stock. In the event that Xxxxxxxx'x employment with Employer is
terminated pursuant to Section 5(a)(i), 5(a)(iii) or 5(c) of the Employment
Agreement prior to January 1, 1998, Xxxxxxxx, or his heirs, executor or personal
representatives, as applicable, shall be entitled to receive, subject to any
applicable withholdings tax requirements, 50% of the Incentive Stock, provided
that the EPS Target for the period commencing on the date hereof and ending on
December 31, 1998 is met. In the event that Xxxxxxxx'x employment with
Employer is terminated pursuant to Section 5(a)(i), 5(a)(iii) or 5(c) of the
Employment Agreement during 1998, Xxxxxxxx, or his heirs, executor or personal
representatives, as applicable shall be entitled to receive, subject to any
applicable withholding tax requirements, 100% of the Incentive Stock, provided
that the EPS Target is met at the conclusion of the Measurement Period.
3. Each of Xxxxxxxx, Xxxxxxx and PGI acknowledges and agrees, for purposes
of Sections 83, 61 and 1001 of the Internal Revenue Code of 1986, as amended
(the "Code") as follows:
(a) No "transfer" of any of the Incentive Stock shall occur, unless, until
and to the extent the conditions described in Section 1 and 2 of this
Agreement are met with respect to any such Incentive Stock;
(b) Upon the transfer of Incentive Stock to Xxxxxxxx, such Incentive Stock
shall not be subject to any "substantial risk of forfeiture"; and
(c) Based on the foregoing subsection (a) and (b), Xxxxxxxx may not and
will not file any election under Code Section 83(b) in respect of the
Incentive Stock which may be transferred under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE PRIME GROUP, INC.
By: ___________________________________
Title: ________________________________
________________________________________
Xxxxxx X. Xxxxxxxx, Xx.
_________________________________________
Xxxx X. Xxxxxxx
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