Exhibit 10.5
AMERICAN RETIREMENT CORPORATION
RESTRICTED SHARE AWARD AGREEMENT
(Directors)
THIS RESTRICTED SHARE AWARD AGREEMENT (this "Agreement") is made and
entered into as of the _____ day of _______________, 2006 (the "Grant Date"),
between American Retirement Corporation, a Tennessee corporation (the
"Company"), and ________________________, the "Grantee"). Capitalized terms not
otherwise defined herein shall have the meaning ascribed to such terms in the
American Retirement Corporation 2006 Stock Incentive Plan (the "Plan").
WHEREAS, the Company has adopted the Plan, which permits the issuance
of restricted shares of the Company's common stock, par value $0.01 per share
(the "Common Stock"); and
WHEREAS, pursuant to the Plan, the Committee responsible for
administering the Plan has granted an award of restricted shares to the Grantee
as provided herein;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. Grant of Restricted Shares.
(a) The Company hereby grants to the Grantee an award (the "Award") of
_______________ shares of Common Stock of the Company (the "Shares" or the
"Restricted Shares") on the terms and conditions set forth in this Agreement and
as otherwise provided in the Plan.
(b) The Grantee's rights with respect to the Award shall remain forfeitable
at all times prior to the dates on which the restrictions shall lapse in
accordance with Section 3 hereof.
2. Terms and Rights as a Stockholder.
(a) Except as provided herein and subject to such other exceptions as may
be determined by the Committee in its discretion, the "Restricted Period" for
Restricted Shares granted herein shall expire on the first anniversary of the
date hereof.
(b) The Grantee shall have all rights of a stockholder with respect to the
Restricted Shares, including the right to receive dividends and the right to
vote such Shares, subject to the following restrictions:
(i) the Grantee shall not be entitled to delivery of the stock
certificate for any Shares until the expiration of the Restricted Period as to
such Shares;
(ii) none of the Restricted Shares may be sold, assigned, transferred,
pledged, hypothecated or otherwise encumbered or disposed of during the
Restricted Period as to such Shares; and
(iii) except as otherwise determined by the Committee at or after the
grant of the Award hereunder, all of the Restricted Shares shall be forfeited,
and all rights of the Grantee to such Shares shall terminate, without further
obligation on the part of the Company, unless the Grantee continues his/her
service as a director of the Company, a Subsidiary or Affiliate for the entire
Restricted Period.
(iv) Notwithstanding the foregoing, the Restricted Period shall
automatically terminate as to all Restricted Shares awarded hereunder (as to
which such Restricted Period has not previously terminated) upon the termination
of the Grantee's service as a director of the Company, a Subsidiary or Affiliate
which results from the Grantee's death or Disability.
Any Shares, any other securities of the Company and any other property (except
for cash dividends) distributed with respect to the Restricted Shares shall be
subject to the same restrictions, terms and conditions as such Restricted
Shares.
3. Termination of Restrictions. Following the termination of the Restricted
Period, all restrictions set forth in this Agreement or in the Plan relating to
the Restricted Shares shall lapse and a stock certificate for the appropriate
number of Shares, free of the restrictions and restrictive stock legend, shall,
upon request, be delivered to the Grantee or the Grantee's beneficiary or
estate, as the case may be, pursuant to the terms of this Agreement.
4. Delivery of Shares.
(a) As of the date hereof, certificates representing the Restricted Shares
shall be registered in the name of the Grantee and held by the Company or
transferred to a custodian appointed by the Company for the account of the
Grantee subject to the terms and conditions of the Plan and shall remain in the
custody of the Company or such custodian until their delivery to the Grantee or
Grantee's beneficiary or estate as set forth in Sections 4(b) and (c) hereof or
their reversion to the Company as set forth in Section 2(b) hereof.
(b) Certificates representing Restricted Shares in respect of which the
Restricted Period has lapsed pursuant to this Agreement shall be delivered to
the Grantee upon request following the date on which the restrictions on such
Restricted Shares lapse.
(c) Certificates representing Restricted Shares in respect of which the
Restricted Period lapsed upon the Grantee's death shall be delivered to the
executors or administrators of the Grantee's estate as soon as practicable
following the receipt of proof of the Grantee's death satisfactory to the
Company.
(d) Each certificate representing Restricted Shares shall bear a legend in
substantially the following form or substance:
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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 2006
STOCK INCENTIVE PLAN (THE "PLAN") AND THE RESTRICTED SHARE AWARD
AGREEMENT (THE "AGREEMENT") BETWEEN THE OWNER OF THE RESTRICTED SHARES
REPRESENTED HEREBY AND AMERICAN RETIREMENT CORPORATION (THE "COMPANY").
THE RELEASE OF SUCH SHARES FROM SUCH TERMS AND CONDITIONS SHALL BE MADE
ONLY IN ACCORDANCE WITH THE PROVISIONS OF THE PLAN AND THE AGREEMENT
AND ALL OTHER APPLICABLE POLICIES AND PROCEDURES OF THE COMPANY, COPIES
OF WHICH ARE ON FILE AT THE COMPANY.
5. Effect of Lapse of Restrictions. To the extent that the Restricted
Period applicable to any Restricted Shares shall have lapsed, the Grantee may
receive, hold, sell or otherwise dispose of such Shares free and clear of the
restrictions imposed under the Plan and this Agreement.
6. No Right to Continued Service. This Agreement shall not be construed as
giving Grantee the right to continue to service as a director of the Company or
any Subsidiary or Affiliate, and the Company or any Subsidiary or Affiliate may
at any time dismiss Grantee from service as a director, free from any liability
or any claim under the Plan.
7. Adjustments. The Committee may make adjustments in the terms and
conditions of, and the criteria included in, this Award in recognition of
unusual or nonrecurring events (including, without limitation, the events
described in Section 4.2 of the Plan) affecting the Company, any Subsidiary or
Affiliate, or the financial statements of the Company or any Subsidiary or
Affiliate, or of changes in applicable laws, regulations, or accounting
principles, whenever the Committee determines that such adjustments are
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan.
8. Amendment to Award. Subject to the restrictions contained in the Plan,
the Committee may waive any conditions or rights under, amend any terms of, or
alter, suspend, discontinue, cancel or terminate, the Award, prospectively or
retroactively; provided that any such waiver, amendment, alteration, suspension,
discontinuance, cancellation or termination that would adversely affect the
rights of the Grantee or any holder or beneficiary of the Award shall not to
that extent be effective without the consent of the Grantee, holder or
beneficiary affected.
9. Withholding of Taxes. If the Grantee makes an election under Section
83(b) of the Code with respect to the Award, the Award made pursuant to this
Agreement shall be conditioned upon the prompt payment to the Company of any
applicable withholding obligations or withholding taxes by the Grantee
("Withholding Taxes"). Failure by the Grantee to pay such Withholding Taxes will
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render this Agreement and the Award granted hereunder null and void ab initio
and the Restricted Shares granted hereunder will be immediately cancelled. If
the Grantee does not make an election under Section 83(b) of the Code with
respect to the Award, upon the lapse of the Restricted Period with respect to
any portion of Restricted Shares (or property distributed with respect thereto),
the Company shall satisfy the required Withholding Taxes as set forth by
Internal Revenue Service guidelines for the employer's minimum statutory
withholding with respect to Grantee and issue vested shares to the Grantee
without restriction. The Company shall satisfy the required Withholding Taxes by
withholding from the Shares included in the Award that number of whole shares
necessary to satisfy such taxes as of the date the restrictions lapse with
respect to such Shares based on the Fair Market Value of the Shares.
10. Plan Governs. The Grantee hereby acknowledges receipt of a copy of the
Plan and agrees to be bound by all the terms and provisions thereof. The terms
of this Agreement are governed by the terms of the Plan, and in the case of any
inconsistency between the terms of this Agreement and the terms of the Plan, the
terms of the Plan shall govern.
11. Severability. If any provision of this Agreement is, or becomes, or is
deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any
Person or the Award, or would disqualify the Plan or Award under any laws deemed
applicable by the Committee, such provision shall be construed or deemed amended
to conform to the applicable laws, or if it cannot be construed or deemed
amended without, in the determination of the Committee, materially altering the
intent of the Plan or the Award, such provision shall be stricken as to such
jurisdiction, Person or Award, and the remainder of the Plan and Award shall
remain in full force and effect.
12. Notices. All notices required to be given under this Grant shall be
deemed to be received if delivered or mailed as provided for herein, to the
parties at the following addresses, or to such other address as either party may
provide in writing from time to time.
To the Company: American Retirement Corporation
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Corporate Secretary
To the Grantee: The address then maintained with respect to the
Grantee in the Company's records.
13. Governing Law. The validity, construction and effect of this Agreement
shall be determined in accordance with the laws of the State of Tennessee
without giving effect to conflicts of laws principles.
14. Successors in Interest. This Agreement shall inure to the benefit of
and be binding upon any successor to the Company. This Agreement shall inure to
the benefit of the Grantee's legal representatives. All obligations imposed upon
the Grantee and all rights granted to the Company under this Agreement shall be
binding upon the Grantee's heirs, executors, administrators and successors.
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15. Resolution of Disputes. Any dispute or disagreement which may arise
under, or as a result of, or in any way related to, the interpretation,
construction or application of this Agreement shall be determined by the
Committee. Any determination made hereunder shall be final, binding and
conclusive on the Grantee and the Company for all purposes.
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IN WITNESS WHEREOF, the parties have caused this Restricted Share Award
Agreement to be duly executed effective as of the day and year first above
written.
AMERICAN RETIREMENT CORPORATION
By:
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GRANTEE:
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Please Print
GRANTEE:
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Signature
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