Exhibit 4.6
VENTAS, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
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THIS NONQUALIFIED STOCK OPTION AGREEMENT ("Agreement") is
made and entered into as of this 1st day of May 1998, by and
between VENTAS, INC., a Delaware corporation ("Corporation"),
and XXXXXX X. XXXXX, a non-employee director of the Corporation
("Optionee").
RECITALS:
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A. Corporation desires to grant to Optionee the right
and option to purchase shares of common stock of the
Corporation in order to promote the interests of Corporation,
and its stockholders by enabling non-employee directors, such
as Optionee, to invest in Corporation's shares of common stock,
having a par value of $.25 per share ("Common Stock").
B. Corporation believes that such investment should
increase the personal interest and special efforts of Optionee
in providing for the continued success and progress of
Corporation and should enhance the efforts of the Corporation
to attract and retain a high caliber of non-employee directors.
AGREEMENT:
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NOW, THEREFORE, the parties agree as follows:
1. Grant of the Option; Option Price. Corporation
hereby grants to Optionee, as a matter of separate inducement
and agreement in connection with Optionee being a non-employee
director of the Corporation (and not in lieu of any salary or
other compensation for Optionee's services) the right and
option to purchase (the "Option") all or any part of an
aggregate of 5,000 shares of Common Stock ("Option Shares") on
the terms and conditions set forth herein, subject to
adjustment as provided in Section 7, at a purchase price of
$17.25 per share ("Option Price"). Corporation and Optionee
consider the Option Price to be not less than the Fair Market
Value (as determined by the closing price) of the Common Stock
on the date hereof, which is the date on which the Option was
granted to Optionee ("Option Date").
2. Term and Time of Exercise of the Option. The Option
shall commence on the date hereof and continue for a term
ending ten years from the Option Date ("Termination Date"),
unless sooner terminated as provided in Section 6.
3. Option Exercisable in Installments. Subject to the
other terms and conditions stated herein, the right to exercise
the Option shall accrue in installments as follows.
a. First Installment. Commencing one year after
the Option Date, Optionee may exercise the Option for up to 25
percent of the number of Option Shares.
b. Second Installment. Commencing two years after
the Option Date, Optionee may exercise the Option for up to 50
percent of the Option Shares, less the number of Option Shares
for which the Optionee has already exercised the Option.
c. Third Installment. Commencing three years after
the Option Date, Optionee may exercise the Option for up to 75
percent of the Option Shares, less the number of Option Shares
for which the Optionee has already exercised the Option.
d. Fourth Installment. Commencing four years after the
Option Date, the
Option may be fully exercised to the extent that it has not
previously been exercised.
4. Conditions to Exercise of the Option.
a. Exercise of the Option. Subject to the
provisions of Section 3, Optionee may exercise the Option by
delivering to Corporation written notice ("Notice") of exercise
stating the number of Option Shares for which the Option is
being exercised accompanied by payment of the Option Price
multiplied by the number of shares for which the Option is
being exercised (the "Exercise Price") in the manner provided
in Section 4(b).
b. Payment of the Option Price. Corporation
shall accept as payment for the Exercise Price a check payable
to the order of Corporation, or in any other form acceptable to
Corporation.
c. Delivery of Shares on Exercise. As soon as
practicable after receipt of such notice and payment of the
Exercise Price, Corporation shall deliver to Optionee, without
transfer or issuance tax or other incidental expense to
Optionee, at the office of Corporation, or at such other place
as may be mutually acceptable, or, at the election of
Corporation, by certified mail addressed to Optionee at
Optionee's address shown in the records of Corporation, a
certificate or certificates for the number of shares of Common
Stock set forth in the Notice and for which Corporation has
received payment in the manner prescribed herein. Corporation
may postpone such delivery until it receives satisfactory proof
that the issuance or transfer of such shares will not violate
any of the provisions of the Securities Act of 1933, as
amended, or the Securities Exchange Act of 1934, as amended,
any rules or regulations of the Securities and Exchange
Commission promulgated thereunder, or the requirements of
applicable state law relating to authorization, issuance or
sale of securities, or until there has been compliance with the
provisions of such acts or rules. If Optionee fails to accept
delivery of all or any part of the number of shares of Common
Stock specified in such notice upon tender of delivery thereof,
Optionee's right to exercise the Option for such undelivered
shares may be terminated by Corporation.
5. Option Not Transferable Except in Event of
Death. During Optionee's lifetime, the Option shall be
exercisable only by Optionee, and neither the Option nor any
rights hereunder shall be transferable except by will or the
laws of descent and distribution. The Option may not be
subject to execution or other similar process. If Optionee
attempts to alienate, assign, pledge, hypothecate or otherwise
dispose of the Option or any of Optionee's rights hereunder,
except as provided herein, or in the event of any levy or any
attachment, execution or similar process upon the rights or
interests hereby conferred, Corporation may terminate the
Option by notice to Optionee and it shall thereupon become null
and void.
6. Termination of Option
a. If the Optionee ceases to be a director of the
Corporation for any reason other than death, Disability (as
defined in the Corporation's 1997 Incentive Compensation Plan)
or removal for Cause (as defined in the Corporation's 1997
Incentive Compensation Plan), this Agreement shall terminate
three months after the Optionee ceases to be a director of the
Corporation (unless the Optionee dies during such period) or on
the Option's Termination Date, if earlier, and shall be
exercisable during such period after the Optionee ceases to be
a director of the Corporation only with respect to the number
of Shares which the Optionee was entitled to purchase on the
day preceding the day on which the Optionee ceased to be a
director.
b. If the Optionee ceases to be a director of the
Corporation because of removal for Cause, the Option shall
terminate on the date of the Optionee's removal.
c. In the event of the Optionee's death or
Disability while a director of the Corporation or the
Optionee's death within three months after the Optionee ceases
to be a director (other than by reason of removal for Cause),
the Option shall terminate upon the earlier to occur of (i) 12
months after the date of the Optionee's death or Disability ,
or (ii) the Option's Termination Date. The Option shall be
exercisable during such period after the Optionee's death or
Disability with respect to the number of Shares as to which the
Option shall have been exercisable on the date preceding the
Optionee's death or Disability, as the case may be.
7. Adjustment to Option. If the Corporation merges,
consolidates or reorganizes with any other corporation or
corporations, the number and kind of shares of stock or of
other securities to which Optionee will be entitled pursuant to
the transaction shall be substituted for each of the shares of
Common Stock then subject to this Agreement. If the number of
shares of Common Stock issued and outstanding changes as a
result of any recapitalization, stock dividend, stock split,
combination of shares or other change in the Common Stock, the
number of shares of Common Stock then subject to this Agreement
shall be adjusted in proportion to the change in the
outstanding shares of Common Stock. Upon any such adjustment,
the purchase price of any Option and the shares of Common Stock
issuable pursuant to any Option shall be adjusted to the extent
appropriate in the discretion of the Corporation to provide
Optionee with the same relative rights before and after such
adjustment.
8. Change in Control; Retirement. Notwithstanding
the other provisions of this Agreement, upon a Change in
Control of the Corporation (as defined in the Corporation's
1997 Incentive Compensation Plan) or the retirement of the
director, the Optionee shall have the right to exercise the
Option in full as to all Option Shares subject to the Option.
9. Restricted Legend. Upon exercise of this Option,
each certificate representing the Option Shares shall bear the
following legend:
The shares represented by this certificate have
not been registered under the Securities Act of
1933, as amended (the "Act"), or the securities
laws of any state. They may not be offered for
sale, sold, transferred, pledged, hypothecated or
otherwise disposed of, and will not be
transferred on the books and records of the
Issuer, unless (i) they have been registered
under the Act and under applicable state
securities laws or (ii) counsel for the Issuer is
of the opinion that registration under the Act
and applicable state securities laws is not
required.
10. Miscellaneous.
a. No Rights as Shareholder. Neither
Optionee, nor any person entitled to exercise Optionee's rights
under this Agreement, shall have any of the rights of a
shareholder regarding the shares of Common Stock subject to the
Option, except to the extent that certificate(s) for such
shares shall have been issued upon the exercise of the Option
as provided herein.
b. Captions. The captions and section headings used
herein are for convenience only, shall not be deemed part of
this Agreement and shall not in any way restrict or modify the
context and substance of any section or paragraph of this
Agreement.
c. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of
Delaware, and shall be construed in such a fashion so that the
Option qualifies as property transferred to Optionee in
connection with the performance of services in accordance with
Section 83 of the Internal Revenue Code of 1986 (subject to all
amendments thereto) and the Regulations thereunder.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
VENTAS, INC.
By:/s/ W. Xxxxx Xxxxxxxxx
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W. Xxxxx Xxxxxxxx
Title: Chairman of the Board
and Chief Executive
/s/Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
("Optionee")
