AMENDMENT AND RESTATEMENT OF THE EQUITY INCENTIVE PLAN OF MANOR CARE, INC. RESTRICTED STOCK AGREEMENT
Exhibit 10.10
AMENDMENT AND RESTATEMENT OF THE EQUITY INCENTIVE PLAN
OF
MANOR CARE, INC.
OF
MANOR CARE, INC.
THIS RESTRICTED STOCK AGREEMENT (“Agreement”), dated as of , 200 , is made by and
between MANOR CARE, INC., a Delaware corporation (the “Company”), and , an officer
of the Company (the “Employee”):
WHEREAS, the Company has established the Amendment and Restatement of the Equity Incentive
Plan of Manor Care, Inc. (the “Plan”); and
WHEREAS, Article VII of the Plan provides for the issuance of shares of the Company’s Common
Stock, subject to certain restrictions thereon and to other conditions stated herein; and
WHEREAS, the Compensation Committee of the Board of Directors (“Committee”) has determined
that it would be to the advantage and best interest of the Company and its stockholders to issue
the shares of Restricted Stock provided for herein to the Employee in partial consideration of
services rendered, or to be rendered, to the Company and/or its subsidiaries; and
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall have the meaning specified
below unless the context clearly indicates to the contrary. Capitalized terms not otherwise
defined herein shall have the meanings set forth in the Plan. The masculine pronoun shall include
the feminine and neuter, and the singular the plural, where the context so indicates.
Section 1.1 - Common Stock
“Common Stock” shall mean the Company’s common stock, $.01 par value.
Section 1.2 - Exchange Act
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
Section 1.3 - Fair Market Value
“Fair Market Value” of a share of Common Stock as of a given date shall be: (a) the closing
price of a share of Common Stock on the principal exchange on which shares of Common Stock are then
trading, if any, on the trading day previous to such date, or, if shares were not traded on the
trading day previous to such date, then on the next preceding date on which a trade occurred, or
(b) if Common Stock is not traded on an exchange but is quoted on NASDAQ or a successor quotation
system, the mean between the closing representative bid and asked prices for the Common Stock on
the trading day previous to such date as reported by NASDAQ or such successor quotation system, or
(c) if Common Stock is not publicly traded on an exchange and not quoted on NASDAQ or a successor
quotation system, the Fair Market value established by the Committee acting in good faith.
Section 1.4 - Parent Corporation
“Parent Corporation” shall mean any corporation in an unbroken chain of corporations ending
with the Company if each of the corporations other than the Company then owns stock possessing 50%
or more of the total combined voting power of all classes of stock in one of the other corporations
in such chain.
Section 1.5 - Plan
“Plan” shall mean the Amendment and Restatement of the Equity Incentive Plan of Manor Care,
Inc.
Section 1.6 - Restrictions
“Restrictions” shall mean the transferability restrictions imposed upon Restricted Stock under
this Agreement.
Section 1.7 - Restricted Stock
“Restricted Stock” shall mean Common Stock of the Company issued under this Agreement and
subject to the Restrictions imposed hereunder.
Section 1.8 - Rule 16b-3
“Rule 16b-3” shall mean that certain Rule 16b-3 under the Exchange Act, as such Rule may be
amended in the future.
Section 1.9 - Secretary
“Secretary” shall mean the Secretary of the Company.
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Section 1.10 - Securities Act
“Securities Act” shall mean the Securities Act of 1933, as amended.
Section 1.11 - Subsidiary
“Subsidiary” shall mean any corporation in an unbroken chain of corporations beginning with
the Company if each of the corporations other than the last corporation in the unbroken chain then
owns stock possessing 50% or more of the total combined voting power of all classes of stock in one
of the other corporations in such chain. “Subsidiary” shall also mean any partnership in which the
Company and/or any Subsidiary owns more than 50% of the capital or profits interests.
Section 1.12 - Termination of Employment
“Termination of Employment” shall mean the time when the employee-employer
relationship between the Employee and the Company or any Subsidiary is terminated for any reason,
with or without cause, including, but not by way of limitation, a termination by resignation,
discharge, death, disability or retirement; but excluding (a) a termination where there is a
simultaneous reemployment or continuing employment of the Employee by the Company or any
Subsidiary, (b) at the discretion of the Committee, a termination which results in a temporary
severance of the employee-employer relationship, and (c) at the discretion of the Committee, a
termination which is followed by the simultaneous establishment of a consulting relationship by the
Company or a Subsidiary with the Employee. The Committee, in its absolute discretion, shall
determine the effect of all matters and questions relating to Termination of Employment, including,
but not by way of limitation, all questions of whether a particular leave of absence constitutes a
Termination of Employment.
ARTICLE II
ISSUANCE OF RESTRICTED STOCK
Section 2.1 - Issuance of Restricted Stock
In consideration of the past services rendered to the Company and for other good and valuable
consideration which the Committee has determined to be equal to the par value of its Common Stock,
on the date hereof the Company issues to the Employee
shares of its Common Stock, par
value $.01 per share, upon the terms and conditions set forth in this Agreement.
Section 2.2 - No Right to Continued Employment
Nothing in this Agreement or in the Plan shall confer upon the Employee any right to continue
in the employ of the Company, any Parent Corporation or any Subsidiary or shall interfere with or
restrict in any way the rights of the Company or any Subsidiary, which are hereby expressly
reserved, to discharge the Employee at any time for any reasons whatsoever, with or without cause.
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ARTICLE III
RESTRICTIONS
Section 3.1 - Reacquisition of Restricted Stock
In accordance with the authority granted to the Committee pursuant to Section 7.5 of the Plan,
the shares of Restricted Stock issued to the Employee pursuant to this Agreement are not subject to
reacquisition by the Company.
Section 3.2 - Legend
Certificates representing shares of Restricted Stock issued pursuant to this Agreement shall,
until all restrictions lapse and new certificates are issued pursuant to Section 3.3, bear the
following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN VESTING
REQUIREMENTS UNDER THE TERMS OF THAT CERTAIN RESTRICTED STOCK AGREEMENT BY AND
BETWEEN MANOR CARE, INC. (THE “COMPANY”) AND THE HOLDER OF THE SECURITIES. PRIOR TO
VESTING OF OWNERSHIP IN THE SECURITIES, THEY MAY NOT BE, DIRECTLY OR INDIRECTLY,
OFFERED, TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
UNDER ANY CIRCUMSTANCES. COPIES OF THE ABOVE REFERENCED AGREEMENT ARE ON FILE AT
THE OFFICES OF THE COMPANY AT 000 X. XXXXXX XX., XXXXXX, XXXX 00000.
Section 3.3 - Lapse of Restrictions
In accordance with the authority granted to the Committee pursuant to Section 7.4 of the Plan,
the shares of Restricted Stock shall vest and all restrictions thereon shall terminate upon the
Employee’s Termination of Employment. In the event an Employee’s employment is terminated but
there is a simultaneous reemployment or the continuation of a relationship within the meaning of
subsections (a) or (c) of Section 1.12, all shares of Restricted Stock shall vest and all
restrictions thereon shall terminate upon the subsequent termination of such reemployment or of the
continuing relationship. Upon the vesting of the shares and subject to Section 4.3, the Company
shall cause new certificates to be issued with respect to such vested shares and delivered to the
Employee or his legal representative, free from the legend provided for in Section 3.2 and any of
the other Restrictions. Such vested shares shall cease to be considered Restricted Stock subject
to the terms and conditions of this Agreement.
Section 3.4 - Merger, Consolidation, Acquisition, Liquidation or Dissolution
Notwithstanding any other provision of this Agreement, upon the merger or consolidation
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of the Company into another corporation, the acquisition by another corporation or person (excluding any
employee benefit plan of the Company or any trustee or other fiduciary holding securities under an
employee benefit plan of the Company) of all or substantially all of the Company’s assets or 50% or
more of the Company’s then outstanding voting stock, or the liquidation or dissolution of the
Company, the Committee shall then provide by resolution adopted prior to such event that, at some
time prior to the effective date of such event, all shares of Restricted Stock not previously
reacquired pursuant to Section 3.1 shall fully vest and all Restrictions with respect to such
shares of Restricted Stock shall immediately expire.
Section 3.5 - Restrictions on New Shares
In the event that the outstanding shares of the Company’s Common Stock are changed into or
exchanged for a different number or kind of shares or other securities of the Company or of another
corporation pursuant to a merger of the Company into another corporation, or the exchange of all or
substantially all of the assets of the Company for the securities of another corporation, or the
acquisition by another corporation or person (excluding any employee benefit plan of the Company or
any trustee or other fiduciary holding securities under an employee benefit plan of the Company) of
50% or more of the Company’s then outstanding voting stock, or the liquidation or dissolution of
the Company, or a stock split-up or stock dividend, such new, additional or different shares or
securities which are held or received by the Employee in his capacity as a holder of Restricted
Stock shall be considered to be Restricted Stock and shall be subject to all of the Restrictions,
unless the Committee provides, pursuant to Section 3.4, for the accelerated vesting and expiration
of the Restrictions on the shares of Restricted Stock underlying the distribution of the new,
additional or different shares or securities.
ARTICLE IV
MISCELLANEOUS
Section 4.1 - Administration
The Committee shall have the power to interpret the Plan, this Agreement and all other
documents relating to Restricted Stock and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and determinations made by the Committee
in good faith shall be final and binding upon the Employee, the Company and all other interested
persons. No member of the Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or the Restricted Stock and all members
of the Committee shall be fully protected by the Company in respect to any such action,
determination or interpretation. The Board shall have no right to exercise any of the rights or
duties of the Committee under the Plan and this Agreement.
Section 4.2 - Restricted Stock Not Transferable
No Restricted Stock or any interest or right therein or part thereof shall be liable for the
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debts, contracts or engagements of the Employee or his successors in interest or shall be subject
to disposition by transfer, alienation, anticipation, pledge, hypothecation, encumbrance,
assignment or any other means, whether such disposition be voluntary or involuntary or by operation
of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect; provided,
however, that this Section 4.2 shall not prevent transfers by will or by the applicable
laws of descent and distribution.
Section 4.3 - Conditions to Issuance of Stock Certificates
The Company shall not be required to issue or deliver any certificate or certificates for
shares of stock pursuant to this Agreement prior to fulfillment of all of the following conditions:
(a) The admission of such shares to listing on all stock exchanges on which such class of
stock is then listed;
(b) The completion of any registration or other qualification of such shares under any state
or federal law or under rulings or regulations of the Securities and Exchange Commission or of any
other governmental regulatory body, which the Committee shall, in its absolute discretion, deem
necessary or advisable;
(c) The obtaining of any approval or other clearance from any state or federal governmental
agency which the Committee shall, in its absolute discretion, determine to be necessary or
advisable;
(d) Subject to the provisions of Section 4.10, the payment by the Employee of all amounts
required to be withheld, under federal, state and local tax laws, with respect to the issuance of
Restricted Stock and/or the lapse or removal of any of the Restrictions; and
(e) The lapse of such reasonable period of time as the Committee may from time to time
establish for reasons of administrative convenience.
Section 4.4 - Escrow
The Secretary or such other escrow holder as the Committee may appoint shall retain physical
custody of the certificates representing Restricted Stock, including shares of Restricted Stock
issued pursuant to Section 3.5, until all of the Restrictions expire or shall have been removed;
provided, however, that in no event shall the Employee retain physical custody of
any certificates representing Restricted Stock issued to him.
Section 4.5 - Notices
Any notice to be given under the terms of this Agreement to the Company shall be addressed to
the Company in care of its Secretary, and any notice to be given to the Employee shall be addressed
to him at the address given beneath his signature hereto. By a notice given pursuant to this
Section 4.5, either party may hereafter designate a different address for notices to be given to it
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or him. Any notice which is required to be given to the Employee shall, if the Employee is then
deceased, be given to the Employee’s personal representative if such representative has previously
informed the Company of his status and address by written notice under this Section 4.5. Any
notice shall be deemed duly given when enclosed in a properly sealed envelope or wrapper addressed
as aforesaid, deposited (with postage prepaid) in a post office or branch post office regularly maintained by the United States
Postal Service.
Section 4.6 - Rights as Stockholder
Upon delivery of the shares of Restricted Stock to the escrow holder pursuant to Section 4.4,
the Employee shall have all the rights of a stockholder with respect to said shares, subject to the
restrictions herein (including the provisions of Section 4.10), including the right to vote the
shares and to receive all dividends or other distributions paid or made with respect to the shares.
Section 4.7 - Titles
Titles are provided herein for convenience only and are not to serve as a basis for
interpretation or construction of this Agreement.
Section 4.8 - Conformity to Securities Laws
This Agreement is intended to conform to the extent necessary with all provisions of the
Securities Act and the Exchange Act and any and all regulations and rules promulgated by the
Securities and Exchange Commission thereunder, including without limitation Rule 16b-3.
Notwithstanding anything herein to the contrary, this Agreement shall be administered, and the
Restricted Stock shall be issued, only in such a manner as to conform to such laws, rules and
regulations. To the extent permitted by applicable law, this Agreement and the Restricted Stock
issued hereunder shall be deemed amended to the extent necessary to conform to such laws, rules and
regulations.
Section 4.9 - Amendment
This Agreement may be amended only by a writing executed by the parties hereto which
specifically states that it is amending this Agreement.
Section 4.10 - Tax Withholding
The Company’s obligation: (i) to issue or deliver to the Employee any certificate or
certificates for unrestricted shares of stock; or (ii) to pay to the Employee any dividends or make
any distributions with respect to the Restricted Stock, is expressly conditioned upon receipt from
the Employee, on or prior to the date reasonably specified by the Company of:
(a) Full payment (in cash or by check) of any amount that must be withheld by the Company for
federal, state and/or local tax purposes;
(b) Subject to the Committee’s consent and Section 4.10(c), full payment by
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delivery to the Company of unrestricted shares of the Company’s Common Stock previously owned by the Employee duly
endorsed for transfer to the Company by the Employee with an aggregate Fair Market Value
(determined, as applicable, as of the date of the lapse of the restrictions or vesting, or as of
the date of the distribution) equal to the amount that must be withheld by the Company for federal,
state and/or local tax purposes;
(c) With respect to the withholding obligation for shares of Restricted Stock that become
unrestricted shares of stock as of a certain date (the “Vesting Date”), subject to the Committee’s
consent, full payment by retention by the Company of a portion of such shares of Restricted Stock
which become unrestricted or vested with an aggregate Fair Market Value (determined as of the
Vesting Date) equal to the amount that must be withheld by the Company for federal, state and/or
local tax purposes; or
(d) Subject to the Committee’s consent, any combination of payments provided for in the
foregoing subsections (a), (b) or (c).
Section 4.11 - Governing Law
The laws of the State of Delaware shall govern the interpretation, validity, administration,
enforcement and performance of the terms of this Agreement regardless of the law that might be
applied under principles of conflicts of laws.
IN WITNESS HEREOF, this Agreement has been executed and delivered by the parties hereto.
| MANOR CARE, INC. | ||||
| By: | ||||
| Its: | ||||
Employee |
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Address |
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