EXHIBIT 10.40
HEALTH CARE PROPERTY INVESTORS, INC.
AMENDED AND RESTATED DIRECTOR DEFERRED COMPENSATION PLAN
1. Eligibility. Each member of the Board of Directors (the "Board")
of Health Care Property Investors, Inc. (the "Company") who is not an
employee of the Company (a "Director") shall be eligible to participate in
this Amended and Restated Director Deferred Compensation Plan of the Company
(the "Plan"), pursuant to the terms and conditions described herein.
2. Participation.
(a) On the date of adoption of the Plan and at any time
thereafter, a Director may elect to participate in the Plan by directing
that all or any portion of the compensation which the Director may
thereafter earn for services as a Director (including the Director's
retainer and any fees payable for services as a member of a committee of the
Board) shall be credited to a deferred compensation account or accounts
subject to the terms of the Plan. Any Director who elects to participate in
the Plan is hereinafter referred to as a "Participant".
(b) A Director's election to defer the Director's fees shall be
in the form of a document, similar to Exhibit A-1 attached, executed by a
Director and shall become effective at the first day of the fiscal quarter
beginning immediately following the date on which the Company receives such
notice, or on the first day of such later fiscal quarter as may be
designated in the notice of election to defer compensation. "Fiscal
quarter" shall mean any quarter of the fiscal year adopted by the Company
for reporting its financial condition and operating results.
(c) A Director's election to defer compensation under the Plan
shall continue in effect until the Director ceases to be a Director, or
until the date the Director terminates such election, in whole or in part,
by written notice filed with the Company. Any such termination, in whole or
in part, shall become effective at the close of the fiscal quarter ending
immediately following the date on which the Company receives such notice, or
at the end of such later fiscal quarter as may be designated in the notice
of termination.
(d) A Participant who has filed an election to terminate
deferrals of compensation under the Plan may thereafter file an election to
recommence such deferrals with respect to any future compensation earned by
him for services to the Company or any subsidiary thereof pursuant to the
foregoing provisions of the Plan.
3. Deferred Compensation Accounts.
(a) All deferred compensation amounts shall be held by the
Company in its general funds, shall be credited to an account or accounts,
as applicable, in the name of each Participant and shall earn a rate of
return, as described herein.
(b) Upon electing to defer compensation under the Plan, each
Participant shall designate the amount of such compensation which shall be
credited to the Participant's "Interest Rate Account" or "Stock Credit
Account", as follows:
(i) Interest Rate Account: The Participant's Interest Rate
Account shall be credited, as of the date on which the Participant would
otherwise have been entitled to receive such deferred compensation, with the
amount of compensation directed to be deferred and credited to the
Participant's Interest Rate Account. Based on the Participant's deferred
compensation Interest Rate Account balance at the beginning of each fiscal
quarter, the Participant's Interest Rate Account shall be credited at the
end of each fiscal quarter with an interest equivalent to be calculated
quarterly on the basis of one quarter of the percentage rate which is equal
to one point below the prime interest rate charged by Bank of New York on
the last day of the fiscal quarter or such other rate as may be set from
time to time by the Compensation Committee of the Board of Directors of the
Company (the "Committee").
(ii) Stock Credit Account: The Participant's Stock Credit
Account shall be credited, as of the payment date for regular quarterly
dividends paid to holders of the Company's Common Stock ("Common Stock")
during the fiscal quarter during which the Participant would otherwise have
been entitled to receive such deferred compensation, with a number of units
equal to the number of shares of Common Stock (including fractions of units
reflecting fractions of shares) that could have been purchased at the
average of the closing price of Common Stock (as reported in The Wall Street
Journal, "Closing Price") on each business day during the immediately
preceding 10 business days (the "Average Closing Price") with the amount of
compensation directed to be deferred and credited to Participant's Stock
Credit Account. In addition, as of the date any dividend is paid to holders
of Common Stock, the Participant's Stock Credit Account shall also be
credited with an additional number of units equal to the number of shares of
Common Stock (including fractions of units reflecting fractions of shares)
that could have been purchased at the Average Closing Price of Common Stock
as of such date with the dividend paid on the number of shares of Common
Stock to which the Participant's Stock Credit Account is then equivalent
(but not taking into account any units credited the same day pursuant to the
first sentence of this Section 3(b)(ii)). In case of any dividends paid in
property, the dividend shall be deemed to be the fair market value of the
property at the time of distribution of the dividend, as determined by the
Committee.
If at any time the number of outstanding shares of Common
Stock shall be increased as the result of any stock dividend, subdivision or
reclassification of shares, the number of shares of Common Stock to which
each Participant's Stock Credit Account is equivalent shall be increased in
the same proportion as the outstanding number of shares of Common Stock is
increased, or if the number of outstanding shares of Common Stock shall at
any time be decreased as the result of any combination or reclassification
of shares, the number of shares of Common Stock to which each Participant's
Stock Credit Account is equivalent shall be decreased in the same proportion
as the outstanding number of shares of Common Stock is decreased. In the
event the Company shall at any time be consolidated with or merged into any
other corporation and holders of the Company's Common Stock receive common
shares of the resulting or surviving corporation, there shall be credited to
each Participant's Stock Credit Account, in place of the shares then
credited thereto, a stock equivalent determined by multiplying the number of
common shares of stock given in exchange for a share of Common Stock upon
such consolidation or merger, by the number of shares of Common Stock to
which the Participant's account is then equivalent. If in such a
consolidation or merger, holders of the Company's Common Stock shall receive
any consideration other than common shares of the resulting or surviving
corporation, the Committee shall determine the appropriate change in
Participants' accounts.
At any given time, the cash equivalent balance of a
Participant's Stock Credit Account shall be determined by multiplying the
number of credited shares in the Participant's Stock Credit Account by the
Average Closing Price as of such date for such shares of stock.
(c) Deferred compensation amounts deferred by Participants under
the Plan prior to the effective date of this amendment and restatement of
the Plan shall continue to be held in each Participant's Interest Rate
Account until such time as the Participant may elect to have all or part of
such amounts reallocated to the Stock Credit Account. An election to
reallocate such account balance shall be in the form of a document, similar
to Exhibit A-2 attached, executed by the Participant and filed with the
Company, and shall become effective as of the first day of the fiscal
quarter beginning immediately following the date on which the Company
receives such notice, or at the beginning of such later fiscal quarter as
may be designated in the notice. The calculation of units to be credited to
the Participant's Stock Credit Account shall be based upon the Average
Closing Price as of the effective date of such election.
(d) Participants may at any time by written notice filed with
the Company reallocate the balances held in their deferred compensation
accounts between the Participant's Interest Rate Account and Stock Credit
Account, or may change the account to which future deferrals shall be
credited. Any such change shall become effective on the first day of the
fiscal quarter beginning immediately following the date on which the Company
receives such notice, or at the beginning of any later fiscal quarter as may
be designated in such notice. The calculation of units to be reallocated
to or from the Participant's Stock Credit Account shall be based upon the
Average Closing Price as of the effective date of such election.
4. Events Causing Distribution. A Participant's deferred compensation
accounts shall become distributable upon the first to occur of any of the
following events:
(a) The termination of the Participant's membership on the Board;
(b) The death of the Participant;
(c) The total and permanent incapacity of the Participant, due to
physical impairment or legally established mental incompetence, to perform
the usual duties of a member of the Board, which disability shall be
determined on the basis of (i) medical evidence by a licensed physician
designated by the Company or (ii) evidence that the Participant has become
entitled to receive primary benefits as a disabled employee under the Social
Security Act in effect on the date of such disability;
(d) The occurrence of an unforeseeable emergency caused by
accident, illness or other causes beyond the control of the Participant
which results, in the sole judgment of the Committee, in substantial
hardship to the Participant. Any distribution pursuant to this Section 4(d)
shall be in an amount not greater than the amount necessary, in the sole
judgment of the Committee, to alleviate any hardship caused to the
Participant by reason of such emergency; or
(e) Such earlier date as may be specified by the Participant at
the time he elects to participate in the Plan.
5. Form of Distribution.
(a) Interest Rate Account: Deferred compensation credited to the
Interest Rate Account, together with accumulated interest, will be
distributed to the Participant in 36 approximately equal monthly payments,
unless the Committee, in its sole discretion, determines, upon written
request of the Participant, that payment shall be made over a shorter
period, in a lump sum, or in a partial lump sum with the remainder to be
distributed in 36 approximately equal monthly payments.
Payment shall commence 30 days after the occurrence of the event
causing distribution, with interest continuing to accrue pursuant to Section
3(b) hereof until the full amount of deferred compensation in the Interest
Rate Account is paid.
(b) Stock Credit Account: Distribution of a Participant's Stock
Credit Account shall be made in cash to the Participant in 36 approximately
equal monthly payments, unless the Committee, in its sole discretion,
determines, upon written request of the Participant, that payment shall be
made over a shorter period, in a lump sum, or in a partial lump sum with the
remainder to be distributed in 36 approximately equal monthly payments. The
amount of each distribution payment shall be the cash equivalent equal to
the Average Closing Price as of such payment date multiplied by the number
of credited shares to be distributed for such payment. The number of
credited shares to be distributed shall equal the credited share balance of
the Participant's Stock Credit Account multiplied by a fraction, the
numerator of which is one, and the denominator of which is the number of
installments yet to be paid to the Participant.
Payment shall commence 30 days after the occurrence of the event
causing distribution. The number of credited shares distributed as a cash
equivalent payment to the Participant shall be debited from the
Participant's Stock Credit Account balance, and the Stock Credit Account
shall continue to accrue pursuant to Section 3(b) hereof until the full
amount of deferred compensation in the Stock Credit Account is paid.
6. Designation of Beneficiary. Each Participant may designate, by a
form similar to Exhibit B attached, a beneficiary to receive distribution of
the Participant's deferred compensation accounts if the Participant is not
living when any portion of such compensation becomes distributable. If the
Participant fails to designate a beneficiary, or if the Participant's
designated beneficiary does not survive until the time when any portion of
the Participant's deferred compensation becomes distributable, such portion
of the Participant's deferred compensation shall be paid in a lump sum to
the Participant's estate within 120 days immediately following the date of
the Participant's death.
7. Miscellaneous.
(a) The Participant's deferred compensation accounts under the
Plan shall not be assignable by the Participant and shall not be subject to
attachment, lien, levy, or other creditors' rights under state or Federal
law.
(b) All funds or assets, together with all interest,
accumulations and increments thereon, of the deferred compensation of all
Participants shall remain the funds and assets of the Company, and shall be
subject to the Company's absolute ownership and control until the time when
such funds or assets are distributed in accordance herewith. The obligation
of the Company to Participants hereunder is a contractual obligation only,
and the Participants shall have no preferred or specific interest, by way of
trust, escrow, annuity or otherwise, in and to any specific assets or funds
of the Company.
(c) Copies of the Plan and any and all amendments thereto shall
be made available to eligible Participants at all reasonable times at the
office of the Corporate Secretary of the Company. All notices to the
Company hereunder shall be filed with the Corporate Secretary of the
Company.
(d) The Plan may be amended prospectively, from time to time, by
the Committee, and the interest rate applicable hereunder may be increased
or decreased prospectively (including with respect to amounts of
compensation previously deferred by the Participants) by the Committee as
provided in Section 3 hereof, but no amendment shall, in any event, be made
to the Plan which would reduce the amounts already earned by any Participant
or change the date or provisions for distribution of such amounts, unless
the Participant consents in writing to such amendment insofar as the
amendment affects the Participant.
The foregoing Amended and Restated Director Deferred Compensation
Plan is approved by the Board of Directors of the Company on behalf of the
Company on January 24, 1996, and shall be effective as of April 1, 1996.
_______________________________
Kenneth B. Roath
Chairman and Director
_______________________________
Orville L. Melby
Director and Chairman of the
Compensation Committee
_______________________________
Edward J. Henning
Corporate Secretary
EXHIBIT A-1
HEALTH CARE PROPERTY INVESTORS, INC.
NOTICE OF ELECTION TO DEFER COMPENSATION
Pursuant to the terms of the Amended and Restated Director Deferred
Compensation Plan (the "Plan") of Health Care Property Investors, Inc. (the
"Company") adopted at the meeting of the Board of Directors held on January
24, 1996, at which a quorum was present and at all times acting, I hereby
elect to defer compensation, as specified below, under the Plan.
Capitalized terms not defined herein shall have the meaning described in the
Plan.
I hereby elect to defer __________ (enter "all" or "none" or state dollar
amount or state percentage) that will hereafter be payable to me as a member
of the Board of Directors on and after _________________________. Of such
deferred amount, __________ (enter "all" or "none" or state dollar amount or
state percentage) shall be credited to my Interest Rate Account, the
remainder, if any, shall be credited to my Stock Credit Account, as provided
for in Section 3(b) of the Plan.
These elections shall continue in effect until such time as I file a written
notice with the Corporate Secretary of the Company, or I cease to be
eligible to participate in the Plan.
In the event of my death, all amounts deferred pursuant to this Plan,
together with accumulated earnings, less any amounts paid out from my
account, shall be payable in full to my named beneficiary, if he or she
survives me, or to my estate 120 days following the date of my death.
I hereby specify _________________________ (enter date or the words "no
date") as an "Event Causing Distribution" in connection with section 4(e) of
the Plan and no compensation shall be deferred after such date.
__________ _______________________________
Date Signature of Director
_______________________________
Print:Name
_______________________________
Social Security Number
__________ _______________________________
Date Spouses's Signature
_______________________________
Print: Name
Received:
__________ _______________________________
Date , Corporate Secretary
EXHIBIT A-2
HEALTH CARE PROPERTY INVESTORS, INC.
NOTICE OF ELECTION TO TRANSFER DEFERRED COMPENSATION
Pursuant to the terms of the Amended and Restated Director Deferred
Compensation Plan (the "Plan") of Health Care Property Investors, Inc. (the
"Company") adopted at the meeting of the Board of Directors held on January
24, 1996, at which a quorum was present and at all times acting, I hereby
elect to reallocate the crediting of my account balance in the Plan. Of the
amounted credited to my account under the Plan, __________ (enter "all" or
"none" or state dollar amount or state percentage) shall be invested in the
Interest Rate Account, the remainder, if any, shall be invested in the Stock
Credit Account, as provided for in Section 3(b) of the Plan. All
transferred amounts shall be subject to the terms and conditions of the
Plan.
__________ _______________________________
Date Signature of Director
_______________________________
Print:Name
_______________________________
Social Security Number
__________ _______________________________
Date Spouses's Signature
_______________________________
Print: Name
Received:
__________ _______________________________
Date , Corporate Secretary
EXHIBIT B
HEALTH CARE PROPERTY INVESTORS, INC.
BENEFICIARY DESIGNATION
AMENDED AND RESTATED DIRECTOR DEFERRED COMPENSATION PLAN
I designate the following beneficiary or beneficiaries to receive payment,
in the event of my death, of my interest in any deferred compensation
heretofore or hereafter payable to me pursuant to Health Care Property
Investors, Inc.'s Amended and Restated Director Deferred Compensation Plan
(please see "Instructions for Naming the Beneficiary" that accompany this
form):
PRIMARY BENEFICIARY
OR BENEFICIARIES AGE RELATIONSHIP ADDRESS
SUCCESSOR BENEFICIARY
OR BENEFICIARIES AGE RELATIONSHIP ADDRESS
I reserve the right to change any beneficiary from time to time by filing
with the Company a new election on this form.
I agree that the last designation received by the Company prior to my death
shall control any testamentary or other disposition I may make; however, if
a former spouse is one of the beneficiaries named above but is not my spouse
at the time of my death, such designation shall be deemed revoked. I
acknowledge that this designation is subject to laws in the state of my
residence. I further agree that the Company may make a lump sum payment to
the legal representative of my estate if there is any question as to the
right of any beneficiary to take hereunder, and the Company, its directors,
the Compensation Committee and any member thereof, and any employee of the
Company, shall have no further liability with respect hereto.
__________ _______________________________
Date Signature of Director
_______________________________
Print:Name
__________ _______________________________
Date Spouses's Signature
_______________________________
Print: Name