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EXHIBIT 4.3
THE MULTICARE COMPANIES, INC.
NON-EMPLOYEE DIRECTORS RETAINER AND MEETING FEE PLAN
I. Purpose. The Multicare Companies, Inc., a Delaware corporation
(the "Company"), hereby adopts this Non-Employee Directors Retainer and Meeting
Fee Plan (the "Plan") to promote the long-term growth and financial success of
the Company by attracting and retaining non-employee directors of outstanding
ability and assisting the Company in promoting a greater identity of interest
between the Company's non-employee directors and its stockholders.
The Plan is intended to allow non-employee directors participating
in the Plan to be treated as "disinterested persons" with respect to other
stock plans of the Company, as defined in Rule 16b-3 ("Rule 16b-3"), adopted
under the Securities Exchange Act of 1934, as amended and to permit such
directors to meet the requirements of Rule 16b-3 with respect to stock
payments elected hereunder.
II. Administration.
(a) The Plan shall be administered by a committee (the
"Committee") appointed by the Board of Directors of the Company (the "Board"),
which Committee shall consist solely of two or more directors. The members of
the Committee shall be appointed by, and may be changed at any time and from
time to time in the discretion of, the Board. Notwithstanding the foregoing:
(i) unless and until the Board shall appoint the members of the Committee, the
Plan shall be administered by the Board and (ii) the Board may, in its sole
discretion, at any time and from time to time, resolve to administer the Plan.
In either of the foregoing events, the term Committee as used herein shall be
deemed to mean the Board.
(b) The Committee shall have the authority (i) to exercise
all of the powers granted to it under the Plan, (ii) to construe, interpret and
implement the Plan and all documents executed pursuant to the Plan (including
all Election Forms), (iii) to prescribe, amend and rescind rules relating to
the Plan, (iv) to make any determination necessary or advisable in
administering the Plan and (v) to correct any defect, supply any omission and
reconcile any inconsistency in the Plan.
(c) The determination of the Committee on all matters
relating to the Plan or any document executed pursuant to the Plan shall be
conclusive.
(d) No member of the Committee shall be liable for any action
or determination made in good faith with respect to the Plan.
III. Eligibility. Only directors of the Company who are not
employees of the Company or any affiliate of the Company ("Eligible Directors")
shall participate in the Plan.
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IV. Common Shares Subject to the Plan.
A. Shares. For purposes of the Plan "Shares" shall mean
shares of common stock, par value $.01 per share, of the Company and any other
stock into which such common stock shall thereafter be changed by reason of any
merger, reorganization, recapitalization, consolidation, split-up, combination
of shares or similar event as set forth in and in accordance with this Section
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B. Shares Available for Awards. Subject to Section 4.3
(relating to adjustments upon changes in capitalization), as of any date, the
total number of Shares issuable under the Plan shall be 50,000. Shares that
shall be issuable pursuant to the Plan shall be authorized and unissued Shares,
treasury Shares or Shares purchased by, or on behalf of, the Company in
open-market transactions.
C. Adjustments. In the event of any merger, reorganization,
recapitalization, consolidation, sale or other distribution of all or
substantially all of the assets of the Company, any stock dividend, split,
spin-off, split-up, split-off, distribution of securities or other property by
the Company, or other change in the Company's corporate structure affecting the
Shares, the number of Shares issuable under the Plan shall be appropriately
adjusted as determined by the Committee in its sole discretion.
V. Payment of Retainer and Meeting Fees.
A. In General. Commencing on the effective date of the Plan,
each Eligible Director may elect under the Plan to receive payment of (i) the
annual cash retainer payable to such Director for services as a member of the
Board and its committees (the "Retainer") and/or (ii) fees payable to such
Director for meetings of the Board or committees of the Board, including any
fees for chairing committees ("Meeting Fees"), (a) in cash or in Shares valued
at their Fair Market Value on the date on which such amounts become payable or
(b) partly in cash and partly in such Shares. Any such payment shall be made
within 60 days after such amount becomes payable.
B. Election to Receive Shares. An Eligible Director may elect
to receive payment of his or her Retainer Fees and/or Meeting Fees in the form
of Shares by submitting an election form (an "Election Form") to the Company
indicating the portion of such fees to be paid in such Shares. An Election Form
shall become effective with respect to the Eligible Director's Retainer Fees
and/or Meeting Fees becoming payable six months after the date on which the
Election Form is submitted to the Company (the "Election Date"). An election
under this Section 5.2 shall continue in effect until revoked by notice in
writing to the Company, until superseded by a new Election Form, or until no
longer permitted by law or regulation (including under Rule 16b-3), provided,
however, that no revocation or super session shall be effective to make any
change with respect to amounts deferred pursuant to previously filed Election
Forms and no new Election Form shall be effective until six months after such
form is filed with the Company. If no Election Form is filed, payment shall be
made entirely in cash.
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C. Determination of Number of Shares.
(a) if an Eligible Director elects to have all of his or her
Retainer and/or Meeting Fees paid in Shares, the number of Shares payable shall
be determined by dividing the amount of such Retainer and/or Meeting Fees for
which an election is in effect by the Fair Market Value of a Share on the first
business day coinciding with or next following the date on which the Eligible
Director becomes entitled to payment of the Retainer or Meeting Fees. Any
remaining fractional share shall be paid out in cash based upon said Fair
Market Value.
(b) if an Eligible Director elects to have his or her
Retainer and Meeting Fees paid partly in Shares and partly in cash, the portion
payable in Shares shall be calculated in the same manner as in (a) above except
that, if any fractional Share results, the cash portion, if sufficient, will be
reduced by the amount necessary to convert such fractional Share to a full
Share.
Vl. Fair Market Value. "Fair Market Value" shall mean, with respect to
each Share for any day:
(a) the lowest price of the Shares as reported on the New
York Stock Exchange, or such other exchange on which the Shares are principally
traded, or if no such reported sale of the Shares shall have occurred on such
date, on the next preceding date on which there was such a reported sale, or
(b) if the Shares are not so listed, but are authorized for
quotation on the National Association of Securities Dealers Inc.'s NASDAQ
National Market System ("NASDAQ/NMS"), the lowest price of the Shares on
NASDAQ/NMS, or, if no such reported sale of the Shares shall have occurred on
such date on NASDAQ/NMS, on the next preceding date on which there was such a
reported sale on NASDAQ/NMS, or
(c) if the Shares are not listed for trading on a national
securities exchange or authorized for quotation on NASDAQ/NMS, the average of
the lowest bid and lowest asked prices as reported by the National Association
of Securities Dealers Automated Quotation System ("NASDAQ") or, if no such
prices shall have been so reported for such date, on the next preceding date
for which such prices were so reported.
Vll. Issuance of Certificates.
A. Restrictions on Transferability. All Shares delivered
under the Plan shall be subject to such stop-transfer orders and other
restrictions as the Company may deem advisable or legally necessary under any
laws, rules, regulations and other legal requirements, including, without
limitation, those of any stock exchange upon which the Shares are then listed
and any applicable federal, state or foreign securities law.
B. Compliance with Laws. Anything to the contrary herein
notwithstanding, the Company shall not be required to issue any Shares under
the Plan if, in the opinion of the Company's legal counsel, the issuance and
delivery of such Shares would constitute a violation by the Eligible Director
or the Company of any applicable law or regulation of any governmental
authority, including, without limitation, federal and state
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securities laws and the rules of any stock exchange on which the Company's
securities may then be listed. If and to the extent that the Committee
determines that it would be illegal, impracticable or inadvisable to issue
Shares under the Plan, or to the extent Shares are unavailable, the Committee
shall make any distribution of Shares otherwise required under the Plan in cash
or such other property as may be reasonably acceptable to the distributee.
VIII. Withholding and Other Obligations. The Company shall require
as a condition of delivery of any Shares to an Eligible Director that such
Director remit an amount sufficient to satisfy any foreign, federal, state,
local and other governmental withholding tax requirements relating thereto and
any indebtedness or other obligation of the Eligible Directors to the Company.
IX. Plan Amendments and Termination. The Board may suspend or
terminate the Plan at any time and may amend it at any time and from time to
time, in whole or in part, provided that no amendment or termination may
adversely affect any rights of any Eligible Director that have accrued prior to
the date of such amendment or termination, and provided, further, that any
amendment for which shareholder approval is required by law or in order to
maintain continued qualification of the Plan under Rule 16b-3 shall not be
effective until such approval has been obtained.
X. Listing, Registration and Legal Compliance. If the Committee
shall at any time determine that any Consent (as hereinafter defined) is
necessary or desirable as a condition of, or in connection with, the granting
of any award under the Plan, the issuance of Shares or other rights hereunder
or the taking of any other action hereunder (each such action being hereinafter
referred to as a "Plan Action"), then such Plan Action shall not be taken, in
whole or in part, unless and until such Consent shall have been effected or
obtained. The term "Consent" as used herein with respect to any Plan Action
means (i) the listing, registration or qualification of any Shares issued under
the Plan on any securities exchange or under any foreign, federal, state or
local law, rule or regulation, (ii) any and all consents, clearances and
approvals in respect of a Plan Action by any governmental or other regulatory
bodies or (iii) any and all written agreements and representations by an
Eligible Director with respect to the disposition of Shares or with respect to
any other matter which the Committee shall deem necessary or desirable in order
to comply with the terms of any such listing, registration or qualification or
to obtain an exemption from the requirement that any such listing,
qualification or registration be made.
XI. Right of Discharge Reserved. Nothing in the Plan shall confer
upon any Eligible Director the right to continue in the service of the Company
or affect any right that the Company may have to terminate the service of such
Eligible Director.
XII. Other Payments or Awards. Nothing contained in the Plan shall
be deemed in any way to limit or restrict the Company, any affiliate or the
Board from making any award or payment to any person under any other plan,
arrangement or understanding, whether now existing or hereafter in effect. Any
payments made under this Plan shall constitute special incentive payments to
the Eligible Director and shall not be taken into account in computing the
amount of compensation of the Eligible Director for the purposes of determining
any retirement, profit sharing, bonus, life insurance or other benefit plan of
the Company or any affiliate or (ii) any agreement between the Company or any
affiliate, on the
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one hand, and the Eligible Director, on the other hand, except as such plan or
agreement may otherwise expressly provide.
XIII. Rights Not Transferable or Subject to Alienation. No rights
granted to an Eligible Director under this Plan may be sold, assigned or
otherwise transferred by the Eligible Director other than by will or the laws
of descent or distribution; all rights granted to an Eligible Director under
this Plan may be exercised during the Eligible Director's lifetime only by such
Eligible Director. An Eligible Director's rights to payments under the Plan are
not subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment or garnishment by his creditors or
his beneficiaries.
XIV. Rights as a Shareholder. An Eligible Director shall have no
rights as a shareholder of the Company with respect to any Shares issuable
under the Plan until such Shares have been delivered to the Eligible Director.
XV. Governing Law. The Plan shall be governed by the laws of the
State of New York applicable to agreements made and to be performed entirely
within such state.
XVI. Severability. If any portion of the Plan is declared by any
court or governmental authority to be invalid, such invalidity shall not affect
any portion not declared to be invalid. Any portion so declared to be invalid
shall, if possible, be construed in a manner which will give effect to the
terms of such portion to the fullest extent possible while remaining valid.
XVII. Notices. All notices and other communications hereunder shall
be given in writing and shall be personally delivered against or sent by
registered or certified mail, return receipt requested or by reputable
overnight delivery service. Any notice shall be deemed given on the date of
delivery or mailing, and if mailed, shall be addressed (a) to the Company, at
411 Hackensack Avenue, Hackensack, New Jersey 07601, Attention: Bradford C.
Burkett, Vice President and General Counsel, and (b) to an Eligible Director,
at the Eligible Director's principal residential address last furnished to the
Company. Either party may, by notice, change the address to which notice to
such party is to be given.
XVIII. Section Headings. The Section headings contained herein are
for convenience only and are not intended to define or limit the contents of
said Sections.
XIX. Effective Date. This Plan shall become effective upon approval
by the Company's shareholders (the "Effective Date").
XX. Exculpation. It is understood that the obligations incurred by
the Company with respect to this Plan do not constitute personal obligations of
the Directors, officers, employees or shareholders and shall not create or
involve any claim against, or personal liability on the part of, them or any of
them. The Eligible Directors agree not to seek recourse against any such
Directors, officers, employees or shareholders, or any of them or any of their
personal assets for satisfaction of any liability under or with respect to the
Plan.
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