EXHIBIT 10.9
EQUITY INCENTIVE PLAN
OF
MANOR CARE, INC.
RESTRICTED STOCK AGREEMENT (D)
THIS RESTRICTED STOCK AGREEMENT ("Agreement"), dated as of
________________, is made by and between MANOR CARE, INC., a Delaware
corporation (the "Company"), and __________________, an Outside Director of the
Company (the "Director"):
WHEREAS, the Company has established the Equity Incentive Plan of Manor
Care, Inc., as amended and restated, (the "Plan") (the terms of which are
incorporated by reference and made a part of this Agreement); and
WHEREAS, 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 Board of Directors has determined that in lieu of the annual
grant of stock options to Outside Directors pursuant to Section 4.5 of the Plan,
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
Director, pursuant to Section 8.2 of the Plan, in partial consideration of
services rendered, or to be rendered, as an Outside Director of the Company; 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 do hereby 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. - BOARD
"Board" shall mean the Board of Directors of the Company.
SECTION 1.2. - CAUSE
"Cause" shall mean the Director's fraud or financial dishonesty in the
performance of his duties as a director of the Company or the commission of a
felony.
SECTION 1.3 - COMMON STOCK
"Common Stock" shall mean the Company's common stock, $.01 par value.
SECTION 1.4 - EXCHANGE ACT
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
SECTION 1.5 - FAIR MARKET VALUE
"Fair Market Value" of a share of the Company's stock as of a given date
shall be: (i) the closing price of a share of the Company's stock on the
principal exchange on which shares of the Company's stock are then trading, if
any, on the day previous to such date, or, if shares were not traded on the day
previous to such date, then on the next preceding trading day during which a
sale occurred; or (ii) if such stock is not traded on an exchange but is quoted
on NASDAQ or a successor quotation system, (1) the last sales price (if the
stock is then listed as a National Market Issue under the NASD National Market
System), or (2) the mean between the closing representative bid and asked prices
(in all other cases) for the stock on the day previous to such date as reported
by NASDAQ or such successor quotation system; or (iii) if such stock is not
publicly traded on an exchange and not quoted on NASDAQ or a successor quotation
system, the mean between the closing bid and asked prices for the stock, on the
day previous to such date, as determined in good faith by the Board; or (iv) if
the Company's stock is not publicly traded, the fair market value established by
the Board acting in good faith.
SECTION 1.6 - 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 1.7 - PLAN
"Plan" shall mean the Equity Incentive Plan of Manor Care, Inc., as
amended and restated effective March 9, 2004 and approved by the stockholders
May 5, 2004.
SECTION 1.8 - RESTRICTIONS
"Restrictions" shall mean the reacquisition and transferability
restrictions imposed upon Restricted Stock under this Agreement.
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SECTION 1.9 - RESTRICTED STOCK
"Restricted Stock" shall mean Common Stock of the Company issued under
this Agreement and subject to the Restrictions imposed hereunder.
SECTION 1.10 - 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 1.11 - SECRETARY
"Secretary" shall mean the Secretary of the Company.
SECTION 1.12 - SECURITIES ACT
"Securities Act" shall mean the Securities Act of 1933, as amended.
SECTION 1.13 - 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.
ARTICLE II
ISSUANCE OF RESTRICTED STOCK
SECTION 2.1 - ISSUANCE OF RESTRICTED STOCK
In partial consideration of services rendered, or to be rendered, and for
other good and valuable consideration which the Board has determined to be equal
to the par value of its Common Stock, on the date hereof the Company issues to
the Director____ 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 DIRECTORSHIP
Nothing in this Agreement or in the Plan shall confer upon the Director
any right to continue as a director of the Company, or shall interfere with or
restrict in any way the rights of the stockholders of the Company with respect
to the election of directors.
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ARTICLE III
RESTRICTIONS
SECTION 3.1 - REACQUISITION OF RESTRICTED STOCK
All shares of Restricted Stock issued to the Director pursuant to this
Agreement are subject to reacquisition by the Company immediately upon a
termination of the Director's directorship for Cause. Following any
reacquisition by the Company pursuant to this Section 3.1, the Company shall
promptly pay to the Director an amount equal to the product of $.01 times the
number of shares of Restricted Stock reacquired.
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 AND MAY BE SUBJECT TO REACQUISITION BY THE COMPANY
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 333 N.
SUMMIT ST., TOLEDO, OHIO 43604.
SECTION 3.3 - LAPSE OF RESTRICTIONS
The shares of Restricted Stock shall vest and all restrictions thereon
shall terminate upon the termination of the Director's directorship for any
reason (including failure to be reelected by the Company's stockholders) other
than Cause. 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 Director 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 of the Company into another corporation, the acquisition by
another corporation or person (excluding any Director benefit plan of the
Company or any trustee or other fiduciary holding
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securities under any Director 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
Board 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 Director benefit
plan of the Company or any trustee or other fiduciary holding securities under
any Director 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 Director 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 Board 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 Board shall have the power to interpret the Plan, this Agreement and
all other documents relating to the 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 Board in good faith shall be
final and binding upon the Director, the Company and all other interested
persons. No member of the Board 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 Board shall be fully protected by
the Company in respect to any such action, determination or interpretation.
SECTION 4.2 - RESTRICTED STOCK NOT TRANSFERABLE
No Restricted Stock or any interest or right therein or part thereof shall
be liable for the debts, contracts or engagements of the Director 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
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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; and
(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 Board shall, in its absolute discretion, deem necessary or
advisable; and
(c) The obtaining of any approval or other clearance from any state
or federal governmental agency which the Board shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) The payment by the Director of all amounts required to be
withheld, under federal, state and local tax laws, if any, 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 Board may
from time to time establish for reasons of administrative convenience.
SECTION 4.4 - ESCROW
The Secretary or such other escrow holder as the Board 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 Director 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 Director 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 or
him. Any notice which is required to be given to the Director shall, if the
Director is then deceased, be given to the Director'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
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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
As of the date of this Agreement, the Director shall have all the rights
of a stockholder with respect to said shares issued pursuant hereto, 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 - 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.
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IN WITNESS HEREOF, this Agreement has been executed and delivered by the
parties hereto.
MANOR CARE, INC.
By: ___________________________
Its: President
_______________________________
Director
_______________________________
_______________________________
Address
Directors
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