EXHIBIT 10.37
PERFORMANCE RESTRICTED STOCK UNIT
AGREEMENT
, Grantee:
On the
day of
(the “ Grant Date ”), Health Care Property
Investors, Inc., a Maryland corporation (the “ Company
”), pursuant to the Health Care Property Investors, Inc. 2000
Stock Incentive Plan, as amended and/or restated from time to time
(the “ Plan ”), has granted to you, the Grantee
named above,
performance restricted stock units (the “ Units
”) with respect to
shares of Common Stock on the terms and conditions set forth in
this Performance Restricted Stock Unit Agreement (this “
Agreement ”). The Units are subject to adjustment as
provided in Section 11(a) of the Plan. Capitalized terms not
defined herein shall have the meanings assigned to such terms in
the Plan. The Compensation Committee (the “Committee”)
of the Board of Directors of the Company (the “ Board
”) is the administrator of the Plan for purposes of your
Units.
I. Forfeiture of Units
.
(a) Forfeiture Based Upon Company
Performance . Your Units are subject to forfeiture if the
Company’s Funds From Operations Per Share for the 2004
calendar year (the “ Performance Period ”) is
less than $
. If the Company’s Funds From Operations Per Share for the
Performance Period is less than $
, the aggregate percentage of Units that you will forfeit will be
determined in accordance with Exhibit A hereto. For purposes
of this Agreement, “ Funds From Operations Per Share
” means the Company’s funds from operations per share
during the Performance Period, as prescribed by the National
Association of Real Estate Investment Trusts (NAREIT) as in effect
on the first day of the Performance Period, and shall be calculated
on a fully diluted basis using the weighted average of diluted
shares of Common Stock outstanding during the Performance Period.
Funds From Operations Per Share shall be calculated before taking
into account any charges incurred by the Company with respect to
the Performance Period for (i) amounts paid in connection with the
settlement of disputes with employees or former employees regarding
their employment or former employment with the Company or the
payment of severance benefits and (ii) impairment. The
determination as to whether the Company has attained the
performance goals with respect to the Performance Period shall be
made by the Committee acting in good faith and based upon the
Company’s audited financial statements. The Committee’s
determination regarding whether the Company has attained the
performance goals shall be made no later than 120 days following
the end of the Performance Period. Your Units shall not vest in
accordance with Section 2 unless and until the Company has achieved
the performance goals with respect to the Performance Period, as
required by Section 162(m) of the Code and the regulations
promulgated thereunder.
(b) Termination due to Retirement
during the Performance Period .
(i) Your Units will remain
outstanding during the remainder of the Performance Period and will
be subject to forfeiture in the manner set forth in subsection (a)
upon completion of the Performance Period if, prior to the
completion of the Performance Period, your employment with the
Company is terminated as a result of your Retirement. In
the
event of any such termination during the
Performance Period, any Units not forfeited pursuant to subsection
(a) shall fully vest as of the first day following the completion
of the Performance Period.
(c) Change in Control during the
Performance Period .
(i) Your Units will remain
outstanding during the remainder of the Performance Period and will
be subject to forfeiture in the manner set forth in subsection (a)
in the event of a Change in Control occurring during the
Performance Period. In such event, any Units not forfeited pursuant
to subsection (a) shall fully vest as of the first day following
the completion of the Performance Period; provided, however, that
except as otherwise provided in any change in control or other
agreement with the Company, your Units shall not be so vested if
and to the extent the Units are, in connection with the Change in
Control, either to be assumed by the successor or survivor
corporation (or parent thereof) or to be replaced with a comparable
right with respect to shares of the capital stock of the successor
or survivor corporation (or parent thereof), in each case
appropriately adjusted. The determination of comparability of
rights shall be made by the Committee in good faith. The Committee
may adopt provisions to ensure that any such acceleration shall be
conditioned upon the consummation of the contemplated Change in
Control.
(ii) Notwithstanding the foregoing,
the Committee may, in its sole and absolute discretion, take action
to fully vest your Units immediately prior to, and subject to the
consummation of, a Change in Control occurring during the
Performance Period. Any Units that become vested in accordance with
this subsection (c)(ii) shall not be subject to forfeiture in the
manner set forth in subsection (a).
(d) Forfeiture of Units Upon
Certain Terminations of Employment . If at any time during the
Performance Period, your employment with the Company is terminated
(i) by the Company, or (ii) by you, excluding any termination by
reason of your Retirement, death or Disability, all of your Units
shall be automatically forfeited and cancelled in full effective as
of such termination of employment and this Agreement shall be null
and void and of no further force and effect.
II. Vesting .
(a) Vesting of Non-Forfeited
Units. You will have no further rights with respect to any
Units that are forfeited in accordance with Section I. Subject to
the terms and conditions of this Agreement, your Units that (i) are
not forfeited in accordance with Section I and (ii) do not
otherwise vest in accordance with Section I, if any, shall vest
upon the third anniversary of the Grant Date (the “
Vesting Date ”), subject to your continuous service to
the Company until the Vesting Date.
(b) Termination for death or
Disability . If at any time during the Performance Period or
following the completion of the Performance Period, your employment
with the Company is terminated as a result of your death or
Disability, your Units shall fully vest immediately upon such
termination of employment. For the avoidance of doubt, any Units
that become vested in accordance with this subsection (b) during
the Performance Period shall not be subject to the forfeiture
provisions of Section I(a).
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(c) Termination by reason of
Retirement following the Performance Period . If at any time
following the completion of the Performance Period, your employment
with the Company is terminated as a result of your Retirement, your
unvested Units shall fully vest immediately upon such termination
of employment.
(d) No Acceleration or Vesting
Upon Other Terminations . If at any time following the
completion of the Performance Period, your employment with the
Company is terminated (i) by the Company, or (ii) by you, excluding
any termination by reason of your Retirement, death or Disability,
your unvested Units shall be automatically forfeited and cancelled
in full effective as of such termination of employment.
III. Change in Control following
the Performance Period .
(a) In the event of a Change in
Control at any time following the completion of the Performance
Period, your Units shall vest immediately prior to the effective
date of the Change in Control; provided, however, that except as
otherwise provided in any change in control or other agreement with
the Company, your Units shall not be so vested if and to the extent
the Units are, in connection with the Change in Control, either to
be assumed by the successor or survivor corporation (or parent
thereof) or to be replaced with a comparable right with respect to
shares of the capital stock of the successor or survivor
corporation (or parent thereof), in each case appropriately
adjusted. The determination of comparability of rights shall be
made by the Committee in good faith. The Committee may adopt
provisions to ensure that any such acceleration shall be
conditioned upon the consummation of the contemplated Change in
Control.
(b) Notwithstanding the foregoing,
in the event of a pending or threatened takeover bid or tender
offer at any time following the completion of the Performance
Period and pursuant to which 10% or more of the outstanding
securities of the Company is acquired, whether or not deemed a
tender offer under applicable state or Federal laws, or in the
event that any person makes any filing under Sections 13(d) or
14(d) of the Securities Exchange Act of 1934 with respect to the
Company, the Committee may in its sole discretion make the Units
fully vested.
IV. Timing and Form of
Payment .
(a) Unless you elect otherwise, the
distribution date (the “Distribution Date”) for your
vested Units will be the Vesting Date. Distribution of your vested
Units will be made by the Company in shares of Common Stock (on a
one-to-one basis) on the Distribution Date. You will only receive
distributions in respect of your vested Units and will have no
right to distribution of your unvested Units. You may elect (a
“Distribution Election”) to (A) defer your Distribution
Date with respect to your vested Units and/or (B) have your vested
Units distributed to you in annual installments over a fixed number
of years selected by you; provided that each installment payment
must be for a minimum of 1,000 shares of Common Stock. You may make
up to three Distribution Elections with respect to your vested
Units without the
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approval of the Committee, provided such
Distribution Ele
