Exhibit 10.18
VENTAS
EMPLOYEE AND DIRECTOR STOCK
PURCHASE PLAN
[As amended December 8,
2008]
The Ventas Employee and Director
Stock Purchase Plan is comprised of two subplans as set forth
below: the Ventas Qualified Employee Stock Purchase Plan and the
Ventas Taxable Employee and Director Stock Purchase
Plan.
A total of two million five hundred
thousand (2,500,000) shares of Common Stock of Ventas, Inc.
are reserved for sale and authorized for issuance pursuant to the
Ventas Employee and Director Stock Purchase Plan comprised of the
Ventas Qualified Employee Stock Purchase Plan and the Ventas
Taxable Employee and Director Stock Purchase Plan. Such number of
shares is subject to adjustment as set forth in Article 9 of
each subplan. Shares of Common Stock to be issued under the Plan
may be either authorized and unissued shares, treasury shares or a
combination thereof.
VENTAS
QUALIFIED EMPLOYEE STOCK PURCHASE
PLAN
ARTICLE 1. PURPOSE
The purpose of this Plan is to
provide employees of the Company and its Designated Subsidiaries
with an opportunity to purchase Common Stock of the Company. It is
the intention of the Company to have the Plan qualify as an
“employee stock purchase plan” under section 423 of the
Code. The provisions of this Plan, accordingly, shall be construed
so as to extend and limit participation in a manner consistent with
the requirements of that section of the Code.
ARTICLE 2.
DEFINITIONS
Certain terms used in this Plan have
the meanings set forth in Appendix A.
ARTICLE 3. ELIGIBILITY
REQUIREMENTS
3.1. Initial Eligibility
. Except as provided in
Section 3.2, each Employee shall become eligible to
participate in the Plan in accordance with Article 4 on the first
Enrollment Date on or following the later of (a) the date such
individual becomes an Employee or (b) the Effective Date.
Participation in the Plan is entirely voluntary.
3.2. Limitations on
Eligibility . The
Committee may determine that the following Employees are not
eligible to participate in the Plan:
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(a)
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Employees who
have been employed less than one (1) year or such shorter
period established by the Committee;
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(b)
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Employees whose
customary employment is twenty (20) hours or less per week or
any lesser number of hours established by the Committee;
and
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(c)
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Employees who,
immediately upon purchasing Shares under the Plan, would own
directly or indirectly, an aggregate of five percent (5%) or
more of the total combined voting power or value of all outstanding
shares of all classes of stock of the Company or any Subsidiary
(and for purposes of this paragraph, the rules of
Section 424(d) of the Code shall apply, and stock which the
Employee may purchase under outstanding options shall be treated as
stock owned by the Employee).
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ARTICLE 4.
ENROLLMENT
Any Eligible Employee may enroll in
the Plan for any Offering Period by completing and signing an
enrollment election form or by such other means as the Committee
shall prescribe and submitting such enrollment election to the
Company in accordance with procedures established by the Committee
on or before the Cut-Off Date with respect to such Offering Period.
Unless otherwise determined by the Committee, the enrollment
election and the designated rate of payroll deduction shall
continue for future Offering Periods unless the Participant changes
or cancels the enrollment election or designated rate of payroll
deduction prior to the Cut-Off Date.
ARTICLE 5. GRANT OF OPTIONS ON
ENROLLMENT
5.1. Option Grant
. Enrollment by an
Eligible Employee in the Plan as of an Enrollment Date will
constitute the grant by the Company to such Participant of an
option on such Enrollment Date to purchase Shares from the Company
pursuant to the Plan.
5.2. Option Expiration
. An option granted to a
Participant pursuant to this Plan shall expire, if not terminated
for any reason first, on the earliest to occur of (a) the end
of the Offering Period in which such option was granted;
(b) the completion of the purchase of Shares under the option
under Article 7; or (c) the date on which participation of
such Participant in the Plan terminates for any reason.
5.3. Purchase of Shares
. An option granted to a
Participant under the Plan shall give the Participant a right to
purchase on a Purchase Date the largest number of whole Shares, as
determined by the Committee, which the funds accumulated in the
Participant’s Account as of such Purchase Date will purchase
at the applicable Purchase Price; provided, however, that the
Committee may, in its discretion, limit the number of Shares
purchased by each Participant in any Purchase Period.
Notwithstanding anything to the
contrary herein, to the extent required by Section 423 of the
Code, no Employee shall be granted an option under the Plan (or any
other plan of the Company or a Subsidiary intended to qualify under
Section 423 of the Code) which would permit the Employee to
purchase Shares under the Plan (and such other plan) in any
calendar year with a Fair Market Value (determined at the time such
option is granted) in excess of $25,000 and any payments made by a
Participant in excess of this limitation shall be returned to the
Participant in accordance with procedures established by the
Committee.
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ARTICLE 6. PAYMENT
The Committee may designate the time
and manner for payment of Shares to be purchased during the
Purchase Period, including, but not limited to, through payroll
deductions from Compensation, the terms and conditions of which are
designated by the Committee. Payment amounts shall be credited on a
bookkeeping basis to a Participant’s Account under this Plan.
All payment amounts may be used by the Company for any purpose and
the Company shall have no obligation to segregate such funds. No
interest accrues on payments by Participants.
ARTICLE 7. PURCHASE OF
SHARES
7.1. Option Exercise
. Any option held by the
Participant which was granted under this Plan and which remains
outstanding as of a Purchase Date shall be deemed to have been
exercised on such Purchase Date for the number of whole Shares, as
determined by the Committee, which the funds accumulated in the
Participant’s Account as of the Purchase Date will purchase
at the applicable Purchase Price (but not in excess of the number
of Shares for which options have been granted to the Participant
pursuant to Section 5.3). Options for other Shares for which
options have been granted which are not purchased on the last
Purchase Date during the Offering Period shall terminate. Shares
shall not be issued with respect to an option unless the exercise
of such option and the issuance and delivery of such Shares
pursuant thereto shall comply with all applicable provisions of
law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Securities Exchange Act of
1934, as amended, the rules and regulations promulgated thereunder,
and the requirements of any stock exchange upon which the Shares
may then be listed. As a condition to the exercise of an option,
the Committee may require the person exercising such option to
represent and warrant at the time of any such exercise that the
Shares are being purchased only for investment and without any
present intention to sell or distribute such Shares.
7.2. Refund of Excess
Amount . If, after a
Participant’s exercise of an option under Section 7.1,
an amount remains credited to the Participant’s Account as of
a Purchase Date, then the remaining amount shall be (a) if no
further Purchase Periods are immediately contemplated by the
Committee, distributed to the Participant as soon as
administratively feasible, or (b) if another Purchase Period
is contemplated by the Committee, carried forward in the Account
for application to the purchase of Shares on the next following
Purchase Date.
7.3. Employees of Designated
Categories . In the
case of Participants employed by a Designated Subsidiary, the
Committee may provide for Shares to be sold through the Subsidiary
to such Participants, to the extent consistent with
Section 423 of the Code.
7.4. Pro Rata Allocations
. If the total number of
Shares for which options are or could be exercised on any Purchase
Date in accordance with this Article 7, when aggregated with all
Shares for which options have been previously exercised under this
Plan, exceeds the maximum number of Shares reserved in Article 12,
the Company may, in accordance with Article 12, allocate the Shares
available for delivery and distribution in the ratio that the
balance in each Participant’s Account bears to the aggregate
balances of all Participants’ Accounts, and the remaining
balance of the amount credited to the Account of each Participant
under the Plan shall be returned to him or her as promptly as
possible.
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7.5. Notice of Disposition
. If a Participant or
former Participant sells, transfers, or otherwise makes a
disposition of Shares purchased pursuant to an option granted under
the Plan and within two (2) years after the date such option
is granted or within one (1) year after the date such Shares
were transferred to the Participant, if such Participant or former
Participant is subject to United States federal income tax, then
such Participant or former Participant shall notify the Company or
a member of the Employer in writing of such sale, transfer or other
disposition within ten (10) days of the consummation of such
sale, transfer, or other disposition. Without limitation on the
Participant or former Participant’s ability to sell, transfer
or otherwise make a disposition of Shares and without limitation on
Section 11.2, Participants and former Participants must
maintain any Shares purchased pursuant to an option granted under
the Plan within two (2) years after the date such option is
granted or within one (1) year after the date such Shares were
transferred to the Participant at the broker designated by the
Committee, unless the Committee determines otherwise.
ARTICLE 8. WITHDRAWAL FROM THE
PLAN,
TERMINATION OF EMPLOYMENT, AND
LEAVE OF ABSENCE
8.1. Withdrawal from the
Plan . A Participant
may withdraw all funds accumulated in the Participant’s
Account from the Plan during any Purchase Period by delivering a
notice of withdrawal to the Company or a member of the Employer (in
a manner prescribed by the Committee) at any time up to but not
including the thirty (30) days prior to the Purchase Date next
following the date such notice of withdrawal is delivered, or at
such shorter time in advance of such Purchase Date as the Committee
may permit. If notice of complete withdrawal as described in the
preceding sentence is timely received, all funds then accumulated
in the Participant’s Account shall not be used to purchase
Shares, but shall instead be distributed to the Participant as soon
as administratively feasible and the Company or member of the
Employer will cease the Participant’s payroll withholding for
the Plan in accordance with timing and other procedures established
by the Committee. An Employee who has withdrawn during a Purchase
Period may not return funds to the Company or a member of the
Employer during the same Purchase Period and require the Company or
member of the Employer to apply those funds to the purchase of
Shares. Any Eligible Employee who has withdrawn from the Plan may,
however, re-enroll in the Plan on the next subsequent Enrollment
Date, if any.
8.2. Termination of
Participation .
Participation in the Plan terminates immediately following the end
of the Purchase Period during which a Participant ceases to be
employed by the Company or a member of the Employer for any reason
whatsoever or otherwise ceases to be an Eligible Employee.
Notwithstanding the preceding sentence, such Participant may elect
to withdraw from the Plan in accordance with Section 8.1 and
the procedures prescribed by the Committee.
8.3. Leave of
Absence . If a
Participant takes a leave of absence, such Participant shall have
the right, in accordance with procedures prescribed by the
Committee, to elect to withdraw from the Plan in accordance with
Section 8.1. To the extent determined by the Committee or
required by Section 423 of the Code, certain leaves of absence
may be treated as cessations of employment for purposes of the
Plan.
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ARTICLE 9. ADJUSTMENTS UPON
CHANGES IN
CAPITALIZATION, DISSOLUTION,
LIQUIDATION, MERGER OR ASSET SALE
9.1. Adjustments Upon Changes
in Capitalization . Subject to any required action by the
shareholders of the Company, the right to purchase Shares of Common
Stock covered by a current Offering Period and the number of Shares
which have been authorized for issuance under the Plan for any
future Offering Period, the maximum number of Shares each
Participant may purchase each Offering Period (pursuant to
Section 5.3 hereof), as well as the price per Share and the
number of Shares covered by each right under the Plan which have
not yet been purchased shall be proportionately adjusted in the
sole discretion of the Committee for any increase or decrease in
the number of issued Shares resulting from a stock split, reverse
stock split, stock dividend, extraordinary cash dividend,
combination or reclassification of the Common Stock, or
recapitalization, reorganization, consolidation, split-up,
spin-off, or any other increase or decrease in the number of Shares
effected without receipt of consideration by the Company. Except as
expressly provided otherwise by the Committee, no issuance by the
Company of shares of stock of any class, or securities convertible
into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or
price of Shares.
9.2. Committee Adjustment
. Without limitation on
the preceding provisions, in the event of any corporate
transaction, the Committee may make such adjustment it deems
appropriate to prevent dilution or enlargement of rights in the
number and class of Shares which may be delivered under Article 12,
in the number, class of or price of Shares available for purchase
under the Plan and in the number of Shares which an Employee is
entitled to purchase and any other adjustments it deems
appropriate. Without limiting the Committee’s authority under
this Plan, in the event of any transaction, the Committee may elect
to have the options hereunder assumed or such options substituted
by a successor entity, to terminate all outstanding options either
prior to their expiration or upon completion of the purchase of
Shares on the next Purchase Date, to shorten the Offering Period by
setting a new Purchase Date or to take such other action deemed
appropriate by the Committee.
ARTICLE 10. DESIGNATION OF
BENEFICIARY
Each Participant under the Plan may,
from time to time, name any beneficiary or beneficiaries (who may
be named contingently or successively) to whom the amount in his or
her Account is to be paid in case of his or her death before he or
she receives any or all of such benefit. Each such designation
shall revoke all prior designations by the same Participant, shall
be in a form prescribed by the Committee, and will be effective
only when filed by the Participant in writing with the Committee
during the Participant’s lifetime. In the absence of any such
designation, any Account balance remaining unpaid at the
Participant’s death shall be paid to the Participant’s
estate.
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ARTICLE 11.
ADMINISTRATION.
11.1. Administration by
Committee . The Plan
shall be administered by the Committee. The Committee shall have
the authority to delegate duties to officers, directors or
employees of the Company.
11.2. Authority of
Committee . The
Committee shall have the full and exclusive discretionary authority
to construe and interpret the Plan and options granted under it; to
establish, amend, and revoke rules and regulations for
administration of the Plan (including, without limitation, the
determination and change of Offering Periods, Purchase Periods and
payment procedures, the requirement that Shares be held by a
specified broker, and the establishment of the exchange ratio
applicable to amounts withheld in a currency other than U.S.
dollars); to determine all questions of eligibility, disputed
claims and policy that may arise in the administration of the Plan;
to make any changes to the Plan or its operations to reduce or
eliminate any unfavorable legal, accounting or other consequences
to the extent deemed appropriate by the Committee; and, generally,
to exercise such powers and perform such acts as the Committee
deems necessary or expedient to promote the best interests of the
Company, including, but not limited to, designating from time to
time which Subsidiaries of the Company shall be part of the
Employer. The Committee’s determinations as to the
interpretation and operation of this Plan shall be final and
conclusive and each action of the Committee shall be binding on all
persons.
In exercising the powers described
in the foregoing paragraph, the Committee may adopt special or
different rules for the operation of the Plan including, but not
limited to, rules which allow employees of any foreign Subsidiary
to participate in, and enjoy the tax benefits offered by, the Plan;
provided that such rules shall not result in any grantees of
options having different rights and/or privileges under the Plan in
violation of Section 423 of the Code nor otherwise cause the
Plan to fail to satisfy the requirements of Section 423 of the
Code and the regulations thereunder.
11.3. Administrative
Modification . The
Plan provisions relating to the administration of the Plan may be
amended by the Committee from time to time as may be desirable to
satisfy any requirements of or under the federal securities and/or
other applicable laws of the United States, to obtain any exemption
under such laws, or to reduce or eliminate any unfavorable legal,
accounting or other consequences or for any other purpose deemed
appropriate by the Committee.
ARTICLE 12. NUMBER OF
SHARES
Subject to adjustment as set forth
in Article 9, two million five hundred thousand
(2,500,000) Shares are reserved for sale and authorized for
issuance pursuant to the Ventas Employee and Director Stock
Purchase Plan, and therefore, the number of Shares authorized for
issuance pursuant to the Plan is two million five hundred thousand
(2,500,000) Shares less the number of Shares issued pursuant
to the Ventas Taxable Employee and Director Stock Purchase Plan. If
any option granted under the Plan shall for any reason terminate
without having been exercised, the Shares not purchased under such
option shall again become available for the
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Ventas Employee and Director Stock Purchase
Plan. If on a given Purchase Date, the number of Shares with
respect to which options are to be exercised exceeds the number of
Shares then available under the Plan, the Committee shall make a
pro rata allocation of the Shares remaining available for
purchase in as uniform a manner as shall be practical and as it
shall determine to be equitable.
ARTICLE 13.
MISCELLANEOUS
13.1. Restrictions on
Transfer . Options
granted under the Plan to a Participant may not be exercised during
the Participant’s lifetime other than by the Participant.
Neither amounts credited to a Participant’s Account nor any
rights with respect to the exercise of an option or to receive
stock under the Plan may be assigned, transferred, pledged, or
otherwise disposed of in any way by the Participant other than by
will or the laws of descent and distribution. Any such attempted
assignment, transfer, pledge, or other disposition shall be without
effect, except that the Company may treat such act as an election
to withdraw from the Plan in accordance with
Section 8.1.
13.2. Administrative
Assistance . If the
Committee in its discretion so elects, it may retain a brokerage
firm, bank, or other financial institution to assist in the
purchase of Shares, delivery of reports, or other administrative
aspects of the Plan. If the Committee so elects, each Participant
shall (unless prohibited by applicable law) be deemed upon
enrollment in the Plan to have authorized the establishment of an
account on his or her behalf at such institution. Shares purchased
by a Participant under the Plan shall be held in the Account in the
Participant’s name, or if the Participant so indicates in the
enrollment form, in the Participant’s name together with the
name of his or her spouse in joint tenancy with right of
survivorship or spousal community property, or in certain forms of
trust approved by the Committee.
13.3. Treatment of Non-U.S.
Participants .
Participants who are employed by non-U.S. Designated Subsidiaries,
who are paid in foreign currency, and who contribute foreign
currency to the Plan through contributions or payroll deductions
will have such contributions converted to U.S. dollars. The
exchange rate and method for such conversion will be determined as
prescribed by the Committee. In no event will any procedure
implemented for dealing with exchange rate fluctuations that may
occur during an Offering Period result in a purchase price below
the Purchase Date Price permitted under the Plan. Each Participant
shall bear the risk of any currency exchange fluctuations (if
applicable) between the date on which any Participant contributions
are converted to U.S. dollars and the following Purchase
Date.
13.4.
Withholding . The
Company or any member of the Employer shall have the power and the
right to deduct or withhold, or require a Participant to remit to
the Company or any member of the Employer, an amount sufficient to
satisfy Federal, state and local taxes, domestic or foreign,
required by law or regulation to be withheld with respect to any
taxable event arising as a result of this Plan.
13.5. Equal Rights and
Privileges . All
Eligible Employees shall have equal rights and privileges with
respect to the Plan so that the Plan qualifies as an
“employee stock purchase plan” within the meaning of
Section 423 or any successor provision of the Code and the
related
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regulations. Notwithstanding the express terms
of the Plan, any provision of the Plan which is inconsistent with
Section 423 or any successor provision of the Code shall
without further act or amendment by the Company or the Committee be
reformed to comply with the requirements of Section 423 of the
Code. This Section 13.5 shall take precedence over all other
provisions in the Plan.
13.6. Eligible Employees in
Other Countries . Without amending the Plan, the Committee may
grant options or establish other procedures to provide benefits to
Eligible Employees of Designated Subsidiaries with non-U.S.
employees on such terms and conditions different from those
specified in this Plan as may, in the judgment of the Committee, be
necessary or desirable to foster and promote achievement of the
purposes of the Plan and shall have the authority to adopt such
modifications, procedures, subplans and the like as may be
necessary or desirable (a) to comply w
