AMENDMENT TO STOCK OPTION
AGREEMENTS
This
AMENDMENT TO STOCK OPTION AGREEMENTS, dated this ___ day of
December, 2008 (the “Amendment”), is entered into by
and between HEALTH CARE REIT, INC., a Delaware corporation (the
“Corporation”), and
(the “Participant”).
Whereas
, the Corporation
and the Participant entered into the Stock Option Agreements (with
Dividend Equivalent Rights) listed on Schedule A attached
hereto (each an “Agreement” and collectively, the
“Agreements”); and
Whereas
, the Corporation
and the Participant now desire to amend the Agreements as stated
herein and effective as of January 1, 2009 in order to ensure
compliance with Section 409A of the Internal Revenue Code, as
amended (the “Code”), and the rules and regulations
promulgated thereunder.
Now Therefore,
in consideration of the mutual covenants herein contained and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties, intending to be legally
bound, hereby agree as follows:
1.
Amendment of Section 8 .
Section 8
of each Agreement is hereby deleted in its entirety and replaced
with the following:
“8.
Dividend Equivalent Rights .
The
Participant is hereby granted rights to receive deferred payments
equivalent in value to the dividends payable on the shares of
Common Stock (“Dividend Equivalent Rights”) issuable
under the Options if such shares were outstanding on the dividend
record dates between the date the Options were granted to the
Participant and the termination date specified on Schedule A,
or if earlier, the date of a Change in Corporate Control, the
termination of the Participant’s employment with the
Corporation, or the Participant’s death, Disability (as
defined in the Plan) or retirement (collectively, the
“Triggering Events” and each, a “Triggering
Event”). An unfunded bookkeeping account shall be created for
the Participant and the Participant’s rights to the balances
credited to such account shall be no greater than those of an
unsecured creditor of the Corporation.
On
each dividend record date occurring after the date of grant of the
Options and before the date the Options become exercisable, the
Participant’s account shall be credited with a dollar amount
equal to the dividends payable with respect to the shares of Common
Stock issuable under the Options if such shares were outstanding on
the dividend record date:
(a) In the case of
a cash dividend declared on the Common Stock, the amount credited
to the Participant’s account with respect thereto shall be
equal to the dividend declared per share of Common Stock multiplied
by the number of shares of Common Stock subject to the Options as
of the dividend record date; and
(b) In the case of
a stock dividend declared on the Common Stock, the amount credited
to the Participant’s account with respect thereto shall be
equal to the dividend
declared per
share of Common Stock multiplied by (i) the number of shares
of Common Stock subject to the Options and (ii) the current
fair market value of a share of Common Stock on the dividend
payment date.
When
the Options with respect to which the Participant has been granted
Dividend Equivalent Rights first become exercisable pursuant to
Section 2, 9, 10, 11 or 12, the Participant shall be entitled
to receive from the Corporation a distribution equal to
(i) the dollar amount then accumulated in his or her account,
as described above, and not previously distributed as provided in
this section, multiplied by (ii) a fraction the numerator of
which shall be the number of shares subject to the Options that
first become exercisable on such date and the denominator of which
shall be the sum of such number and the total number of shares
subject to Options that have not yet become exercisable. The
Participant’s account shall be debited by a dollar amount
equal to the distribution. If the Options with respect to which the
Participant has been granted Dividend Eq
