Form of Restricted Stock Award Agreement for grants made pursuant to the 2006 Amended

 

 

 

Pursuant to your Restricted Stock Award Award Notice, (the "Award Notice") and this Restricted Stock Award Agreement (this "Agreement"),  Emeritus Corporation (the "Company") has granted you a Restricted Stock Award (the "Award") under its Amended and Restated 2006 Equity Incentive Plan  (the "Plan") for the number of shares of the Company's Common Stock indicated in your Award Notice.  The Award Notice, this Agreement and the Plan govern the terms of the Award.  Capitalized terms not explicitly defined in this Agreement or the Award Notice but defined in the Plan shall have the same definitions as in the Plan.

 

 

Shares that have vested and are no longer subject to forfeiture according to the vesting schedule set forth in the Award Notice are referred to herein as "Vested Shares."  Shares that are not vested and remain subject to forfeiture under the preceding schedule are referred to herein as "Unvested Shares."  The Unvested Shares will vest (and to the extent so vested cease to be Unvested Shares remaining subject to forfeiture) in accordance with the vesting schedule set forth in the Award Notice.  Collectively, the Unvested Shares and the Vested Shares are referred to herein as the "Shares."

 

The determination of achievement of the performance goals applicable to the Shares, the number of Shares vested as a result thereof and any other matters with respect to the Award will be made by the Committee in its sole and absolution discretion and its determination will be final and binding.  The determination of vesting of Shares will be made by the Committee as soon as practicable after the applicable Plan Year.  Any resulting fractional shares will be rounded up to the nearest whole number of Shares (with 0.5 rounded up), provided that Vested Shares may not exceed the total number of Shares subject to the Award.

 

 

Any sale, transfer, assignment, encumbrance, pledge, hypothecation, conveyance in trust, gift, transfer by bequest, devise or descent, or other transfer or disposition of any kind, whether voluntary or by operation of law, directly or indirectly, of Unvested Shares is strictly prohibited and void, except by will or the laws of descent and distribution.

 

 

You will be recorded as a shareholder of the Company with respect to the Shares.

4.           Securities Law Compliance

 

4.1           You represent and warrant that a copy of the Plan, the Plan Summary for the Plan, and all information that you deem necessary to evaluate the merits and risks of the acquisition of the Shares has been made available to you.

 

4.2           You hereby agree that you will in no event sell or distribute all or any part of the Shares unless (a) there is an effective registration statement under the Securities Act and any applicable state securities laws covering any transaction involving the Shares or (b) the Company receives an opinion of your legal counsel (concurred in by legal counsel for the Company) stating that such transaction is exempt from registration or the Company otherwise satisfies itself that such transaction is exempt from registration.  You also hereby confirm that you have been informed that although the Shares acquired pursuant to this Agreement have been registered under the Securities Act, if and so long as you are an affiliate of the Company for purposes of Rule 144 of the Securities Act, any subsequent sale of such Shares by you must either be registered under the Securities Act or must satisfy the requirements of Rule 144 or another applicable exemption from such registration requirements.

 

 

Unless the Committee determines otherwise, all Unvested Shares will immediately be forfeited to the Company upon your Termination of Service without payment of any consideration to you; provided, however, that if your Termination of Service occurs after a Plan Year in which you were participating but prior to the Committee's determination of achievement of applicable performance goals and/or issuance of any Vested Shares for such completed Plan Year, you will remain eligible to receive any Vested Shares for such Plan Year.

 

 

You understand that under Section 83(a) of the Internal Revenue Code of 1986 (the "Code"), the fair market value of the Unvested Shares on the date the forfeiture restrictions lapse will be taxed, on the date such forfeiture restrictions lapse, as ordinary income subject to payroll and withholding tax and tax reporting, as applicable.  For this purpose, the term "forfeiture restrictions" means the right of the Company to receive back such Unvested Shares upon your Termination of Service. You understand that you may elect under Section 83(b) of the Code to be taxed at ordinary income rates on the fair market value of the Unvested Shares at the time they are acquired, rather than when and as the Unvested Shares cease to be subject to the forfeiture restrictions.  Such election (an "83(b) Election") must be filed with the Internal Revenue Service within 30 days from the grant date of the Restricted Stock Award.

 

You understand that there are significant risks associated with the decision to make an 83(b) Election.  If you make an 83(b) Election and the Unvested Shares are subsequently forfeited to the Company, you will not be entitled to a deduction for any ordinary income previously recognized as a result of the 83(b) Election.  If you make an 83(b) Election and the

 

THE FORM FOR MAKING AN 83(b) ELECTION IS ATTACHED TO THIS AGREEMENT AS EXHIBIT B.  YOU UNDERSTAND THAT, IF YOU DECIDE TO MAKE AN 83(b) ELECTION, IT IS YOUR RESPONSIBILITY TO FILE SUCH AN ELECTION WITH THE INTERNAL REVENUE SERVICE AND THAT FAILURE TO FILE SUCH AN ELECTION WITHIN THE 30-DAY PERIOD MAY RESULT IN THE RECOGNITION OF ORDINARY INCOME BY YOU AS THE FORFEITURE RESTRICTIONS LAPSE. You further understand that an additional copy of such election form should be filed with your federal income tax return for the calendar year in which the date of this Agreement falls.  You acknowledge that the foregoing is only a summary of the federal income tax laws that apply to the Award of the Shares under this Agreement and does not purport to be complete.  YOU FURTHER ACKNOWLEDGE THAT THE COMPANY HAS DIRECTED YOU TO SEEK INDEPENDENT ADVICE REGARDING THE APPLICABLE PROVISIONS OF THE CODE AND THE INCOME TAX LAWS OF ANY MUNICIPALITY, STATE OR FOREIGN COUNTRY IN WHICH YOU MAY RESIDE.

 

You agree to execute and deliver to the Company with this Agreement a copy of the Acknowledgment and Statement of Decision Regarding Section 83(b) Election (the "Acknowledgment") attached hereto as Exhibit A.  You further agree that if you choose to make an 83(b) Election with the Internal Revenue Service, you will also deliver to the Company with the signed Award Notice a signed copy of the 83(b) Election.

 

 

You acknowledge that determining the actual tax consequences to you of receiving or disposing of the Shares may be complicated.  These tax consequences will depend, in part, on your specific situation and may also depend on the resolution of currently uncertain tax law and other variables not within the control of the Company.  You are aware that you should consult a competent and independent tax advisor for a full understanding of the specific tax consequences to you of receiving or disposing of the Shares.  Prior to executing this Agreement, you either have consulted with a competent tax advisor independent of the Company to obtain tax advice concerning the Shares in light of your specific situation or have had the opportunity to consult with such a tax advisor but have chosen not to do so.

 

 

The Company will issue the Shares by registering the Shares in book entry form with the Company's transfer agent in your name and the applicable restrictions will be noted in the records of the Company's transfer agent and in the book entry system.  No certificate(s) representing all or a part of the Shares will be issued until the Shares become Vested Shares.

You understand and agree that, in order to ensure compliance with the restrictions referred to in this Agreement, the Company may issue appropriate "stop-transfer" instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.  The Company will not be required to (a) transfer on its books any Shares that have been sold or transferred in violation of the provisions of this Agreement or (b) treat as the owner of the Shares, or otherwise accord voting, dividend or liquidation rights to, any transferee to whom the Shares have been transferred in contravention of this Agreement.

 

 

The Shares will be subject to any clawback or recoupment policy adopted by the Company pursuant to the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act or as required by other law or the listing requirements of any national securities exchange on which the Common Stock is listed.

 

 

As a condition to the removal of restrictions from your Vested Shares registered in book entry form with the Company's transfer agent, you agree to make arrangements satisfactory to the Company for the payment of any federal, state, local or foreign withholding tax obligations that arise either upon receipt of the Shares or as the forfeiture restrictions on any Shares lapse.  Notwithstanding the previous sentence, you acknowledge and agree that the Company and any Related Company has the right to deduct from payments of any kind otherwise due to you any federal, state, local or foreign taxes of any kind required by law to be withheld with respect to the Award.

 

 

12.1           Notices

 

Whenever any notice is required or permitted hereunder, such notice must be in writing and personally delivered or sent by mail.  Any notice required or permitted to be delivered hereunder shall be deemed to be delivered on the date on which it is personally delivered, or, whether actually received or not, on the third business day after it is deposited in the United States mail, certified or registered, postage prepaid, addressed to the person who is to receive it at the address that such person has specified by written notice to the other.  The Company or you may change, by written notice to the other, the address previously specified for receiving notices.  Notices delivered to the Company shall be addressed as follows:

12.2           No Waiver

 

No waiver of any provision of the Award Notice or this Agreement will be valid unless in writing and signed by the person against whom such waiver is sought to be enforced, nor will failure to enforce any right hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder.

 

12.3           Undertaking

 

You hereby agree to take whatever additional action and execute whatever additional documents the Company may deem necessary or advisable in order to carry out or effect one or more of the obligations or restrictions imposed on either you or the Shares pursuant to the express provisions of this Agreement.

 

12.4           Entire Contract

 

This Agreement, the Award Notice and the Plan constitute the entire contract between the parties hereto with regard to the subject matter hereof and supersede all prior oral or written agreements on the subject.  This Agreement is made pursuant to the provisions of the Plan and will in all respects be construed in conformity with the express terms and provisions of the Plan.

 

12.5           Successors and Assigns

 

The provisions of this Agreement will inure to the benefit of, and be binding on, the Company and its successors and assigns and you and your legal representatives, heirs, legatees, distributees, assigns and transferees by operation of law, whether or not any such person will have become a party to this Agreement and agreed in writing to join herein and be bound by the terms and conditions hereof.

 

12.6           Counterparts

 

This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but which, upon execution, will constitute one and the same instrument.

 

12.7           Governing Law

 

The provisions of the Award Notice and this Agreement will be governed by the laws of the state of Washington, without giving effect to principles of conflicts of law.

 

 

The undersigned, a recipient of _______ shares of common stock of Emeritus Corporation, a Washington corporation (the "Company"), pursuant to a restricted stock award granted under the Company's Amended and Restated 2006 Equity Incentive Plan (the "Plan"), hereby states as follows:

1.           The undersigned acknowledges receipt of a copy of the Restricted Stock Award Notice and the Restricted Stock Award Agreement (collectively, the "Restricted Stock Award Agreement") and the Plan relating to the offering of such shares.  The undersigned has carefully reviewed the Plan and the Restricted Stock Award Agreement pursuant to which the award was granted.

2.           The undersigned either (check and complete as applicable)

 

(a) has consulted, and has been fully advised by, the undersigned's own tax advisor, ________________________, whose business address is _________________________, regarding the federal, state and local tax consequences of receiving shares under the Plan, and particularly regarding the advisability of making an election pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended (the "Code"), and pursuant to the corresponding provisions, if any, of applicable state law, or

(b) has knowingly chosen not to consult such a tax advisor.

 

3.           The undersigned hereby states that the undersigned has decided (check as applicable)

 

(a) to make an election pursuant to Section 83(b) of the Code, and is submitting to the Company, together with the undersigned's executed Restricted Stock Award Notice, an executed form entitled "Election Under Section 83(b) of the Internal Revenue Code of 1986", or

(b) not to make an election pursuant to Section 83(b) of the Code.

 

4.           Neither the Company nor any subsidiary or representative of the Company has made any warranty or representation to the undersigned with respect to the tax consequences of the undersigned's acquisition of shares under the Plan or of the making or failure to make an election pursuant to Section 83(b) of the Code or the corresponding provisions, if any, of applicable state law.

 

 

The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the Internal Revenue Code, to include in taxpayer's gross income for the current taxable year the amount of any compensation taxable to taxpayer in connection with taxpayer's receipt of the property described below:

 

1.    The name, address, taxpayer identification number and taxable year of the undersigned are as follows:

TAXABLE YEAR:  ___________

 

2    .The property with respect to which the election is made is described as follows:  _______________ shares of the Common Stock of Emeritus Corporation., a Washington corporation (the "Company").

 

3.    The date on which the property was transferred is:  __________________________  

 

4.    The property is subject to the following restrictions:

 

The property is subject to a forfeiture right pursuant to which the Company can reacquire the Shares if certain performance goals are not met with respect to the shares or if the taxpayer's services with the Company terminate prior to vesting of the shares.  The Company's right to receive back the shares lapses in annual installments over a four-year period.

 

5.    The aggregate fair market value at the time of transfer, determined without regard to any restriction other than a restriction which by its terms will never lapse, of such property is:  $____________

 

6.    The amount (if any) paid for such property is:  $___________

 

The undersigned has submitted a copy of this statement to the person for whom the services were performed in connection with the undersigned's receipt of the above-described property.  The undersigned is the person performing the services in connection with the transfer of said property.

 

The undersigned understands that the foregoing election may not be revoked except with the consent of the Commissioner of Internal Revenue.

 

 

 

2.Attach one copy to the taxpayer's income tax return for the taxable year in which the property was transferred.