As filed with the Securities and Exchange Commission on August 7, 2012
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VENTAS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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61-1055020
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353 N. Clark Street, Suite 3300
Chicago, Illinois 60654
(877) 483-6827
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Ventas, Inc. 2012 Incentive Plan
(Full title of the plan)
T. Richard Riney, Esq.
General Counsel
Ventas, Inc.
10350 Ormsby Park Place, Suite 300
Louisville, Kentucky 40223
(502) 357-9000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer x |
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Accelerated filer o |
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Non-accelerated filer o (Do not check if a smaller reporting company) |
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Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered |
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Amount to be
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Proposed Maximum
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Proposed Maximum
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Amount of
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Common Stock, par value $0.25 per share |
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11,311,176 |
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$ |
66.065 |
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747,272,842 |
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85,637.47 |
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(1) Includes (a) 7,500,000 shares of common stock, par value $0.25 per share (“Common Stock”), that are reserved for issuance under the Ventas, Inc. 2012 Incentive Plan (the “Plan”), plus (b) 1,337,976 shares of Common Stock available for grant under the Ventas, Inc. 2006 Incentive Plan and the Ventas, Inc. 2006 Stock Plan for Directors (together, the “Existing Plans”), which, if available for grant as of December 31, 2012, will be reserved for issuance under the Plan, plus (c) 1,847,825 shares of Common Stock subject to stock options granted under the Existing Plans, which, if such stock options expire or are cancelled or terminated after December 31, 2012 without being exercised, will be reserved for issuance under the Plan, plus (d) 625,375 restricted shares of Common Stock granted, outstanding and unvested under the Existing Plans, which, if forfeited, terminated, cancelled or otherwise reacquired by the Company after December 31, 2012 without having become vested, will be reserved for issuance under the Plan. In each case, shares reserved for issuance include, without limitation, shares to be issued pursuant to the exercise of options or upon redemption or conversion of operating partnership units.
(2) This Registration Statement also covers an indeterminable number of additional shares of Common Stock as may hereinafter be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
(3) Estimated solely for calculating the amount of the registration fee, pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as amended (the “Securities Act”), based on the average of the high and low sales prices of the Common Stock as reported on the New York Stock Exchange on August 7, 2012.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I of Form S-8 to be contained in the applicable prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents By Reference.
The following documents, filed with the Securities and Exchange Commission (the “Commission”) by Ventas, Inc. (the “Company”), are incorporated by reference:
· The Company’s Annual Report on Form 10-K for the year ended December 31, 2011;
· The Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2012 and June 30, 2012;
· The Company’s Current Reports on Form 8-K filed with the Commission on January 6, 2012, February 6, 2012, February 14, 2012, February 17, 2012 (however, we do not incorporate by reference any information under Item 2.02, Results of Operations and Financial Condition), March 30, 2012, April 2, 2012 (two reports), April 16, 2012, April 18, 2012, May 23, 2012, June 5, 2012, and August 2, 2012;
· The Proxy Statement for the Company’s 2012 Annual Meeting of Stockholders, filed on Schedule 14A with the Commission on April 2, 2012; and
· The description of the Common Stock contained in the Company’s Registration Statement on Form 8-A (File No. 001-10989), filed with the Commission on January 23, 1992, as amended.
In addition, all documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered hereby have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the respective dates of the filing of such documents with the Commission (such documents, together with the documents listed above, the “Incorporated Documents”). Nothing in this Registration Statement shall be deemed to incorporate by reference any information furnished under Item 2.02 or Item 7.01 of Form 8-K.
Any statement contained in an Incorporated Document shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed Incorporated Document) modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed to constitute a part hereof except as so modified or superseded.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the “DGCL”) empowers the Company to, and Article VII of the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate”), provides that it will, indemnify any person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), because he or she is or was a director or officer of the Company, or is or was serving at the request of the Company as a director, officer, employee, trustee or agent of another corporation, partnership, joint venture, trust or other enterprise, against all expenses, liabilities and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) actually and reasonably incurred or suffered by him or her in connection with such Proceeding. The Company may provide by action of its Board of Directors through agreement, resolution or by a provision in its Fourth Amended and Restated By-Laws, as amended
(“By-Laws”), indemnification of its employees and agents with substantially the same scope and effect as the indemnification provided in Article VII of the Certificate.
Expenses incurred by such a person in his or her capacity as one of the Company’s directors or officers (and not in any other capacity in which service was or is rendered by such person while a director or officer) in defending a Proceeding may be paid by the Company in advance of the final disposition of such Proceeding as authorized by the Board of Directors in a specific case upon receipt of an undertaking by or on behalf of that person to repay such amounts, unless it is ultimately determined that such person is entitled to be indemnified by the Company as authorized by the DGCL. Expenses incurred by a person in any capacity other than as one of the Company’s officers or directors may be paid in advance of the final disposition of a Proceeding on such terms and conditions, if any, as the Board of Directors of the Company deems appropriate.
Pursuant to Section 102(b)(7) of the DGCL, the Certificate eliminates certain liability of the Company’s directors for breach of their fiduciary duty of care. Article VI of the Certificate provides that neither the Company nor its stockholders may recover monetary damages from the Company’s directors for breach of the duty of care in the performance of their duties as such. Article VI does not, however, eliminate the liability of the Company’s directors (i) for a breach of the director’s duty of loyalty, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL (relating to unlawful distributions), or (iv) for any improper personal benefit.
The indemnification provided for by Article VII of the Certificate is a contract right and continues as to persons who cease to be directors, officers, employees or agents and inures to the benefit of their heirs, executors and administrators. No amendment to the Certificate or repeal of any provision thereof may increase the liability of any of its directors or officers for acts or omissions of such persons occurring prior to such amendment or repeal.
The right to indemnification conferred by Article VII of the Certificate is not exclusive of any other rights to which those seeking indemnification may be entitled under any by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to actions taken in his or her official capacity and in any other capacity while holding such office.
The Company may purchase and maintain insurance on behalf of any person who is or was one of its directors, officers, employees or agents, or is or was serving at its request as a director, trustee, officer, partner, employee, or agent of another domestic or foreign corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him or her and incurred by him or her in such capacity or arising out of his or her status as such, whether or not the Company would have the power or be obligated to indemnify him or her against such liability under the provisions of Article VII of the Certificate or the DGCL.
The Company currently has in effect directors’ and officers’ liability insurance policies, which cover any negligent act, error or omission of a director or officer, subject to certain exclusions and limitations.
Item 7. Exemptions from Registration Claimed.
Not applicable.
Item 8. Exhibits
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Exhibit No. |
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Description |
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3.1 |
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Amended and Restated Certificate of Incorporation of Ventas, Inc., as amended (incorporated herein by reference to Exhibit 3.1 to Ventas, Inc.’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011). |
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3.2 |
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Fourth Amended and Restated Bylaws of Ventas, Inc., as amended (incorporated herein by reference to Exhibit 3.2 to Ventas, Inc.’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011). |
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4.1 |
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Specimen Common Stock Certificate (incorporated herein by reference to Exhibit 4.1 to Ventas, Inc.’s Annual Report on Form 10-K for the year ended December 31, 1998). |
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4.2 |
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Ventas, Inc. Distribution Reinvestment and Stock Purchase Plan (incorporated herein by reference to Ventas, Inc.’s Registration Statement on Form S-3, filed on November 25, 2011, Registration No. 333-178185). |
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5 |
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Opinion of Willkie Farr & Gallagher LLP. |
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10.1 |
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Ventas, Inc. 2012 Incentive Plan (incorporated herein by reference to Exhibit 10.1 to Ventas, Inc.’s Current Report on Form 8-K filed on May 23, 2012). |
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10.2 |
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Form of Stock Option Agreement (Employees) under the Ventas, Inc. 2012 Incentive Plan. |
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10.3 |
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Form of Restricted Stock Agreement (Employees) under the Ventas, Inc. 2012 Incentive Plan. |
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10.4 |
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Form of Stock Option Agreement (Directors) under the Ventas, Inc. 2012 Incentive Plan. |
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10.5 |
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Form of Restricted Stock Agreement (Directors) under the Ventas, Inc. 2012 Incentive Plan. |
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10.6 |
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Form of Restricted Stock Unit Agreement (Directors) under the Ventas, Inc. 2012 Incentive Plan. |
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23.1 |
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Consent of Willkie Farr & Gallagher LLP (included in their opinion filed as Exhibit 5). |
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23.2 |
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Consent of Ernst & Young LLP. |
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Powers of Attorney (included on the signature pages hereto). |
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that subparagraphs (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for the purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement, if any, shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to trustees, directors, officers and controlling persons of the Registrant pursuant to the provisions described under Item 6 of this Registration Statement, or otherwise (other than insurance), the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a trustee, director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such trustee, director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Chicago, State of Illinois, on the 7 th day of August, 2012.
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VENTAS, INC. |
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By: |
/s/ DEBRA A. CAFARO |
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Name: Debra A. Cafaro Title: Chairman and Chief Executive Officer |
The undersigned officers and directors of Ventas, Inc. hereby severally constitute and appoint Debra A. Cafaro and T. Richard Riney, and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each said attorneys-in-fact and agents, or any of them or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated on the 7 th day of August, 2012.
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Signature |
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Title |
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/s/ DEBRA A. CAFARO |
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Chairman and Chief Executive Officer |
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Debra A. Cafaro |
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(Principal Executive Officer) |
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/s/ RICHARD A. SCHWEINHART |
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Executive Vice President and Chief Financial Officer |
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Richard A. Schweinhart |
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(Principal Financial Officer) |
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/s/ ROBERT J. BREHL |
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Chief Accounting Officer and Controller |
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Robert J. Brehl |
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(Principal Accounting Officer) |
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/s/ DOUGLAS CROCKER II |
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Director |
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Douglas Crocker II |
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/s/ RONALD G. GEARY |
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Director |
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Ronald G. Geary |
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/s/ JAY M. GELLERT |
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Director |
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Jay M. Gellert |
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/s/ RICHARD I. GILCHRIST |
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Director |
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Richard I. Gilchrist |
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/s/ MATTHEW J. LUSTIG |
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Director |
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Matthew J. Lustig |
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/s/ DOUGLAS M. PASQUALE |
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Director |
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Douglas M. Pasquale |
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/s/ ROBERT D. REED |
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Director |
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Robert D. Reed |
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Exhibit Index
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Exhibit No. |
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Description |
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3.1 |
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Amended and Restated Certificate of Incorporation of Ventas, Inc., as amended (incorporated herein by reference to Exhibit 3.1 to Ventas, Inc.’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011). |
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3.2 |
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Fourth Amended and Restated Bylaws of Ventas, Inc., as amended (incorporated herein by reference to Exhibit 3.2 to Ventas, Inc.’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011). |
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4.1 |
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Specimen Common Stock Certificate (incorporated herein by reference to Exhibit 4.1 to Ventas, Inc.’s Annual Report on Form 10-K for the year ended December 31, 1998). |
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4.2 |
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Ventas, Inc. Distribution Reinvestment and Stock Purchase Plan (incorporated herein by reference to Ventas, Inc.’s Registration Statement on Form S-3, filed on November 25, 2011, Registration No. 333-178185). |
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5 |
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Opinion of Willkie Farr & Gallagher LLP. |
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10.1 |
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Ventas, Inc. 2012 Incentive Plan (incorporated herein by reference to Exhibit 10.1 to Ventas, Inc.’s Current Report on Form 8-K filed on May 23, 2012). |
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10.2 |
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Form of Stock Option Agreement (Employees) under the Ventas, Inc. 2012 Incentive Plan. |
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10.3 |
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Form of Restricted Stock Agreement (Employees) under the Ventas, Inc. 2012 Incentive Plan. |
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10.4 |
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Form of Stock Option Agreement (Directors) under the Ventas, Inc. 2012 Incentive Plan. |
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10.5 |
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Form of Restricted Stock Agreement (Directors) under the Ventas, Inc. 2012 Incentive Plan. |
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10.6 |
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Form of Restricted Stock Unit Agreement (Directors) under the Ventas, Inc. 2012 Incentive Plan. |
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23.1 |
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Consent of Willkie Farr & Gallagher LLP (included in their opinion filed as Exhibit 5). |
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23.2 |
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Consent of Ernst & Young LLP. |
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Powers of Attorney (included on the signature pages hereto). |
Exhibit 5
[Letterhead of Willkie Farr & Gallagher LLP]
August 7, 2012
Ventas, Inc.
353 N. Clark Street, Suite 3300
Chicago, Illinois 60654
Re: Ventas, Inc. Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Ventas, Inc., a Delaware corporation (the “ Company ”), with respect to the Company’s Registration Statement on Form S-8 (the “ Registration Statement ”) to be filed by the Company with the Securities and Exchange Commission (the “ Commission ”) on or about the date hereof. The Registration Statement relates to the registration under the Securities Act of 1933, as amended (the “ Securities Act ”), by the Company of an aggregate of 11,311,176 shares of common stock, par value $0.25 per share (the “ Shares ”), issuable pursuant to the terms of the Ventas, Inc. 2012 Incentive Plan (the “ Plan ”).
As counsel to the Company, we have examined such documents as we have considered necessary for purposes of this opinion, including (i) the Registration Statement, (ii) the certified copies of the certificate of incorporation (as amended) and by-laws (as amended) of the Company, (iii) the Plan, and (iv) such other documents and matters of law as we have deemed necessary in connection with the opinions hereinafter expressed.
As to questions of fact material to the opinions expressed below, we have relied without independent check or verification upon certificates and comparable documents of public officials and officers and representatives of the Company and statements of fact contained in the documents we have examined. In our examination and in rendering our opinions contained herein, we have assumed (i) the genuineness of all signatures of all parties; and (ii) the authenticity of all corporate records, documents, agreements, instruments and certificates submitted to us as originals and the conformity to original documents and agreements of all documents and agreements submitted to us as conformed, certified or photostatic copies.
Based on the foregoing, and subject to the qualifications and assumptions set forth herein, we are of the opinion that the Shares, when issued in accordance with the terms of the Plan, will be validly issued, fully paid, and nonassessable.
The foregoing opinion is subject to the following assumptions, qualifications and exceptions:
1. The opinions expressed herein are limited to the laws of the State of New York, the General Corporation Law of the State of Delaware (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the foregoing) and the Federal laws of the United States as in effect on the date of this opinion typically applicable to transactions of the type contemplated by this opinion and to the specific legal matters expressly addressed herein, and no opinion is expressed or implied with respect to the laws of any other jurisdiction or any legal matter not expressly addressed herein.
2. This letter speaks only as of the date hereof and is limited to present statutes, regulations and administrative and judicial interpretations. We undertake no responsibility to update or supplement this letter after the date hereof.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement.
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Very truly yours, |
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/s/ Willkie Farr & Gallagher LLP |
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Exhibit 10.2
[EMPLOYEE OPTION FORM]
VENTAS, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (“Agreement”) is made and entered into as of (the “Effective Date”) by and between VENTAS, INC., a Delaware corporation (the “Company”), and , an employee of the Company (“Optionee”) pursuant to the Ventas, Inc. 2012 Incentive Plan (the “Plan”).
AGREEMENT :
The parties agree as follows:
1. Grant of Option; Option Price . Company hereby grants to Optionee, as a matter of separate inducement and agreement, and not in lieu of any salary or other compensation for Optionee’s services, the right and option to purchase (the “Option”) all or any part of an aggregate of ( ) shares of the Company’s Common Stock (the “Option Shares”), on the terms and conditions set forth herein, subject to adjustment as provided in Section 7 , at a purchase price of ($ ) per share (the “Option Price”). The Company and Optionee consider the Option Price to be not less than the fair market value of the Common Stock on the Effective Date, which is the date on which the Option was granted to Optionee (the “Option Date”). This option is not intended to be an incentive stock option under Section 422 of the Code.
2. Term of Option . The Option shall commence on the date hereof and continue for a term ending ten years from the Option Date (the “Termination Date”), unless sooner terminated as provided in Sections 5 and 6 .
3. Option Exercisable in Installments . Subject to the other terms and conditions stated herein, the right to exercise the Option shall vest [in installments as follows:
(a) First Installment . Commencing on the Option Date, Optionee may exercise the Option for up to 33 1 / 3 percent of the number of Option Shares.
(b) Second Installment . Commencing on the first anniversary of the Option Date, Optionee may exercise the Option for 66 2 / 3 percent of the number of Option Shares, less the number of Option Shares for which the Optionee has already exercised the Option.
(c) Third Installment . Commencing on the second anniversary of the Option Date, the Option may be fully exercised to the extent that it has not previously been exercised.](1)
[Alternative vesting schedule]
(1) Use this schedule if the option vests in three equal installments commencing on the date of grant.
4. Conditions to Exercise of the Option .
(a) Exercise of Option . Subject to the provisions of Section 3 , Optionee may exercise the Option by delivering to the Company notice in the manner directed by the Company (“Notice”) of exercise stating the number of Option Shares for which the Option is being exercised accompanied by payment in the amount of the Option Price multiplied by the number of Option Shares for which the Option is being exercised (the “Exercise Price”) in the manner provided in Section 4(b) and making provision for any applicable withholding taxes.
(b) Payment of Exercise Price . The Company shall accept as payment for the Exercise Price (a) a check payable to the order of the Company, (b) the tender of Common Stock (by either actual delivery of Common Stock or by attestation), (c) “cashless exercise” through a third party in a transaction independent of the Company and properly structured to avoid any adverse consequences to the Company, (d) a reduction in the Option Shares otherwise deliverable upon exercise, (e) a combination of the foregoing, or (f) by any other means which the Committee determines.
(c) Issuance of Shares on Exercise . As soon as practicable after receipt of the Notice and payment of the Exercise Price and any required withholding taxes, the Company shall issue to Optionee, without transfer or issuance tax or other incidental expense to Optionee, the number of shares of Common Stock set forth in the Notice and for which the Company has received payment in the manner prescribed herein.
5. Restrictions on Transfer of Option .
(a) Except as provided in Section 5(b) , the Option shall be exercisable during Optionee’s lifetime only by Optionee, and neither the Option nor any right hereunder shall be transferable except by bequest or the laws of descent and distribution. The Option may not be subject to execution or other similar process. If Optionee attempts to alienate, assign, pledge, hypothecate or otherwise dispose of the Option or any of Optionee’s rights hereunder, except as provided herein or in Section 5(b) , or in the event of any levy or any attachment, execution or similar process upon the rights or interests hereby conferred, the Company may terminate the Option by notice to Optionee, and it shall thereupon become null and void.
(b) Optionee may transfer, in accordance with the Plan, any or all rights under this Agreement to (i) Optionee’s child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law, including adoptive relationships, or any person sharing the Optionee’s household (other than a tenant or employee) (“Family Members”), (ii) a trust or trusts in which Optionee and/or Optionee’s Family Members have more than 50% of the beneficial interest, or (iii) a partnership, limited liability company or other entity in which Optionee and/or Optionee’s Family Members own more than 50% of the voting interests in exchange for an interest in the entity; provided that (a) any such transfer must be without any consideration to Optionee for such transfer (other than interests in such partnership, limited liability company or other entity), and (b) all subsequent transfers of any rights under this Agreement shall be prohibited other than by bequest or the laws of descent and distribution. Following any such transfer, this Agreement shall continue to be subject to the same terms and
conditions as were applicable immediately prior to transfer, provided that for purposes of this Agreement and the Plan (excluding Section 6 hereof) the term “Optionee” shall be deemed to refer to the transferee. Any rights to exercise the Option transferred hereunder shall be exercisable by the transferee only to the extent, and for the periods, specified in this Agreement.
6. Exercise of the Option Upon Termination of Employment .
(a) Termination of Employment Other Than for Death, Disability, [Retirement] or Cause . If Optionee’s employment by the Company is terminated prior to the Termination Date for any reason other than death, Disability, [retirement on or after age (“Retirement”)] or termination for Cause, the Option shall terminate [180 days][one year](2) after termination of Optionee’s employment or on the Termination Date, if earlier, and shall be exercisable during such period after termination of Optionee’s employment only with respect to the number of Shares which Optionee was entitled to purchase on the day preceding the date of termination of Optionee’s employment.
(b) Termination of Employment Due to Death, Disability [or Retirement] . In the event of Optionee’s death, Disability [or Retirement] while Optionee is employed by the Company, the Option shall terminate on the Termination Date and shall become fully exercisable.
(c) Termination of Employment for Cause . If Optionee’s employment by the Company is terminated for Cause, the Option, whether or not exercisable, shall terminate on the date of termination of Optionee’s employment.
(d) Black-out Periods . Notwithstanding the preceding provisions of this Section 6 , if the Option would otherwise terminate during or immediately after a black-out period under the Company’s insider trading policy, then the Option shall instead be extended until ten business days following the expiration of the black-out period, provided that the term of the Option shall not be extended beyond ten years from the Option Date.
(e) Restrictions on Exercise . Notwithstanding anything contained in this Section 6 , in no event may the Option be exercised after the Termination Date.
7. Adjustment to Option Shares . The Option shall be subject to adjustment as provided in the Plan, including without limitation, with respect to a Change in Control.
8. [ Change in Control [and Certain Terminations of Employment] .
Notwithstanding the provisions of Section 3, upon a Change in Control, Optionee shall have the right to exercise the Option in full as to all Option Shares. [In addition, notwithstanding the provisions of Sections 3 and 6(a) , in the event of termination of Optionee’s employment by the Company without Cause or by Optionee with Good Reason (as such terms are declined in Optionee’s employment agreement), Optionee shall have the right to exercise the Option in full as to all Option Shares.]]
(2) Use one year for executive officers, other than the CEO.
9. Agreement Does Not Grant Employment Rights . Neither the granting of the Option, nor the exercise thereof, shall be construed as granting to Optionee any right to employment by the Company. The right of the Company to terminate Optionee’s employment at any time, with or without cause, is specifically reserved.
10. Withholding . Optionee acknowledges that the Company will be required to withhold certain taxes at the time Optionee exercises the Option. Withholdings by the Company will not exceed the minimum required by law. Optionee agrees to make arrangements satisfactory to the Company for the payment of any federal, state, local or foreign withholding tax obligations that arise with respect to the Option, including, without limitation, any taxes upon the exercise of the Option. Notwithstanding the previous sentence, Optionee acknowledges and agrees that the Company has the right to deduct from payments of any kind otherwise due to Optionee any federal, state or local taxes of any kind required by law to be withheld with respect to the Option, including, without limitation, upon the exercise of the Option. Optionee shall have the right to elect to satisfy, in whole or in part, Optionee’s tax withholding obligations by having the Company withhold Option Shares.
11. Miscellaneous .
(a) No Rights as Stockholder . Neither Optionee, nor any person entitled to exercise Optionee’s rights under this Agreement, shall have any of the rights of a stockholder regarding the shares of Common Stock subject to the Option, except after the exercise of the Option as provided herein.
(b) Recoupment of Awards . All Option Shares, including Option Shares that have vested in accordance with Section 3 of this Agreement, shall be subject to the terms and conditions, if applicable, of any recoupment policy adopted by the Company pursuant to the requirements of Dodd-Frank Wall Street Reform and Consumer Protection Act or other law or the listing requirements of any national securities exchange on which the common stock of the Company is listed.
(c) Incorporation of Plan . Except as specifically provided herein, this Agreement is and shall be in all respects subject to the terms and conditions of the Plan, a copy of which Optionee acknowledges receiving and the terms of which are incorporated by reference.
(d) Captions . The captions and section headings used herein are for convenience only, shall not be deemed part of this Agreement and shall not in any way restrict or modify the context or substance of any section or paragraph of this Agreement.
(e) Governing Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware without regard to its conflict of laws rules.
(f) Defined Terms . All capitalized terms not defined herein shall have the meanings set forth in the Plan, unless a different meaning is plainly required by the context.
Exhibit 10.3
[EMPLOYEE STOCK FORM]
VENTAS, INC.
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (“Agreement”) is made and entered into as of the day of , by and between VENTAS, INC., a Delaware corporation (the “Company”), and , an employee of the Company (“Employee”), pursuant to Ventas, Inc. 2012 Incentive Plan (the “Plan”).
AGREEMENT :
The parties agree as follows:
1. Issuance of Common Stock . The Company shall cause to be issued to Employee ( ) shares of Common Stock (the “Shares”). Any certificates representing the Shares, together with a stock power duly endorsed in blank by Employee, shall be deposited with the Company to be held by it until the restrictions imposed upon the Shares by this Agreement have expired.
2. Vesting of Shares . If Employee has not forfeited any of the Shares, the restriction on the Transfer (as defined herein) of the Shares shall expire with respect to [one-third of the Shares on , and shall expire with respect to an additional one-third of the Shares on , and shall expire with respect to the balance of the Shares on ](1) [alternative vesting schedule]. Upon expiration of the restriction against Transfer of any of the Shares pursuant to this Section 2 , the Shares shall vest. Notwithstanding the foregoing, [(i)] in the event of [(A) a Change in Control] or (B) the death or Disability of Employee [or (C) termination of Employee’s employment by the Company without Cause or by Employee with Good Reason (as such terms are defined in Employee’s employment agreement)] [or (D) retirement on or after age (“Retirement”)], the Shares shall automatically vest and all restrictions on the Shares shall lapse [and (ii) in the event of termination of Employee’s employment by the Company without Cause or by Employee with Good Reason (as such terms are defined in Employee’s employment agreement), for purposes of vesting of the Shares, Employee shall be treated as having one additional year of service from the date of termination of employment].(2)
3. Forfeiture of Shares . If Employee’s employment by the Company is terminated for any reason other than death or Disability [or termination by the Company without Cause or by Employee with Good Reason (as such terms are defined in Employee’s employment agreement)] (3) [or Retirement], all Shares which have not vested in accordance with Section 2 of this Agreement shall be forfeited and reconveyed to the Company by Employee without additional consideration, and Employee shall have no further rights with respect thereto.
(1) Use this schedule if the restricted stock vests in three equal installments.
(2) For executive officers, other than the CEO, insert (i) and (ii) but not clause (C); for the CEO, insert clause (C) but not (i) or (ii).
(3) For CEO only.
4. Restriction on Transfer of Shares . Employee shall not Transfer any of the Shares owned by Employee until such restriction on the Transfer of the Shares is removed pursuant to this Agreement. For purposes of this Agreement, the term “Transfer” shall mean any sale, exchange, assignment, gift, encumbrance, lien, transfer by bankruptcy or judicial order, transfer by operation of law and all other types of transfers and dispositions, whether direct or indirect, voluntary or involuntary.
5. Rights as Stockholder . Unless the Shares are forfeited, Employee shall be considered a stockholder of the Company with respect to all such Shares that have not been forfeited and shall have all rights appurtenant thereto, including the right to vote or consent to all matters that may be presented to the stockholders [and to receive all dividends and other distributions paid on such Shares]. [If any dividends or distributions are paid in Common Stock, such Common Stock shall be subject to the same restrictions as the Shares with respect to which it was paid.]
6. Restrictive Legend . Each certificate representing the Shares may bear the following legend:
The sale or other transfer of the shares represented by this Certificate, whether voluntary, involuntary or by operation of law, is subject to certain restrictions on transfer (including conditions of forfeiture) as set forth in the Ventas, Inc. 2012 Incentive Plan and in the related Restricted Stock Agreement. A copy of the Plan and such Restricted Stock Agreement may be obtained from the Secretary of Ventas, Inc.
When the Shares have become vested, Employee shall have the right to have the preceding legend removed from the certificate representing such vested Shares.
7. Agreement Does Not Grant Employment Rights . The granting of Shares shall not be construed as granting to Employee any right to employment by the Company. The right of the Company to terminate Employee’s employment at any time, for any reason, with or without cause, is specifically reserved.
8. Section 83(b) Election Under the Code and Tax Withholding . If Employee timely elects, under Section 83(b) of the Code, to include the fair market value of the Shares on the date hereof in Employee’s gross income for the current taxable year, Employee agrees to give prompt written notice of such election to the Company. Employee hereby acknowledges that the Company will be obligated to withhold taxes for amounts whenever includable in Employee’s income (regardless of whether a Section 83(b) election is made) and hereby agrees to make whatever arrangements are necessary to enable the Company to withhold as required by law, including without limitation the right to deduct from payments of any kind otherwise due to Employee. Employee shall have the right to elect to satisfy, in whole or in part, Employee’s tax withholding obligations by having the Company withhold Shares.
9. Miscellaneous .
(a) Incorporation of Plan . Except as specifically provided herein, this Agreement is and shall be in all respects subject to the terms and conditions of the Plan, a copy
of which Employee acknowledges receiving and the terms of which are incorporated by reference.
(b) Recoupment of Awards . All Shares, including Shares that have vested in accordance with Section 3 of this Agreement, shall be subject to the terms and conditions, if applicable, of any recoupment policy adopted by the Company pursuant to the requirements of Dodd-Frank Wall Street Reform and Consumer Protection Act or other law or the listing requirements of any national securities exchange on which the common stock of the Company is listed.
(c) Captions . The captions and section headings used herein are for convenience only, shall not be deemed part of this Agreement and shall not in any way restrict or modify the context or substance of any section or paragraph of this Agreement.
(d) Governing Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware without regard to its conflict of laws rules.
(e) Defined Terms . All capitalized terms not defined herein shall have the meanings set forth in the Plan, unless a different meaning is plainly required by the context.
Exhibit 10.4
[DIRECTOR OPTION FORM]
VENTAS, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (“Agreement”) is made and entered into as of (the “Effective Date”), by and between VENTAS, INC., a Delaware corporation (the “Company”), and , a non-employee director of the Company (“Optionee”) pursuant to the Ventas, Inc. 2012 Incentive Plan (the “Plan”).
AGREEMENT :
The parties agree as follows:
1. Grant of Option; Option Price . Company hereby grants to Optionee, as a matter of separate inducement and agreement in connection with being a director of the Company (and not in lieu of any other compensation for Optionee’s services) the right and option to purchase (the “Option”) all or any part of an aggregate of ( ) shares of the Company’s Common Stock (the “Option Shares”) on the terms and conditions set forth herein, subject to adjustment as provided in Section 7 , at a purchase price of ($ ) per share (the “Option Price”). The Company and Optionee consider the Option Price to be not less than the fair market value of the Common Stock on the Effective Date, which is the date on which the Option was granted to Optionee (the “Option Date”). This option is not intended to be an incentive stock option under Section 422 of the Code.
2. Term of Option . The Option shall commence on the date hereof and continue for a term ending ten years from the Option Date (the “Termination Date”), unless sooner terminated as provided in Sections 5 and 6 .
3. Option Exercisable in Installments . Subject to the other terms and conditions stated herein, the right to exercise the Option shall vest [in installments as follows:
(a) First Installment . Commencing on the Option Date, Optionee may exercise the Option for up to 50 percent of the number of Option Shares.
(b) Second Installment . Commencing on the first anniversary of the Option Date, the Option may be fully exercised to the extent that it has not previously been exercised.]
[Alternative vesting schedule]
4. Conditions to Exercise of the Option .
(a) Exercise of Option . Subject to the provisions of Section 3 , Optionee may exercise the Option by delivering to the Company notice in the manner directed by the Company (“Notice”) of exercise stating the number of Option Shares for which the Option is being exercised accompanied by payment in the amount of the Option Price multiplied by the number of Option Shares for which the Option is being exercised (the “Exercise Price”) in the manner provided in Section 4(b) .
(b) Payment of Exercise Price . The Company shall accept as payment for the Exercise Price (a) a check payable to the order of the Company, (b) the tender of Common Stock (by either actual delivery of Common Stock or by attestation), (c) “cashless exercise” through a third party in a transaction independent of the Company and properly structured to avoid any adverse consequences to the Company, (d) a reduction in the Option Shares otherwise deliverable upon exercise, (e) a combination of the foregoing, or (f) by any other means which the Committee determines.
(c) Issuance of Shares on Exercise . As soon as practicable after receipt of the Notice and payment of the Exercise Price, the Company shall issue to Optionee, without transfer or issuance tax or other incidental expense to Optionee, the number of shares of Common Stock set forth in the Notice and for which the Company has received payment in the manner prescribed herein.
5. Restrictions on Transfer of Option .
(a) Except as provided in Section 5(b) , the Option shall be exercisable during Optionee’s lifetime only by Optionee, and neither the Option nor any right hereunder shall be transferable except by bequest or the laws of descent and distribution. The Option may not be subject to execution or other similar process. If Optionee attempts to alienate, assign, pledge, hypothecate or otherwise dispose of the Option or any of Optionee’s rights hereunder, except as provided herein or in Section 5(b) , or in the event of any levy or any attachment, execution or similar process upon the rights or interests hereby conferred, the Company may terminate the Option by notice to Optionee, and it shall thereupon become null and void.
(b) Optionee may transfer, in accordance with the Plan, all rights under this Agreement to (i) Optionee’s child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law, including adoptive relationships, or any person sharing Optionee’s household (other than a tenant or employee) (“Family Members”), (ii) a trust or trusts in which Optionee and/or Optionee’s Family Members have more than 50% of the beneficial interest, or (iii) a partnership, limited liability company or other entity in which Optionee and/or Optionee’s Family Members own more than 50% of the voting interests in exchange for an interest in the entity; provided that (a) any such transfer must be without any consideration to Optionee for such transfer (other than interests in such partnership, limited liability company or other entity), and (b) all subsequent transfers of any rights under this Agreement shall be prohibited other than by bequest or the laws of descent and distribution. Following any such transfer, this Agreement shall continue to be subject to the same terms and conditions as were applicable immediately prior to transfer, provided that for purposes of this Agreement and the Plan (excluding Section 6 hereof), the term “Optionee” shall be deemed to refer to the transferee. Any rights to exercise the Option transferred hereunder shall be exercisable by the transferee only to the extent, and for the periods, specified in this Agreement.
6. Exercise of the Option Upon Cessation of Service as a Director .
(a) Cessation of Service Other Than for Death, Disability, Retirement or Cause . If Optionee ceases to be a director of the Company prior to the Termination Date for any
reason other than death, Disability, retirement on or after age (“Retirement”) or removal for Cause, the Option shall terminate six months after Optionee ceases to be a director of the Company (unless Optionee dies during such period) or on the Termination Date, if earlier, and shall be exercisable during such period after Optionee ceases to be a director of the Company only with respect to the number of Shares which Optionee was entitled to purchase on the day preceding the day on which Optionee ceased to be a director.
(b) Cessation of Service Due to Death, Disability or Retirement . In the event of Optionee’s death or Disability while a director of the Company, Optionee’s Retirement from the Board due to attainment of a mandatory retirement age for directors pursuant to the Company’s Guidelines on Governance or other similar policies, or Optionee’s death within six months after Optionee ceases to be a director (other than by reason of removal for Cause), the Option shall terminate on the Termination Date. In the event of Optionee’s Retirement from the Board for any reason other than attainment of a mandatory retirement age for directors pursuant to the Company’s Guidelines on Governance or other similar policies, the Option shall terminate upon the earlier to occur of (i) 12 months after the date of Optionee’s Retirement, or (ii) the Termination Date. In the event of Optionee’s death, Disability or Retirement as specified above, the Option shall become fully exercisable.
(c) Cessation of Service for Cause . If Optionee ceases to be a director of the Company because of removal for Cause, the Option, whether or not exercisable, shall terminate on the date of Optionee’s removal.
(d) Black-Out Periods . Notwithstanding the preceding provisions of this Section 6 , if the Option would otherwise terminate during or immediately after a black-out period under the Company’s insider trading policy, then the Option shall instead be extended until ten business days following the expiration of the black-out period, provided that the term of the Option shall not be extended beyond ten years from the Option Date.
7. Adjustment to Option Shares . The Option shall be subject to adjustment as provided in the Plan, including, without limitation, with respect to a Change in Control.
8. [ Change in Control . Notwithstanding the provisions of Section 3 , upon a Change in Control, Optionee shall have the right to exercise the Option in full as to all Option Shares.]
9. Miscellaneous .
(a) No Rights as Stockholder . Neither Optionee, nor any person entitled to exercise Optionee’s rights under this Agreement, shall have any of the rights of a stockholder regarding the shares of Common Stock subject to the Option, except after the exercise of the Option as provided herein.
(b) Incorporation of Plan . Except as specifically provided herein, this Agreement is and shall be in all respects subject to the terms and conditions of the Plan, a copy of which Optionee acknowledges receiving and the terms of which are incorporated by reference.
(c) Captions . The captions and section headings used herein are for convenience only, shall not be deemed part of this Agreement and shall not in any way restrict or modify the context or substance of any section or paragraph of this Agreement.
(d) Governing Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware without regard to its conflict of laws rules.
(e) Defined Terms . All capitalized terms not defined herein shall have the meanings set forth in the Plan, unless a different meaning is plainly required by the context.
Exhibit 10.5
[DIRECTOR STOCK FORM]
VENTAS, INC.
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (“Agreement”) is made and entered into as of the day of , by and between VENTAS, INC., a Delaware corporation (the “Company”), and , a non-employee director of the Company (“Director”), pursuant to the Ventas, Inc. 2012 Incentive Plan (the “Plan”).
AGREEMENT :
The parties agree as follows:
1. Issuance of Common Stock . The Company shall cause to be issued to Director ( ) shares of Common Stock (the “Shares”). Any certificates representing the Shares, together with a stock power duly endorsed in blank by Director, shall be deposited with the Company to be held by it until the restrictions imposed upon the Shares by this Agreement have expired.
2. Vesting of Shares . If Director has not forfeited any of the Shares, the restriction on the Transfer (as defined herein) of the Shares shall expire [with respect to one-half of the Shares on , and shall expire with respect to the balance of the Shares on ] [alternative vesting schedule]. Upon expiration of the restriction against Transfer of any of the Shares pursuant to this Section 2 , the Shares shall vest. Notwithstanding the foregoing, in the event of [(A) a Change in Control or (B)] the death, Disability [or retirement on or after age (“Retirement”)] of Director, the Shares shall automatically vest and all restrictions on the Shares shall lapse.
3. Forfeiture of Shares . If Director ceases to be a director of the Company for any reason other than a Change in Control or the death, Disability [or Retirement] of Director, all Shares which have not vested in accordance with Section 2 of this Agreement shall be forfeited and reconveyed to the Company by Director without additional consideration, and Director shall have no further rights with respect thereto.
4. Restriction on Transfer of Shares . Director shall not Transfer any of the Shares owned by Director until such restriction on the Transfer of the Shares is removed pursuant to this Agreement. For purposes of this Agreement, the term “Transfer” shall mean any sale, exchange, assignment, gift, encumbrance, lien, transfer by bankruptcy or judicial order, transfer by operation of law and all other types of transfers and dispositions, whether direct or indirect, voluntary or involuntary.
5. Rights as Stockholder . Unless the Shares are forfeited, Director shall be considered a stockholder of the Company with respect to all such Shares that have not been forfeited and shall have all rights appurtenant thereto, including the right to vote or consent to all matters that may be presented to the stockholders [and to receive all dividends and other distributions paid on such Shares]. [If any dividends or distributions are paid in Common Stock, such Common Stock shall be subject to the same restrictions as the Shares with respect to which it was paid.]
6. Restrictive Legend . Each certificate representing the Shares may bear the following legend:
The sale or other transfer of the shares represented by this Certificate, whether voluntary, involuntary or by operation of law, is subject to certain restrictions on transfer (including conditions of forfeiture) as set forth in the Ventas, Inc. 2012 Incentive Plan and in the related Restricted Stock Agreement. A copy of the Restricted Stock Agreement may be obtained from the Secretary of Ventas, Inc.
When the Shares have become vested, Director shall have the right to have the preceding legend removed from the certificate representing such vested Shares.
7. Agreement Does Not Grant Service Continuation . The granting of Shares shall not be construed as granting to Director any right to continue as a director or any other relationship with the Company. The right of the Company to terminate Director’s service at any time, for any reason, with or without cause, is specifically reserved.
8. Section 83(b) Election Under the Code and Tax Withholding . If Director timely elects, under Section 83(b) of the Code, to include the fair market value of the Shares on the date hereof in Director’s gross income for the current taxable year, Director agrees to give prompt written notice of such election to the Company. To the extent the Company ever becomes obligated to withhold taxes for amounts includable in Director’s income, Director hereby agrees to make whatever arrangements are necessary to enable the Company to withhold as required by law.
9. Miscellaneous .
(a) Incorporation of Plan . Except as specifically provided herein, this Agreement is and shall be in all respects subject to the terms and conditions of the Plan, a copy of which Director acknowledges receiving prior to the execution hereof and the terms of which are incorporated by reference.
(b) Captions . The captions and section headings used herein are for convenience only, shall not be deemed part of this Agreement and shall not in any way restrict or modify the context or substance of any section or paragraph of this Agreement.
(c) Governing Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware without regard to its conflict of laws rules.
(d) Defined Terms . All capitalized terms not defined herein shall have the meanings set forth in the Plan, unless a different meaning is plainly required by the context.
Exhibit 10.6
[DIRECTOR RSU FORM]
VENTAS, INC.
RESTRICTED STOCK UNIT AGREEMENT
THIS RESTRICTED STOCK UNIT AGREEMENT (“Agreement”) is made and entered into as of the day of , by and between VENTAS, INC., a Delaware corporation (the “Company”), and , a non-employee director of the Company (“Director”), pursuant to the Ventas, Inc. 2012 Incentive Plan (the “Plan”).
AGREEMENT :
The parties agree as follows:
1. Issuance of Units . The Company hereby grants to Director Restricted Stock Units (“Units”) under the Plan.
2. Vesting of Units . If Director has not forfeited any of the Units, [one-half of the Units shall vest on , and the balance of the Units shall vest on ] [alternative vesting schedule]. Notwithstanding the foregoing, in the event of [(A) a Change in Control] or (B) the death, Disability or [retirement on or after age (“Retirement”)] of Director, the Units shall automatically vest.
3. Forfeiture of Units . If Director ceases to be a director of the Company for any reason other than [a Change in Control] or the death, Disability or [Retirement] of Director, all of the Units which have not vested in accordance with Section 2 of this Agreement shall be forfeited and Director shall have no further rights with respect thereto.
4. Conversion of Units into Shares . Except as otherwise provided by a deferral election pursuant to Section 5 of this Agreement, vested Units shall be converted into Shares and distributed to Director when unvested Units become vested Units.
If, however, Director elects to defer payment of Shares as provided in Section 5 of this Agreement, the Shares shall be issued as set forth in the Deferral Election Agreement entered into by Director and accepted by the Company.
5. Deferral Election . Director may elect to defer delivery of the Shares that would otherwise be due to be paid pursuant to Section 4 . The Committee shall, in its sole discretion, establish the rules and procedures for such deferral elections and payment deferrals.
6. [Dividends . Director shall be credited with dividend equivalents with respect to Units under this Agreement.
On each dividend or other distribution date with respect to Shares, an amount equal to the cash dividends or the fair market value of property other than Shares that would have been paid or distributed on a number of Shares equal to the number of Units held by Director as of the close of business on the record date for such dividend or distribution shall be paid in cash to Director. If any dividend or distribution with respect to Shares is payable in Shares, Director shall be credited with an additional number of Units equal to the product of the number of Units
held by Director on the record date for such dividend or distribution multiplied by the number of Shares (including fractions thereof) distributable as a dividend or distribution on a Share. Units which are credited to Director pursuant to the preceding sentence shall be subject to the same terms and conditions of the Plan, this Agreement and elections applicable with respect to such Units with respect to which they relate.]
7. No Rights as Stockholder . Except as set forth in Section 6 , Director shall have no voting or other rights as a stockholder of the Company with respect to any Units. Upon distribution of Shares after conversion of the Units into Shares, Director shall have full voting and other rights as a stockholder of the Company.
8. Independent Tax Advice . Director acknowledges that determining the actual tax consequences to Director of receiving Units or Shares or deferring or disposing of Units or Shares may be complicated. These tax consequences will depend, in part, on Director’s specific situation and may also depend on the resolution of currently uncertain tax law and other variables not within the control of the Company. Director is aware that Director should consult a competent and independent tax advisor for a full understanding of the specific tax consequences to Director of receiving, deferring or disposing of Units or Shares. Prior to executing this Agreement, Director either has consulted with a competent tax advisor independent of the Company to obtain tax advice concerning the Units and Shares in light of Director’s specific situation or has had the opportunity to consult with such a tax advisor but chose not to do so.
9. Restriction on Transfer of Units . Director shall not Transfer any of the Units except to the extent permitted by the Committee. For the purposes of this Agreement, the term “Transfer” shall mean any sale, exchange, assignment, gift, encumbrance, lien, transfer by bankruptcy or judicial order, transfer by operation of law and all other types of transfers and dispositions, whether direct or indirect, voluntary or involuntary.
10. Agreement Does Not Grant Service Continuation . The granting of Units or their conversion into Shares shall not be construed as granting to Director any right to continue as a director or any other relationship with the Company. The right of the Company to terminate Director’s service at any time, for any reason, with or without consent, is specifically reserved.
11. General Provisions .
(a) Incorporation of Plan . Except as specifically provided herein, this Agreement is and shall be in all respects subject to the terms and conditions of the Plan, a copy of which Director acknowledges receiving prior to the execution hereof and the terms of which are incorporated by reference.
(b) Captions . The captions and section headings used herein are for convenience only, shall not be deemed part of this Agreement and shall not in any way restrict or modify the context or substance of any section or paragraph of this Agreement.
(c) Governing Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware without regard to its conflict of laws rules.
(d) Defined Terms . All capitalized terms not defined herein shall have the same meanings set forth in the Plan, unless a different meaning is plainly required by the context.
(e) Tax Code Section 409A Dealing with Deferred Compensation . To the extent that a deferral election is not made pursuant to Section 5, Units are intended to be exempt from Section 409A of the Code as short-term deferral or otherwise. To the extent Section 409A of the Code is applicable to any Units, it is intended that such Units comply with the deferral, payout and other limitations and restrictions imposed under Section 409A of the Code. Notwithstanding any other provision, the Company, to the extent it deems necessary or advisable in its sole discretion, reserves the right, but shall not be required, to unilaterally amend or modify this Agreement to help distributions qualify for exemption from or compliance with Section 409A of the Code; provided, however, that the Company makes no representation that Units under the Plan shall be exempt from or comply with Section 409A of the Code and makes no undertaking to comply with Section 409A of the Code or to preclude Section 409A of the Code from applying to any Units. Director understands that Section 409A of the Code is complex, that any additional taxes and other liabilities under Section 409A of the Code are Director’s responsibility and that the Company encourages Director to consult a tax advisor regarding the potential impact of Section 409A of the Code.
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Ventas, Inc. 2012 Incentive Plan of our reports dated February 22, 2012, with respect to the consolidated financial statements and schedule of Ventas, Inc., and the effectiveness of internal control over financial reporting of Ventas, Inc., included in its Annual Report (Form 10-K) for the year ended December 31, 2011, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Chicago, Illinois
August 7, 2012