Exhibit
10.1


 


HCP,
INC.


2006
PERFORMANCE INCENTIVE PLAN


DIRECTOR
STOCK UNIT AWARD AGREEMENT


 


THIS
DIRECTOR STOCK UNIT AWARD AGREEMENT (this “Agreement”) is
dated as of [               ,
2009] by and between HCP, Inc., a Maryland
corporation (the “Corporation”),
and [                     ]
(the “Director”).


 


W
I T N E S S E T H


 


WHEREAS, pursuant to the HCP, Inc. 2006
Performance Incentive Plan (the “Plan”), the
Corporation has granted to the Director effective as of the date hereof (the “Award Date”), a credit of stock units under the Plan (the “Stock Unit Award” or “Award”), upon
the terms and conditions set forth herein and in the Plan.


 


NOW THEREFORE, in consideration of services rendered
and to be rendered by the Director, and the mutual promises made herein and the
mutual benefits to be derived therefrom, the parties agree as follows:


 


1.     Defined Terms.  Capitalized
terms used herein and not otherwise defined herein shall have the meaning
assigned to such terms in the Plan.


 


2.     Grant.  Subject to
the terms of this Agreement, the Corporation hereby grants to the Director a
Stock Unit Award with respect to an aggregate of [                 ]
stock units (subject to adjustment as provided in Section 7.1 of the Plan) (the
“Stock Units”).  As used herein, the term “stock unit” shall
mean a non-voting unit of measurement which is deemed for bookkeeping purposes
to be equivalent to one outstanding share of the Corporation’s Common Stock
(subject to adjustment as provided in Section 7.1 of the Plan) solely for purposes
of the Plan and this Agreement.  The
Stock Units shall be used solely as a device for the determination of the
payment to eventually be made to the Director if such Stock Units vest pursuant
to Section 3.  The Stock Units shall not
be treated as property or as a trust fund of any kind.


 


3.     Vesting.  Subject to Section 8
below, the Award shall vest and become nonforfeitable with respect to twenty-five
percent (25%) of the total number of Stock Units (subject to adjustment under Section
7.1 of the Plan) on each of the first, second, third and fourth anniversaries
of the Award Date.


 


4.     Continuance of Service.  The
vesting of the Stock Units subject to the Award and the rights and benefits
under this Agreement require continued service through each applicable vesting
date as a condition to the vesting of the applicable installment of the Award
and the rights and benefits under this Agreement.  Service for only a portion of the vesting
period, even if a substantial portion, will not entitle the Director to any
proportionate vesting or avoid or mitigate a termination of rights and benefits
upon or following a termination of services as provided herein or under the
Plan.  Nothing contained in this
Agreement or the Plan constitutes a continued service commitment by the
Corporation or interferes with the right of the Corporation to increase or
decrease the compensation of the Director from the rate in existence at any
time.


 


1

















 


5.     Dividend and Voting Rights.


 


(a)        Limitations on Rights
Associated with Units. 
The Director shall have no rights as a stockholder of the Corporation,
no dividend rights (except as expressly provided in Section 5(b) with respect
to Dividend Equivalent Rights) and no voting rights, with respect to the Stock
Units and any shares of Common Stock underlying or issuable in respect of such
Stock Units until such shares of Common Stock are actually issued to and held
of record by the Director.  No
adjustments will be made for dividends or other rights of a holder for which
the record date is prior to the date of issuance of the stock certificate.


 


(b)        Dividend Equivalent Rights
Distributions.  As of any
date that the Corporation pays an ordinary cash dividend on its Common Stock,
the Corporation shall pay the Director an amount equal to the per share cash
dividend paid by the Corporation on its Common Stock on such date multiplied by
the number of Stock Units remaining subject to this Award as of the related
dividend payment record date.  No such
payment shall be made with respect to any Stock Units which, as of such record
date, have either been paid pursuant to Section 7 or terminated pursuant to Section
8.


 


6.     Restrictions on Transfer. 
Neither the Stock Unit Award, nor any interest therein or amount or
shares payable in respect thereof may be sold, assigned, transferred, pledged
or otherwise disposed of, alienated or encumbered, either voluntarily or
involuntarily.  The transfer restrictions
in the preceding sentence shall not apply to (a) transfers to the Corporation,
or (b) transfers by will or the laws of descent and distribution.


 


7.     Timing and Manner of Payment of Stock Units. 
On or as soon as administratively practical following each vesting of
the applicable portion of the total Award pursuant to the terms hereof (and in
all events within seventy four (74) days after such vesting event), the
Corporation shall deliver to the Director a number of shares of Common Stock (either
by delivering one or more certificates for such shares or by entering such
shares in book entry form, as determined by the Corporation in its discretion) equal
to the number of Stock Units subject to this Award that vest on the applicable
vesting date; provided, however, that in the event that the vesting and payment
of the Stock Units is triggered by the Director’s Separation from Service and
the Director is a “specified employee” (within the meaning of Treasury
Regulation Section 1.409A-1(i)) on the date of such Separation from Service,
the Director shall not be entitled to any payment of the Stock Units until the
earlier of (i) the date which is six (6) months after the Director’s Separation
from Service with the Corporation for any reason other than death, or (ii) the
date of the Director’s death, if and to the extent such delay in payment is
required to comply with Section 409A of the Code (and in such case, payment
will be made within thirty (30) days after the date specified in clause (i) or
(ii), as applicable).  The Corporation’s
obligation to deliver shares of Common Stock or otherwise make payment with
respect to vested Stock Units is subject to the condition precedent that the Director
or other person entitled under the Plan to receive any shares with respect to
the vested Stock Units deliver to the Corporation any representations or other
documents or assurances required pursuant to Section 8.1 of the Plan.  The Director shall have no further rights
with respect to any Stock Units that are paid or that terminate pursuant to Section
8.  For purposes of this Agreement, “Separation from Service” has the meaning given to such term
for purposes of Section 409A of the Code (which Separation from Service
generally will occur on the date the Director ceases to be a member of the
Board).


 


2

















 


8.     Effect of Termination of Service.  The Director’s Stock Units shall terminate to the
extent such units have not become vested prior to the first time the Director
is no longer a member of the
Board, regardless of the reason for the termination of the Director’s service
as a Board member; provided, however, that if the Director’s service as a Board
member terminates as a result of the Director’s death, Total Disability or
Retirement (in each case, as such term is defined below), the Director’s Stock
Units, to the extent such units are not then vested, shall become fully vested
as of the date the Director ceases to be a member of the Board and shall be
paid in accordance with Section 7.  If
any unvested Stock Units are terminated hereunder, such Stock Units shall
automatically terminate and be cancelled as of the applicable termination date
without payment of any consideration by the Corporation and without any other
action by the Director, or the Director’s beneficiary or personal representative,
as the case may be.


 


For purposes of this Agreement, the following
definitions shall apply: “Disability”
means a “disability” as such term is defined for purposes of Section 409A of
the Code; and “Retirement” means that, as of the
date of the Director’s Separation from Service (including, for purposes of
clarity and without limiting other circumstances of separation, a separation
resulting from a Director not being re-elected as a member of the Board at the
end of his or her term of service), the Director (1) has attained age 65 and
completed at least five full years of service as an employee of the Corporation
and its Subsidiaries and/or a member of the Board, or (2) has attained age 60
and completed at least fifteen full years of service as an employee of the
Corporation and its Subsidiaries and/or a member of the Board.


 


9.     Adjustments Upon Specified Events.  Upon
the occurrence of certain events relating to the Corporation’s stock
contemplated by Section 7.1 of the Plan (including, without limitation, an
extraordinary cash dividend on such stock), the Administrator shall make
adjustments if appropriate in the number of Stock Units then outstanding and
the number and kind of securities that may be issued in respect of the Stock
Unit Award.  No such adjustment shall be
made with respect to any ordinary cash dividend for which dividend equivalents
are paid pursuant to Section 5(b).


 


10.  Tax Withholding.  Upon any
payment of dividend equivalents and/or the distribution of shares of the Common
Stock in respect of the Stock Units, the Corporation (or, if applicable, the
Subsidiary last employing the Director) shall have the right at its option to (a)
require the Director to pay or provide for payment in cash of the amount of any
taxes that the Corporation or the Subsidiary may be required to withhold with
respect to such payment and/or distribution, or (b) deduct from any amount
payable to the Director the amount of any taxes which the Corporation or the
Subsidiary may be required to withhold with respect to such payment and/or
distribution.  In any case where a tax is
required to be withheld in connection with the delivery of shares of Common
Stock under this Agreement, the Administrator may, in its sole discretion,
direct the Corporation or the Subsidiary to reduce the number of shares to be
delivered by (or otherwise reacquire) the appropriate number of whole shares,
valued at their then fair market value (with the “fair market value” of such
shares determined in accordance with the applicable provisions of the Plan), to
satisfy such withholding obligation at the minimum applicable withholding rates.


 


3

















 


11.  Notices.  Any notice to
be given under the terms of this Agreement shall be in writing and addressed to
the Corporation at its principal office to the attention of the Secretary, and
to the Director at the Director’s last address reflected on the Corporation’s
records, or at such other address as either party may hereafter designate in
writing to the other.  Any such notice
shall be given only when received, but if the Director is no longer a member of
the Board, shall be deemed to have been duly given by the Corporation when
enclosed in a properly sealed envelope addressed as aforesaid, registered or
certified, and deposited (postage and registry or certification fee prepaid) in
a post office or branch post office regularly maintained by the United States
Government.


 


12.  Plan.  The Award and
all rights of the Director under this Agreement are subject to, and the Director
agrees to be bound by, all of the terms and conditions of the provisions of the
Plan, incorporated herein by reference. 
The Director agrees to be bound by the terms of the Plan and this
Agreement.  The Director acknowledges
having read and understanding the Plan, the Prospectus for the Plan, and this
Agreement.  Unless otherwise expressly
provided in other sections of this Agreement, provisions of the Plan that
confer discretionary authority on the Administrator do not (and shall not be
deemed to) create any rights in the Director unless such rights are expressly
set forth herein or are otherwise in the sole discretion of the Administrator so
conferred by appropriate action of the Administrator under the Plan after
the date hereof.


 


13.  Entire Agreement.  This
Agreement and the Plan together constitute the entire agreement and supersede
all prior understandings and agreements, written or oral, of the parties hereto
with respect to the subject matter hereof. 
The Plan and this Agreement may be amended pursuant to Section 8.6 of
the Plan.  Such amendment must be in
writing and signed by the Corporation. 
The Corporation may, however, unilaterally waive any provision hereof in
writing to the extent such waiver does not adversely affect the interests of
the Director hereunder, but no such waiver shall operate as or be construed to
be a subsequent waiver of the same provision or a waiver of any other provision
hereof.


 


14.  Limitation on Director’s Rights.  Participation in the Plan  confers
no  rights or interests other than as
herein provided.  This Agreement creates
only a contractual obligation on the part of the Corporation as to amounts
payable and shall not be construed as creating a trust.  Neither the Plan nor any underlying program,
in and of itself, has any assets.  The Director
shall have only the rights of a general unsecured creditor of the Corporation
with respect to amounts credited and benefits payable, if any, with respect to
the Stock Units, and rights no greater than the right to receive the Common
Stock as a general unsecured creditor with respect to Stock Units, as and when
payable hereunder.


 


15.  Counterparts.  This
Agreement may be executed simultaneously in any number of counterparts, each of
which shall be deemed an original but all of which together shall constitute
one and the same instrument.


 


16.  Section Headings.  The section
headings of this Agreement are for convenience of reference only and shall not
be deemed to alter or affect any provision hereof.


 


17.  Governing Law.  This Agreement
shall be governed by and construed and enforced in accordance with the laws of
the State of Maryland without regard to conflict of law principles thereunder.


 


4

















 


18.  Construction.  It is
intended that the terms of the Award will not result in the imposition of any
tax liability pursuant to Section 409A of the Code.  The Agreement shall be construed and
interpreted consistent with that intent.


 


[Remainder of page intentionally
left blank]


 


5

















 


IN WITNESS WHEREOF, the Corporation has caused this
Agreement to be executed on its behalf by a duly authorized officer and the Director
has hereunto set his or her hand as of the date and year first above written.


 


	
  HCP,
  INC.,

  	
   

  	
   

  	
  DIRECTOR

  
	
  a
  Maryland corporation

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Signature

  
	
  Print Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Its:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Print Name

  
							



 


6