LEGACY HEALTHCARE PROPERTIES TRUST INC. EMPLOYMENT AGREEMENT of THOMAS J. HUTCHISON III
Exhibit 10.17
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is entered into by and between LEGACY
HEALTHCARE PROPERTIES TRUST INC., a Maryland corporation (hereinafter referred to as the
“Company”), and XXXXXX X. XXXXXXXXX III (hereinafter referred to as the
“Executive”) and is effective as of the Effective Date hereinbelow defined at Section 7.19.
WHEREAS, the Company has initiated an initial public offering of shares of the Company’s
common stock (the “Initial Offering”);
WHEREAS, the execution and delivery of this Agreement by the Executive was an inducement to
the Company to consummate the Initial Offering; and
WHEREAS, the Company wishes to offer employment to the Executive, and the Executive wishes to
accept such offer, on the terms set forth below.
Accordingly, the parties hereto agree as follows:
1. Term. The Company hereby employs the Executive and the Executive hereby accepts
such employment for an initial term commencing as of the Effective Date and ending on December 31,
2013, unless sooner terminated in accordance with the provisions of Section 4 (the period during
which the Executive is employed hereunder being hereinafter referred to as the “Term”). The
Term shall be subject to automatic one- (1-) year renewals unless notice of non-renewal is provided
between the parties in accordance with the notice provisions of Section 7.6, as follows (if elected
by the Executive or the Company, a “Non-Renewal”): (a) if elected by the Executive, the
Executive will notify the Company of the Non-Renewal at least one hundred eighty (180) days prior
to the end of any such Term, or (b) if elected by the Company, the Company will notify the
Executive of the Non-Renewal at least one hundred eighty (180) days prior to the end of any such
Term.
2. Duties. The Executive, in his capacity as Chief Executive Officer of the Company,
shall faithfully perform for the Company the duties of said office and shall perform such other
duties of an executive, managerial or administrative nature as shall be specified and designated
from time to time by the Board of Directors of the Company (the “Board”). Such duties may
include, without limitation, the performance of services for, and serving on the board of directors
of, any subsidiary of the Company without any additional compensation. The Executive shall devote
substantially all of the Executive’s business time and effort to the performance of the Executive’s
duties hereunder. Provided that the following activities do not interfere with the Executive’s
duties to the Company and provided that the following activities do not violate the Executive’s
covenant against competition as described at Section 6.2 hereof, during the Term the Executive may
perform personal, charitable and other business activities, including, without limitation, serving
as a member of one or more boards of directors of charitable or other professional organizations,
and may serve on the boards of directors of other business organizations that are not engaged in
any aspect of the senior housing industry, provided, however, that service on the boards of
directors of other business organizations shall require the consent of the Board. The Company
acknowledges that the Executive currently serves as a director of the Company and as the Chairman
of the Board of the Company. The Company agrees that the Executive shall be nominated by the
Nominating and Corporate Governance Committee of the Board for re-election to the Board of
Directors at each annual meeting of the Company’s shareholders for so long as the Executive serves
as the Chief Executive Officer of the Company provided that, at the time of each annual meeting,
(a) if the Executive is unable to perform his duties hereunder due to a disability or other
incapacity, it is reasonably certain that the Executive will be able to resume his duties on a
regular full-time basis prior to such time as the Executive’s employment hereunder may be
terminated by the Company due to disability, (b) the Company has not notified the Executive of its
intention to terminate the Executive’s employment for cause, and (c) the Executive has not notified
the Company of his intention resign from his position of Chief Executive Officer of the Company.
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3. Compensation.
3.1 Salary. The Company shall pay the Executive during the Term a salary at the rate
of Four Hundred Thousand and No/00 Dollars ($400,000) per annum (the “Annual Salary”), in
accordance with the customary payroll practices of the Company applicable to senior executives
generally. The Annual Salary may be increased from time to time by an amount and on such conditions
as may be approved by the Board or the Compensation Committee of the Board (the “Compensation
Committee”), and upon such increase, the increased amount shall thereafter be deemed to be the
Annual Salary. Annual Salary will be paid in monthly or bi-monthly installments as determined by
the Board, and no Annual Salary will be paid later than 75 days after the conclusion of any
calendar year in which such Annual Salary is deemed earned and payable to the Executive.
3.2 Cash and Equity Bonus Compensation. The Executive will be eligible to participate
in the Company’s annual bonus program (the “Bonus Plan”) for cash bonus compensation.
Additionally, the Executive will be eligible to participate in the Company’s 2010 Equity Incentive
Plan (the “2010 Equity Incentive Plan”) and any subsequent equity incentive plan approved
by the Board (each and any of the foregoing is a “Company Incentive Plan”) for equity bonus
compensation (any equity compensation granted to the Executive by the Company, whether under this
Agreement, a Company Incentive Plan or otherwise approved by the Board, and whether in the form of
restricted stock, stock options, long-term incentive plan units, stock appreciation rights or other
equity or equity-linked awards, is, collectively, “Equity Compensation”). The terms of the
Bonus Plan, any Company Incentive Plan and the terms of any awards made under any of them will be
established by the Compensation Committee; provided, however, at a minimum, Executive is eligible
for the bonus compensation and Equity Compensation specified in this Agreement and Attachment
“A” attached hereto.
3.3 Benefits — In General. The Executive shall be permitted during the Term to
participate in any group life, hospitalization or disability insurance plans, health programs,
pension and profit sharing plans, relocation programs and similar benefits that may be available to
other senior executives of the Company generally, on the same terms as may be applicable to such
other executives (except as otherwise provided in this Section 3), in each case to the extent that
the Executive is eligible under the terms of such plans or programs.
3.4 Paid Time Off. The Executive shall be entitled to no fewer than twenty-five (25)
days of paid time off per year.
3.5 Disability Benefits and Life Insurance. To the extent the Company’s group life and
disability insurance plans do not provide this level of benefits, the Executive shall be entitled
to additional benefits so that his long-term disability coverage provides benefits (to continue for
such period as is provided in the applicable disability plan or program, as amended from time to
time, and with waiting periods and pre-existing condition exceptions waived to the extent such
coverage is available on commercially reasonable terms) equal seventy-five percent (75%) of his
Annual Salary in the case of a covered disability, and life insurance coverage with a face amount
equal to one (1) times the Executive’s Annual Salary and life insurance coverage with a face amount
equal to $1,000,000. Premiums on all primary or supplemental disability policies provided by the
Company under this Agreement shall be paid by the Company, provided that the value of such premiums
shall be taxed as income to the Executive.
3.6 Expenses. The Company shall pay or reimburse the Executive for all ordinary and
reasonable out-of-pocket expenses actually incurred and, in the case of reimbursement, actually
paid by the Executive during the Term in the performance of the Executive’s services under this
Agreement, provided that the Executive shall submit such expenses in accordance with the policies
applicable to senior executives of the Company generally.
3.7 Earned and Accrued Bonus. For purposes of this Agreement, with respect to
“Earned and Accrued Bonus” payments to be made to the Executive in connection with the
termination of his employment, cash bonus payments and Equity Compensation awards shall be deemed
to be “earned and accrued” (a) if the Executive is employed with the Company as of the date
of the last day of the period for which a bonus payment shall be made or for which Equity
Compensation is vested, if the Executive is employed with the Company as of the date such vested
award or vesting is scheduled to occur; and (b) to the extent that the criteria or performance
goals for determining the amount of such payment or award are objective and measurable criteria,
and such objective and
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measurable criteria have been satisfied or achieved. Earned and Accrued Bonus specifically
includes, without limitation, any cash payments payable to Executive under the Bonus Plan and any
Equity Compensation that is awarded and vested.
3.8 Acceleration of Rights upon Change in Control. Upon the occurrence of a “Change in
Control” (as such term is defined in the 2010 Equity Incentive Plan as in effect on the
Effective Date hereof), all Equity Compensation awarded to the Executive under this Agreement, to
the extent not vested as of the date of the Change in Control, shall, immediately prior to the
effectiveness of the Change in Control, be deemed vested (treating any applicable performance
criteria as fully satisfied). Notwithstanding the foregoing, to the extent necessary for the
Executive to avoid taxes and/or penalties under Section 409A of the Internal Revenue Code of 1986,
as amended (the “Tax Code”), a Change in Control shall not be deemed to occur unless it
constitutes a “change in control event” within the meaning of Section 1.409A-3(i)(5) of the
Treasury Regulations promulgated under Section 409A of the Tax Code.
4. Termination of Employment. The Company may terminate the Executive’s employment
for any reason or for no reason and with or without Cause (as defined herein below). The Executive
may terminate the Executive’s employment with the Company for Good Reason (as defined herein below)
or without Good Reason. The Company or the Executive may terminate the Executive’s employment upon
the Executive’s disability as provided in Section 4.1, or by Non-Renewal. The survival provisions
of this Agreement described at Section 7.15 contemplate without limitation that upon the
termination his employment the Executive shall be subject to the provisions of the Covenant Against
Competition set forth in Section 6.2.
4.1 Termination upon the Executive’s Death or Disability.
(a) If the Executive dies during the Term, the obligations of the Company to or with
respect to the Executive shall terminate in their entirety except as otherwise provided in this
Section 4.1 and except for the surviving provisions of this Agreement as described at Section
7.15.
(b) If the Executive becomes eligible for disability benefits under the Company’s long-term
disability plans and arrangements (or, if none apply, would have been so eligible under a
competitive plan as reasonably determined by the Compensation Committee), the Company or the
Executive shall have the right, to the extent permitted by law, to terminate the employment of
the Executive upon at least ninety (90) days’ prior written notice to the other party, provided
that the Company shall not have the right to terminate the Executive’s employment in accordance
with this Section 4.1(b) if, (i) in the opinion of a qualified physician reasonably acceptable
to both parties, it is reasonably certain that the Executive will be able to resume his duties
on a regular full-time basis within one hundred eighty (180) days of the date that the notice of
such termination is delivered, and (ii) upon the expiration of such one hundred eighty (180) day
period, the Executive has resumed his duties on a regular full-time basis.
(c) Upon the Executive’s death or the termination of the Executive’s employment by virtue
of disability, all of the following shall apply:
(i) the Executive, or the Executive’s estate or beneficiaries in the case of the death of the
Executive, shall have no right to receive any compensation or benefit hereunder on and after the
effective date of the termination of employment, except that the Company shall reimburse
Executive’s COBRA premium under the Company’s major medical group health and dental plan (including
the costs of Executive’s premium required to maintain coverage for his dependents), and the Company
will continue to provide such additional continuing benefits (including without limitation life
insurance benefits) as the Executive and his dependents would have been entitled to under this
Agreement, as on a monthly basis for a period of eighteen (18) months after the termination, and
the Executive, or the Executive’s estate or beneficiaries the case of the death of the Executive,
shall be entitled to receive the Executive’s Annual Salary and other benefits that are earned and
accrued under this Agreement prior to the date of termination, the Executive’s Earned and Accrued
Bonuses, vesting of any Equity Compensation as provided in clause (ii) below, reimbursement under
this Agreement for expenses incurred prior to the date of such termination; and an additional
amount equal to one (1) year of the Executive’s then-current Annual Salary plus the amount of Bonus
Compensation that would have been payable to the Executive in the year his death or disability had
he achieved the Target Level for such year (as defined in Attachment “A”), provided, that
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if the Executive is a “specified employee” within the meaning of Section 409A of the Tax Code,
any payments of “deferred compensation” (as defined under Treasury Regulation Section
1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation Sections
1.409A-1(b)(3) through (b)(12)), shall not commence until the first day of the seventh month
beginning after the date of the Executive’s “separation from service” (as defined under Treasury
Regulation Section 1.409A-1(h), or, if earlier, within 15 days after the appointment of the
personal representative or executor of the Executive’s estate following his death, to avoid the
imposition of the additional 20% tax under Section 409A of the Tax Code (and in the case of
installment payments, the first payment shall include all installment payments required by this
subsection that otherwise would have been made during such period);
(ii) all of the Equity Compensation awarded to the Executive, to the extent not vested as of
the date of the termination of the Executive’s employment, shall immediately be deemed vested
(treating any applicable performance criteria as fully satisfied), and any outstanding options to
acquire shares of Company stock shall immediately be vested and shall be, as determined in the
discretion of the Board, either (A) exercisable by the Executive or, in the case of the Executive’s
death, by the beneficiaries of Executive’s estate, for one (1) year following the termination (or,
if shorter, the balance of the regular term of the options), or (B) cashed out or cancelled, as if
in accordance with a Change in Control event, pursuant to the terms set forth in Section 14.03 of
the 2010 Equity Incentive Plan as in effect on the Effective Date hereof; and
(iii) this Agreement shall otherwise terminate and there shall be no further rights with
respect to the Executive hereunder except for the surviving provisions of this Agreement as
provided in Section 7.15. The payments to be made in this Section 4.1(c) shall be in addition to,
rather than in lieu of, the entitlement of Executive or his estate to any other insurance or
benefit proceeds as a result of his death or disability.
4.2 Termination by the Company for Cause. The Company may terminate the Executive’s
employment at any time for “Cause” if any of the following have occurred:
(a) the Executive’s conviction for (or pleading guilty or nolo contendere to) any felony,
or a misdemeanor involving moral turpitude;
(b) the Executive’s indictment for any felony or misdemeanor involving moral turpitude, if
such indictment is not discharged or otherwise resolved within eighteen (18) months;
(c) the Executive’s commission of an act of fraud, theft, dishonesty or breach of fiduciary
duty related to the Company, its Business (as defined in Section 6.1) or the performance of the
Executive’s duties hereunder;
(d) the continuing failure or habitual neglect by the Executive to perform the Executive’s
duties hereunder, except that, if such failure or neglect is curable, the Executive shall have
thirty (30) days from his receipt of a notice of such failure or neglect to cure such condition
and, if the Executive does so to the reasonable satisfaction of the Board (such cure opportunity
being available only once), then such failure or neglect shall not constitute Cause hereunder;
(e) any violation by the Executive of the Restrictive Covenants set forth in Section 6
except that, if such violation is not willful and is curable, the Executive shall first have
thirty (30) days from his receipt of notice of such violation to cure such condition and, if the
Executive does so to the reasonable satisfaction of the Board, such violation shall not
constitute Cause hereunder; or
(f) the Executive’s material breach of this Agreement, except that, if such breach is
curable, the Executive shall first have thirty (30) days from his receipt of such notice of such
breach to cure such breach and, if the Executive does so to the reasonable satisfaction of the
Board, such breach shall not constitute Cause hereunder.
If the Company terminates the Executive’s employment for Cause, the Executive shall have no right
to receive any compensation or benefit hereunder on and after the effective date of the termination
of employment, except that the
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Executive shall be entitled to receive the Executive’s Annual Salary, and other benefits that are
earned and accrued under this Agreement prior to the date of termination, any Earned and Accrued
Bonus, and reimbursement under this Agreement for expenses incurred prior to the date of
termination, provided, however, that if the Company terminates the Executive’s employment for Cause
specifically pursuant to Section 4.2(a), (b), or (c) above, then no Earned and Accrued Bonus shall
be payable hereunder. This Agreement shall otherwise terminate upon such termination of employment
and the Executive shall have no further rights or obligations hereunder except for the surviving
provisions of this Agreement as described at Section 7.15.
4.3 Termination by the Company without Cause. The Company may terminate the
Executive’s employment at any time without Cause upon sixty (60) days prior written notice to the
Executive. If the Company terminates the Executive’s employment without the occurrence of any of
the events constituting Cause and the termination is not due to the Executive’s death or disability
or is not a Non-Renewal, then the termination by the Company is without Cause. If the Company
terminates the Executive’s employment without Cause, then the Severance Package provisions of
Section 5 shall apply, and this Agreement shall otherwise terminate and the Executive shall have no
further rights or obligations hereunder except for the surviving provisions of this Agreement as
described at Section 7.15.
4.4 Termination of Employment by the Executive for Good Reason. Subject to the notice
and cure provisions set forth below, the Executive may terminate the Executive’s employment with
the Company for Good Reason and receive the Severance Package provisions of Section 5 if any of the
following have occurred without the Executive’s written consent (“Good Reason”):
(a) any material diminution in the Executive’s title, authorities, duties or
responsibilities (including without limitation the assignment of duties inconsistent with his
position, or a significant adverse alteration of the nature or status of his responsibilities,
or a significant adverse alteration of the conditions of his employment), including any failure
of the Nominating and Corporate Governance Committee of the Board to nominate the Executive for
re-election to the Board of Directors at any annual meeting of the Company’s shareholders while
the Executive serves as the Chief Executive Officer of the Company, provided that, at the time
of each annual meeting, (i) if the Executive is unable to perform his duties hereunder due to a
disability or other incapacity, it is reasonably certain that the Executive will be able to
resume his duties on a regular full-time basis prior to such time as the Executive’s employment
hereunder may be terminated by the Company due to disability, (ii) the Company has not notified
the Executive of its intention to terminate the Executive’s employment for cause, and (iii) the
Executive has not notified the Company of his intention resign from his position of Chief
Executive Officer of the Company;
(b) any material diminution in the title, authority, duties, or responsibilities of the
supervisor to whom the Executive is required to report, specifically including a requirement
that the Executive report to a corporate officer or employee instead of reporting directly to
the Board, or any or significant adverse change of the supervisor to whom the Executive is
required to report (including assignment to a new supervisor which results in a material adverse
alteration of the nature or conditions of Executive’s employment);
(c) after there has occurred a Change in Control, any of the following has occurred: (i) a
duplication with other Company personnel of the Executive’s title, authorities, duties or
responsibilities; (ii) a significant adverse alteration of the budget over which the Executive
retains authority; or (iii) a duplication with other Company personnel of the title, authority,
duties, or responsibilities of the supervisor to whom the Executive is required to report,
specifically including a requirement that the Executive report to a corporate officer or
employee instead of reporting directly to the Board;
(d) any material reduction of the Executive’s Annual Salary;
(e) the Company’s material breach of this Agreement;
(f) if, as of the Effective Date, the Company’s corporate headquarters are located in
Orlando, Florida, a requirement by the Company that Executive’s work location be moved more than
fifty (50) miles from the Company’s principal place of business in Orlando, Florida, provided,
however, that if
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prior to the first anniversary of the Effective Date the Company’s corporate headquarters
are moved to the Washington, D.C. metro area, then a requirement by the Company made prior to
the first anniversary of the Effective Date that Executive’s work location be moved to the
Washington, D.C. metro area shall not constitute Good Reason; or
(g) if prior to the first anniversary of the Effective Date the Company’s corporate
headquarters are located in the Washington, D.C. metro area, a requirement by the Company that
Executive’s work location be moved more than fifty (50) miles from the Company’s initial
principal place of business in the Washington, D.C. metro area.
Notwithstanding the forgoing, the Executive shall not be deemed to have terminated this Agreement
for Good Reason unless: (y) the Executive terminates this Agreement no later than six (6) months
following the initial existence of the above referenced event or condition which is the basis for
such termination (it being understood that each instance of any such event shall constitute a
separate basis for such termination and a separate event or condition occurring on the date of such
instance for purposes of calculating the six- (6)-month period); and (z) the Executive provides to
the Company a written notice of the existence of the above referenced event or condition which is
the basis for the termination within sixty (60) days following the initial existence of such event
or condition, and the Company fails to remedy such event or condition within 30 days following the
receipt of such notice. This Agreement shall otherwise terminate upon such termination of
employment and the Executive shall have no further rights or obligations hereunder except for the
surviving provisions of this Agreement as described at Section 7.15.
4.5 Termination of Employment by the Executive without Good Reason. The Executive may
terminate the Executive’s employment with the Company at any time without Good Reason. If the
Executive terminates his employment without the occurrence of any of the events constituting
“Good Reason” and the termination is not due to the Executive’s death or disability, then
the termination by the Executive is without Good Reason. If the Executive terminates the
Executive’s employment with the Company without Good Reason, the Executive shall have no right to
receive any compensation or benefit hereunder on and after the effective date of the termination of
employment, except that the Executive shall be entitled to receive the Executive’s Annual Salary,
and other benefits that are earned and accrued under this Agreement or under applicable Company
benefit plans prior to the date of termination and reimbursement under this Agreement for expenses
incurred prior to the date of termination. This Agreement shall otherwise terminate upon such
termination of employment and the Executive shall have no further rights or obligations hereunder
except for the surviving provisions of this Agreement as described at Section 7.15.
4.6 Termination upon Expiration and Non-Renewal of Agreement. If the Company
terminates employment by Non-Renewal in accordance with the provisions of Section 1 and Section 7.6
hereof, the Severance Package provisions of Section 5 shall apply. If the Executive terminates
employment by Non-Renewal in accordance with the provisions of Section 1 and Section 7.6 hereof,
the termination will be treated as a termination of his employment without Good Reason.
Additionally, if upon any Non-Renewal the Nominating and Corporate Governance Committee of the
Board fails to nominate the Executive in accordance with Section 2 herein to the seat of Chairman
of the Board for a period of one (1) year following the date of any Non-Renewal, then all of the
Equity Compensation awarded to the Executive, to the extent not vested as of such Non-Renewal,
shall immediately be deemed vested (treating the performance criteria for the year of termination
as fully satisfied), and any outstanding options to acquire shares of Company stock shall
immediately be vested and shall be, as determined in the discretion of the Board, either (a)
exercisable by the Executive or, in the case of the Executive’s death, by the beneficiaries of
Executive’s estate, for one (1) year following the date of the Non-Renewal (or, if shorter, the
balance of the regular term of the options), or (B) cashed out or cancelled, as if in accordance
with a Change in Control event, pursuant to the terms set forth in Section 14.03 of the 2010 Equity
Incentive Plan as in effect on the Effective Date hereof. This Agreement shall otherwise terminate
upon the termination of the Executive’s employment, and the Executive shall have no further rights
or obligations hereunder except for the surviving provisions of this Agreement as described at
Section 7.15.
5. Severance Package for Certain Terminations of Employment. The Executive shall be
entitled to certain rights and shall be bound by certain obligations as described in this Section 5
(the “Severance Package”) if the Executive’s employment terminates under any of the
following conditions: (x) if proper notice is provided as set
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forth at Section 1 and Section 7.6, as a result of a Non-Renewal by the Company; (y) if the
Company terminates the Executive’s employment without Cause, or (z) if the Executive terminates the
Executive’s employment for Good Reason. For purposes of this Agreement, the “Severance
Package” shall consist of all of the following rights and obligations:
(a) The Executive shall be entitled to receive the Executive’s Annual Salary, and other
benefits that are earned and accrued under this Agreement and under applicable Company benefit
plans prior to the date of termination, any Earned and Accrued Bonus, and reimbursement under
this Agreement for expenses incurred prior to the date of termination;
(b) If the Executive signs the general release of claims in favor of the Company in the
form set forth in Attachment “B” and the general release becomes irrevocably effective
not later than forty-five (45) days of the date of the termination event, the Executive shall
also be entitled to all of the following:
(i) a cash payment equal to three (3) times the sum of the Executive’s Annual Salary (as in
effect on the effective date of such termination excluding any reduction not permitted by this
Agreement), plus the greater of (A) the Annual Cash Bonus Compensation (as described on
Attachment “A”) most recently earned by the Executive, whether paid or unpaid, and (B) the
average Annual Cash Bonus Compensation actually paid for the last three full fiscal years
(“Average Annual Bonus”), payable in equal installments over the period that corresponds to
the period during which the covenants provided in Section 6.2 hereof are to be applicable in
accordance with the Company’s usual and customary salary payroll practices. If, at the time of a
termination to which this sub-subparagraph b(i) applies, at least three full fiscal years have not
occurred, then to the extent necessary to calculate the Average Annual Bonus for the last three
years as set forth above, the Target Annual Cash Bonus Compensation (as set forth on Attachment
“A”) shall be used for the missing years); provided, however, that in the event
the termination of employment is in connection with a Non-Renewal by the Company, such payments
shall equal the sum of (AA) the Executive’s Annual Salary (as in effect on the effective date of
such termination excluding any reduction not permitted by this Agreement) plus (BB) the
Executive’s Average Annual Bonus Compensation, which together shall be payable in equal
installments over a twelve (12) month period in accordance with the Company’s usual and customary
salary payroll practices (and made payable to the Executive’s estate in the event that the
Executive dies prior to the expiration of such period); and provided, further, that
if the Executive is a “specified employee” within the meaning of Section 409A of the Tax Code, any
payments of “deferred compensation” (as defined under Treasury Regulation Section 1.409A-1(b)(1),
after giving effect to the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through
(b)(12)), shall not commence until the first day of the seventh month beginning after the date of
the Executive’s “separation from service” (as defined under Treasury Regulation Section
1.409A-1(h)) to avoid the imposition of the additional 20% tax under Section 409A of the Tax Code
(and in the case of installment payments, the first payment shall include all installment payments
required by this subsection that otherwise would have been made during such period); and
(ii) for a period of eighteen (18) months after termination of employment, the Company shall
reimburse Executive’s COBRA premium under the Company’s major medical group health and dental plan
(including the costs of Executive’s premium required to maintain coverage for his dependents), and
the Company will provide such additional continuing health, dental, disability and life insurance
benefits applicable to senior executives of the Company generally as the Executive and his
dependents would have received under this Agreement (and for such additional benefits, at such
costs to the Company, provided that the value of premiums on all primary or supplemental disability
policies shall be taxed as income to the Executive) as would have applied in the absence of such
termination or expiration (but not taking into account any post-termination increases in Annual
Salary that may otherwise have occurred without regard to such termination and that may have
favorably affected such benefits), it being expressly understood and agreed that nothing in this
clause (b)(ii) shall restrict the ability of the Company to generally amend or terminate such plans
and programs from time to time in its sole discretion; provided, however, that the
Company shall in no event be required to provide such reimbursements or coverage after such time as
the Executive becomes entitled to receive health benefits from another employer or recipient of the
Executive’s services (and provided, further, that such entitlement shall be determined without
regard to any individual waivers or other arrangements);
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(iii) all of the Equity Compensation awarded to the Executive, to the extent not vested as of
the date of the termination of the Executive’s employment, shall immediately be deemed vested
(treating the performance criteria for the year of termination as fully satisfied), and any
outstanding options to acquire shares of Company stock shall immediately be vested and shall be, as
determined in the discretion of the Board, either (A) exercisable by the Executive or, in the case
of the Executive’s death, by the beneficiaries of Executive’s estate, for one (1) year following
the termination (or, if shorter, the balance of the regular term of the options), or (B) cashed out
or cancelled, as if in accordance with a Change in Control event, pursuant to the terms set forth
in Section 14.03 of the 2010 Equity Incentive Plan as in effect on the Effective Date hereof.
Unless delayed pursuant to Section 7.21 of this Agreement, payments due under the Severance Package
shall be paid to the Executive (or installment payments shall commence) on the fiftieth
(50th) day following the date of the termination event. This Agreement shall otherwise
terminate upon such termination of employment and the Executive shall have no further rights
hereunder except for surviving provisions of this Agreement as provided in Section 7.15.
6. Covenants of the Executive.
6.1 General Covenants of the Executive. The Executive acknowledges that (a) the
principal business of the Company is the acquisition, development and ownership of Healthcare REIT
interests in senior housing properties (such business, and any and all other businesses that after
the date hereof, and from time to time during the Term, become material with respect to the
Company’s then-overall business, herein being collectively referred to as the “Business”)
(for purposes of this Agreement, “Healthcare REIT” shall mean a company that invests in
primarily senior housing properties and that is qualified as a real estate investment trust for
purposes of federal income taxation); (b) the Company knows of a limited number of persons who have
developed the Business; (c) the Business is, in part, national in scope; (d) the Executive’s work
for the Company and its subsidiaries has given and will continue to give the Executive access to
the confidential affairs and proprietary information of the Company and to “trade secrets,” (as
defined in Section 688.002(4) of the Florida Statutes) of the Company and its subsidiaries; (e) the
covenants and agreements of the Executive contained in this Section 6.1 are essential to the
business and goodwill of the Company; and (f) the Company would not have entered into this
Agreement but for the covenants and agreements set forth in this Section 6.1.
6.2 Covenant Against Competition. The covenant against competition herein described
shall apply as follows:
(a) during the Term;
(b) for a period of one (1) year following a termination of the Executive’s employment by
the Company for Cause, by the Company without Cause, by the Executive without Good Reason, or by
either party after Non-Renewal or upon the Executive’s disability;
(c) for a period of two (2) years following a termination of the Executive’s employment by
the Executive for Good Reason; and
(d) as to Section 6.2(bb) and (dd), at any time during and after the Executive’s employment
with the Company and its subsidiaries (and the predecessors of either).
During the time periods for described hereinabove, the Executive covenants as follows:
(aa) The Executive shall not, directly or indirectly, own, manage, control or participate in
the ownership, management, or control of, or be employed or engaged by or otherwise affiliated or
associated as an employee, employer, consultant, agent, principal, partner, stockholder, corporate
officer, director or in any other individual or representative capacity, engage or participate in
any Healthcare REIT or other financial investment business which owns senior housing properties as
its primary business and that has assets in excess of Two Hundred Million and No/00 Dollars
($200,000,000), if such business is in competition in any manner whatsoever with the Business of
the Company in any state or country or other jurisdiction in which the Company conducts its
Business
8
as of the date of termination; provided, however, that, notwithstanding the
foregoing, (i) the Executive may own or participate in the ownership of any entity which he owned
or managed or participated in the ownership or management of prior to the Effective Date which
ownership, management or participation has been disclosed to the Company; and (ii) the Executive
may invest in securities of any entity, solely for investment purposes and without participating in
the business thereof, if (A) such securities are traded on any national securities exchange or the
National Association of Securities Dealers, Inc. Automated Quotation System or equivalent non-U.S.
securities exchange, (B) the Executive is not a controlling person of, or a member of a group which
controls, such entity and (C) the Executive does not, directly or indirectly, own one percent (1%)
or more of any class of securities of such entity.
(bb) Except in connection with the business and affairs of the Company and its affiliates: the
Executive shall keep secret and retain in strictest confidence, and shall not use for his benefit
or the benefit of others, all confidential matters relating to the Business and the business of any
of its affiliates and to the Company and any of its affiliates, learned by the Executive heretofore
or hereafter directly or indirectly from the Company or any of its subsidiaries (or any predecessor
of either) (the “Confidential Company Information”), including, without limitation,
information with respect to the Business and any aspect thereof, profit or loss figures, and the
Company’s or its affiliates’ (or any of their predecessors) properties, and shall not disclose such
Confidential Company information to anyone outside of the Company except with the Company’s express
written consent and except for Confidential Company Information which (i) at the time of receipt or
thereafter becomes publicly known through no wrongful act of the Executive; (ii) is clearly
obtainable in the public domain; (iii) was not acquired by the Executive in connection with the
Executive’s employment or affiliation with the Company; (iv) was not acquired by the Executive from
the Company or its representatives or from a third-party who has an agreement with the Company not
to disclose such information; (v) was legally in the possession of or developed by the Executive
prior to the Effective Date; or (vi) is required to be disclosed by rule of law or by order of a
court or governmental body or agency. For purposes of this Agreement, "affiliate” means, with
respect to the Company, any person, partnership, corporation or other entity that controls, is
controlled by or is under common control with the Company within the meaning of Rule 405 of
Regulation C under the Securities Act of 1933, as now in effect or as hereafter amended.
(cc) The Executive shall not, without the Company’s prior written consent, directly or
indirectly, (i) knowingly solicit or knowingly encourage to leave the employment or other service
of the Company or any of its affiliates, any employee employed by the Company at the time of the
termination thereof or knowingly hire (on behalf of the Executive or any other person or entity)
any employee employed by the Company at the time of the termination who has left the employment or
other service of the Company or any of its affiliates (or any predecessor of either) within one (1)
year of the termination of such employee’s or independent contractor’s employment or other service
with the Company and its affiliates; or (ii) whether for the Executive’s own account or for the
account of any other person, firm, corporation or other business organization, intentionally
interfere with the Company’s or any of its affiliates, relationship with, or endeavor to entice
away from the Company or any of its affiliates, any person who during the Executive’s employment
with the Company is or was a customer or client of the Company or any of its affiliates (or any
predecessor of either). Notwithstanding the above, nothing shall prevent the Executive from
soliciting loans, investment capital, or the provision of management services from third parties
engaged in the Business if the activities of the Executive facilitated thereby do not otherwise
adversely interfere with the operations of the Business.
(dd) All memoranda, notes, lists, records, property and any other tangible product and
documents (and all copies thereof) made, produced or compiled by the Executive or made available to
the Executive during the Term concerning the Business of the Company and its affiliates shall be
the Company’s property and shall be delivered to the Company at any time on request.
Notwithstanding the above, the Executive’s contacts and contact data base shall not be the
Company’s property. Notwithstanding the above, software, methods and material developed by the
Executive prior to the Term of the Agreement shall not be the Company’s property.
6.3 Covenant of Minimum Investment. The Executive covenants that he will, commencing
as of the first anniversary of the Effective Date hereof and thereafter for the duration of the
Term, maintain a minimum investment in the equity of the Company equal to four (4) times the Annual
Salary in effect as of the Effective Date. For purposes of determining the Executive’s minimum
investments pursuant to this covenant, the value of the Executive’s investments shall be deemed to
be the greater of (a) the value at the time of determination; or (b) the value at the time of the
Executive’s purchase or award of such equity, and shall be deemed to include
9
awards of Equity Compensation and investments in the equity of the Company held by him
personally and held by trusts controlled by him or members of his immediate family.
6.4 Rights and Remedies upon Breach. The Executive acknowledges and agrees that any
breach by him of any of the provisions of Sections 6.1 or 6.2 (the “Restrictive Covenants”)
would result in irreparable injury and damage for which money damages would not provide an adequate
remedy. Therefore, if the Executive breaches, or threatens to commit a breach of, any of the
Restrictive Covenants, the Company and its affiliates shall have the right and remedy to have the
Restrictive Covenants specifically enforced (without posting bond and without the need to prove
damages) by any court having equity jurisdiction, including, without limitation, the right to an
entry against the Executive of restraining orders and injunctions (preliminary, mandatory,
temporary and permanent) against violations, threatened or actual, and whether or not then
continuing, of such covenants. This right and remedy shall be in addition to, and not in lieu of,
any other rights and remedies available to the Company and its affiliates under law or in equity
(including, without limitation, the recovery of damages). The existence of any claim or cause of
action by the Executive, whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement of the Restrictive Covenants. The Company has the right to cease making
the payments provided as part of the Severance Package in the event of a material breach of any of
the Restrictive Covenants that, if capable of cure and not willful, is not cured within thirty (30)
days after receipt of notice thereof from the Company.
7. Other Provisions.
7.1 Severability. The Executive acknowledges and agrees that the Executive has had an
opportunity to seek advice of counsel in connection with this Agreement and that the Restrictive
Covenants are reasonable in geographical and temporal scope and in all other respects. If it is
determined that any of the provisions of this Agreement, including, without limitation, any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable, the remainder of the
provisions of this Agreement shall not thereby be affected and shall be given full affect, without
regard to the invalid portions.
7.2 Duration and Scope of Covenants. If any court or other decision maker of
competent jurisdiction determines that any of the Executive’s covenants contained in this
Agreement, including, without limitation, any of the Restrictive Covenants, or any part thereof,
are unenforceable because of the duration or geographical scope of such provision, then, after such
determination has become final and unappealable, the duration or scope of such provision, as the
case may be, shall be reduced so that such provision becomes enforceable and, in its reduced form,
such provision shall then be enforceable and shall be enforced.
7.3 Enforceability of Restrictive Covenants; Jurisdictions. The Company and the
Executive intend to and hereby consent to jurisdiction to enforce the Restrictive Covenants upon
the courts of any jurisdiction within the geographical scope of the Restrictive Covenants. If the
courts of any one or more of such jurisdictions hold the Restrictive Covenants wholly unenforceable
by reason of breadth of scope or otherwise it is the intention of the Company and the Executive
that such determination not bar or in any way affect the Company’s right, or the right of any of
its affiliates, to the relief provided above in the courts of any other jurisdiction within the
geographical scope of such Restrictive Covenants, as to breaches of such Restrictive Covenants in
such other respective jurisdictions, such Restrictive Covenants as they relate to each
jurisdiction’s being, for this purpose, severable, diverse and independent covenants, subject,
where appropriate, to the doctrine of res judicata.
7.4 Arbitration. Except with respect to any claims or disputes arising from or
relating to the Restrictive Covenants or arising after a Change in Control, any disputes arising
under or in connection with this Agreement shall be resolved by binding arbitration, to be held in
Orlando, Florida (or within 10 miles of the initial principal office location in the Washington,
D.C. metro area, if the Company has relocated its principal offices) in accordance with the
Commercial Arbitration Rules, as amended from time to time, of the American Arbitration Association
(the “AAA”). The Company and the Executive will each select an arbitrator, and a third
arbitrator will be selected jointly by the arbitrators selected by the Company and the Executive
within 15 days after demand for arbitration is made by a Party. If the arbitrators selected by the
Company and the Executive are unable to agree on a third arbitrator within that period, then either
the Company or the Executive may request that the AAA select the third arbitrator. The arbitrators
will possess substantive legal experience in the principle issues in dispute and will be
independent of the Company and the Executive. To the extent permitted by applicable law and not
prohibited by the
10
Company’s certificate of incorporation and bylaws, the Company will pay all expenses
(including the reasonable expenses of the Executive, including his reasonable legal fees, if the
Executive is the prevailing party in such arbitration) incurred in connection with arbitration and
the fees and expenses of the arbitrators and will advance such expenses from time to time as
required. Except as may otherwise be agreed in writing by the parties or as ordered by the
arbitrators upon substantial justification shown, the hearing for the dispute will be held within
60 days of submission of the dispute to arbitration. The arbitrators will render their final award
within 30 days following conclusion of the hearing and any required post-hearing briefing or other
proceedings ordered by the arbitrators. The arbitrators will state the factual and legal basis for
the award. The decision of the arbitrators will be final and binding and not subject to judicial
review and final judgment may be entered upon such an award in any court of competent jurisdiction,
but entry of such judgment will not be required to make such award effective.
7.5 Attorneys’ Fees. If litigation after a Change in Control shall be brought to
enforce or interpret any provision contained herein, the Company, to the extent permitted by
applicable law and not prohibited by the Company’s certificate of incorporation and bylaws, shall
indemnify the Executive for the Executive’s reasonable attorneys’ fees and disbursements incurred
in such litigation if the Executive is the prevailing party in such litigation.
7.6 Notices. Any notice, consent or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed, telexed, sent by
facsimile transmission or sent by certified, registered or express mail, postage prepaid. Any such
notice, consent or other communication shall be deemed given when so delivered personally,
delivered by overnight courier, telexed or sent by facsimile transmission or, if mailed, five days
after the date of deposit in the United States mails as follows:
| (a) | If to the Company, to: |
|
Legacy Healthcare Properties Trust Inc. 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 Attention: Chairman of the Compensation Committee of the Board of Directors, c/o Secretary of the Company Facsimile: (000) 000-0000 |
| with a copy in either case to: |
| Hunton & Xxxxxxxx LLP Riverfront Plaza, East Tower 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 Attention: Xxxxxx X. XxXxx, Esq. Facsimile: (000) 000-0000 |
| (b) | If to the Executive, to: |
| Xxxxxx X. Xxxxxxxxx III c/o Legacy Healthcare Properties Trust Inc. 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 Facsimile: (000) 000-0000 |
| with a copy in either case to: |
| Akerman Senterfitt 000 X. Xxxxxx Xxxxxx, #0000, Xxxxxxx, Xxxxxxx 00000 Attention: Xxxxx Xxxxxxx Xxxx, Esq. Facsimile: (000) 000-0000 |
Any such person may by notice given in accordance with this Section to the other parties hereto
designate another address or person for receipt by such person of notices hereunder.
11
7.7 Entire Agreement. This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior agreements, written or
oral, with the Company or its subsidiaries (or any predecessor of either).
7.8 Waivers and Amendments. This Agreement may be amended, superseded, canceled,
renewed or extended, and the terms hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party of any such right, power or privilege nor any single or
partial exercise of any such right, power or privilege, preclude any other or further exercise
thereof or the exercise of any other such right, power or privilege.
7.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED EXCLUSIVELY IN
ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Subject to the parties’ obligations under Section 7.4, the Executive and the Company each hereby
expressly consents to the exclusive venue and jurisdiction of the state and federal courts located
in Orlando, Florida, for any lawsuit arising from or relating to this Agreement.
7.10 Assignment. This Agreement shall be binding upon and inure to the benefit of the
executors, administrators, heirs, successors and assigns of the parties; provided, however, that
except as herein expressly provided, this Agreement shall not be assignable either by the Company
(except to an affiliate of the Company, in which event the Company shall remain liable if the
affiliate fails to meet any of the Company’s obligations hereunder, including without limitation to
provide the employment opportunities offered hereby and to make payments or provide benefits or
otherwise) or by the Executive. In the event that the Executive consents to the assignment of this
Agreement to a successor in interest of the Company upon a Change in Control, such consent shall
not be deemed to waive or diminish the Executive’s rights under Section 3.8.
7.11 Withholding. The Company shall be entitled to withhold from any payments or
deemed payments any amount of withholding required by law. In the event that the Company determines
that any federal, state, local or foreign tax or withholding payment is required relating to the
vesting in or delivery of any Equity Compensation, the Company shall have the right to require such
payments from the Executive or withhold such amounts from other payments due to the Executive from
the Company or any affiliate, or to withhold such Equity Compensation that would otherwise have
been issued to the Executive. The Executive shall have the right to elect, in his discretion, the
manner in which such payments shall be made or withheld. No other taxes, fees, impositions, duties
or other charges or offsets of any kind shall be deducted or withheld from amounts payable
hereunder, unless otherwise required by law.
7.12 No Duty to Mitigate. The Executive shall not be required to mitigate damages or
the amount of any payment provided for under this Agreement by seeking other employment or
otherwise, nor will any payments hereunder be subject to offset in the event the Executive does
mitigate.
7.13 Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors, permitted assigns, heirs, executors and legal
representatives.
7.14 Counterparts. This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original but all such
counterparts together shall constitute one and the same instrument. Each counterpart may consist of
two copies hereof each signed by one of the parties hereto.
7.15 Survival. The rights and obligations of the parties under this Agreement, which
by their nature would continue beyond the termination or expiration of this Agreement, shall
survive the termination or expiration of this Agreement. The Company’s obligations hereunder shall
not be terminated by reason of any liquidation, dissolution, bankruptcy, cessation of business, or
similar event relating to the Company. This Agreement shall not be terminated by any merger or
consolidation or other reorganization of the Company. In the event any such merger, consolidation
or reorganization shall be accomplished by transfer of stock or by transfer of assets or otherwise,
the provisions of this Agreement shall be binding upon and inure to the benefit of the surviving or
resulting corporation or person.
12
7.16 Existing Agreements. Executive represents to the Company that the Executive is
not subject or a party to any employment or consulting agreement, non-competition covenant or other
agreement, covenant or understanding which might prohibit the Executive from executing this
Agreement or limit the Executive’s ability to fulfill the Executive’s responsibilities hereunder.
7.17 Headings. The headings in this Agreement are for reference only and shall not
affect the interpretation of this Agreement.
7.18 Parachute Provisions. If any amount payable to or other benefit receivable by the
Executive pursuant to this Agreement is deemed to constitute a Parachute Payment (as defined
below), alone or when added to any other amount payable or paid to or other benefit receivable or
received by the Executive which is deemed to constitute a Parachute Payment (whether or not under
an existing plan, arrangement or other agreement), and would result in the imposition on the
Executive of an excise tax under Section 4999 of the Tax Code, then, in addition to any other
benefits to which the Executive is entitled under this Agreement, the Executive shall be paid by
the Company an amount in cash equal to the sum of the excise taxes payable by the Executive by
reason of receiving Parachute Payments plus the amount necessary to put the Executive in the same
after-tax position (taking into account any and all applicable federal, state and local excise,
income or other taxes at the highest applicable rates on such Parachute Payments and on any
payments under this Section 7.18) as if no excise taxes had been imposed with respect to Parachute
Payments. The amount of any payment under this Section 7.18 shall be computed by a certified public
accounting firm mutually and reasonably acceptable to the Executive and the Company, the
computation expenses of which shall be paid by the Company. “Parachute Payment” shall mean
any payment deemed to constitute a “parachute payment” as defined in Section 280G of the Tax Code.
7.19 Effective Date. The Effective Date shall be the closing date of the Initial
Offering.
7.20 Indemnification; Directors and Officer’s Insurance. The Executive shall be
entitled to indemnification in all instances in which the Executive is acting within the scope of
his authority to the fullest extent permitted by applicable law and not prohibited by the Company’s
certificate of incorporation and bylaws, from and against any damages or liabilities, including
reasonable attorney’s fees; provided, however, that the Executive shall not be entitled to
indemnification for damages or liabilities which result from or arise out of the Executive’s
willful misconduct or gross negligence. During the Term, the Company will maintain directors’ and
officers’ liability insurance in a coverage amount of not less than Two Million and No/00 Dollars
($2,000,000).
7.21 409A. This Agreement and the amounts payable and other benefits hereunder are
intended to comply with, or otherwise be exempt from, Section 409A of the Tax Code. This Agreement
shall be administered, interpreted and construed in a manner consistent with Section 409A. If any
provision of this Agreement is found not to comply with, or otherwise not to be exempt from, the
provisions of Section 409A, it shall be modified and given effect, in the sole discretion of the
Board or Compensation Committee thereof and without requiring the Executive’s consent, in such
manner as the Board or Compensation Committee determines to be necessary or appropriate to comply
with, or to effectuate an exemption from, Section 409A. Each payment under this Agreement shall be
treated as a separate identified payment for purposes of Section 409A. The preceding provisions
shall not be construed as a guarantee by the Company of any particular tax effect to the Executive
of the payments and other benefits under this Agreement.
With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, the
Executive, as specified under this Agreement, such reimbursement of expenses or provision of
in-kind benefits shall be subject to the following conditions: (a) the expenses eligible for
reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the
expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable
year, except for any medical reimbursement arrangement providing for the reimbursement of expenses
referred to in Section 105(b) of the Tax Code; (b) the reimbursement of an eligible expense shall
be made no later than the end of the year after the year in which such expense was incurred; and
(c) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange
for another benefit.
If a payment obligation under this Agreement arises on account of the Executive’s “separation from
service” (as defined under Treasury Regulation Section 1.409A-1(h)) while the Executive is a
“specified employee” (as defined under Section 409A of the Tax Code and determined in good faith by
the Compensation Committee), any payment
13
of “deferred compensation” (as defined under Treasury Regulation Section 1.409A-1(b)(1), after
giving effect to the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12))
that is scheduled to be paid within six months after such separation from service shall accrue
without interest and shall be paid on the first day of the seventh month beginning after the date
of the Executive’s separation from service or, if earlier, within 15 days after the appointment of
the personal representative or executor of the Executive’s estate following his death.
[Signature page follows.]
14
IN WITNESS WHEREOF, the parties hereto have signed their names to this Employment Agreement as
of the day and year set forth below.
| COMPANY: LEGACY HEALTHCARE PROPERTIES TRUST INC., a Maryland corporation: |
||||
| Date: , 2010 | By: | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Executive Vice President & Chief Financial Officer | |||
| EXECUTIVE: |
||||
| Date: , 2010 | By: | |||
| Name: | Xxxxxx X. Xxxxxxxxx III | |||
15
ATTACHMENT “A”
to
LEGACY HEALTHCARE PROPERTIES TRUST INC.
EMPLOYMENT AGREEMENT
of
XXXXXX X. XXXXXXXXX III
to
LEGACY HEALTHCARE PROPERTIES TRUST INC.
EMPLOYMENT AGREEMENT
of
XXXXXX X. XXXXXXXXX III
1. Annual Cash Bonus Compensation. Executive shall be eligible to participate in the
Bonus Plan during the term of this Agreement. Executive’s bonus will be subject to Executive’s
achievement of performance criteria established annually by the Compensation Committee:
1.1 For Threshold level, Executive shall receive 75% of his Annual Salary as bonus
compensation;
1.2 For Target level, Executive shall receive 125% of his Annual Salary as bonus compensation;
and
1.3 For Maximum level, Executive shall receive 200% of his Annual Salary as bonus
compensation.
For purpose of the Annual Bonus, Annual Salary means the Annual Salary paid to the Executive during
the calendar or portion of the calendar year covered by the bonus. Any bonus compensation in
excess of 100% of Executive’s Annual Salary may be paid, in whole or in part, at the option of the
Executive, in shares of the Company’s common stock. Executive’s performance criteria shall be
established annually by the Compensation Committee. For each fiscal year, Executive’s bonus, if
any, will be paid to Executive in a lump sum on or before seventy five (75) days after the end of
such fiscal year.
2. Equity Bonus Compensation.
2.1 Equity Compensation. As additional incentive compensation to the Executive,
subject to the 2010 Equity Incentive Plan and the terms set forth herein, Equity Compensation shall
be awarded to the Executive as follows:
(a) Restricted Stock Award.
Pursuant to the 2010 Equity Incentive Plan and subject to the terms of this Agreement, a Stock Award (as defined therein)
of the Company’s common stock (the “Restricted Stock
Award”) shall be granted to the Executive on the Effective Date.
The number of shares of common stock granted to the Executive in the Restricted Stock Award shall be calculated as the
product of X and Y, where X is 1.5% of the sum of (i) the total number of shares issued by the Company in the Initial
Offering (the “IPO Shares”), and (ii) all shares
issued in connection with the Company’s private placement of additional
shares of common stock to the Company’s officers concurrently
with the Initial Offering (the “Private Placement Shares”
and, together with the IPO Shares, the “Total Offering”), rounded to the nearest 1,000, and where Y is (the following
percentage): 65%. In addition, in the event any shares of common stock are issued as a result of any exercise by the
Initial Offering underwriters of their over-allotment option (the
“Underwriters’ Over-allotment Shares”), the number of
shares granted to the Executive in the Restricted Stock Award will be adjusted, as of the Effective Date, to include
additional shares in an amount equal to the product of (i) 1.5%
of the Underwriters’ Over-allotment Shares issued and
(ii) 65%. By way of example, if the Total Offering is 9,100,000 shares (including 8,750,000 IPO Shares, 350,000 Private
Placement Shares and no Underwriters’ Over-allotment Shares),
then the Restricted Stock Award shall be 88,725 shares of
the Company’s common stock. The shares granted in the Restricted Stock Award shall be, subject to the terms of this
Agreement, subject to forfeiture restrictions that will lapse on each of the first three anniversaries of the Effective
Date as to 1/3 of the shares of common stock covered by the Restricted Stock Award on each such anniversary, at which
time such shares shall become vested and nonforfeitable so long as the Executive is employed by the Company on the
applicable anniversary date. Except as provided otherwise in this Agreement, any shares of common stock covered by
the Restricted Stock Award that are subject to forfeiture
restrictions on or before the date that the Executive’s
service as an employee of the Company terminates shall be forfeited on the date that such service terminates. Shares
of common stock covered by the Restricted Stock Award that have not become vested and nonforfeitable as provided in
this Agreement cannot be transferred. Shares of common stock covered by the Restricted Stock Award may be transferred,
subject to the requirements of applicable securities laws, after such shares have become vested and nonforfeitable as
provided in this Agreement.
16
2.2 Stockholder Rights. On and after the Effective Date hereof and prior to
forfeiture of the shares of common stock covered by the Restricted Stock Award, the Executive shall
have all of the rights of a stockholder of the Company with respect to the shares of common stock
covered by the Restricted Stock Award, including the right to vote the shares and to receive, free
of all restrictions, all dividends declared and paid on the shares. Notwithstanding the preceding
sentence, the Company shall retain custody of the certificates representing the shares of common
stock covered by the Stock Award until the date that the shares become vested and nonforfeitable
and the Executive hereby appoints the Company’s President and the Company’s Secretary as the
Executive’s attorneys in fact, with full power of substitution, with the power to transfer to the
Company and cancel any shares of common stock covered by the Restricted Stock Award that are
forfeited.
2.3 Restricted Stock Award Subject to Plan. The Restricted Stock Award shall be
governed by the terms of 2010 Equity Incentive Plan. In the event of any conflict between the
provisions of the 2010 Equity Incentive Plan in effect on the Effective Date and the provisions of
this Attachment “A”, the provisions of the 2010 Equity Incentive Plan shall govern. All
references to the 2010 Equity Incentive Plan in this Attachment “A” shall mean the 2010
Equity Incentive Plan as in effect on the Effective Date. The Executive hereby acknowledges that a
copy of the 2010 Equity Incentive Plan has been made available to the Executive and the Executive
agrees to be bound by all of the terms of the 2010 Equity Incentive Plan.
2.4 Rights upon Vesting. Prior to vesting, Equity Compensation awarded to the
Executive under this Attachment “A” shall be subject to forfeiture or acceleration pursuant
to the terms of this Agreement and the 2010 Equity Incentive Plan. Upon the vesting of any Equity
Compensation awarded to the Executive under this Attachment “A”, as of the date of such
vesting and subject to the terms of any applicable Company Incentive Plan, the Company shall
deliver such Equity Compensation to the Executive, and the same shall be freely transferable and
non-forfeitable, and the Executive shall be entitled to all rights, preferences and dividends as
may be appurtenant to or otherwise payable by the Company thereon.
2.5 409A. In the event delivery of any Equity Compensation is delayed pursuant to
Section 7.21 of this Agreement, at the same time the Equity Compensation is delivered, the
Executive shall receive an amount equal to the dividend(s) that would be payable on such Equity
Compensation subject to the delayed delivery if the record date of such dividend(s) is after the
date of the Executive’s “separation from service” (as defined under Treasury Regulation Section
1.409A-1(h)) and prior to the delivery of the Equity Compensation to the Executive.
17
ATTACHMENT “B”
to
LEGACY HEALTHCARE PROPERTIES TRUST INC.
EMPLOYMENT AGREEMENT
of
XXXXXX X. XXXXXXXXX III
to
LEGACY HEALTHCARE PROPERTIES TRUST INC.
EMPLOYMENT AGREEMENT
of
XXXXXX X. XXXXXXXXX III
General Release of Claims
Consistent with Section 5 of the Employment
Agreement dated _______________, 2010, between Legacy
Healthcare Properties Trust, Inc. (the “Company”) and me (the “Employment
Agreement”) and in consideration for and contingent upon my receipt of the Severance Package
set forth in Sections 5(b) of the Employment Agreement, I, for myself, my attorneys, heirs,
executors, administrators, successors, and assigns, do hereby fully and forever release and
discharge the Company and its affiliated entities (as defined in the Employment Agreement), as well
as their predecessors, successors, assigns, and their current or former directors, officers,
partners, agents, employees, attorneys, and administrators from all suits, causes of action, and/or
claims, demands or entitlements of any nature whatsoever, whether known, unknown, or unforeseen,
which I have or may have against any of them arising out of or in connection with my employment by
the Company, the Employment Agreement, the termination of my employment with the Company, or any
event, transaction, or matter occurring or existing on or before the date of my signing of this
General Release, except that I am not releasing any (a) right to indemnification that I may
otherwise have, (b) right to Annual Salary and benefits under applicable benefit plans that are
earned and accrued but unpaid as of the date of my signing this General Release, (c) right to
reimbursement for business expenses incurred and not reimbursed as of the date of my signing this
General Release, (d) right to any bonus payment(s) or other compensation due under the Employment
Agreement, the Bonus Plan, any Company Incentive Plan that is earned and accrued for the most
recent completed calendar year for which a bonus payment has not then been paid as of the date of
my signing this General Release, or (e) claims arising after the date of my signing this General
Release. I agree not to file or otherwise institute any claim, demand or lawsuit seeking damages or
other relief and not to otherwise assert any claims, demands or entitlements that are lawfully
released herein. I further hereby irrevocably and unconditionally waive any and all rights to
recover any relief or damages concerning the claims, demands or entitlements that are lawfully
released herein. I represent and warrant that I have not previously filed or joined in any such
claims, demands or entitlements against the Company or the other persons released herein and that I
will indemnify and hold them harmless from all liabilities, claims, demands, costs, expenses and/or
attorneys’ fees incurred as a result of any such claims, demands or lawsuits.
Except as otherwise expressly provided above, this General Release specifically includes, but
is not limited to, all claims of breach of contract, employment discrimination (including any
claims coming within the scope of Title VII of the Civil Rights Act, the Age Discrimination in
Employment Act, the Older Workers Benefit Protection Act, the Equal Pay Act, the Americans with
Disabilities Act, the Family and Medical Leave Act, and any comparable Florida law, all as amended,
or any other applicable federal, state, or local law), claims under the Employee Retirement Income
Security Act, as amended, claims under the Fair Labor Standards Act, as amended (or any other
applicable federal, state or local statute relating to payment of wages), claims concerning
recruitment, hiring, termination, salary rate, severance pay, stock options, wages or benefits due,
sick leave, holiday pay, vacation pay, life insurance, group medical insurance, any other fringe
benefits, worker’s compensation, termination, employment status, libel, slander, defamation,
intentional or negligent misrepresentation and/or infliction of emotional distress, together with
any and all tort, contract, or other claims which might have been asserted by me or on my behalf in
any suit, charge of discrimination, or claim against the Company or the persons released herein.
I acknowledge that I have been given an opportunity of twenty-one (21) days to consider this
General Release and that I have been encouraged by the Company to discuss fully the terms of this
General Release with legal counsel of my own choosing. Moreover, for a period of seven (7) days
following my execution of this General Release, I shall have the right to revoke the waiver of
claims arising under the Age Discrimination in Employment Act, a federal statute that prohibits
employers from discriminating against employees who are age 40 or over. If I elect to revoke this
General Release within this seven-day period, I must inform the Company by delivering a written
notice of revocation to the Company’s Director of Human Resources, ____________, no
later
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than 11:59 p.m. on the seventh calendar day after I sign this General Release. I understand
that, if I elect to exercise this revocation right, this General Release shall be voided in its
entirety and the Company shall be relieved of all obligations to make the portion of the Severance
Package described in Section 5(b) of the Employment Agreement. I may, if I wish, elect to sign
this General Release prior to the expiration of the 21-day consideration period, and I agree that
if I elect to do so, my election is made freely and voluntarily and after having an opportunity to
consult counsel.
AGREED:
[Form of Agreement Only — Do No Execute] |
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| Date |
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