EXHIBIT 10.2
SECOND AMENDMENT TO
EMPLOYMENT AGREEMENT OF XXXX X. XXXXXXX
This Second Amendment dated as of April 20, 2001 to Employment Agreement of
Xxxx X. Xxxxxxx hereby amends that certain Employment Agreement entered into by
and between Nationwide Health Properties, Inc., a California corporation (the
"Company") and Xxxx X. Xxxxxxx (the "Executive") as of February 25, 1998, as
amended January 19, 2001 (the "Employment Agreement").
RECITAL
The parties desire to delete and restate Paragraph I (E), Paragraph IV
(A), and Section V of the Employment Agreement in their entirety.
AGREEMENT
NOW, THEREFORE, the parties hereto hereby agree to delete Paragraphs I (E)
and IV (A) and Section V of the Employment Agreement in their entirety and
restate them as follows:
"I. E. 'Employment Period' shall mean the period commencing on the
Effective Date and ending on February 28, 2003; provided
however, that commencing effective as of February 28, 2002 and
on each February 28 thereafter (each such date is hereinafter
referred to as a "Renewal Date"), the Employment Period shall
be automatically extended so as to terminate on the second
anniversary of such Renewal Date (but not later than the date
when Executive attains age 65), unless the Company or Executive
shall give notice to the other that the Employment Period shall
not be further extended prior to any such Renewal Date."
"IV. Obligations of the Company Upon Termination of Executive's Employment
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A. Termination by Company Other than for Cause, Death or
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Disability. Except within three years after a Change of Control
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of Company in which case any termination of Executive's
employment shall be governed by the Company's Executive
Employment Security Policy, and except as provided for in
Section VI of this Agreement, if during the Employment Period,
the Company shall terminate Executive's employment other than
for Cause or disability, the Company shall pay to Executive (a)
any Annual Base Salary owed to Executive through the Date of
Termination to the extent not previously paid, (b) an amount
equal to 150% of Executive's highest Annual Base Salary during
any of the last three full fiscal years prior to the Date of
Termination, and (c) an amount equal to 150% of the average
Annual Bonus earned by Executive over the last three full
fiscal years prior to the Date of Termination.
In addition to the payments described in subparagraphs (a),
(b), and (c) above, the Company also shall (i) arrange to
provide to Executive for a period of eighteen months from the
Date of Termination, medical (including dental, vision and
prescription drug coverage) and life insurance with terms no
less favorable, in the aggregate, than the most favorable of
those provided to Executive during the year immediately
preceding the Date of Termination, (ii) immediately vest all
previously unvested shares of Restricted Stock and Stock
Options held by Executive, (iii) provide Executive with any
Performance-Based Dividend Equivalents (to the extent earned by
the Executive through the Date of Termination, as determined by
the Company's Compensation Committee) for the eighteen months
following the Date of Termination, and (iv) pay any
compensation previously deferred by Executive in accordance
with the provisions of the plan under which such compensation
was deferred.
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Payments pursuant to subparagraph (a) above shall be made
within thirty (30) days following the Date of Termination.
Payments pursuant to subparagraph (b) above shall be made in
equal monthly installments over the eighteen-month period
following the Date of Termination. Payments pursuant to
subparagraph (c) above shall be made in equal annual
installments over the eighteen-month period following the Date
of Termination. Payments pursuant to subparagraph (iii) above
shall be made at the time such payments would have been made
had Executive remained in the employment of the Company.
To the extent that any of the payments and benefits provided
for in this Agreement or otherwise payable to Executive
constitute "parachute payments" within the meaning of Section
280G of the Internal Revenue Code of 1986, as amended (the
"Code"), and but for this subparagraph of this Section IV(A),
would be subject to the excise tax imposed by Section 4999 of
the Code or any similar or successor provision, the aggregate
amount of such payments and benefits shall be reduced, but only
to the extent necessary so that none of such payments and
benefits are subject to excise tax pursuant to Section 4999 of
the Code.
If Executive should die while receiving payments pursuant to
this Section IV(A), the remaining payments which would have
been made to Executive if he had lived shall be paid to the
beneficiary designated in writing by Executive, or if there is
no effective written designation, then to this spouse, or if
there is neither an effective written designation nor a
surviving spouse, then to Executive's estate. Designation of a
beneficiary or beneficiaries to receive the balance of any such
payments shall be made by written notice to the Company, and
Executive may revoke or change any such designation of
beneficiary at any time by a later written notice to the
Company."
"V. Non-Exclusivity of Rights.
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Nothing in this Agreement shall prevent or limit Executive's
continuing or future participation in any plan, program, policy or
practice provided by the Company for which Executive may qualify, nor
shall anything herein limit or otherwise affect such rights as
Executive may have under any contract or agreement with the Company.
Amounts which are vested or which Executive is otherwise entitled to
receive under any plan, policy, practice or program of, or any
contract or agreement (other than this Agreement) with the Company at
or subsequent to the Date of Termination shall be payable in
accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement. Except for
the Company's Executive Employment Security Policy, which remains in
full force and effect and is fully operative between Executive and
Company in accordance with its terms, Executive shall no longer be
covered by any prior employment agreement, security policy or
understanding thereof after the Effective date of this Agreement and
shall not be covered by any severance policy, practice or program of
the Company."
IN WITNESS WHEREOF, Executive has hereunto set Executive's hand, and
pursuant to the authorization from the Compensation Committee of the Board, the
Company has caused this Second Amendment to Employment Agreement of Xxxx X.
Xxxxxxx to be executed in its name on its behalf, all as of the day and year
first above written.
NATIONWIDE HEALTH PROPERTIES, INC.
By: ______________________________________
R. Xxxxx Xxxxxxx, President
Executive:
__________________________________________
Xxxx X. Xxxxxxx
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