EXHIBIT 10.21
AGREEMENT
This Separation Agreement and Release of Claims ("Agreement") is entered
into by Xxxxxx X. Xxxx ("Employee"), and Ventas, Inc. ("Ventas") on its own
behalf and on behalf of all of its affiliates, directors, officers, supervisors,
employees, agents, successors, assigns, representatives, subsidiaries or related
companies, past and present (collectively, the "Company").
WHEREAS, Employee and Company hereby desire to settle all disputes and
issues related to the resignation of Employee from his services to the Company.
NOW, THEREFORE, in consideration of the premises and the terms and
conditions contained herein, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties agree as follows:
1. Resignation. Employee hereby resigns from the Ventas Board of
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Directors and all capacities and positions with the Company effective March 5,
1999 ("Date of Termination"), and Ventas and the Company hereby accept such
resignation effective as of such date.
2. Obligations of the Company. Following the execution of this
Agreement, the Company shall pay Employee his base salary through March 31, 1999
and any amounts owed to Employee pursuant to the Company's standard
reimbursement procedures. In addition, subject to the terms and conditions of
this Agreement (including Section 13), Employee shall be entitled to the
following additional payments and benefits:
(a) $62,812.50 representing the prorated portion of the Employee's
target bonus for 1999.
(b) 37,500 shares of Ventas common stock representing two (2) years
of additional vesting of restricted stock awards to the Employee.
(c) $670,000 representing an amount equal to tow (2) times the
Employee's base salary for 1999.
(d) $502,500 representing an amount equal to two (2) times the
Employee's target bonus for 1999.
(e) For a period of twenty four (24) months following the Date of
Termination, the Company shall provide health insurance benefits to Employee
equivalent to the coverage provided by the Company for Employee on the Date of
Termination.
(f) For a period of 24 months following the Date of Termination, the
Company shall maintain in force, at its expense, the Employee's life insurance
equivalent to the coverage paid for by the Company and applicable to the
employee on the Date of Termination.
(g) For a period of twenty four (24) months following the Date of
Termination, the Company shall continue to provide the Company's standard
short-term and long-term disability insurance benefits to Employee equivalent to
the standard coverage applicable to Employee and the premium for which is paid
by the Company on the Date of Termination and based on his base salary on the
such date. Should Employee become disabled during such period, Employee shall be
entitled to receive such benefits, and for such duration, and subject to such
caps as the applicable standard plan provides.
(h) The Company shall take such action as is required to cause the
promissory note, dated June 15, 1998 in an original principal amount of $140,400
(the "Tax Loan") entered into in connection with the loan made to Employee to
cover certain taxes owned by Employee, to be amended to provide that the Tax
Loan and any payments scheduled to be made in respect thereof shall not be due
and payable prior to the fifth anniversary of the Date of Termination.
(p) The Company shall provide Employee with assistance in complying
with his reporting obligations under Section 16 of the Securities Act of 1934,
as amended for a period of six months following the Date of Termination.
(q) All commitments made to Employee under paragraphs (a)-(d) above
shall be paid or issued upon the later of 14 days from the Date of Termination
or the expiration of the seven day period referenced in Section 16.
3. Employee Acknowledgment and Release. In consideration for the above
payments and benefits, Employee hereby settles, waives, releases and discharges
any and all claims or actions arising from Employee's employment, his Employment
Agreement dated as of July 31, 1998, his Change in Control Severance Agreement,
the terms and conditions of Employee's employment, and Employee's termination of
employment with the Company, including claims of breach of contract, employment
discrimination, wrongful termination, unemployment compensation or any claim
arising under law or equity, express or implied contract, tort, public policy,
common law or any federal, state or local statute, ordinance, regulation or
constitutional provision.
(a) The claims settled, waived, released and discharged by Employee
under this Section 3 include, but are not limited to, claims arising under Title
VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991;
The Older Workers Benefit Protection Act ("OWBPA"); the Age Discrimination in
Employment Act of 1967 ("ADEA"), as amended; the American with Disabilities Act
("ADA"); the Fair Labor Standards Act; the Employee Retirement Income Security
Act of 1974, as amended; the National Labor Relations Act; the Labor Management
Relations Act; the Equal Pay Act of 1963; the Pregnancy Discrimination Act of
1978; the Rehabilitation Act of 1973; workers' compensation laws; Kentucky Wage
and Hours Laws, claims before the Kentucky Commission for Human Rights and
Kentucky Revised Statutes sections 341 et seq.
(b) Employee recognizes that by signing this Agreement, he may be
giving up some claim, demand or cause of action which he now has, but which is
unknown to him. Employee also acknowledges that he is giving up any right to
seek future employment with the Company, that the Company has no obligation to
rehire him at any future date, and agrees that he will not apply for work with
the Company.
(c) Employee agrees not to file any lawsuits against the Company that
relate in any manner to the Employee's employment or the resignation or
termination of Employee's employment with the Company.
(d) employee acknowledges that the Company does not admit that it
engaged in any discrimination, wrong doing or violation of law on the Company's
part concerning Employee. Employee and the Company agree that by entering into
this Agreement no discrimination, wrong doing, or violation of law has been
acknowledged by the Company or assumed by Employee. Employee and the Company
further acknowledge that this Agreement is not an admission of liability.
4. Confidentiality. Employee and the Company agree to keep the contents
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and terms of this Agreement confidential and not to voluntarily disclose the
terms or amount of settlement to third parties. The only exception is that
Employee may reveal the terms of this Agreement to his spouse, attorney, tax
preparer or as otherwise required by law. The Company may reveal the terms of
this Agreement to its attorneys, accountants, financial advisors, managerial
employees and any other employee whose action is needed to implement this
Agreement, and any disclosure required by law or business necessity. Employee
and the Company agree that in the event the terms of this Agreement are
disclosed to the third parties as allowed or required herein, the third parties
will be advised of the obligation to keep the terms of this Agreement
confidential, and will obtain the third party's Agreement to abide by the terms
of the confidentiality provisions set forth in this Agreement. In the event that
Employee breaches the confidentiality of this Agreement, Employee understands
that the Company shall h ave the right to pursue all
appropriate legal and equitable relief, including, but unlimited to, attorneys'
fees and costs.
5. Public Statement. Employee further agrees not to make derogatory or
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negative remarks or comments about the Company, its affiliates and their
respective directors, officers, shareholders, agents or employees, to any third
parties, and not to otherwise defame the Company in any manner. In the event
that Employee defames the Company, its affiliates and their respective
directors, officers, shareholders, agents or employees, employee understands
that the Company shall have the right to pursue all appropriate legal and
equitable relief, including but not limited to, attorneys fees and costs.
Company agrees not to make derogatory or negative remarks or comments about
Employee to any third parties, not to otherwise defame the Employee in any
manner. In the event that the Company defames Employee, Company understands that
the Employee shall have the right to pursue all appropriate legal and equitable
relief, including but not limited to, attorneys' fees and costs.
6. Ability to Revoke.
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(a) Employee acknowledges and agrees that (i) the Company, through
this Section 7(a) has advised him in writing and encouraged him in writing to
consult with an attorney, (ii) he will receive consideration under this
Agreement to which he is otherwise not entitled, and (iii) he has been given a
period of at least twenty one (21) days within which to consider this Agreement,
including waiver of any ADEA and OWBPA age claims before voluntarily signing
this Agreement.
(b) Employee agrees and understands that he may revoke this Agreement
within seven (7) days after signing the Agreement, and that the Agreement shall
not become effective or enforceable until the revocation period has expired.
(c) Any revocation of this Agreement must be made in writing and
delivered by hand or certified mail to T. Xxxxxxx Xxxxx, Ventas, Inc., 0000
Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, before the expiration of
the revocation period.
7. Restrictive Covenants.
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(a) For a period of 12 months from the Date of Termination, Employee
shall not divulge, furnish, or make accessible to anyone any confidential
knowledge or information about the Company's businesses or operations (except as
required by law or order of court or other governmental agency) or any of the
clients, patients, customers or suppliers of the Company or with respect to any
other confidential aspect of the businesses of the Company. Employee's
obligations under this Section 7(a)
are in addition to, not in lieu of, any obligations he has under applicable law
to protect the Company confidential information and trade secrets.
(b) For a period of 12 months from the Date of Termination, Employee
agrees that he will not, directly or indirectly or by action in concert with
others, induce, solicit, or influence or seek to induce or influence any person
who has been engaged as an employee, agent, independent contractor or otherwise
by the Company and with whom Employee had contact during his employment by the
Company, to terminate his or her relationship with the Company.
(c) If the agreement set forth in this Section 8 would otherwise be
determined to be invalid or unenforceable by a court of competent jurisdiction,
the parties intend and agree that such court shall exercise its discretion in
reforming the provisions of this Agreement to the end that Employee will be
subject to restrictions which are reasonable under the circumstances and
enforceable by the Company.
(d) Employee understands and agrees that any violation of this
Agreement will cause the Company irreparable harm which cannot adequately be
compensated by an award of money damages. As a result, Employee agrees that, in
addition to any other remedy the Company may have, a violation of this Agreement
may be restrained by issuance of an injunction by any court of competent
jurisdiction.
8. Cooperation. Employee agrees that should the Company request
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Employee's cooperation in connection with litigation, government investigations
or other administrative or legal proceeding, Employee shall cooperate fully with
the Company or its designated agents. Employee further agrees to cooperate fully
in disclosing to the Company or its designated agents, any information which
Employee obtained during the course and scope of his employment with the
Company, and to which other employees of the Company were not privy.
9. Disputes. Any dispute or controversy arising under, out of, or in
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connection with this Agreement (other than a dispute or controversy under
Sections 4, 5 or 7) shall, at the election and upon written demand of either
party, be finally determined and settled by binding arbitration in the City of
Louisville, Kentucky, in accordance with the Labor Arbitration rules and
procedures of the American Arbitration Association, and judgment upon the award
may be entered in any court having jurisdiction thereof.
10. Attorney's Fees, Costs and Expenses. If any action at law or equity
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or any arbitration proceeding is necessary to enforce or interpret the terms of
this Agreement, the prevailing party will be entitled to reasonable attorney's
fees, costs and expenses incurred, in addition to any other relief to which such
party might be entitled.
11. Successors. This Agreement is personal to Employee and without the
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prior written consent of the Company shall not be assignable by Employee
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by, and shall be binding upon,
Employee's legal representatives. This Agreement shall inure to the benefit of
and be binding upon the Company and its successors and assigns.
12. Other Benefits. Employee hereby agrees that in consideration for the
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payments and benefits to be received under this Agreement, Employee waives any
and all rights to any payments or benefits under any plans, programs, contracts
or arrangements of the Company, the Employment Agreement between Employee and
the Company, dated as of July 31, 1998 and the Change in Control Severance
Agreement between the Employee and the Company.
13. Withholding. all payments and stock issuances to be made to Employee
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hereunder will be subject to all applicable required withholding of taxes.
14. No Mitigation. Employee shall have no duty to seek other employment
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and, should Employee actually receive compensation from any such other
employment, the payments required hereunder shall not be reduced or offset by
any such compensation.
15. Execution by Employee. Employee will execute this Agreement and
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deliver the executed Agreement to T. Xxxxxxx Xxxxx, Ventas, Inc., 0000
Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000.
16. Termination of Waiting Period. After receipt of the executed
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Agreement by Employee, and after the expiration of this seven (7) day waiting
period in Section 7(b) of this Agreement, the Company will execute the
Agreement.
17. Voluntary Action. Employee acknowledges that he has read and fully
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understands all of the provisions of this Agreement and that he is entering into
this Agreement freely and voluntarily.
18. Notices. Any notice required or permitted to be given under this
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Agreement shall be in writing and shall be deemed to have been duly given when
delivered or sent by telephone facsimile transmission, personal or overnight
couriers, or registered mail with confirmation or receipt, addressed as follows:
If to Employee:
Xxxxxx X. Xxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
If to Company:
Ventas, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: General Counsel
19. Governing Law. This Agreement shall be governed by the laws of the
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Commonwealth of Kentucky.
20. Waiver of Breach and Severability. The waiver by either party of a
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breach of any provision of this Agreement by the other party shall not operate
or be construed as a waiver of any subsequent breach by either party. In the
event any provision of this Agreement is found to be invalid or unenforceable,
it may be severed from the Agreement and the remaining provisions of the
Agreement shall continue to be binding and effective.
21. Entire Agreement; Amendment. This Agreement contains the entire
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agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations and warranties between them, whether written or
oral with respect to the subject matter hereof. No provisions of this Agreement
may be modified, waived or discharged unless such modification, waiver or
discharge is agreed to in writing signed by Employee and a designated officer of
the Company.
22. Headings. The headings in this Agreement are for convenience only
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and shall not be used to interpret or construe its provisions.
23. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
March 5, 1999.
VENTAS, INC.
By:
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Title:
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EMPLOYEE
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XXXXXX X. XXXX
