EXHIBIT 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), effective as of March 9,
2004, is by and between LTC PROPERTIES, INC., a corporation organized under the
laws of the State of Maryland ("LTC" or the "Company"), and XXXXX XXXXXXX
("EXECUTIVE").
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Appointment, Title and Duties. LTC hereby employs Executive to
serve as its Vice Chairperson and Chief Financial Officer. In such capacity,
Executive shall report to the Chief Executive Officer of the Company, and shall
have such duties, powers and responsibilities as are customarily assigned to a
Vice Chairperson and Chief Financial Officer of a publicly held corporation, but
shall also be responsible to the Board of Directors and to any committee
thereof. In addition, Executive shall have such other duties and
responsibilities as the Chief Executive Officer may assign her, with her
consent, including serving with the consent or at the request of the Chief
Executive Officer as an officer or on the board of directors of affiliated
corporations.
2. Term of Agreement. The term of this Agreement shall commence
as of the date hereof and shall extend such that at each and every moment of
time hereafter the remaining term shall be two years.
3. Acceptance of Position. Executive accepts the position of Vice
Chairperson of LTC and Chief Financial Officer, and agrees that during the term
of this Agreement she will faithfully perform her duties and, except as
expressly approved by the Board of Directors of LTC, will devote substantially
all of her business time to the business and affairs of LTC, and will not
engage, for her own account or for the account of any other person or entity, in
a business which competes with LTC. It is acknowledged and agreed that Executive
may serve as an officer and/or director of companies in which LTC owns voting or
non-voting stock. In addition, it is acknowledged and agreed that Executive may,
from time to time, serve as a member of the board of directors of other
companies, in which event the Board of Directors of LTC must expressly approve
such service pursuant to a Board resolution maintained in the Company's minute
books. Any compensation or remuneration which Executive receives in
consideration of her service on the board of directors of other companies shall
be the sole and exclusive property of Executive, and LTC shall have no right or
entitlement at any time to any such compensation or remuneration.
4. Salary and Benefits. During the term of this Agreement:
(a) LTC shall pay to Executive a base salary at an annual
rate of not less than Three Hundred Thousand Dollars ($300,000) per annum ("Base
Salary"), paid in approximately equal installments at intervals based on any
reasonable Company policy. LTC agrees from time to time to consider increases in
such base salary in the discretion of the Board of Directors. Any increase, once
granted, shall automatically amend this Agreement to provide that thereafter
Executive's base salary shall not be less than the annual amount to which such
base salary has been increased.
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(b) Executive shall participate in all health,
retirement, Company-paid insurance, sick leave, disability, expense
reimbursement and other benefit programs which LTC makes available to any of its
senior executives, and shall be eligible for bonuses in the discretion of the
Board of Directors.
(c) Executive shall be entitled to reasonable vacation
time, not less than four (4) weeks per year, provided that not more than two (2)
weeks of such vacation time may be taken consecutively without prior notice to
and non-objection by the Compensation Committee of the Board of Directors or, if
there is no Compensation Committee, the Board of Directors.
5. Certain Terms Defined. For purposes of this Agreement:
(a) Executive shall be deemed to be "disabled" if a
physical or mental condition shall occur and persist which, in the written
opinion of a licensed physician selected by the Board of Directors in good
faith, has rendered Executive unable to perform the duties set forth in Section
1 hereof for a period of sixty (60) days or more and, in the written opinion of
such physician, the condition will continue for an indefinite period of time,
rendering Executive unable to return to her duties;
(b) A termination of Executive's employment by LTC shall
be deemed for "Cause" if, and only if, it is based upon (i) conviction of a
felony; (ii) material disloyalty to the Company such as embezzlement,
misappropriation of corporate assets or, except as permitted pursuant to Section
3 of this Agreement, breach of Executive's agreement not to engage in business
for another enterprise of the type engaged in by the Company; or (iii) the
engaging in unethical or illegal behavior which is of a public nature, brings
LTC into disrepute, and result in material damage to the Company. The Company
shall have the right to suspend Executive with pay, for a reasonable period to
investigate allegations of conduct which, if proven, would establish a right to
terminate this Agreement for Cause, or to permit a felony charge to be tried.
Immediately upon the conclusion of such temporary period, unless Cause to
terminate this Agreement has been established, Executive shall be restored to
all duties and responsibilities as if such suspension had never occurred;
(c) A resignation by Executive shall not be deemed to be
voluntary and shall be deemed to be a resignation with "Good Reason" if it is
based upon (i) a diminution in Executive's title, duties, or salary; (ii) a
reduction in benefits which is not part of an across-the-board reduction in
benefits of all senior executive personnel; (iii) a direction by the Board of
Directors that Executive report to any person or group other than the Chief
Executive Officer or the Board of Directors, or (iv) a geographic relocation of
Executive's place of work a distance for more than seventy-five (75) miles from
LTC's offices located at 00000 Xxxxxxx Xxxxx Xxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx
00000;
(d) "Affiliate" means with respect to any Person, a
Person who, directly or indirectly, through one or more intermediaries,
controls, is controlled by or is under common control, with the Person
specified;
(e) "Base Salary" means, as of any date of termination of
employment, the highest base salary of Executive in the then current fiscal year
or in any of the last four fiscal years immediately preceding such date of
termination of employment;
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(f) "Beneficial Owner" shall have the meaning given to
such term in Rule 13d-3 under the Exchange Act;
(g) A "Change in Control" occurs if:
(i) Any Person or related group of Persons
(other than Executive and her Related Persons, the Company or a Person that
directly or indirectly controls, is controlled by, or is under common control
with, the Company) is or becomes the Beneficial Owner, directly or indirectly,
of securities of the Company representing 30% or more of the combined voting
power of the Company's then outstanding securities; or
(ii) The stockholders of the Company approve a
merger or consolidation of the Company with any other corporation (or other
entity), other than a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 66-2/3% of the combined voting
power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation; provided, however,
that a merger or consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no Person acquires 30% or more of the
combined voting power of the Company's then outstanding securities shall not
constitute a Change in Control; or
(iii) The Stockholders of the Company approve a
plan of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets;
or
(iv) A majority of the members of the Board of
Directors of the Company cease to be Continuing Directors;
(h) "Code" means the Internal Revenue Code of 1986, as
amended.
(i) "Continuing Directors" means, as of any date of
determination, any member of the Board of Directors who (i) was a member of such
Board of Directors on the date of the Agreement or (ii) was nominated for
election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such Board of Directors at the
time of such nomination or election.
(j) "Exchange Act" means the Exchange Act of 1934, as
amended.
(k) "Person" means any individual, corporation,
partnership, limited liability company, trust, association or other entity.
(l) "Related Person" means any immediate family member
(spouse, partner, parent, sibling or child whether by birth or adoption) of the
Executive and any trust, estate or foundation, the beneficiary of which is the
Executive and/or an immediate family member of the Executive.
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6. Certain Benefits Upon Termination. Executive's employment
shall be terminated upon the earlier of (i) the voluntary resignation of
Executive with or without Good Reason; (ii) Executive's death or permanent
disability; or (iii) upon the termination of Executive's employment by LTC for
any reason at any time. In the event of such termination, the below provisions
of this Section 6 shall apply, and in the event of a Change of Control, whether
or not Executive's employment is terminated thereby, Section 6(b) shall apply,
and in the event of a Change in Control, whether or not Executive's employment
is terminated thereby, Section 6(b) shall apply.
(a) If Executive's employment by LTC terminates for any
reason other than as a result of (i) a termination for Cause, or (ii) a
voluntary resignation by Executive without a Good Reason, or (iii) a Change in
Control of the Company, then LTC shall pay Executive a lump sum severance
payment equal to two times her Base Salary; provided that if employment
terminates by reason of Executive's death or disability, then such salary shall
be paid only to the extent the Company has available "key man" life, disability
or similar insurance relating to the death or disability of Executive;
(b) Upon a Change in Control of the Company whether or
not Executive's employment is terminated thereby, in lieu of the severance
payment described in Section 6(a) above, LTC shall pay Executive a lump sum
severance payment in cash equal to $1.0 million, and all stock options and/or
restricted stock shall automatically vest concurrently upon a Change in Control,
notwithstanding any prior existing vesting schedule;
(c) If Executive's employment by LTC terminates for any
reason, except for LTC's termination of Executive's employment for Cause or a
voluntary resignation by Executive without a Good Reason, LTC shall offer to
Executive the opportunity to participate in all Company-provided medical and
dental plans to the extent Executive elects and remains eligible for coverage
under COBRA and for a maximum period of eighteen (18) months at Company expense;
provided, however, in the event Executive's employment by LTC terminated upon a
Change in Control of the Company, then Executive shall not be given the
opportunity to participate in any of such medical and dental plans, except to
the extent required by law;
(d) In the event that Executive's employment terminates
by reason of her death, all benefits provided in this Section 6 shall be paid to
her estate or as her executor shall direct, but payment may be deferred until
Executive's executor or personal representative has been appointed and qualified
pursuant to the laws in effect in Executive's jurisdiction of residence at the
time of her death;
(e) LTC shall make all payments pursuant to the foregoing
subsections (a) through (d) within seven (7) days following the date of
termination of Executive's employment or consummation of a Change in Control of
the Company, as applicable;
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(f) Notwithstanding the foregoing, LTC shall have no
liability under this Section if Executive's employment pursuant to this
Agreement is terminated by LTC for Cause or by Executive without a Good Reason;
provided, however, that if Executive's employment pursuant to this Agreement is
terminated by LTC for Cause or by Executive without a Good Reason at any time
after a Change of Control which did not result in Executive's employment being
terminated, such post-Change of Control termination by LTC for Cause or by
Executive without a Good Reason shall not affect in any way Executive's
entitlement to the lump sum severance payment described in Section 6(b) above or
any other rights, benefits or entitlements to which Executive may be entitled as
a result of such Change of Control;
(g) Gross-Up.
(i) If it shall be determined that any payment,
distribution or benefit received or to be received by Executive from the Company
(whether payable pursuant to the terms of this Agreement or any other plan,
arrangements or agreement with the Company or a Affiliate (as defined above)
("Payments")) would be subject to the excise tax imposed by Section 4999 of the
Code (the "Excise Tax"), then Executive shall be entitled to receive an
additional payment (the "Excise Tax Gross-Up Payment") in an amount such that
the net amount retained by Executive, after the calculation and deduction of any
Excise Tax on the Payments and any federal, state and local income taxes and
excise tax on the Excise Tax Gross-Up Payment provided for in this Section 6(g),
shall be equal to the Payments. In determining this amount, the amount of the
Excise Tax Gross-Up Payment attributable to federal income taxes shall be
reduced by the maximum reduction in federal income taxes that could be obtained
by the deduction of the portion of the Excise Tax Gross-Up Payment attributable
to state and local income taxes. Finally, the Excise Tax Gross-Up Payment shall
be reduced by income or excise tax withholding payment made by the Company or
any affiliate of either to any federal, state or local taxing authority with
respect to the Excise Tax Gross-Up Payment that was not deducted from
compensation payable to Executive.
(ii) All determinations required to be made under
this Section 6(g), including whether and when an Excise Tax Gross-Up Payment is
required and the amount of such Excise Tax Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, except as specified in Section
6(g)(i) above, shall be made by the Company's independent auditors (the
"Accounting Firm"), which shall provide detailed supporting calculations both to
the Company and Executive. Such determination of tax liability made by the
Accounting Firm shall be subject to review by Executive's tax advisor and, if
Executive's tax advisor does not agree with such determination reached by the
Accounting Firm, then the Accounting Firm and Executive's tax advisor shall
jointly designate a nationally recognized public accounting firm, which shall
make such determination. All reasonable fees and expenses of the accountants and
tax advisors retained by either Executive or the Company shall be borne by the
Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section
6(g), shall be paid by the Company to Executive within five days after the
receipt of such determination. Any determination by a jointly designated public
accounting firm shall be binding upon the Company and Executive.
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(iii) As a result of the uncertainty in the
application of Subsection 4999 of the Code at the time of the initial
determination thereunder, it is possible that Excise Tax Gross-Up Payments will
not have been made by the Company that should have been made consistent with the
calculations required to be made hereunder ("Underpayment"). In the event that
Executive thereafter is required to make a payment of any Excise Tax, any such
Underpayment calculated in accordance with and in the same manner as the Excise
Tax Gross-Up Payment in Section 6(g)(i) above shall be promptly paid by the
Company to or for the benefit of Executive. In the event that the Excise Tax
Gross-Up Payment exceeds the amount subsequently determined to be due, such
excess shall constitute a loan from the Company (together with interest at the
rate provided in Section 1274(b)(2)(B) of the Code).
7. Tax Liability Loan. Upon a Change in Control of the Company,
whether or not Executive's employment is terminated as a result thereof, the
Company shall offer Executive an unsecured loan in the amount necessary to fund
Executive's tax liability arising from the accelerated vesting of restricted
shares held by Executive, if any. Such loan shall be due, in full, in ten (10)
years from the date made and shall bear interest at the then-current Applicable
Federal Rate (the minimum rate necessary to avoid "unstated interest" under
Section 7872 of the Code) with interest payments to be paid to the Company
annually. Such loan shall be evidenced by a promissory note signed by, and with
full recourse to, Executive.
8. Indemnification. LTC shall indemnify Executive and hold her
harmless from and against all claims, actions, losses, damages, expense or
liabilities (including expenses of defense and settlement) ("Claim") based upon
or in any way arising from or connected with her employment by LTC, to the
maximum extent permitted by law. To the extent permitted by law, LTC shall
advance to Executive any expenses necessary in connection with the defense of
any Claim which is brought if indemnification cannot be determined to be
available prior to the conclusion of, or the investigation of, such Claim. The
parties hereto agree that each understands and has understood that
notwithstanding the above-stated provisions, nothing herein shall require LTC to
hold harmless or indemnify Executive with respect to any Claim which is brought
or asserted against Executive by LTC. LTC shall investigate in good faith the
availability and cost of directors' and officers' insurance and shall include
Executive as an insured in any directors and officers insurance policy of such
insurance it maintains.
9. Attorney Fees. In the event that any action or proceeding is
brought to enforce the terms and provisions of this Agreement, the prevailing
party shall be entitled to recover reasonable attorney fees.
10. Notices. All notices and other communications provided to
either party hereto under this Agreement shall be in writing and delivered by
certified or registered mail to such party at its/her address set forth below
its/her signature hereto, or at such other address as may be designated with
postage prepaid, shall be deemed given when received.
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11. Construction. In constructing this Agreement, if any portion
of this Agreement shall be found to be invalid or unenforceable, the remaining
terms and provisions of this Agreement shall be given effect to the maximum
extent permitted without considering the void, invalid or unenforceable
provisions. In construing this Agreement, the singular shall include the plural,
the masculine shall include the feminine and neuter genders as appropriate, and
no meaning in effect shall be given to the captions of the sections in this
Agreement, which are inserted for convenience of reference only.
12. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
13. Governing Law. The provisions of this Agreement shall be
construed and interpreted in accordance with the internal laws of the State of
California as at the time in effect.
14. Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all other prior agreements (including the Prior
Employment Agreement) and undertakings, both written and oral, among Executive
and the Company, with respect to the subject matter hereof.
IN WITNESS WHEREOF, this Agreement shall be effective as of
the date specified in the first paragraph of this Agreement.
LTC, PROPERTIES, INC.,
a Maryland corporation
Address: 00000 Xxxxxxx Xxxxx Xxx /s/ XXXXX X. XXXXXXXXXXX
Suite 350 _____________________________________
Xxxxxx, Xxxxxxxxxx 00000 Xxxxx X. Xxxxxxxxxxx
Chairman and Chief Executive Officer
/s/ XXXXXX X. XXXX
By: _____________________________________
Compensation Committee Representative
/s/ XXXXX XXXXXXX
Address: 0000 Xxxxxxx Xxxxx _____________________________________
Xxx Xxxxx, XX 00000 Xxxxx Xxxxxxx
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