EXHIBIT 10.15.2.3
CHANGE-IN-CONTROL SEVERANCE AGREEMENT
THIS CHANGE-IN-CONTROL SEVERANCE AGREEMENT (the "Agreement") is made
as of May 1, 1998, by and between VENTAS, INC., a Delaware corporation, (the
"Company") and T. XXXXXXX XXXXX (the "Employee").
RECITALS:
A. The Employee is employed by the Company.
B. The Company recognizes that the Employee's contribution to the
Company's growth and success has been and continues to be significant.
C. The Company wishes to encourage the Employee to remain with and
devote full time and attention to the business affairs of the Company and wishes
to provide income protection to the Employee for a period of time in the event
of a Change in Control.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT:
1. Definitions.
a. "Base Salary" shall mean the Employee's regular annual rate of
base pay in gross as of the date in question as elected under Paragraph 3(a).
b. "Cause" shall mean the Employee's (i) conviction of or plea of
nolo contendere to a crime involving moral turpitude; or (ii) willful and
material breach by Employee of his duties and responsibilities, which is
committed in bad faith or without reasonable belief that such breaching conduct
is in the best interests of the Company, but with respect to (ii) only if the
Board of Directors of the Company (the "Board") adopts a resolution by a vote of
at least 75% of its members so finding after giving the Employee and his
attorney an opportunity to be heard by the Board.
c. "Change in Control" The term "Change in Control" shall mean any
one of the following events:
(i) An acquisition (other than directly from the Company) of
any voting securities of the Company (the "Voting Securities") by any "Person"
(as defined in Paragraph l(f) hereof) immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule 13d-3 under the 0000 Xxx) of
20% or more of the combined voting power of Company's then outstanding Voting
Securities; provided, however, that in determining whether a Change in Control
has occurred, Voting Securities which are acquired in an acquisition by (i) the
Company or any of its subsidiaries, (ii) an employee benefit plan (or a trust
forming a part thereof) maintained by the Company or any of its subsidiaries or
(iii) any Person in connection with an acquisition referred to in the
immediately preceding clauses (i) and (ii) shall not constitute an acquisition
which would cause a Change in Control.
(ii) The individuals who, as of May 1,1998, constituted the
Board of Directors of the Company (the "Incumbent Board") cease for any reason
to constitute over 50% of the Board; provided, however, that if the election, or
nomination for election by the Company's stockholders, of any new director was
approved by a vote of over 50% of the Incumbent Board, such new director shall,
for purposes of this Section l(c)(ii), be considered as though such person were
a member of the Incumbent Board; provided, further, however, that no individual
shall be considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened "Election Contest"
(as described in Rule 14a-ll promulgated under the 0000 Xxx) or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board of Directors of the Company (a "Proxy Contest"), including by
reason of any agreement intended to avoid or settle any Election Contest or
Proxy Contest.
(iii) Consummation of a merger, consolidation or reorganization
involving the Company, unless each of the following events occurs in connection
with such merger, consolidation or reorganization:
(A) the stockholders of the Company, immediately before
such merger, consolidation or reorganization, own, directly or indirectly
immediately following such merger, consolidation or reorganization, over 50% of
the combined voting power of all voting securities of the corporation resulting
from such merger or consolidation or reorganization (the "Surviving Company")
over which any Person has Beneficial Ownership in substantially the same
proportion as their ownership of the Voting Securities immediately before such
merger, consolidation or reorganization;
(B) the individuals who were members of the Incumbent
Board immediately prior to the execution of the agreement providing for such
merger, consolidation or reorganization constitute over 50% of the members of
the board of directors of the Surviving Company; and
(C) no Person (other than the Company, any of its
subsidiaries, any employee benefit plan (or any trust forming a part thereof)
maintained by the Company, the Surviving Company or any Person who, immediately
prior to such merger, consolidation or reorganization had Beneficial Ownership
of 20% or more of the then outstanding Voting Securities) has Beneficial
Ownership of 20% or more of the combined voting power of the Surviving Company's
then outstanding voting securities.
(iv) Approval by the Company's stockholders of a complete
liquidation or dissolution of the Company.
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(v) Approval by Company's stockholders of an agreement for
the sale or other disposition of all or substantially all of the assets of the
Company to any Person (other than a transfer to a subsidiary of the Company).
(vi) Any other event that the Board shall determine
constitutes an effective Change in Control of Company.
(vii) Notwithstanding the foregoing, a Change in Control shall
not be deemed to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the outstanding Voting
Securities as a result of the acquisition of Voting Securities by the Company
which, by reducing the number of Voting Securities outstanding, increases the
proportional number of shares Beneficially Owned by the Subject Person; provided
that if a Change in Control would occur (but for the operation of this sentence)
as a result of the acquisition of Voting Securities by the Company, and after
such share acquisition by the Company, the Subject Person becomes the Beneficial
Owner of any additional Voting Securities which increases the percentage of the
then outstanding Voting Securities Beneficially Owned by the Subject Person,
then a Change in Control shall occur.
d. "Change-in-Contr0l Date" shall mean the date immediately prior
to the effectiveness of the Change in Control.
e. "Good Reason" The Employee shall have good reason to terminate
employment with the Company if (i) the Employee's title, duties,
responsibilities or authority is reduced or diminished from those in effect on
the Change-in-Control Date without the Employee's written consent; (ii) the
Employee's compensation is reduced; (iii) the Employee's benefits are reduced,
other than pursuant to a uniform reduction applicable to all managers of the
Company; or (iv) the Employee is asked to relocate his office to a place more
than 30 miles from his business office on the Change-in-Control Date.
f. "Person" shall have the meaning ascribed to such term in Section
3(a)(9) of the Securities Exchange Act of 1934 and used in Sections 13(d) and
14(d) thereof, including a "group" as defined in Section 13(d).
g. "Target Bonus" shall mean the full amount of bonuses and/or
performance compensation (including assumed awards granted under the Company's
1997 Incentive Compensation Plan) that would be payable to the Employee,
assuming all performance criteria on which such bonus and/or performance
compensation are based were deemed to be satisfied, in respect of services for
the calendar year in which the date in question occurs.
h. "Termination of Employment" shall mean (i) the termination of
the Employee's employment by the Company other than such a termination in
connection with an offer of immediate reemployment by a successor or assign of
the Company or a purchaser of the Company or its assets under terms and
conditions which would not permit the Employee to terminate his employment for
Good Reason or otherwise during any Window Period; or (ii) the Employee's
termination of employment with the Company for Good Reason or during any Window
Period.
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i. "Window Period" shall mean either of two 30-day periods of time
commencing 30 days after (i) a Change in Control and (ii) one year after a
Change in Control.
2. Term. The initial term of this Agreement shall be for a three-year
period commencing on May 1,1998 (the "Effective Date"). The Term shall be
automatically extended by one additional day for each day beyond the Effective
Date that the Employee remains employed by the Company until such time as the
Company elects to cease such extension by giving written notice of such election
to the Employee. In such event, the Agreement shall terminate on the third
anniversary of the effective date of such election notice. Notwithstanding the
foregoing, this Agreement shall automatically terminate if and when the Employee
terminates his employment with the Company or two years after the
Change-in-Control Date, whichever first occurs.
3. Severance Benefits. If at any time following a Change in Control
and continuing for two years thereafter, the Company terminates the Employee
without Cause, or the Employee terminates employment with the Company either for
Good Reason or during any Window Period, then as compensation for services
previously rendered the Employee shall be entitled to the following benefits:
a. Cash Payment. The Employee shall be paid cash equal to two times
the greater of:
(i) the sum of (x) the Employee's Base Salary and Target
Bonus as of the Termination of Employment, and (y) the fair market value
(determined as of the Termination of Employment) of any targeted number of
restricted shares authorized to be issued to the Employee in respect of the year
in which such Termination of Employment occurs (without regard to any
acceleration of the award for such year), assuming for such purpose that all
performance criteria applicable to such award with respect to the year in which
such Termination of Employment occurs were deemed to be satisfied, or
(ii) the sum of (x) the Employee's Base Salary and Target
Bonus as of the Change-in-Control Date, and (y) the fair market value
(determined as of the Change-in-Control Date) of any targeted number of
restricted shares authorized to be issued to the Employee in respect of the year
in which such Change-in-Control Date occurs (without regard to any acceleration
of the award for such year), assuming for such purpose that all performance
criteria applicable to such award with respect to the year in which such
Change-in-Control Date occurs were deemed to be satisfied.
For purposes of this Agreement, "fair market value" shall have the meaning
ascribed to such term under the Company's Incentive Compensation Plan. Payment
shall be made in a single lump sum upon the Employee's effective date of
termination.
b. Continuation of Benefits.
(i) For a period of two years following the Termination of
Employment, the Company, at its sole cost and expense, shall provide health
insurance benefits to Employee (and his family) equivalent to the coverage that
the Employee would have had had he remained a participant under the health
insurance plans applicable to Employee on the date of Termination of Employment,
or, at the Employee's election, the plans applicable to Employee as of the
Change-in-Control Date. Such health insurance benefits shall not have any
waiting period for coverage and shall provide
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coverage for any pre-existing condition. Following this continuation period, the
Employee shall be entitled to receive continuation coverage under Part 6 of
Title I of ERISA ("COBRA Benefits") treating the end of this period as a
termination of the Employee's employment if allowed by law.
(ii) For a period of two years following the Termination of
Employment, the Company shall maintain in force, at its expense, the Employee's
life insurance benefits in effect as of the Change-in-Control Date or as of the
date of Termination of Employment, whichever coverage limits are greater.
(iii) For a period of two years following the Employee's
Termination of Employment, the Company shall provide short-term and long-term
disability insurance benefits to Employee equivalent to the coverage that the
Employee would have had had he remained employed or a participant under the
disability insurance plans applicable to Employee on the date of Termination of
Employment, or, at the Employee's election, the plans applicable to Employee as
of the Change-in-Control Date. Should Employee become disabled during such
period, Employee shall be entitled to receive such benefits, and for such
duration, as the applicable plan provides.
c. Retirement Savings Plan. To the extent not already vested
pursuant to the terms of such plan, the Employee's interests under the
Retirement Savings Plan shall be automatically fully (i.e., 100%) vested,
without regard to otherwise applicable percentages for the vesting of employer-
matching contributions based upon the Employee's years of service with the
Company.
d. Plan Amendments. The Company shall adopt such employee benefit
plans or amendments to its employee benefit plans, as applicable, as are
necessary to effectuate the provisions of this Agreement.
4. Golden Parachute Tax Reimbursement. Whether or not any payments are
made pursuant to Section 3 above, if a Change in Control occurs at any time and
the Employee reasonably determines that any payment or distribution by the
Company or any of its affiliates to or for the benefit of the Employee, whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise pursuant to or by reason of any other agreement, policy,
plan, program or arrangement, including without limitation any restricted stock,
stock option, stock appreciation right or similar right, or the lapse or
termination of any restriction on or the vesting or exercisablility of any of
the foregoing (individually and collectively, the "Payment"), would be subject
to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986,
as amended (the "Code") (or any successor provision thereto) by reason of being
considered "contingent on a change in ownership or control," within the meaning
of Section 280G of the Code (or any successor provision thereto), or any
interest or penalties with respect to such excise tax (such excise tax, together
with any such interest and penalties, being hereinafter collectively referred to
as the "Excise Tax"), then the Company shall pay to the Employee an additional
payment or payments (individually and collectively, the "Gross-Up Payment"). The
Gross-Up Payment shall be in an amount such that, after payment by the Employee
of all taxes required to be paid by the Employee with respect to the receipt
thereof under the terms of any federal, state or local government or taxing
authority (including any interest or penalties imposed with respect to such
taxes), including any Excise Tax imposed with respect to the Gross-Up Payment,
the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payment.
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The Gross-Up Payment shall be paid to the Employee within 30 days of its receipt
of written notice from the Employee that such Excise Tax has been paid or will
be payable at any time in the future.
5. No Mitigation Required or Setoff Permitted. In no event shall
Employee be obligated to seek other employment or take other action by way of
mitigation of the amounts payable to Employee under the terms of this Agreement,
and all such amounts shall not be reduced whether or not Employee obtains other
employment. Further, the Company's obligations to make any payments hereunder
shall not be subject to or affected by any setoff, counterclaims or defenses
which the Company may have against Employee or others.
6. Waiver of Other Severance Benefits. The benefits payable pursuant
to this Agreement are in lieu of any other severance benefits which may
otherwise be payable by the Company or its affiliates to the Employee upon
termination of employment pursuant to a severance program of the Company or its
affiliates (including, without limitation, any benefits to which Employee might
otherwise be entitled under any other severance or change-in-control or similar
agreement previously entered into between Employee and the Company or any of its
affiliates).
7. Employment at Will. Notwithstanding anything to the contrary
contained herein, the Employee's employment with the Company is not for any
specified term and may be terminated by the Employee or by the Company at any
time, for any reason, with or without cause, without any liability, except with
respect to the payments provided hereunder or as required by law or any other
contract or employee benefit plan.
8. Disputes. Any dispute or controversy arising under, out of, or in
connection with this Agreement 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. The Company shall pay
all costs of the arbitration and all attorneys' and accountants' fees of the
Employee in connection therewith, including any litigation to enforce any
arbitration award.
9. Successors; Binding Agreement. This Agreement shall not be
terminated by the voluntary or involuntary dissolution of the Company or by any
merger or consolidation where the Company is not the surviving corporation, or
upon any transfer of all or substantially all of the Company's stock or assets.
In the event of such merger, consolidation or transfer, the provisions of this
Agreement shall be binding upon and shall inure to the benefit of the surviving
corporation or corporation to which such stock or assets of the Company shall be
transferred.
10. Notices. Any notice or other communication hereunder shall be in
writing and shall be effective upon receipt (or refusal of receipt) if delivered
personally, or sent by overnight courier if signature for the receiving party is
obtained, or sent by certified or registered mail, postage prepaid, to the other
party at the address set forth below:
If to the Company: Ventas, Inc.
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: President
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If to Employee: T. Xxxxxxx Xxxxx
00000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Either party may change its specified address by giving notice in
writing to the other.
11. Indemnification. The Company shall indemnify, defend and hold the
Employee harmless from and against any liability, damages, costs and expenses
(including attorneys' fees) in connection with any claim, cause of action,
investigation, litigation or proceeding involving him by reason of his having
been an officer, director, employee or agent of the Company, except to the
extent it is judicially determined that the Employee was guilty of gross
negligence or willful misconduct in connection with the matter giving rise to
the claim for indemnification. This indemnification shall be in addition to and
shall not be substituted for any other indemnification or similar agreement or
arrangement which may be in effect between the Employee and the Company or may
otherwise exist. The Company also agrees to maintain adequate directors' and
officers' liability insurance, if applicable, for the benefit of Employee for
the term of this Agreement and for five years thereafter.
12. ERISA. Many or all of the employee benefits addressed in Paragraph
3(b) and (c) exist under plans which constitute employee welfare benefit plans
("Welfare Plans") within the meaning of Section 3(1) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"). Any payments pursuant to this
Agreement which could cause any of such Plans not to constitute a Welfare Plan
shall be deemed instead to be made pursuant to a separate "employee pension
benefit plan" within the meaning of Section 3(2) of ERISA or a "top hat" plan
under Section 201(2) of ERISA as to which the applicable portions of the
document constituting the Welfare Plan shall be deemed to be incorporated by
reference. None of the benefits hereunder may be assigned in any way.
13. Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision, which other provision shall remain in full force and effect.
14. Interpretation. The headings used herein are for convenience only
and do not limit or expand the contents of this Agreement. Use of any male
gender pronoun shall be deemed to include the female gender also.
15. No Waiver. No waiver of a breach of any provision of this
Agreement shall be construed to be a waiver of any other breach of this
Agreement. No waiver of any provision of this Agreement shall be enforceable
unless it is in writing and signed by the party against whom it is sought to be
enforced.
16. Survival. Any provisions of this Agreement creating obligations
extending beyond the term of this Agreement shall survive the expiration or
termination of this Agreement, regardless of the reason for such termination.
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17. Amendments. Any amendments to this Agreement shall be effective
only if in writing and signed by the parties hereto.
18. Entire Agreement. This Agreement constitutes the entire agreement
of the parties with respect to the subject matter hereof.
19. Governing Law. This Agreement shall be interpreted in accordance
with and governed by the law of the State of Delaware.
20. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
VENTAS, INC.
/s/ Xxxxxx X. Xxxx
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By: Xxxxxx X. Xxxx
President and Chief Operating Officer
/s/ T. Xxxxxxx Xxxxx
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T. Xxxxxxx Xxxxx
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