EXHIBIT 10.19
SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated
this 5th day of March, 2004, but effective as of January 1, 2004 (the
"Agreement"), is entered into by and between HEALTH CARE REIT, INC., a Delaware
corporation, (the "Corporation"), and XXXX X. XXXXX (the "Executive").
WHEREAS, the Corporation and the Executive entered into an
Employment Agreement, effective as of January 1, 1997;
WHEREAS, the Corporation and the Executive entered into an
Amended and Restated Employment Agreement, effective as of January 1, 2000;
WHEREAS, the Compensation Committee of the Corporation's Board
of Directors has approved certain modifications to the terms of such Amended and
Restated Employment Agreement; and
WHEREAS, the Corporation wishes to assure itself of the
services of the Executive for the period provided in this Agreement and the
Executive is willing to serve in the employ of the Corporation for such period
upon the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties, intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT
The Corporation hereby agrees to employ the Executive as the
Corporation's Vice President and Corporate Secretary, upon the terms and
conditions herein contained, and the Executive hereby agrees to accept such
employment and to serve in such positions, and to perform the duties and
functions customarily performed by the Vice President and Corporate Secretary of
a publicly traded corporation during the term of this Agreement. In such
capacity, the Executive shall report only to the Corporation's Chief Executive
Officer ("CEO"), and shall have the powers and responsibilities set forth in
Article IV of the Corporation's By-Laws as well as such additional powers and
responsibilities consistent with her position as the CEO may assign to her.
Throughout the term of this Agreement, the Executive shall
devote her best efforts and all of her business time and services to the
business and affairs of the Corporation.
2. TERM OF AGREEMENT
The current term of employment under this Agreement shall
expire on January 31, 2005. Upon the expiration of such term, the term of
employment hereunder shall automatically be extended without further action by
the parties for successive two (2) year renewal terms, unless either party shall
give at least six (6) months advance written notice to the other of her or its
intention that this Agreement shall terminate upon the expiration of the current
term or the then current renewal term, as the case may be.
Notwithstanding the foregoing, the Corporation shall be
entitled to terminate this Agreement immediately, subject to a continuing
obligation to make any payments required under Section 5 below, if the Executive
(i) becomes disabled as described in Section 5(b), (ii) is terminated for Cause,
as defined in Section 5(c), or (iii) voluntarily terminates her employment
before the current term of this Agreement expires, as described in Section 5(d).
3. SALARY AND BONUS
The Executive shall receive a base salary during the term of
this Agreement at a rate of not less than $128,418 per annum for 2004, and at a
rate of not less than $128,418 per annum for subsequent years, payable in
substantially equal semi-monthly installments. The Compensation Committee of the
Board shall consult with the CEO and review the Executive's base salary at
annual intervals, and may adjust the Executive's annual base salary from time to
time as the Committee deems to be appropriate.
The Executive shall also be eligible to receive a bonus from
the Corporation each year during the term of this Agreement, with the actual
amount of such bonus to be determined by the Compensation Committee of the
Corporation's Board, using such performance measures as the Committee deems to
be appropriate.
4. ADDITIONAL COMPENSATION AND BENEFITS
The Executive shall receive the following additional
compensation and welfare and fringe benefits:
(a) Stock Options and Other Long-Term Incentives. The
Executive has been granted incentive stock options, nonstatutory stock
options, and shares of restricted stock pursuant to the terms of the
Corporation's 1995 Stock Incentive Plan. During the remaining term of
the Agreement, any additional stock options, restricted stock or other
awards under the 1995 Stock Incentive Plan shall be at the discretion
of the Compensation Committee of the Corporation's Board.
(b) Health Insurance. The Corporation shall provide the
Executive and her dependents with health insurance, life insurance and
disability coverage on terms no less favorable than that from time to
time made available to other key employees.
(c) Vacation. The Executive shall be entitled to up to
three (3) weeks of vacation during each year during the term of this
Agreement and any extensions thereof, prorated for partial years.
(d) Business Expenses. The Corporation shall reimburse
the Executive for all reasonable expenses she incurs in promoting the
Corporation's business, including expenses
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for travel and similar items, upon presentation by the Executive from
time to time of an itemized account of such expenditures.
In addition to the benefits provided pursuant to the preceding
paragraphs of this Section 4, the Executive shall be eligible to participate in
such other executive compensation and retirement plans of the Corporation as are
applicable generally to other officers, and in such welfare benefit plans,
programs, practices and policies of the Corporation as are generally applicable
to other key employees, unless such participation would duplicate, directly or
indirectly, benefits already accorded to the Executive.
5. PAYMENTS UPON TERMINATION
(a) Involuntary Termination. If the Executive's
employment is terminated by the Corporation during the term of this Agreement,
the Executive shall be entitled to receive her base salary accrued through the
date of termination, any accrued but unpaid vacation pay, plus any bonuses
earned but unpaid with respect to fiscal years or other periods preceding the
termination date. The Executive shall also receive any nonforfeitable benefits
payable to her under the terms of any deferred compensation, incentive or other
benefit plan maintained by the Corporation, payable in accordance with the terms
of the applicable plan.
If the termination is not a termination for Cause, as
described in paragraph (c), a voluntary termination by the Executive as
described in paragraph (d), or a result of the Executive's death or disability,
then the Corporation shall also be obligated to make a series of monthly
severance payments to the Executive for each month during the remaining term of
this Agreement, but not less than twelve (12) months. Each monthly payment shall
be equal to one-twelfth (1/12th) of the sum of (i) the Executive's annual base
salary, as in effect on the date of termination, and (ii) the greater of (A) the
annual bonus paid to the Executive for the last fiscal year preceding the
termination date or (B) a minimum bonus equal to thirty percent (30%) of her
annual base salary. If the Executive obtains a replacement position with any new
employer (including a position as an officer, employee, consultant, or agent, or
self-employment as a partner or sole proprietor), the payments shall be reduced
by all amounts the Executive receives as compensation for services performed
during such period. The Executive shall be under no duty to mitigate the amounts
owed to her under this paragraph (a) by seeking such a replacement position.
In addition, if the termination is not a termination for Cause
as described in paragraph (c), a voluntary termination by the Executive as
described in paragraph (d), or a result of the Executive's death or disability,
then:
(i) Any stock options, restricted stock or other awards
granted to the Executive under the Corporation's 1995 Stock Incentive
Plan shall become fully vested and, in the case of stock options,
exercisable in full;
(ii) The Executive shall be provided continued coverage at the
Corporation's expense under any life, health and disability insurance
programs maintained by the Corporation in which the Executive
participated at the time of her termination for the remaining term of
the Agreement (but not less than six (6) months), or until, if earlier,
the
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date the Executive obtains comparable coverage under benefit plans
maintained by a new employer; and
(iii) The Executive may elect, by delivering written notice to
the Corporation within thirty (30) days following such termination of
her employment, to receive from the Corporation a lump sum severance
payment in lieu of the monthly severance payments described in the
preceding paragraph in an amount equal to the present value of such
payments. Such present value shall be calculated using a discount rate
equal to the interest rate on 90-day Treasury bills, as reported in the
Wall Street Journal (or similar publication) for the date the election
is received by the Corporation. The Corporation shall deliver the
payment to the Executive, in the form of a bank cashier's check, within
ten (10) business days following the date on which the Corporation
receives written notice of the Executive's election.
(b) Disability. The Corporation shall be entitled to
terminate this Agreement, if the Board determines that the Executive has been
unable to attend to her duties for at least ninety (90) days because of a
medically diagnosable physical or mental condition, and has received a written
opinion from a physician acceptable to the Board that such condition prevents
the Executive from resuming full performance of her duties and is likely to
continue for an indefinite period. Upon such termination, the Executive shall be
entitled to receive her base salary accrued through the date of termination, any
accrued but unpaid vacation pay, plus any bonuses earned but unpaid with respect
to fiscal years or other periods preceding the termination date. In addition,
the Corporation shall make a series of monthly disability payments to Executive,
each equal to one-twelfth (1/12th) of the sum of (i) her annual base salary, as
in effect at the time Executive became permanently disabled, and (ii) the
greater of (A) the annual bonus paid to the Executive for the last fiscal year
preceding the date of disability or (B) a minimum bonus equal to thirty percent
(30%) of the Executive's annual base salary. Payment of such disability benefit
shall commence with the month following the date of the termination by reason of
permanent disability and continue each month for the remaining current term of
this Agreement (but not less than twelve (12) months), but shall terminate at an
earlier date if the Executive returns to active employment, either with the
Corporation or otherwise. Any amounts payable under this Section 5(b) shall be
reduced by any amounts paid to the Executive under any long-term disability plan
or other disability program or insurance policies maintained or provided by the
Corporation.
(c) Termination for Cause. If the Executive's employment
is terminated by the Corporation for Cause, the amount the Executive shall be
entitled to receive from the Corporation shall be limited to her base salary
accrued through the date of termination, any accrued but unpaid vacation pay,
plus any bonuses earned but unpaid with respect to the fiscal year of the
Corporation most recently ended, and any nonforfeitable benefits payable to the
Executive under the terms of deferred compensation, incentive or other benefit
plans maintained by the Corporation.
For purposes of this Agreement, the term "Cause" shall be
limited to (i) action by the Executive involving willful disloyalty to the
Corporation, such as embezzlement, fraud, misappropriation of corporate assets
or a breach of the covenants set forth in Sections 9 and 10 below; or (ii) the
Executive being convicted of a felony; or (iii) the Executive being convicted of
any lesser crime or offense committed in connection with the performance of her
duties hereunder
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or involving moral turpitude; or (iv) the intentional and willful failure by the
Executive to substantially perform her duties hereunder as directed by the
Corporation's CEO (other than any such failure resulting from the Executive's
incapacity due to physical or mental disability) after a demand for substantial
performance is made on the Executive by the Board of Directors.
(d) Voluntary Termination by the Executive. If the
Executive resigns or otherwise voluntarily terminates her employment before the
end of the current term of this Agreement (other than in connection with a
Change in Corporate Control, as described in Section 6), the amount the
Executive shall be entitled to receive from the Corporation shall be limited to
her base salary accrued through the date of termination, any accrued but unpaid
vacation pay, plus any bonuses earned but unpaid with respect to any fiscal
years or other periods preceding the termination date, and any nonforfeitable
benefits payable to the Executive under the terms of any deferred compensation,
incentive or other benefit plans of the Corporation.
For purposes of this paragraph, a resignation by the Executive
shall not be deemed to be voluntary if the Executive is (1) assigned to a
position other than the Vice President or Corporate Secretary of the Corporation
(other than for Cause or by reason of permanent disability), (2) assigned duties
materially inconsistent with such position, or (3) directed to report to anyone
other than the Corporation's CEO.
6. EFFECT OF CHANGE IN CORPORATE CONTROL
(a) In the event of a Change in Corporate Control, the
vesting of any stock options, restricted stock or other awards granted to the
Executive under the terms of the Corporation's 1995 Stock Incentive Plan shall
be accelerated (to the extent permitted by the terms of such Plan) and such
awards shall become immediately vested in full and, in the case of stock
options, exercisable in full.
(b) If, at any time during the period of twelve (12)
consecutive months following the occurrence of a Change in Corporate Control,
and during the term of this Agreement, the Executive is involuntarily terminated
(other than for Cause) or elects to voluntarily resign her employment, the
Executive shall be entitled to receive monthly severance payments for
twenty-four months (24) months. Each monthly payment shall be equal to
one-twelfth (1/12th) of the sum of (i) the Executive's annual base salary, as in
effect at the time of the Change in Corporate Control, and (ii) the greater of
(A) the annual bonus paid to the Executive for the last fiscal year of the
Corporation ending prior to the Change in Corporate Control or (B) a minimum
bonus equal to thirty percent (30%) of her annual base salary.
(c) If the Executive is involuntarily terminated (other
than for Cause) or elects to voluntarily resign her employment within twelve
(12) months after a Change in Corporate Control, she may elect, by delivering
written notice to the Corporation within thirty (30) days following such
termination of her employment, to receive from the Corporation a lump sum
severance payment in lieu of the monthly payments described in the preceding
paragraph. The amount of this payment shall be equal to the present value of the
monthly payments described in the preceding paragraph. Such present value shall
be calculated using a discount rate equal to the interest rate on 90-day
Treasury bills, as reported in the Wall Street Journal (or similar publication)
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for the date the election is received by the Corporation. The Corporation shall
deliver the payment to the Executive, in the form of a bank cashier's check,
within ten (10) business days following the date on which the Corporation
receives written notice of the Executive's election.
In addition, if the Executive is involuntarily terminated
(other than for Cause) or elects to voluntarily resign her employment within
twelve (12) months after a Change in Corporate Control, she shall be entitled to
continued coverage at the Corporation's expense under any life, health and
disability insurance programs maintained by the Corporation in which the
Executive participated at the time of her termination, which coverage shall be
continued until the expiration of the current term of the Agreement (but not
less than six (6) months) or until, if earlier, the date the Executive obtains
comparable coverage under benefit plans maintained by a new employer.
(d) For purposes of this Agreement, a "Change in
Corporate Control" shall include any of the following events:
(1) The acquisition in one or more transactions of more than
twenty percent (20%) of the Corporation's outstanding Common Stock (or
the equivalent in voting power of any class or classes of securities of
the Corporation entitled to vote in elections of directors) by any
corporation, or other person or group (within the meaning of Section
14(d)(3) of the Securities Exchange Act of 1934, as amended);
(2) Any transfer or sale of substantially all of the assets of the
Corporation, or any merger or consolidation of the Corporation into or
with another corporation in which the Corporation is not the surviving
entity;
(3) Any election of persons to the Board of Directors which causes
a majority of the Board of Directors to consist of persons other than
"Continuing Directors". For this purpose, those persons who were
members of the Board of Directors on May 1, 1995, shall be "Continuing
Directors". Any person who is nominated for election as a member of the
Board after May 1, 1995, shall also be considered a "Continuing
Director" for this purpose if, and only if, his or her nomination for
election to the Board of Directors is approved or recommended by a
majority of the members of the Board (or of the relevant Nominating
Committee) and at least five (5) members of the Board are themselves
Continuing Directors at the time of such nomination; or
(4) Any person, or group of persons, announces a tender offer for
at least twenty percent (20%) of the Corporation's Common Stock, and
the Board of Directors appoints a special committee of the Board to
consider the Corporation's response to such tender offer.
(e) Notwithstanding anything else in this Agreement, if
any payment, accelerated vesting or other benefit provided by the Corporation to
the Executive in connection with a Change in Corporate Control, whether paid or
payable pursuant to the terms of this Agreement or otherwise (a "Parachute
Payment") is determined to be a parachute payment subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code (such excise tax, together
with any interest and penalties incurred by the Executive with respect to such
excise tax, are referred to as the "Excise Tax"), the Corporation shall make an
additional payment (the
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"Gross-Up Payment") to the Executive in an amount such that the net amount of
the Gross-Up Payment the Executive retains, after payment by the Executive of
all taxes imposed upon the Gross-Up Payment, including, without limitation, the
Excise Tax and any federal, state or local income taxes (and any interest and
penalties imposed with respect thereto) on the Gross-Up Payment, will be equal
to the Excise Tax liability imposed upon the Executive with respect to all
Parachute Payments (other than the Gross-Up Payment).
7. DEATH
If the Executive dies during the term of this Agreement, the
Corporation shall pay to the Executive's estate a lump sum payment equal to the
sum of the Executive's base salary accrued through the date of death, any
accrued but unpaid vacation pay, plus any bonuses earned but unpaid with respect
to fiscal years or other periods preceding the date of death. In addition, the
Corporation shall pay to the Executive's surviving spouse (or such other
beneficiary as the Executive may designate in writing) a lump sum payment equal
to the present value of a series of monthly payments for each month during the
remaining term of the Agreement (but not less than twelve (12) months), each in
an amount equal to one-twelfth (1/12th) of the sum of (i) the Executive's annual
base salary, as in effect on the date of death, and (ii) the greater of (A) the
annual bonus paid to the Executive for the last fiscal year preceding the date
of death or (B) a minimum bonus equal to thirty percent (30%) of the Executive's
annual base salary. Such present value shall be calculated using a discount rate
equal to the interest rate on 90-day Treasury bills, as reported in the Wall
Street Journal (or similar publication) for the date of death. In addition, the
death benefits payable by reason of the Executive's death under any retirement,
deferred compensation, life insurance or other employee benefit plan maintained
by the Corporation shall be paid to the beneficiary designated by the Executive,
and the stock options, restricted stock or other awards held by the Executive
under the Corporation's stock plans shall become fully vested, and, in the case
of stock options, exercisable in full, in accordance with the terms of the
applicable plan or plans.
8. WITHHOLDING
The Corporation shall, to the extent permitted by law, have
the right to withhold and deduct from any payment hereunder any federal, state
or local taxes of any kind required by law to be withheld with respect to any
such payment.
9. PROTECTION OF CONFIDENTIAL INFORMATION
The Executive agrees that she will keep all confidential and
proprietary information of the Corporation or relating to its business
confidential, and that she will not (except with the Corporation's prior written
consent), while in the employ of the Corporation or thereafter, disclose any
such confidential information to any person, firm, corporation, association or
other entity, other than in furtherance of her duties hereunder, and then only
to those with a "need to know." The Executive shall not make use of any such
confidential information for her own purposes or for the benefit of any person,
firm, corporation, association or other entity (except the Corporation) under
any circumstances during or after the term of her employment. The foregoing
shall not apply to any
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information which is already in the public domain, or is generally disclosed by
the Corporation or is otherwise in the public domain at the time of disclosure.
The Executive recognizes that because her work for the
Corporation may bring her into contact with confidential and proprietary
information of the Corporation, the restrictions of this Section 9 are required
for the reasonable protection of the Corporation and its investments and for the
Corporation's reliance on and confidence in the Executive.
10. COVENANT NOT TO COMPETE
The Executive hereby agrees that she will not, either during
the employment term or during the period of one (1) year from the time the
Executive's employment under this Agreement is terminated by her voluntarily, by
the Corporation for Cause, or because the Executive chooses not to extend the
term of this Agreement, engage in any business activities on behalf of any
enterprise which competes with the Corporation in the business of the passive
ownership of health care facilities, or passive investing in or lending to
health care-related enterprises. The Executive will be deemed to be engaged in
such competitive business activities if she participates in such a business
enterprise as an employee, officer, director, consultant, agent, partner,
proprietor, or other participant; provided that the ownership of no more than
two percent (2%) of the stock of a publicly traded corporation engaged in a
competitive business shall not be deemed to be engaging in competitive business
activities.
The Executive agrees that she shall not, for a period of one
year from the time her employment under this Agreement ceases (for whatever
reason), or, if later, during any period in which she is receiving monthly
severance payments under Section 5 or Section 6 of this Agreement, solicit any
employee or full-time consultant of the Corporation for the purposes of hiring
or retaining such employee or consultant. For this purpose, the Executive shall
be considered to be receiving monthly severance payments under Section 5 or
Section 6 of this Agreement during any period for which she would have received
such severance payments had she not elected to receive a lump sum severance
payment or had such payments not been offset by compensation received from a
successor employer.
11. INJUNCTIVE RELIEF
The Executive acknowledges and agrees that it would be
difficult to fully compensate the Corporation for damages resulting from the
breach or threatened breach of the covenants set forth in Sections 9 and 10 of
this Agreement and accordingly agrees that the Corporation shall be entitled to
temporary and injunctive relief, including temporary restraining orders,
preliminary injunctions and permanent injunctions, to enforce such provisions in
any action or proceeding instituted in the United States District Court for the
Northern District of Ohio or in any court in the State of Ohio having subject
matter jurisdiction. This provision with respect to injunctive relief shall not,
however, diminish the Corporation's right to claim and recover damages.
It is expressly understood and agreed that although the
parties consider the restrictions contained in this Agreement to be reasonable,
if a court determines that the time or territory or any other restriction
contained in this Agreement is an unenforceable restriction on the
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activities of the Executive, no such provision of this Agreement shall be
rendered void but shall be deemed amended to apply as to such maximum time and
territory and to such extent as such court may judicially determine or indicate
to be reasonable.
12. NOTICES
All notices or communications hereunder shall be in writing
and sent certified or registered mail, return receipt requested, postage
prepaid, addressed as follows (or to such other address as such party may
designate in writing from time to time):
IF TO THE CORPORATION:
Health Care REIT, Inc.
Xxx XxxXxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Chief Executive Officer
IF TO THE EXECUTIVE:
Xxxx X. Xxxxx
0000 Xxx Xxx
Xxxxxx, XX 00000
The actual date of receipt, as shown by the receipt therefor, shall determine
the time at which notice was given.
13. SEPARABILITY
If any provision of this Agreement shall be declared to be
invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.
14. ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit
of the heirs and representatives of the Executive and the assigns and successors
of the Corporation, but neither this Agreement nor any rights hereunder shall be
assignable or otherwise subject to hypothecation by the Executive.
15. ENTIRE AGREEMENT
This Agreement represents the entire agreement of the parties
and shall supersede any and all previous contracts, arrangements or
understandings between the Corporation and the Executive. The Agreement may be
amended at any time by mutual written agreement of the parties hereto.
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16. GOVERNING LAW
This Agreement shall be construed, interpreted, and governed
in accordance with the laws of the State of Ohio, other than the conflict of
laws provisions of such laws.
IN WITNESS WHEREOF, the Corporation has caused this Agreement
to be duly executed, and the Executive has hereunto set her hand, as of the day
and year first above written.
ATTEST: HEALTH CARE REIT, INC.
/s/ Xxxxxxx X. Xxxxx By /s/ Xxxxxx X. Xxxxxxx
------------------------------ -------------------------
President and Chief Executive Officer
Chief Financial Officer
WITNESS: EXECUTIVE:
/s/ Xxxx X. Xxxxx /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Xxxx X. Xxxxx
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