EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made and entered into this 21st day of
February, 2005, between WINDROSE MEDICAL PROPERTIES L.P., a Virginia limited
partnership (the "Company"), XXXX X. KLIPSCH (the "Executive") and, with respect
to the awards described in Sections 4(c) and 4(e), WINDROSE MEDICAL PROPERTIES
TRUST, a Maryland real estate trust (the "REIT").
RECITALS
WHEREAS, the Company desires to employ the Executive, and the Executive
desires to be employed by the Company, all on the terms and subject to the
conditions set forth herein; and
WHEREAS, the REIT is the sole general partner of the Company (and when
acting in that capacity is referred to in this Agreement as the "General
Partner"); and
WHEREAS, the REIT is willing to make the award described in Section
4(c) and may make the additional awards described in Section 4(e) in order to
assist the Company in retaining the Executive and thereby allowing the REIT to
benefit from services provided by the Executive; and
WHEREAS, the Executive is willing to enter into this Agreement in
consideration of the benefits which the Executive will receive under the terms
hereof.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
1. TERM. The employment of the Executive by the Company under this
Agreement will commence on January 1, 2005 (the "Effective Date") and end on
December 31, 2007 (the "Employment Period").
2. POSITION AND DUTIES. The Executive shall be employed by the Company
and during the Employment Period, the Executive shall perform such duties on
behalf of the Company as may be assigned by the Company or the General Partner
from time to time. The Executive shall also serve without additional
compensation in such offices of the REIT or the subsidiaries of the Company or
the REIT to which the Executive may be elected or appointed by the Company or
the General Partner.
3. EXTENT OF SERVICES.
(a) During the Employment Period, the Executive shall fulfill the
duties of his position hereunder in a manner that will faithfully and diligently
further the business and interests of the Company and the REIT. The Company
acknowledges that the executive is a shareholder in Klipsch Audio, Inc, and
provides and performs services for Klipsch Audio, Inc that do not prevent the
executive from fulfilling his duties to the Company. In addition, the Executive
may (i) make any investment where he is not obligated or required to,
and shall not in fact, devote significant managerial efforts, (ii) participate
in charitable, academic or community activities, and in trade or professional
organizations, or (iii) hold directorships in other companies consistent with
the Company's and the REIT's conflict of interest policies and corporate
governance guidelines as in effect from time to time.
(b) Corporate Opportunities. The Executive agrees that he will not
take personal advantage of any business opportunity which arises during his
employment with the Company and which may be of benefit to the Company unless
all material facts regarding such opportunity are promptly reported by the
Executive to the General Partner and the REIT for consideration by the Company
and the REIT and the disinterested members of the Board of Trustees of the REIT
decide to reject the opportunity.
4. COMPENSATION AND RELATED MATTERS.
(a) Annual Base Salary. During calendar year 2005 the Company shall
pay to the Executive an annual base salary of $210,000 (less all applicable
deductions, the "Base Salary") for all services rendered by the Executive to the
Company. During calendar year 2006 the Company shall pay to the Executive a Base
Salary of $350,000 for all services rendered by the Executive to the Company.
During calendar year 2007 the Company shall pay to the Executive a Base Salary
of $365,000 for all services rendered by the Executive to the Company. The Base
Salary shall be payable in equal installments in accordance with the practice of
the Company in effect from time to time for the payment of salaries to officers
of the Company. The Executive's Base Salary shall be reviewed annually by the
General Partner and the General Partner, in its discretion, may approve a Base
Salary that exceeds the amounts prescribed by the preceding sentences.
(b) Annual Bonuses. The Executive shall be eligible for an annual
bonus ("Annual Bonus") for each calendar year in the Employment Period, payable
no later than March 31 of the following calendar year, based on his performance
and the performance of the Company during such period as determined by the Board
of Trustees of the General Partner. Such annual bonus opportunity shall be the
greater of (i) 50% of the Executive's Base Salary for the calendar year or (ii)
$150,000 based upon achieving defined targets or other factors determined to be
in the best interests of the Company, as established annually by the
Compensation Committee of the Board of Trustees of the General Partner.
(c) This Section 4(c) evidences the grant to the Executive by the
REIT of a Stock Award under the Windrose Medical Properties Trust 2002 Stock
Incentive Plan (the "Plan") (and terms used in this Section 4(c) that are
defined in the Plan have the same meaning assigned to them under the Plan). The
Stock Award covers 30,000 common shares of the REIT. The Executive's interest in
the Stock Award shall become vested and transferable with respect to 2,400
common shares on the execution of this agreement, with additional shares vesting
at the rate of 800 shares on the last day of each calendar quarter, beginning
with the quarter ending March 31, 2005, if the Executive remains in the
continuous employ of the Company from the date of this Agreement until such
vesting date (even if the vesting date occurs after the end of the Employment
Period). The preceding sentence to the contrary notwithstanding, the Executive's
interest in all of the common shares subject to the Stock Award shall be vested
and transferable if the Executive remains in the continuous employ of the
Company from the date of this
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Agreement until a "Change in Control" (as defined in the Change in Control
Severance Agreement between the Executive, the Company and the REIT dated August
21, 2002) or until the Executive's termination of employment by the Company
without Cause, the Executive's resignation with Good Reason or the cessation of
the Executive's service on account of his death or Disability (as hereinafter
defined) even if such event occurs after the end of the Employment Period. Any
common shares subject to the Stock Award that are not vested and transferable as
of the date of the Executive's resignation without Good Reason shall become
vested and transferable as determined by the Board of Trustees of the REIT in
its sole discretion (and any common shares that are not or do not become vested
and transferable shall be forfeited). Any common shares subject to the Stock
Award that are not vested and transferable as of the date of the Executive's
termination for Cause shall be forfeited. The Stock Award evidenced by this
Section 4(c) shall be governed by the terms of the Plan including, by way of
example and not of limitation, the Executive's right to receive dividends and to
vote the common shares subject to the Stock Award (even if the Executive's
interest is not vested and transferable) and the requirement that the REIT
retain custody of the certificates evidencing shares that have not become vested
and transferable.
(d) Expenses. The Company shall pay or reimburse the Executive for
all reasonable expenses actually paid or incurred by the Executive during the
Employment Period in the performance of the Executive's duties under this
Agreement in accordance with the Company's employee business expense
reimbursement policies in effect from time to time.
(e) Other Benefits. During the Employment Period, the Executive
shall be eligible to receive such employee benefits including, without
limitation, participation in any retirement and welfare plans maintained by the
Company, as the Company may provide from time to time to similarly situated
employees, and such other benefits as the Board of Trustees of the REIT may from
time to time establish for the Company's or the REIT's executive officers. In
keeping with the practice of the Company and the REIT with respect to stock
based incentive compensation, the Executive shall also be entitled to the
following annual grants during the Employment Period:
(i) Annual option grants (qualified as incentive stock options
to the extent possible), as determined by the Compensation Committee of the REIT
and approved by the Board of Trustees of the REIT.
(ii) Annual restricted share grants (vesting solely on the
passage of time with continuous employment (not to exceed three years)), as
determined by the Compensation Committee of the REIT and approved by the Board
of Trustees of the REIT.
(iii) Such other share grants or incentive compensation as the
Compensation Committee of the REIT and Board of Trustees of the REIT shall
determine from time to time.
(f) Vacations. The Executive shall be entitled to at least four (4)
weeks' vacation in each calendar year, together with leave of absence and leave
for illness or temporary disability in accordance with the policies of the
Company in effect from time to time,
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however, in no event shall the Executive be paid for unused vacation time on
termination of employment.
5. TERMINATION. Each party shall have the right to terminate the
Executive's employment hereunder before the Employment Period expires to the
extent, and subject to the provisions, set forth in this Section 5:
(a) Death. The Executive's employment hereunder shall terminate upon
his death.
(b) Disability. The Company shall have the right to terminate the
Executive's employment if the General Partner determines that the Executive is
unable to perform his duties by reason of Disability. As used herein,
"Disability" shall mean a disability as such term or a similar term is defined
under a disability insurance policy maintained by the Company covering the
Executive or, if there is no such policy, "Disability" shall mean the inability
of the Executive, due to physical or mental illness or injury, to perform his
duties hereunder for any period of 180 consecutive days and the return of the
Executive to his duties for periods of 15 days or less shall not interrupt such
180 day period.
(c) Cause. The Company shall have the right to terminate the
Executive's employment at any time upon delivery of a Notice of Termination (as
defined in subsection (f) below) for Cause (as defined below) to Executive, such
employment to terminate upon a date specified in the Notice of Termination which
shall not be earlier than thirty (30) days after delivery of such notice to the
Executive if the stated reason for termination is described in clause (i), (ii)
or (v) of the following sentence. For purposes of this Agreement, the term
"Cause" means (i) willful, deliberate and continued failure by the Executive
(other than for reason of mental or physical illness) to perform his duties as
established by the General Partner or fraud or dishonesty in connection with
such duties, in either case, if such conduct has a materially detrimental effect
on the business operations of the Company; (ii) a material breach by the
Executive of his fiduciary duties of loyalty or care to the Company or the REIT;
(iii) conviction of any crime (or upon entering a plea of guilty or nolo
contendre to a charge of any crime) constituting a felony; (iv) misappropriation
of the Company's funds or property; or (v) willful, flagrant, deliberate and
repeat infractions of material published policies and regulations of the Company
or the REIT of which the Executive has actual knowledge. If the Company desires
to terminate the Executive for a reason described in clause (i), (ii) or (v) of
the preceding sentence, the Executive shall have thirty (30) days after receipt
of the Notice of Termination in which to cure the failure, breach or infraction
described in the Notice of Termination and shall be afforded an opportunity to
present his position or defense to the Board of Trustees of the Company. If the
failure, breach or infraction is timely cured by the Executive or the Company's
Board of Trustees determines that Cause for the Executive's termination does not
exist, the Notice of Termination shall become null and void.
(d) Without Cause. The Company may at any time terminate the
Executive's employment hereunder.
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(e) Termination by the Executive.
(i) The Executive may terminate his employment hereunder (A)
for Good Reason, or (B) without Good Reason at any time after the date hereof
upon delivery of a Notice of Termination (as defined in subsection (f) below).
(ii) For purposes of this Agreement, "Good Reason" shall mean
(A) the failure by the General Partner to reelect or
reappoint the Executive to the Executive's current position with the Company;
(B) a material diminution by the General Partner of the
Executive's duties, functions and responsibilities with respect to the Company
without the Executive's consent;
(C) the failure of the Company to permit the Executive to
exercise such responsibilities as are consistent with the Executive's positions
and are of such a nature as are usually associated with such offices of a
corporation engaged in substantially the same business as the Company;
(D) the Company's causing Executive to relocate his
employment more than fifty (50) miles from Indianapolis, Indiana, without the
consent of the Executive;
(E) the Company's failure to make a payment when due to
the Executive;
(F) the Company's reduction of the Executive's (A) annual
base salary, as such may be increased from time to time after the date of this
Agreement; (B) bonus, such that the aggregate threshold, target, or maximum
bonus projected for the Executive for a fiscal year is lower than the aggregate
threshold, target, or maximum bonus, respectively, projected for the Executive
for the immediately preceding fiscal year; or (C) employee welfare, fringe or
pension benefits, other than reductions determined to be necessary to comply
with the Employee Retirement Income Security Act of 1974, as amended, or to
retain the tax-qualified or tax-favored status of the benefit under the Code,
which determination shall be made by the General Partner in good faith;
(G) a breach of Section 11(c) of this Agreement; or
(H) the Company, the General Partner or the Board of
Trustees of the REIT directs the Executive to engage in unlawful or unethical
conduct or conduct contrary to the Company's or the REIT's good business
practices.
If the Executive desires to terminate his employment for Good Reason, the
Company shall have thirty (30) days after its receipt of the Executive's Notice
of Termination in which to cure or remedy the grounds identified as Good Reason
in the Notice of Termination. If the grounds for
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Good Reason are timely cured or remedied by the Company, the Executive's Notice
of Termination shall become null and void.
(f) Notice of Termination. Any termination of the Executive's
employment by the Company or by the Executive (other than termination pursuant
to subsection (a) hereof) shall be communicated by written Notice of Termination
to the other party hereto in accordance with Section 14(a). For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated.
(g) Date of Termination. The "Date of Termination" shall mean (i) if
the Executive's employment is terminated by his death, the date of his death,
(ii) if the Executive's employment is terminated pursuant to subsection (b) or
clause (iii) or (iv) of subsection (c) above, upon delivery of the Notice of
Termination unless otherwise specified in such notice, and (iii) if the
Executive's employment is terminated for any other reason, the date thirty (30)
days following the date on which a Notice of Termination is given.
6. COMPENSATION UPON TERMINATION, DEATH OR DURING DISABILITY.
(a) Death. If the Executive's employment is terminated by his death,
the Company shall, within ten (10) days following the Date of Termination, pay
any earned and accrued but unpaid installment of Base Salary through the Date of
Termination at the rate then in effect and any other accrued and unpaid amounts
due to the Executive under Section 4, together with any other amounts to which
the Executive is entitled pursuant to death benefit plans, programs and
policies. In addition, subject to compliance with Section 6(e), upon the
Executive's termination, (i) the Executive's estate shall be paid a Pro rata
Portion of the Executive's Maximum Bonus (each as defined below), and (ii) all
of the Executive's outstanding options, restricted share awards and any other
equity rights granted by the Company to the Executive shall continue to be
governed by Section 4(c) or the applicable grant agreement and related plan. For
purposes of this Agreement, (i) "Maximum Bonus" means the highest aggregate
Annual Bonus or incentive payment paid by the Company (or any predecessor of the
Company) to the Executive for any of the three calendar years prior to the year
the Date of Termination occurs and (ii) the "Pro rata Portion" of the
Executive's Maximum Bonus shall be calculated by multiplying the Maximum Bonus
by a fraction, the numerator of which shall be the number of calendar days
elapsed in the year in which the Date of Termination occurs, up to and including
the Date of Termination, and the denominator of which shall be 365.
(b) Disability. During any period that the Executive fails to
perform his duties hereunder as a result of his incapacity due to a physical or
mental illness, the Executive shall continue to receive his Base Salary at the
rate then in effect for such period (and without reduction for any disability
insurance benefits for which the Executive paid the premium (on a pre-tax or
after-tax basis) and the Executive shall not receive during such period any
disability insurance benefits for which he did not pay the premium) until his
employment is terminated pursuant to Section 5(b) hereof, and upon the Date of
Termination, the Company shall, within ten (10) days of such termination, pay
the Executive any earned and accrued but unpaid installment of Base Salary
through the Date of Termination at the rate then in effect and any
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other accrued and unpaid amounts due to the Executive under Section 4. In
addition, subject to compliance with Section 6(e), upon the Executive's
termination, (i) the Executive shall be paid a Pro rata Portion of his Maximum
Bonus and (ii) all of the Executive's outstanding options, restricted share
awards and any other equity rights granted by the Company to the Executive shall
continue to be governed by Section 4(c) or the applicable grant agreement and
related plan.
(c) Cause or other than Good Reason. If the Executive's employment
shall be terminated by the Company for Cause or by the Executive for other than
Good Reason, the Company shall, within ten (10) days following the Date of
Termination, pay the Executive any earned and accrued but unpaid installment of
Base Salary through the Date of Termination at the rate then in effect at the
time Notice of Termination is given and any other accrued and unpaid amounts due
to the Executive under Section 4, excluding any Bonus that is not due and
payable on the Date of Termination, and the Company shall have no further
obligations to the Executive under this Agreement. All of the outstanding
options, restricted share awards and any other equity rights granted by the
Company to the Executive shall continue to be governed by Section 4(c) or the
applicable grant agreement and related plan.
(d) Termination by the Company without Cause or by the Executive for
Good Reason. If the Company shall terminate the Executive's employment other
than for death, Disability pursuant to Section 5(b) or Cause, or if the
Executive terminates his employment for Good Reason, then the Company shall,
within ten (10) days of the Date of Termination, pay the Executive any earned
but unpaid installment of Base Salary through the Date of Termination at the
rate then in effect and any other accrued and unpaid amounts due to the
Executive under Section 4. In addition, subject to compliance with Section 6(e),
upon the Executive's termination, the Executive shall be entitled to receive:
(i) a lump sum payment equal to the greater of (x) the product
of the number of whole and fractional years remaining in the Employment Period
times his Current Cash Compensation as provided herein. The term "Current Cash
Compensation" is the sum of (A) the Executive's Base Salary from the Company as
in effect on the Termination Date and (B) the average of the annual bonuses paid
to the Executive for the prior three fiscal years of the Company preceding the
year in which the Termination Date occurs.
(ii) a lump sum payment equal to any prorata bonus that has
been earned from the Company but which remains unpaid on the Termination Date;
(iii) reimbursement of any expenses that the Executive
incurred on behalf of the Company or the REIT prior to the Termination Date to
the extent that such expenses are reimbursable under the standard reimbursement
policies of this Company or the REIT; and
(iv) all of the outstanding options, restricted share awards
and any other equity rights granted by the Company to the Executive shall become
immediately vested and at the executive's option, settled in cash by the payment
of a Lump Sum by the Company to the Executive.
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(v) continued participation in employer-provided medical or
health insurance or benefit plans on the same terms as offered to employees
generally, until the later of (i) December 31, 2007 or (ii) the first
anniversary of the Date of Termination.
(vi) indemnification from any liability the Executive may
incur under Section 4999 (or any successor provision) of the Internal Revenue
Code of 1986, as amended, whether such liability is related to amounts payable
under this Agreement or any other agreement, plan or arrangement.
The amount payable under the first sentence of this section 6(d) and under the
preceding paragraphs (i), (ii), (iii), (v) and (vi) shall be reduced to the
extent that the Executive receives payments of such amounts or receives such
benefits from the Company or the REIT under the Change in Control Severance
Agreement between the Executive, the Company, and the REIT dated August 21,
2002.
(e) Release. Payments by the Company required under this Section 6
following termination or expiration of the Executive's employment for any reason
(other than payments of accrued but unpaid amounts) shall be conditioned on and
shall not be payable until receipt by the Company and the REIT of a written
release from the Executive (or, in the event of his death, his estate) in form
and substance reasonably acceptable to the Company of any and all past, present
or future claims that the Executive (or, in the event of his death, his estate)
may have against the Company, the REIT or any of their affiliates and any of
their respective officers, directors, members or managers. The Executive agrees
to provide the Company and the REIT with the release within 15 days of (i) the
Date of Termination or (ii) the last day of the Employment Period.
7. CONFIDENTIALITY.
(a) Definition of Proprietary Information. The Executive
acknowledges that he may be furnished or may otherwise receive or have access to
confidential information which relates to the Company's, the REIT's and their
affiliates' past, present or future business activities, strategies, services or
products, research and development; financial analysis and data; improvements,
inventions, processes, techniques, designs or other technical data; profit
margins and other financial information; fee arrangements; terms and contents of
loans, leases, asset management agreements and other contracts; borrower, tenant
and vendor lists or other compilations for marketing or development;
confidential personnel and payroll information; or other information regarding
administrative, management, financial, marketing, lending, leasing or sales
activities of the Company, the REIT or an affiliate of the Company or the REIT,
or of a third party which provided proprietary information to the Company, the
REIT or an affiliate of the Company or the REIT on a confidential basis. All
such information, including any materials or documents containing such
information, shall be considered by the Company, the REIT and the Executive as
proprietary and confidential (the "Proprietary Information").
(b) Exclusions. Notwithstanding the foregoing, Proprietary
Information shall not include information in the public domain not as a result
of a breach of any duty by the Executive or any other person.
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(c) Obligations. Both during and after the Employment Period, the
Executive agrees to preserve and protect the confidentiality of the Proprietary
Information and all physical forms thereof, whether disclosed to him before this
Agreement is signed or afterward. In addition, both during and after the
Employment Period, the Executive shall not (i) disclose or disseminate the
Proprietary Information to any third party, including employees of the Company
(or their affiliates) without a legitimate business need to know, (ii) remove
the Proprietary Information from the Company's premises without a valid business
purpose, or (iii) use the Proprietary Information for his own benefit or for the
benefit of any third party.
(d) Return of Proprietary Information. The Executive acknowledges
and agrees that all the Proprietary Information used or generated during the
course of working for the Company is the property of the Company. The Executive
agrees to deliver to the Company all documents and other tangibles (including
diskettes and other storage media) containing the Proprietary Information at any
time upon request by the General Partner during his employment and immediately
upon termination of his employment.
8. NON-COMPETITION.
(a) Restriction on Competition. During the Restricted Period the
Executive agrees not to engage, directly or indirectly, as an owner, director,
trustee, manager, member, employee, consultant, partner, principal, agent,
representative, stockholder, or in any other individual, corporate or
representative capacity, in any of the following: (i) any public or private real
estate investment trust, partnership, limited liability company or specialty
finance company focused on financing and investing in net leased medical
properties or (ii) any other business that is substantially similar to the
business of the Company during the Employment Period. Notwithstanding the
foregoing, the Executive shall not be deemed to have violated this Section 8(a)
solely by reason of his passive ownership of 1% or less of the outstanding stock
of any publicly traded REIT, corporation or other entity. The "Restricted
Period" is the period of the Executive's employment hereunder and the
twenty-four (24) month period following the Date of Termination; provided,
however, that for purposes of this Section 8(a) the Restricted Period shall end
on December 31, 2007 if the Executive is terminated without Cause or the
Executive resigns with Good Reason.
(b) Non-Solicitation of Clients. During the Restricted Period, the
Executive agrees not to solicit, directly or indirectly, on his own behalf or on
behalf of any other Person, any Client (as defined below) of the Company to whom
the Company or its affiliates had provided services at any time during the
Executive's employment with the Company in any line of business that the Company
conducts as of the termination of such Executive's employment or that the
Company is actively soliciting, for the purpose of marketing or providing any
service competitive with any service then offered by the Company. In addition,
during the Restricted Period, the Executive agrees not to encourage any client
of the Company as of the termination of such Executive's employment to reduce
its patronage to the Company. For purposes of this Agreement the term "Client"
includes, but shall not be limited to, any tenant, seller or developer of
properties to the Company or a client of the design or construction management
services of the Company or an affiliate of the Company.
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(c) Non-Solicitation of Employees. During the Restricted Period, the
Executive agrees that he will not, directly or indirectly, hire or attempt to
hire or cause any person or entity or business, other than an affiliate of the
Company, to hire any person who is then or was at any time during the preceding
six (6) months an employee of the Company or the REIT.
(d) Acknowledgement. The Executive acknowledges that he will acquire
much Proprietary Information concerning the past, present and future business of
the Company as the result of his employment, as well as access to the
relationships between the Company and its clients and employees. The Executive
further acknowledges that the business of the Company is very competitive and
that competition by him in that business during his employment, or after his
employment terminates, would severely injure the Company. The Executive
understands and agrees that the restrictions contained in this Section 8 are
reasonable and are required for the Company's legitimate protection, and do not
unduly limit his ability to earn a livelihood.
(e) Rights and Remedies upon Breach. The Executive acknowledges and
agrees that any breach by him of any of the provisions of Sections 7 and 8 (the
"Restrictive Covenants") would result in irreparable injury and damage for which
money damages would not provide an adequate remedy. Therefore, if the Executive
breaches, or threatens to commit a breach of, any of the provisions of the
Restrictive Covenants, the Company and its affiliates shall have the following
rights and remedies, each of which rights and remedies shall be independent of
the other and severally enforceable, and all of which rights and remedies shall
be in addition to, and not in lieu of, any other rights and remedies available
to the Company and its affiliates, under law or in equity (including, without
limitation, the recovery of damages):
(i) the right and remedy to have the Restrictive Covenants
specifically enforced (without posting bond and without the need to prove
damages) by any court of competent jurisdiction, including, without limitation,
the right to an entry against the Executive of restraining orders and
injunctions (preliminary, mandatory, temporary and permanent) against
violations, threatened or actual, and whether or not then continuing, of such
covenants; and
(ii) the right and remedy to require the Executive to account
for and pay over to the Company, the REIT and their affiliates all compensation,
profits, monies, accruals, increments or other benefits (collectively,
"Benefits") derived or received by him as the result of any transactions
constituting a breach of the Restrictive Covenants, and the Executive shall
account for and pay over such Benefits to the Company and, if applicable, the
REIT and their affected affiliates.
(f) If any court or other decision-maker of competent jurisdiction
determines that any of the Restrictive Covenants, or any part thereof, is
unenforceable because of the duration, scope of activities or geographical scope
of such provision, then, after such determination has become final and
unappealable, the duration or scope of such provision, as the case may be, shall
be reduced so that such provision becomes enforceable and, in its reduced form,
such provision shall then be enforceable and shall be enforced.
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9. CONTINUED PERFORMANCE. Provisions of this Agreement shall survive
any termination or expiration of this Agreement if so provided herein or if
necessary or desirable fully to accomplish the purposes of such provisions,
including, without limitation, the obligations of the Executive under the terms
and conditions of Sections 7 and 8. Any obligation of the Company to make
payments to or on behalf of the Executive under Section 6 is expressly
conditioned upon the Executive's continued performance of the Executive's
obligations under Sections 7 and 8 for the time periods stated in Sections 7 and
8. The Executive recognizes that, except to the extent, if any, provided in
Section 6, the Executive will earn no compensation from the Company after the
Date of Termination or expiration of this Agreement.
10. CONSULTATION WITH COUNSEL. The Executive acknowledges that he has
had a full and complete opportunity to consult with counsel or other advisers of
his own choosing concerning the terms, enforceability and implications of this
Agreement, and that the Company has not made any representations or warranties
to the Executive concerning the terms, enforceability and implications of this
Agreement other than as are reflected in this Agreement.
11. MISCELLANEOUS.
(a) Notices. Any notice or other communication required, permitted,
or desirable hereunder shall be hand delivered (including delivery by a
commercial courier service) or sent by United States registered or certified
mail, postage prepaid, addressed as follows:
If to the Executive:
--------------------
--------------------
--------------------
If to the Company:
Windrose Medical Properties L.P.
c/o Windrose Medical Properties Trust
0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
If to the REIT:
Windrose Medical Properties Trust
0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
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or such other addresses as shall be furnished in writing by the parties. Any
such notice or communication shall be deemed to have been given as of the date
so delivered in person or three business days after so mailed.
(b) Applicable Law. This Agreement shall be construed and
interpreted according to the laws of the State of Indiana, other than its choice
of law provisions to the extent that they would require the application of the
laws of a State other than the State of Indiana.
(c) Assigns. This Agreement shall be binding upon and inure to the
benefit of the Company's successors and the Executive's personal or legal
representatives, executors, administrators, heirs, distributees, devisees and
legatees. This Agreement shall not be assignable by the Executive, it being
understood and agreed that this is a contract for the Executive's personal
services. This Agreement shall not be assignable by the Company except that the
Company shall require any successor to all or substantially all of the Company's
respective business or assets (whether direct or indirect, by purchase, merger,
consolidation or otherwise), to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the
Company to obtain such assumption and agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle
Executive to resign from the employ of the Company and to receive the
Termination Benefits and other benefits under this Agreement in the same amount
and on the same terms as Executive would be entitled to hereunder if he
terminated his employment for Good Reason. References in this Agreement to the
"Company" include the Company as hereinbefore defined and any successor to the
Company's business, assets or both which assumes and agrees to perform this
Agreement by operation of law or otherwise.
(d) Construction; Headings. The language used in this Agreement
shall be deemed to be the language chosen by the parties to express their mutual
intent, and no rule of strict construction shall be applied against any party.
The headings of sections of this Agreement are for convenience of reference only
and shall not affect its meaning or construction.
(e) Entire Agreement; Amendments. This Agreement sets forth the
entire agreement and understanding of the parties with respect to the subject
matter hereof, and there are no other contemporaneous written or oral
agreements, undertakings, promises, warranties, or covenants not specifically
referred to or contained herein. This Agreement specifically supersedes any and
all prior agreements and understandings of the parties with respect to the
subject matter hereof, all of which prior agreements and understandings (if any)
are hereby terminated and of no further force and effect. This Agreement may be
amended, modified, or terminated only by a written instrument signed by the
parties hereto.
(f) Severability. If any provision, clause or part of this
Agreement, or the applications thereof under certain circumstances, is held
invalid or unenforceable for any reason, the remainder of this Agreement, or the
application of such provision, clause or part under other circumstances, shall
not be affected thereby.
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(g) Waivers. No delay or omission by either party hereto in
exercising any right, power or privilege hereunder shall impair such right,
power or privilege, nor shall any single or partial exercise of any such right,
power or privilege preclude any further exercise thereof or the exercise of any
other right, power or privilege.
(h) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall deemed an original but all of which together
will constitute one and the same instrument.
(i) Action By General Partner. Any action or decision to be taken or
made by the General Partner under this Agreement shall be pursuant to a
resolution adopted by the Board of Trustees of the REIT.
(j) Legal Fees and Expenses. The prevailing party shall be entitled
to recover from the opposing party any legal fees that the prevailing party
incurs in connection with the enforcement or defense of any provision of this
Agreement.
(k) D&O Insurance. The Company shall maintain directors and officers
liability insurance for the benefit of the Executive, in an amount not less than
the amount of coverage in effect on January 1, 2005, during his employment
hereunder and shall continue to provide such coverage after his termination with
respect to acts or omissions during the Executive's employment hereunder.
IN WITNESS WHEREOF, the Executive, the Company and the REIT (with
respect to the awards described in Sections 4(c) and 4(e)) have executed this
Agreement on the date and year first above written.
WINDROSE MEDICAL PROPERTIES L.P.
BY WINDROSE MEDICAL PROPERTIES TRUST
By: /s/ Xxxxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: President
EXECUTIVE
By: /s/ Xxxx X. Klipsch
--------------------------------------
WINDROSE MEDICAL PROPERTIES TRUST
By: /s/ Xxxxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: President
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