EXHIBIT 10.30
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of October 25, 2004
(the "Effective Date"), among Medical Properties Trust, Inc. (the "REIT"), MPT
Operating Partnership, L.P., a Delaware limited partnership (the "Operating
Partnership") (the REIT and the Operating Partnership being herein referred to
collectively as the "Company"), and Xxxxxxx X. Xxxxxxx (the "Employee"):
WHEREAS, the REIT is a limited partner and, through its wholly-owned
limited liability company, Medical Properties Trust, LLC (the "LLC"), is the
sole general partner of the Operating Partnership;
WHEREAS, the Employee has experience serving as general counsel for
healthcare companies; and
WHEREAS, the Company desires to employ the Employee and the Employee
desires to accept such employment, upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, the Company and the Employee, in consideration of the
respective covenants set out below, hereby agree as follows:
1. EMPLOYMENT.
(a) POSITION. The Company hereby employs the Employee, as an at-will
employee, to serve as the Company's general counsel.
(b) DUTIES. During the term of his employment hereunder, the Employee
shall report to the Chief Executive Officer of the Company and his principal
employment duties and responsibilities shall be those duties and
responsibilities customary for the position of general counsel, along with such
other duties and responsibilities as the Chief Executive Officer shall from time
to time reasonably assign to the Employee.
(c) EXTENT OF SERVICES. Except for illnesses and vacation periods,
during the term of his employment hereunder, the Employee shall devote
substantially all of his business time and attention and his good faith
reasonable efforts to the performance of his duties and responsibilities under
this Agreement. Notwithstanding the foregoing, the Employee (i) may make any
passive investment where he is not obligated or required to, and shall not in
fact, devote any material managerial efforts, (ii) may participate in
charitable, academic or community activities, and in trade or professional
organizations, and (iii) may hold directorships in other companies consistent
with the Company's conflict of interest policies and corporate governance
guidelines as in effect from time to time.
2. AT WILL EMPLOYMENT. The employment of the Employee hereunder is "at
will" and may be terminated by either party, with or without cause, immediately
upon notice to the other party.
3. BASE SALARY. During the term of his employment hereunder, the Company
shall pay the Employee a Base Salary that shall be payable in periodic
installments according to the Company's normal payroll practices, but no less
frequently than monthly. The initial Base Salary shall be Two Hundred
Twenty-Five Thousand Dollars ($225,000) per year and may be increased from time
to time by agreement of the parties, provided that the Base Salary will be
increased at a minimum by a positive amount equal to the Base Salary in effect
on January 1 of the previous year multiplied by the percentage increase in the
Consumer Price Index for such previous year. The amount of increase shall be
determined before March 31 of each year and shall be retroactive to January 1 of
such year. The Base Salary, including increases, shall not be decreased during
the term of employment. For purposes of this Agreement, the term "Base Salary"
shall mean the amount established and adjusted from time to time pursuant to
this Section 3.
4. INCENTIVE AWARDS: ANNUAL INCENTIVE BONUS. The Employee shall be entitled
to receive an annual cash incentive bonus for each fiscal year of the Company
during the term of his employment hereunder consistent with such bonus policy as
may be adopted by the Board of Directors (the "Board") or its Compensation
Committee (the "Bonus Policy") in an amount of not less than 40% of the
Employee's Base Salary (the "Minimum Bonus"), or more than 100% of the
Employee's Base Salary unless in the opinion of the Compensation Committee, the
Employee deserves a higher amount (the "Maximum Bonus"). If the Employee or the
Company, as the case may be, satisfies the performance criteria contained in
such Bonus Policy for a fiscal year, the Employee shall receive an annual
incentive bonus (the "Incentive Bonus"), consistent with the provisions relating
to the Minimum Bonus and the Maximum Bonus, in an amount determined by the
Compensation Committee and subject to ratification by the Board, if required. If
the Employee or the Company, as the case may be, fails to satisfy the
performance criteria contained in such Bonus Policy for a fiscal year, the
Compensation Committee may determine whether any Incentive Bonus shall be
payable to the Employee for that year other than the Minimum Bonus, subject to
ratification by the Board, if required. Beginning January 1, 2005, the Bonus
Policy shall contain both individual and group goals.
5. BENEFITS. During the term of his employment hereunder, the Employee
shall be entitled to the following benefits:
(a) VACATION. The Employee shall be entitled to three (3) weeks of
vacation per full calendar year. Any accrued but unused vacation time may be
taken by the Employee during the first quarter of the following year.
(b) SICK AND PERSONAL DAYS. The Employee shall be entitled to sick and
personal days on an as-needed basis.
(c) EMPLOYEE BENEFITS.
(i) The Employee and his spouse and eligible dependents, if any,
and their respective designated beneficiaries, where applicable, will be
eligible for and entitled to participate, at the Company's expense, in any
Company-sponsored employee benefit plans, including, but not limited to,
benefits such as group health, dental, accident, disability insurance and group
life insurance as such benefits may be offered from time to time, in each case
subject
2
to the eligibility requirements under the terms of the applicable benefit plan.
In addition, Employee shall be entitled to participate, on the same basis as
other employees of the Company, in any 401(k) or other retirement plan sponsored
by the Company.
(d) OTHER BENEFITS.
(i) CAR ALLOWANCE. In lieu of mileage reimbursement and repairs
and maintenance expense, the Company shall pay the Employee a monthly car
allowance of Seven Hundred Fifty Dollars ($750).
(ii) LIFE INSURANCE. The Company will reimburse the Employee an
amount of up to Ten Thousand Dollars ($10,000) per calendar year for premiums on
life insurance policies for his benefit and beneficiaries of his choosing. Such
amount shall increase on January 1st of each year under the term hereof by
multiplying by the percentage increase in the Consumer Price Index for the
previous year. The amount shall be paid by the Company promptly upon
presentation by the Employee of evidence of the premium payments. The amount of
such premium reimbursement paid by the Company shall be imputed as income to the
Employee, and the Company will pay to the Employee such additional amount as
necessary to pay any federal, state or local tax liability with respect to such
imputed income.
(iii) EXPENSES, OFFICE AND SECRETARIAL SUPPORT. The Employee
shall be entitled to reimbursement of all reasonable expenses, in accordance
with the Company's policy as in effect from time to time, including, without
limitation, telephone, travel and entertainment expenses incurred by the
Employee in connection with the business of the Company, promptly upon the
presentation by the Employee of appropriate documentation. The Employee shall
also be entitled to appropriate office space, administrative support, and such
other facilities and services as are suitable to the Employee's position and
adequate for the performance of the Employee's duties.
6. EFFECTS OF TERMINATION. Upon any termination of the Employee's
employment hereunder, the Company shall pay any Base Salary, Incentive Bonus,
expense reimbursements and other compensation-related payments that are payable
as of the effective date of the termination of his employment, including pay in
lieu of accrued, but unused, vacation. Immediately upon the Employee terminating
or being terminated from his employment with the Company for any reason,
notwithstanding anything else appearing in this Agreement or otherwise, the
Employee will stop serving the functions of his terminated or expired positions,
and shall be without any of the authority or responsibility for such positions.
7. CONFIDENTIAL INFORMATION. The Employee recognizes and acknowledges that
certain assets of the Company constitute Confidential Information. The term
"Confidential Information" as used in this Agreement shall mean all proprietary
information relating to the Company's business, including, without limitation,
proprietary information regarding tenants, acquisition policies, methods of
operation, Company programs, profits, costs, markets, key personnel, technical
processes and trade secrets, as such information may exist from time to time,
which the Employee acquired or obtained by virtue of work performed for the
Company, or which the Employee may acquire or may have acquired knowledge of
during the performance of said work. The Employee shall not, during the Term and
for a period of three (3)
3
years thereafter, (i) disclose any part of the Confidential Information to any
person, firm, corporation, association, or any other entity, or (ii) use any
part of the Confidential Information, for any reason or purpose whatsoever,
directly or indirectly, except as may be required pursuant to his employment
hereunder, or as otherwise required by law, unless and until such Confidential
Information becomes publicly available other than as a consequence of the breach
by the Employee of his confidentiality obligations hereunder by law or in any
judicial or administrative proceeding (in which case, the Employee shall provide
the Company with notice). In the event of the termination of his employment,
whether voluntary or involuntary and whether by the Company or the Employee, the
Employee shall deliver to the Company all documents and data pertaining to the
Confidential Information and shall not retain any documents or data of any kind
or any reproductions (in whole or in part) or extracts of any items relating to
the Confidential Information.
In the event that the Employee receives a request or is required (by
deposition, interrogatory, request for documents, subpoena, civil investigative
demand or similar process) to disclose all or any part of the Confidential
Information, the Employee agrees to (a) promptly notify the Company in writing
of the existence, terms and circumstances surrounding such request or
requirement, (b) consult with the Company on the advisability of taking legally
available steps to resist or narrow such request or requirement, and (c) assist
the Company in seeking a protective order or other appropriate remedy. In the
event that such protective order or other remedy is not obtained or that the
Company waives compliance with the provisions hereof the Employee shall not be
liable for such disclosure unless disclosure to any such tribunal was caused by
or resulted from a previous disclosure by the Employee not permitted by this
Agreement.
8. NON-COMPETITION AND NONSOLICITATION. During the Term and for a period of
eighteen (18) calendar months after the termination of the Employee's employment
(the "Non-Compete Period"), the Employee shall not, directly or indirectly,
either as a principal, agent, employee, employer, stockholder, partner or in any
other capacity whatsoever: (a) engage or assist others engaged, in whole or in
part, in any business which is engaged in a business or enterprise involving the
ownership, leasing or management of healthcare real estate (it being understood
that engaging in the activity of operating a healthcare operating company which
owns its own healthcare real estate is not so prohibited and that serving as
general counsel for any entity is not so prohibited), or (b) without the prior
consent of the Company, solicit the employment of, or assist others in
soliciting the employment of, any individual employed by the Company (other than
the Employee's personal assistant or Employee's secretary) at any time while the
Employee was also so employed.
Nothing in this Section 8 shall prohibit Employee from making any passive
investment in a public company, where he is the owner of five percent (5%) or
less of the issued and outstanding voting securities of any entity, provided
such ownership does not result in his being obligated or required to devote any
managerial efforts.
The Employee agrees that the restraints imposed upon him pursuant to this
Section 8 are necessary for the reasonable and proper protection of the Company
and its subsidiaries and affiliates, and that each and every one of the
restraints is reasonable in respect to subject matter, length of time and
geographic area. The parties further agree that, in the event that any provision
4
of this Section 8 shall be determined by any court of competent jurisdiction to
be unenforceable by reason of its being extended over too great a time, too
large a geographic area or too great a range of activities, such provision shall
be deemed to be modified to permit its enforcement to the maximum extent
permitted by law.
9. INTELLECTUAL PROPERTY. During the Term, the Employee shall promptly
disclose to the Company or any successor or assign, and grant to the Company and
its successors and assigns without any separate remuneration or compensation
other than that received by him in the course of his employment, his entire
right, title and interest in and to any and all inventions, developments,
discoveries, models, or any other intellectual property of any type or nature
whatsoever ("Intellectual Property"), whether developed by him during or after
business hours, or alone or in connection with others, that is in any way
related to the business of the Company, its successors or assigns. This
provision shall not apply to books or articles authored by the Employee during
non-work hours, consistent with his obligations under this Agreement, so long as
such books or articles (a) are not funded in whole or in part by the Company,
and (b) do not contain any Confidential Information or Intellectual Property of
the Company. The Employee agrees, at the Company's expense, to take all steps
necessary or proper to vest title to all such Intellectual Property in the
Company, and cooperate fully and assist the Company in any litigation or other
proceedings involving any such Intellectual Property.
10. DISPUTES.
(a) EQUITABLE RELIEF. The Employee acknowledges and agrees that, upon
any breach by the Employee of his obligations under Sections 7, 8, or 9 hereof,
the Company will have no adequate remedy at law and, accordingly, will be
entitled to specific performance and other appropriate injunctive and equitable
relief in addition to any other remedy available, without the necessity of
showing actual damages or furnishing a bond or other security.
11. COOPERATION IN FUTURE MATTERS. The Employee hereby agrees that, for a
period of eighteen (18) months following his termination of employment, he shall
cooperate with the Company's reasonable requests relating to matters that
pertain to the Employee's employment by the Company, including, without
limitation, providing information or limited consultation as to such matters,
participating in legal proceedings, investigations or audits on behalf of the
Company, or otherwise making himself reasonably available to the Company for
other related purposes. Any such cooperation shall be performed at scheduled
times taking into consideration the Employee's other commitments, and the
Employee shall be compensated at a reasonable hourly or per diem rate to be
agreed upon by the parties to the extent such cooperation is required on more
than an occasional and limited basis. The Employee shall not be required to
perform such cooperation to the extent it conflicts with any requirements of
exclusivity of services for another employer or otherwise, nor in any manner
that in the good faith belief of the Employee would conflict with his rights
under or ability to enforce this Agreement.
5
12. GENERAL.
(a) NOTICES. All notices and other communications hereunder shall be
in writing or and shall be deemed to have been duly given when delivered
personally or, if sent by United States mail, when deposited in the United
States mail, by registered or certified mail, return receipt requested, and
addressed to the relevant address set forth below, or to such other address as
the recipient of such notice or communication shall have specified in writing to
the other party hereto, in accordance with this Section 12(a).
If to the Company, to: Medical Properties Trust, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
If to Employee, at his last residence shown on the records of the
Company.
(b) SEVERABILITY. If any provision of this Agreement is or becomes
invalid, illegal or unenforceable in any respect under any law, the validity,
legality and enforceability of the remaining provisions hereof shall not in any
way be affected or impaired.
(c) 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.
(d) COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. In making proof of this
Agreement, it shall not be necessary to produce or account for more than one
such counterpart.
(e) ASSIGNS. This Agreement shall be binding upon and inure to the
benefit of the Company's successor and assigns and the Employee's personal or
legal representatives, executors, administrators, heirs, distributees, devisees
and legatees. This Agreement shall not be assignable by the Employee, it being
understood and agreed that this is a contract for the Employee's personal
services. This Agreement shall not be assignable by the Company except that the
Company shall assign it in connection with a transaction involving the
succession by a third party to all or substantially all of the Company's
business and/or assets (whether direct or indirect and whether by purchase,
merger, consolidation, liquidation or otherwise). When assigned to a successor,
the assignee shall assume this Agreement and expressly agree to perform this
Agreement in the same manner and to the same extent as the Company would be
required to perform it in the absence of such an assignment. For all purposes
under this Agreement, the term "Company" shall include any successor to the
Company's business and/or assets that executes and delivers the assumption
agreement described in the immediately preceding sentence or that becomes bound
by this Agreement by operation of law.
(f) ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties, supersedes all prior agreements and understandings, whether
6
written or oral, relating to the subject matter hereof and may not be amended
except by a written instrument hereafter signed by the Employee and a duly
authorized representative of the Company (other than the Employee).
(g) GOVERNING LAW. This Agreement and the performance hereof shall be
construed and governed in accordance with the laws of the State of Delaware,
without giving effect to principles of conflicts of law.
(h) CONSTRUCTION. 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. Whenever any word is used herein in one
gender, it shall be construed to include the other gender, and any word used in
the singular shall be construed to include the plural in any case in which it
would apply and vice versa.
(i) PAYMENTS AND EXERCISE OF RIGHTS AFTER DEATH. Any amounts payable
hereunder after the Employee's death shall be paid to the Employee's designated
beneficiary or beneficiaries, whether received as a designated beneficiary or by
will or the laws of descent and distribution. The Employee may designate a
beneficiary or beneficiaries for all purposes of this Agreement, and may change
at any time such designation, by notice to the Company making specific reference
to this Agreement. If no designated beneficiary survives the Employee or the
Employee fails to designate a beneficiary for purposes of this Agreement prior
to his death, all amounts thereafter due hereunder shall be paid, as and when
payable, to his spouse, if she survives the Employee, and otherwise to his
estate.
(j) CONSULTATION WITH COUNSEL. The Employee 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 Employee concerning the terms, enforceability and implications of this
Agreement other than as are reflected in this Agreement.
(k) WITHHOLDING. Any payments provided for in this Agreement shall be
paid net of any applicable income tax withholding required under federal, state
or local law.
(l) CONSUMER PRICE INDEX. For purposes of this Agreement, the terms
"Consumer Price Index" or "CPI" refers to the Consumer Price Index as published
by the Bureau of Labor Statistics of the United States Department of Labor, U.S.
City Average, All Items for Urban Wage Earners and Clerical Workers
(1982-1984=100). If the CPI is hereafter converted to a different standard
reference base or otherwise revised, the determination of the CPI adjustment
shall be made with the use of such conversion factor, formula or table for
converting the CPI, as may be published by the Bureau of Labor Statistics, or,
if the bureau shall no longer publish the same, then with the use of such
conversion factor, formula or table as may be published by an agency of the
United States, or failing such publication, by a nationally recognized publisher
of similar statistical information.
7
(m) SURVIVAL. The provisions of Sections 6, 7, 8, 9, 10 and 11 shall
survive the termination of this Agreement.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto have caused this Agreement to be duly executed as of the date first above
written.
OPERATING PARTNERSHIP: EMPLOYEE:
MPT OPERATING PARTNERSHIP, L.P.
By: /s/ Xxxxxx X. Xxxxx, Xx. /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- ----------------------------------------
Name: Xxxxxx X. Xxxxx, Xx. Xxxxxxx X. Xxxxxxx
Title: President and CEO
Dated: December 17, 2004
REIT:
MEDICAL PROPERTIES TRUST, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
---------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: President and CEO
Dated: December 17, 2004
8
