EXHIBIT 10.19
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement (hereinafter "Agreement") is made and entered
into by and between Xxxxx X. Xxxxxxxxxx (hereinafter referred to as
"Executive"), on the one hand and LTC Properties, Inc., a Maryland corporation
("LTC") and LTC Healthcare, Inc., a Nevada corporation ("LTI"), and their
respective parent, subsidiaries and affiliated entities, successors, and assigns
(hereinafter collectively referred to as "Companies") on the other hand, based
upon the following:
RECITALS:
A. WHEREAS, Executive is an employee of LTC Properties, Inc. and serves
as an officer and a member of the Board of Directors of LTC, LTI and their
various subsidiaries and affiliates, and
B. WHEREAS, Executive desires to commence part-time employment
effective July 1, 2000 and terminate employment on June 30, 2001, unless
Executive exercises his option to continue employment from July 1, 2001 to June
30, 2002 ("Option"), in which case, Executive's termination date will be June
30, 2002, and
C. WHEREAS, Executive and Companies desire to enter into this Agreement
for the purpose of providing for the terms of Executive's change of status and
separation of employment, including a plan of transition to commence July 1,
2000, and
D. WHEREAS, Companies and Executive have agreed to enter into this
Agreement to fully, finally and completely settle and conclude any and all
matters between them as set forth herein in connection with Executive's change
of status and separation,
E. NOW THEREFORE, based upon the foregoing facts, and in consideration
of the covenants and agreements contained herein, Executive and Companies agree
as follows:
1. OBLIGATIONS AND DUTIES OF EXECUTIVE EFFECTIVE JULY 1, 2000. In
addition to the provisions of this Agreement, including the covenants contained
herein, Executive will perform the obligations and duties described below and
such obligations and duties are conditions precedent to LTC's obligation to
perform as set forth in paragraph 2 below:
(a) Executive will hereby resign his position as President and Chief
Financial Officer of LTC and LTI, and will be appointed to the fiduciary
position of Chief Strategic Planning Officer. Executive will serve in such
position, and faithfully perform his duties until June 30, 2001 ("Year One"),
unless such employment is extended by Executive to June 30, 2002 ("Year Two")
pursuant to the terms of the Option, as described in Paragraph 7 of this
Agreement.
(b) Executive will continue to serve as a member of the Board of
Directors of LTC and LTI until the end of the current annual term which he is
now serving for each LTC and LTI, or, such time as the Board of either LTC
and/or LTI request his resignation from the Board, at which time Executive will
be deemed to have resigned.
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(c) Executive will work two days per week at his current office
located at 000 Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, XX 00000, with such work
days to be scheduled as mutually agreed upon by the Chief Executive Officer and
Executive and in response to the needs of Companies.
(d) During the period of time that Executive remains employed as
Chief Strategic Planning Officer, Executive shall not, directly or indirectly,
individually or in combination or association with any other person or entity
own, manage, operate, control, invest in (however, Executive is not hereby
precluded from purchasing and selling stock listed on any national exchange),
accept employment with, consult with, participate in or be connected in any
manner with the ownership, management, operation or control of any business
engaged in competition with Companies (i.e., long term care REITs or nursing
home operating companies, without the written consent of Companies, which
consent shall be in Companies' sole and absolute discretion.
(e) During, and for a period of one year after termination of
Executive's employment, Executive shall not directly or indirectly, individually
or in combination or association with any other person or entity, solicit, or
encourage any other person, firm or entity to solicit the employees, clients,
customers, or otherwise interfere with the relationship of Companies and any of
its employees, agents, representatives, clients, customers, or affiliates,
without the written consent of Companies, which consent shall be in Companies'
sole and absolute discretion.
(f) For a period of one year after termination, Executive shall not
directly or indirectly, individually or in combination or association with any
other person or entity invest in, consult with, participate in, or be connected
in any manner with activity or proposal to effect a Change in Control of the
Companies, as defined in Paragraph e(i), (ii) and (iii) of this Agreement, or
corporate transaction involving the merger, sale, transfer, exchange or other
disposition of all or substantially all of the assets of the Companies, without
the express written consent of the Companies, which consent shall be in the
Companies' sole and absolute discretion.
2. CONSIDERATION. In consideration for and on the condition of
Executive signing this Agreement, his compliance with the promises made herein,
and all conditions set forth herein having been met, LTC agrees:
(a) SALARY. To pay Executive a total annual salary of Two Hundred
Sixty Five Thousand Dollars ($265,000) from July 1, 2000 though June 30, 2001
payable at the payroll periods in effect, less applicable tax withholding, by
direct deposit. In the event Executive exercises his Option to continue
employment from July 1, 2001 through June 30, 2002, LTC will pay Executive a
total annual salary of One Hundred Fifty-Nine Thousand Dollars ($159,000) from
July 1, 2001 to June 30, 2002 payable at the payroll periods in effect, less
applicable tax withholding, by direct deposit.
(b) BENEFITS. To provide Executive with four (4) weeks of 2 days
each (i.e. 8 days) of paid vacation, expense reimbursement, and health care
benefits, including Exec-U-Care or similar plan, on the same terms available to
other executives of LTC in senior level executive positions for Year One of
employment and Year Two, if applicable.
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(c) RESTRICTED STOCK AND STOCK OPTIONS.
(i) To permit Executive to retain the previously granted 49,896
shares of restricted stock of LTC until June 30, 2001, at which time such stock
will be forfeited and returned to LTC; and, no further vesting of such stock
shall occur after June 30, 2000.
(ii) To permit Executive to retain the 50,000 stock options of
LTC at 5-3/8 granted on March 31, 2000 on the terms set forth herein. Such
options to vest at 20% (10,000 options) on March 31, 2001. If Executive
continues in employment until June 30, 2002 another 20% (10,000 options) will
vest on March 31, 2002. Should LTC and Executive mutually agree in writing to
continue employment after June 30, 2002, such options will continue to vest at
twenty percent (20%) per year on each March 31, until fully vested. At
termination of employment, all unvested options will expire. All vested options,
if not exercised, will expire one year from the date of termination.
(iii) To permit Executive to retain the 56,000 stock options of
LTI granted on May 19, 1998 and November 5, 1998, and to continue to vest during
Year One and Year Two, as applicable, pursuant to the vesting schedule currently
in effect, until employment terminates pursuant to the Agreement. Specifically,
of the 56,000 options granted, 30,334 have vested. At termination of employment,
all unvested options will expire. All vested options, if not exercised, will
expire one year from the date of termination. 11,666 options are scheduled to
vest on May 19, 2001; and 7,000 options are scheduled to vest on November 5,
2000, and 7,000 options are scheduled to vest on November 5, 2001.
(c) BONUS. To permit Executive to remain eligible to receive a
discretionary bonus in connection with services provided during Year One and/or
Year Two, as applicable, however, any such bonus will be reduced to forty
percent (40%) of whatever bonus Executive might have received had Executive
continued his employment in the same status as it was prior to July 1, 2000.
However, any bonus is purely discretionary with LTC having the sole and absolute
right to grant a bonus. Nothing herein obligates LTC to pay any bonus.
(d) DEFERRED COMPENSATION. To permit Executive to remain eligible
and continue to participate in the Deferred Compensation Plan for Year One and
Year Two, as applicable. However, any such contribution made on behalf of
Executive will be reduced to forty percent (40%) of whatever Executive might
have received had Executive continued his employment in the same status as it
was prior to July 1, 2000. As of July 30, 2000, Executive's Deferred
Compensation balance is 39,481 shares of LTC stock; 409 shares of LTI stock and
$12,194 to be reinvested in LTC stock ("Balance"). The Balance, plus any
contribution made thereafter during Executive's continued employment, will be
distributed pursuant to the terms of the Plan.
(e) LOAN. To provide that the loan as described in the Loan
Agreement and Promissory Note executed between Executive and LTC on March 25,
1997 with a balance of $729,688.00, which would otherwise be due to LTC upon
termination of employment, be due on January 1, 2009. Further, upon either (i)
Xxxxx Xxxxxxxxxxx ceasing to be the Chief Executive Officer of LTC, (ii)
Executive's death, or (iii) a Change of Control, Executive and/or his executor
will have the option of selling the 62,500 shares of stock underlying the loan
to the Executive for the outstanding balance of the loan then remaining.
Additionally, if LTC stock
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trades at $13 per share or better for a 30 day consecutive period, the Company
will have the option of calling the loan due and Executive shall pay the then
outstanding balance of the loan within 90 days of such call. "Change in Control"
shall mean a change in ownership or control of the Company effected through any
of the following transactions:
(i) any person or related group of persons (other than the
Company or a person that directly or indirectly controls, is controlled by, or
is under common control with, the Company) directly or indirectly acquires
beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act)
of securities of the Company representing forty percent (40%) or more of the
total combined voting power of the Company's then outstanding securities; or
(ii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation (or other entity), other
than a merger or consolidation which would result in the voting securities of
the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) more than 66-2/3% of the combined voting power of the
voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation; provided, however, that a merger
or consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no person acquires more than 30% of the combined
voting power of the Company's then outstanding securities shall not constitute a
Change in Control; or
(iii) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets.
(iv) a majority of the members of the Board of Directors cease
to be continuing Directors.
3. NO FURTHER CONSIDERATION. Executive acknowledges and agrees that,
except as specifically provided in Paragraph 2, no other payment, benefits or
services shall be made during any remaining term of employment or in connection
with the termination thereof, except for Executive's rights to receive benefits
under the Consolidated Omnibus Reconciliation Act of 1985 ("COBRA").
4. DATE OF RESIGNATION. The effective date of Executive's resignation
shall be June 30, 2001, unless Executive exercises his Option to continue
employment pursuant to paragraph 7.
5. TERMINATION OF EMPLOYMENT AGREEMENT. Upon execution of this
Agreement, this Agreement constitutes a termination of the Amended and Restated
Employment Agreement dated March 26, 1999 ("Employment Agreement"), which shall
have no further force and effect.
6. CONSULTING. Executive may consult during the time that he is not
otherwise committed to perform pursuant to this Agreement, as long as such
consulting does not violate any provisions herein.
7. OPTION. Executive shall have the option to extend his employment
until June 30, 2002, Year Two, and received such benefits as specifically
described in paragraph 2 of this
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Agreement. During Year Two, Executive shall perform the obligations and duties
as described in paragraph 1 of this Agreement and comply with all other
covenants set forth herein.
8. INDEMNIFICATION. LTC shall indemnify Executive and hold him harmless
from and against all claims, losses, damages, expense or liabilities (including
expenses of defense and settlement) based upon or in any way arising from or
connected with his employment by LTC, to the maximum extent permitted by law. To
the extent permitted by law, LTC shall advance to Executive any expenses
necessary in connection with the defense of any action or claim which is brought
if indemnification cannot be determined to be available prior to the conclusion
of such action or the investigation of such claim. LTC shall investigate in good
faith the availability and cost of directors' and officers' insurance and shall
include Executive as an insured in any policy of such insurance it maintains.
9. MUTUAL COVENANT NOT TO XXX.
Executive warrants, and represents that there is not now pending any
action, complaint, petition, charge, grievance, or any other form of
administrative, legal or arbitral proceeding by Executive against Companies,
and/or any of its or their respective past or present officers, directors,
trustees, shareholders, agents, employees, independent contractors, attorneys,
successors or assigns, and each of them (hereinafter referred to collectively
for convenience as the "Companies and RELEASEES"), and further warrants and
represents that no such proceeding of any kind shall be instituted by Executive
or on Executive's behalf with regard to any matter naming Companies and
RELEASEES, or any of them, as a defendant, respondent or charged party, except
to the extent that Executive brings an action to enforce the terms of this
Agreement.
Companies warrant, and represent that there is not now pending any
action, complaint, petition, charge, grievance, or any other form of
administrative, legal or arbitral proceeding by Companies against Executive, his
heirs, devisees, successors and assigns (hereinafter referred to collectively
for convenience as the "Executive RELEASEES"), and further warrants and
represents that no such proceeding of any kind shall be instituted by Companies
or on Companies' behalf with regard to any matter naming Executive RELEASEES, as
a defendant, respondent or charged party, except to the extent that Executive
brings an action to enforce the terms of this Agreement.
10. MUTUAL RELEASE.
Executive hereby expressly releases and waives and absolutely and
forever discharges any and all claims, liabilities, demands, damages, penalties,
debts, accounts, obligations, actions, grievances and causes of action
(hereinafter all referred to collectively as "Claims"), whether now known or
unknown, suspected or unsuspected, whether in law, in equity or in arbitration,
of any kind or nature whatsoever, which Executive has or claims to have, now or
hereafter, against Companies and RELEASEES, and against any of them, arising
before the date Executive executed this Agreement, including, but not limited
to, any Claims arising out of or relating to Executive's employment with
Companies and termination thereof. Without limiting the foregoing, Executive
hereby acknowledges and agrees that the Claims released by this Agreement
include, but are not limited to, any and all claims which arise or could arise
under California statutory or common law, federal law, the U.S. Civil Rights Act
of 1964, as amended,
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the Employee Retirement Income Security Act of 1967, as amended, and the
California Fair Employment and Housing Act and the U.S. Age Discrimination in
Employment Act of 1967, as amended.
Companies hereby expressly release and waive and absolutely and forever
discharge any and all claims, liabilities, demands, damages, penalties, debts,
accounts, obligations, actions, grievances and causes of action (hereinafter all
referred to collectively as "Claims"), whether now known or unknown, suspected
or unsuspected, whether in law, in equity or in arbitration, of any kind or
nature whatsoever, which Companies have or claim to have, now or hereafter,
against Executive RELEASEE, arising before the date Companies executed this
Agreement, including, but not limited to, any Claims arising out of or relating
to Executive's employment with Companies and termination thereof. Without
limiting the foregoing, Companies hereby acknowledge and agree that the Claims
released by this Agreement include, but are not limited to, any and all claims
which arise or could arise under California statutory or common law, federal
law, the U.S. Civil Rights Act of 1964, as amended, the Employee Retirement
Income Security Act of 1967, as amended, and the California Fair Employment and
Housing Act and the U.S. Age Discrimination in Employment Act of 1967, as
amended.
11. SECTION 1542 WAIVER. As part of this general release, and not by
way of limitation, Executive expressly, absolutely and forever releases and
waives all of Executive's rights under Section 1542 of the California Civil
Code. Executive hereby expressly acknowledges that Executive has been informed
of, and that Executive is familiar with, the provisions of Section 1542, which
states:
A general release does not extend to claims
which the creditor does not know or suspect to
exist in his favor at the time of executing the
release, which if known by him must have
materially affected his settlement with the
debtor.
In connection with such release, waiver and relinquishment, Executive
acknowledges that Executive is aware that Executive may later discover facts in
addition to or different from those which Executive now knows or believes to be
true with respect to any of the subject matters of this Agreement, but that it
is nevertheless Executive's intention by signing this Agreement to fully,
finally and forever settle and release all of Executive's Claims, whether now
known or unknown, suspected or unsuspected, which now exist, may exist or
previously have existed between Executive, on the one hand, and Companies and
RELEASEES, and any of them, on the other hand. In furtherance of such intention
the general release given herein shall be and shall remain in effect as a full
and complete general release, notwithstanding the discovery by Executive of the
existence of any such additional or different facts.
As part of this general release, and not by way of limitation,
Companies expressly, absolutely and forever release and waive all of Companies'
rights under Section 1542 of the California Civil Code. Companies hereby
expressly acknowledge that Companies have been informed of, and that Companies
are familiar with, the provisions of Section 1542, which states:
A general release does not extend to claims
which the creditor does not know or suspect to
exist in his favor at the
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time of executing the release, which if known by
him must have materially affected his settlement
with the debtor.
In connection with such release, waiver and relinquishment, Companies
acknowledge that Companies are aware that Companies may later discover facts in
addition to or different from those which Companies now know or believe to be
true with respect to any of the subject matters of this Agreement, but that it
is nevertheless Companies' intention by signing this Agreement to fully, finally
and forever settle and release all of Companies' Claims, whether now known or
unknown, suspected or unsuspected, which now exist, may exist or previously have
existed between Companies, on the one hand, and Executive RELEASEE, on the other
hand. In furtherance of such intention the general release given herein shall be
and shall remain in effect as a full and complete general release,
notwithstanding the discovery by Companies of the existence of any such
additional or different facts.
12. CONFIDENTIALITY.
(a) Executive acknowledges that by reason of his employment, he was
given access to confidential, proprietary and /or trade secret information and
materials of or regarding Companies and RELEASEES, and its or their customers,
clients, investors, contractors, vendors, and other persons and entities doing
business with Companies or Companies and RELEASEES, including, but not limited
to, business plans; customer lists; customer profiles; product design
information; employment data; sources of customers or business; financial
information; formulas; methodologies, the contents and provisions of contracts
and agreements to which Companies and/or RELEASEES are, were or may be parties;
technology; processes; and methods of production or operation (collectively, the
"Companies Information"). Executive represents that he has kept confidential all
such Companies Information and, except as required by law, Executive hereby
agrees that he shall always keep and maintain strictly confidential and not
disclose to any person or entity any such Companies Information. Executive
hereby further warrants and represents that, upon termination, he will return to
Companies all of the property in his possession or control belonging to
Companies and RELEASEES, including but not limited to, Companies Information and
any other Companies property and all copies and duplicates thereof.
(b) Executive understands and agrees that this Paragraph is a
material provision of this Agreement and that any breach of any provision of
this Paragraph shall be a material breach of this Agreement.
(c) As soon as Executive becomes aware that any third party is
seeking disclosure of any of the confidential information described in this
Paragraph though subpoena, legal process, or discovery, he shall inform
Companies immediately.
13. COOPERATION. Executive covenants and agrees that at any time, at
Companies' request and without further consideration, to cooperate fully by
making himself available to provide information to Companies pertaining to
Company matters; and to execute and deliver such documents, but not limited to,
as may be necessary to perform his duties.
14. GOOD FAITH: FURTHER ASSURANCES: COOPERATION. The parties to this
Agreement shall in good faith undertake to perform their obligations in this
Agreement, to satisfy all conditions and to cause the transaction contemplated
by this Agreement to be carried out
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promptly in accordance with the terms of this Agreement. Upon the execution of
this Agreement and thereafter, each party shall do such things as may be
reasonably requested by another party hereto in order more effectively to
consummate or to document the transactions contemplated by this Agreement. The
parties shall cooperate fully with each other and their respective counsel and
accountants or designees in connection with any steps required to be taken as
part of their respective obligations under this Agreement.
15. NONDISPARAGEMENT. Executive shall not disparage Companies or any of
Companies and RELEASEES in any manner whatsoever, and Companies shall not
disparage Executive or any of Executive RELEASEES in any manner whatsoever.
16. MUTUAL RELEASE AND SECTION 1542 WAIVER. Companies and Executive
agree and covenant that five (5) days prior to termination of employment, each
will execute a mutual release and waiver upon the same terms as set forth in
paragraphs 9 and 10 of this Agreement.
17. ENTIRE AGREEMENT. This Agreement constitutes and contains the
entire agreement and understanding concerning the subject matters between the
parties hereto, and supersedes and replaces all prior negotiations and all
proposed agreements, promises, covenants, guarantees, representations, whether
written or oral, express or implied, concerning any of the subject matters
hereof, including, but not limited to, the Amended and Restated Employment
Agreement dated March 26, 1999. The parties agree and acknowledge that they have
not signed this Agreement in reliance on any agreement, promise, covenant,
guarantee, representation, commitment, or warranty not expressly set out in
writing in this Agreement.
18. SEVERABILITY. Should any part, term or provision of this Agreement,
with the exception of the releases embodied in Paragraphs 7 and 8 be declared or
determined by any Court or other tribunal of appropriate jurisdiction to be
invalid or unenforceable, any such invalid provision and any and all of the
other terms of the Agreement shall remain in full force and effect to the
fullest extent permitted by law.
19. MODIFICATION. This Agreement can only be modified by a writing
signed by all of the parties hereto.
20. INTERPRETATION. This Agreement shall be construed as a whole,
according to its fair meaning, and not in favor of or against any party. By way
of example and not in limitation, this Agreement shall not be construed in favor
of the party receiving a benefit nor against the party responsible for any
particular language in this Agreement. Captions are used for references purposes
only and should be ignored in the interpretation of the Agreement.
21. PARTIES' UNDERSTANDING PRIOR TO SIGNING. Individuals acknowledge
that they have completely read this Agreement and Release, that prior to signing
they have had sufficient opportunity to examine it and ask questions, and that
they are aware of their right to seek advice of legal counsel. The parties
further acknowledge that this Agreement is being signed voluntarily and without
coercion, duress or undue influence and with full understanding of its terms and
effects.
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21. ARBITRATION.
Any controversy or claim rising out of or relating to this Agreement or
the breach of this Agreement shall be settled by arbitration administered by the
American Arbitration Association under its Employment Dispute Resolution Rules
and judgment on the award rendered by the arbitrator(s) may be entered in any
court of competent jurisdiction.
Any controversy or claim submitted for arbitration shall be submitted
to an arbitrator selected from a panel of arbitrators provided by the American
Arbitration Association. The arbitrator shall be a member of the National
Academy of Arbitrators who resides in California. The arbitration proceedings
shall be conducted in Los Angeles, California.
Punitive or exemplary damages shall not be awarded for any breach or
alleged breach of this Agreement and the parties waive any right to seek, claim
or receive punitive or exemplary damages.
The arbitration provisions of this Agreement provide its exclusive
remedies and each party expressly waives the right to pursue redress in any
other forum.
The arbitrators shall not be empowered or authorized to add to,
subtract from delete or in any other way modify, the terms of this Agreement.
The costs of arbitration shall be borne by the losing party or shall be
apportioned as the arbitrator shall decide.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement on
the day or days and year written below.
EXECUTIVE
Dated: By: /s/ XXXXX X. XXXXXXXXXX
-------------------------- ------------------------------------
Xxxxx X. Xxxxxxxxxx
COMPANIES:
LTC PROPERTIES, INC.
Dated: 7-24-00 By: /s/ [ILLEGIBLE]
-------------------------- ------------------------------------
Title: CHAIRMAN & CEO
------------------------------------
LTC HEALTHCARE, INC.
Dated: 7-24-00 By: /s/ [ILLEGIBLE]
-------------------------- ------------------------------------
Title: CHAIRMAN & CEO
------------------------------------
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