[EXHIBIT 10.31]
CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT (the "Agreement") is made
and entered into this __ day of ____, 2002, between WINDROSE MEDICAL PROPERTIES
TRUST, a Maryland business trust (the "REIT"), WINDROSE MEDICAL PROPERTIES L.P.,
a Virginia limited partnership (the "Company") and XXXXXXXXX X. XXXXXX (the
"Executive"). Certain capitalized terms used in this Agreement are defined in
Section 6.
R E C I T A L S
The REIT, which is the sole General Partner of the Company,
acknowledges that Executive has made and is expected to make significant
contributions to the growth and success of the REIT and the Company. The Company
acknowledges that Executive has made and is expected to make significant
contributions to the growth and success of the Company. The REIT and the Company
also acknowledge that there exists the possibility of a Change in Control of the
REIT. The REIT and the Company recognize that the possibility of a Change in
Control may contribute to uncertainty on the part of senior management and may
result in the departure or distraction of senior management from their operating
responsibilities.
Outstanding management of the Company and the REIT is always essential
to advancing the best interests of the Company and its partners and the REIT and
its shareholders. In the event of a threat or occurrence of a bid to acquire or
change control of the Company or the REIT or to effect a business combination,
it is particularly important that the business of the REIT and the Company be
continued with a minimum of disruption. The REIT and the Company believe that
the objective of securing and retaining outstanding management will be achieved
if the Company's and the REIT's key management employees are given assurances of
employment security so that they will not be distracted by personal
uncertainties and risks created by such circumstances.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations herein and the compensation the REIT and the Company agree, jointly
and severally, herein to pay to Executive, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
REIT, the Company and Executive agree as follows:
1. EFFECTIVE DATE. The Effective Date of this Agreement is the closing
date of the REIT's initial public offering of its common shares of beneficial
interest.
2. TERM OF AGREEMENT. The Term of this Agreement begins on the Effective
Date and ends on the day before the third anniversary of the Effective Date.
Notwithstanding the preceding sentence, the Term of this Agreement shall be
extended for an additional twelve month period, as of each anniversary of the
Effective Date, unless the REIT or the Company gives Executive written notice,
at least ninety days prior to the applicable anniversary of the Effective Date,
that the Term of this Agreement will not be extended.
3. RIGHT TO RECEIVE TERMINATION BENEFITS. Executive shall be entitled to
receive the Termination Benefits described in Section 4 if the requirements of
any of the following subsections (a), (b) or (c) are satisfied:
(a) Executive shall be entitled to receive the Termination
Benefits if (i) a Control Change Date occurs during the Term of this Agreement
and (ii) within twenty-four months after the Control Change Date either (x) the
REIT terminates Executive's employment with the REIT without Cause or the
Company terminates Executive's employment with the Company without Cause or (y)
Executive resigns from the employment of the REIT and the Company and Executive
has Good Reason to resign from the REIT or Good Reason to resign from the
Company.
(b) Executive shall be entitled to receive the Termination
Benefits if (i) during the Term of this Agreement the REIT terminates
Executive's employment with the REIT without Cause or the Company terminates
Executive's employment with the Company without Cause and (ii) a Control Change
Date occurs within nine months after Executive's termination by either the REIT
or the Company.
(c) Executive shall be entitled to receive the Termination
Benefits if (i) during the Term of this Agreement the REIT terminates
Executive's employment with the REIT without Cause or the Company terminates
Executive's employment with the Company without Cause and (ii) on the date of
Executive's termination the REIT or the Company is negotiating with, or is in
discussions with, a Person regarding a transaction that, if completed, would
constitute a Change in Control.
No amounts will be payable under this Agreement unless Executive's employment
with the REIT, the Company or both is terminated as described in one of the
foregoing subsections.
4. TERMINATION BENEFITS. Upon a termination of Executive's employment in
accordance with Section 3, Executive shall be entitled to receive the following
Termination Benefits:
(a) Payment of any accrued but unpaid salary from the REIT or the
Company through the date that Executive's employment terminates;
(b) Payment of any bonus that has been earned from the REIT or the
Company but which remains unpaid as of Executive's termination of employment;
(c) Reimbursement for any expenses that Executive incurred on
behalf of the REIT or the Company prior to termination of employment to the
extent that such expenses are reimbursable under the REIT's or the Company's
standard reimbursement policies; and
(d) A payment equal to the greater of (x) three times Executive's
Current Cash Compensation and (y) $675,000. The term "Current Cash Compensation"
is the sum of Executive's annual base salaries from the REIT and the Company as
in effect on the date Executive's employment terminates and the highest annual
bonuses paid to Executive for the REIT's and the Company's current fiscal year
or the prior three fiscal years of the REIT and the Company preceding the
termination of his employment.
The Termination Benefits shall be payable in a single cash sum within seven days
of Executive's termination of employment in accordance with Section 3. The
payment of the Termination Benefits shall be reduced by amounts required to be
withheld for applicable income and employment taxes.
In addition to the Termination Benefits described in this Section 4, Executive
also shall be entitled to receive any benefits or payments that Executive is
entitled to receive under any employee benefit plans or other arrangements or
agreements, including by way of example, stock option agreements, that cover
Executive.
5. EXCISE TAX INDEMNIFICATION. Executive shall be entitled to a payment
under this Agreement if any payment or benefit provided under this Agreement or
any other plan or agreement with the Company or the REIT constitutes a
"parachute payment" (as defined in Section 280G(b)(2)(A) of the Internal Revenue
Code of 1986 (the "Code"), but without regard to Code Section 280G(b)(2)(A)(ii))
and Executive incurs a liability under Code Section 4999. The amount payable to
Executive under this Section 5 shall be the amount required to indemnify
Executive and hold him harmless from the application of Code Sections 280G and
4999 with respect to benefits, payments, accelerated exercisability and vesting
and other rights under this Agreement or otherwise, and any income, employment,
hospitalization, excise and other taxes attributable to the indemnification
payment. The benefit payable under this Section 5 shall be calculated and paid
not later than the date (or extended filing date) on which the tax return
reflecting liability for the Code Section 4999 excise tax is required to be
filed with the Internal Revenue Service. To the extent that any other plan or
agreement requires that Executive be indemnified and held harmless from the
application of Code Sections 280G and 4999, any such indemnification and the
amount required to be paid to Executive under this Section 5 shall be
coordinated so that such indemnification is paid only once and the REIT's and
the Company's obligations under this Section 5 shall be satisfied to the extent
of any such other payment (and vice versa). Executive shall be entitled to the
benefit described in Section 5 without regard to whether he becomes entitled to
receive the Termination Benefits described in Section 4.
6. CERTAIN DEFINITIONS. As used in this Agreement, certain terms have the
definitions set forth below.
(a) Acquiring Person means that a Person, considered alone or
together with all Control Affiliates and Associates of that Person, is or
becomes directly or indirectly the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of securities representing at least twenty percent (20%)
of the REIT's then outstanding securities entitled to vote generally in the
election of the Board.
(b) Associate, with respect to any Person, is defined in Rule
12b-2 under the Exchange Act; provided, however, that an Associate shall not
include the Company, the REIT or a majority-owned affiliate of the Company or
the REIT.
(c) Board means the Board of Trustees of the REIT.
(d) Cause means (i) willful, deliberate and continued failure by
Executive (other than for reason of mental or physical illness) to perform his
duties as established by the Board or the
General Partner of the Company, 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 REIT or the Company; (ii) a material breach by
Executive of his fiduciary duties of loyalty or care to the REIT or the Company;
(iii) conviction of any crime (or upon entering a plea of guilty or nolo
contendere to a charge of any crime) constituting a felony; (iv)
misappropriation of the REIT or the Company's funds or property; or (v) willful,
flagrant, deliberate and repeated infractions of material published policies and
regulations of the Company or the REIT of which Executive has actual knowledge.
(e) Change in Control means (i) a Person is or becomes an
Acquiring Person; (ii) holders of the securities of the REIT entitled to vote
thereon approve any agreement with a Person (or, if such approval is not
required by applicable law and is not solicited by the REIT, the closing of such
an agreement) that involves the transfer of more than fifty percent (50%) of the
REIT's and its affiliates' total assets on a consolidated basis, as reported in
the REIT's consolidated financial statements filed with the Securities and
Exchange Commission; (iii) holders of the securities of the REIT entitled to
vote thereon approve a transaction (or, if such approval is not required by
applicable law and is not solicited by the REIT, the closing of such a
transaction) pursuant to which the REIT will undergo a merger, consolidation, or
statutory share exchange with a company, regardless of whether the REIT is
intended to be the surviving or resulting entity after the merger,
consolidation, or statutory share exchange, other than a transaction that
results in the voting securities of the REIT carrying the right to vote in
elections of persons to the Board outstanding immediately prior to the closing
of the transaction continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity) more than
fifty percent (50%) of the REIT's voting securities carrying the right to vote
in elections of persons to the Board, or such securities of such surviving
entity, outstanding immediately after the closing of such transaction; (iv) the
Continuing Directors cease for any reason to constitute a majority of the Board;
(v) holders of the securities of the REIT entitled to vote thereon approve a
plan of complete liquidation of the REIT agreement for the sale or liquidation
by the REIT or its affiliates of substantially all of the assets of the REIT and
its affiliates (or, if such approval is not required by applicable law and is
not solicited by the REIT, the commencement of actions constituting such a plan
or the closing of such an agreement); or (vi) the Board adopts a resolution to
the effect that, in its judgment, as a consequence of any one or more
transactions or events or series of transactions or events, a Change in Control
of the Company has effectively occurred.
(f) Continuing Director means any member of the Board, while a
member of the Board and (i) who was a member of the Board on the Effective Date
or (ii) whose nomination for or election to the Board was recommended or
approved by a majority of the Continuing Directors.
(g) Control Affiliate, with respect to any Person, means an
affiliate as defined in Rule 12b-2 under the Exchange Act.
(h) Control Change Date means the date on which a Change in
Control occurs. If a Change in Control occurs on account of a series of
transactions or events, the "Control Change Date" is the date of the last of
such transactions or events in the series.
(i) Exchange Act means the Securities Exchange Act of 1934, as
amended.
(j) Good Reason means the Executive's resignation from the
employment of the REIT or the Company and its affiliates on account of one or
more of the following events:
(i) the failure by the Board to reelect Executive to
Executive's current position with the REIT;
(ii) a material diminution by the Board of the duties,
functions and responsibilities of Executive as the President, Chief Operating
Officer and Treasurer of the REIT without his consent or a material diminution
of Executive's duties, functions and responsibilities with respect to the
Company without Executive's consent;
(iii) the failure of the REIT or the Company to permit
Executive to exercise such responsibilities as are consistent with 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 REIT or the
Company;
(iv) the REIT's or the Company's causing the Executive to
relocate his employment more than fifty (50) miles from Indianapolis, Indiana,
without the consent of Executive;
(v) the Company's or the REIT's failure to make a payment
when due to Executive;
(vi) the Company's or the REIT's reduction of 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 Executive for a fiscal year is lower than the
aggregate threshold, target, or maximum bonus, respectively, projected for
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 Board in good faith;
(vii) a breach of Section 10 of this Agreement;
(viii) the Company or the Board directs Executive to engage
in unlawful or unethical conduct or conduct contrary to the Company's or the
REIT's good business practices.
(k) Person means any human being, firm, corporation, partnership,
or other entity. "Person" also includes any human being, firm, corporation,
partnership, or other entity as defined in sections 13(d)(3) and 14(d)(2) of the
Exchange Act. The term "Person" does not include the Company, or any Related
Entity, and the term Person does not include any employee-benefit plan
maintained by the Company or any Related Entity, and any person or entity
organized, appointed, or established by the Company or any Related Entity for or
pursuant to the terms of any such employee-benefit plan, unless the Board
determines that such an employee-benefit plan or such person or entity is a
"Person".
(l) Related Entity means any entity that is part of a controlled
group of corporations or is under common control with the REIT within the
meaning of section 1563(a), 414(b) or 414(c) of the Internal Revenue Code of
1986, as amended (the "Code").
7. ATTORNEYS' FEES. Executive shall be entitled to reimbursement for any
attorneys' fees and any other reasonable expenses that Executive incurs in
enforcing or protecting his rights under this Agreement. Such reimbursement
shall be made within thirty days following final resolution of the dispute or
occurrence giving rise to such fees and expenses, regardless of whether
Executive is deemed the prevailing party in the resolution of the dispute or
occurrence.
8. NO ASSIGNMENT. Except as required by applicable law, no right to
receive payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge or
hypothecation or to execution, attachment, levy or similar process or assignment
by operation of law and any attempt to effect any such action shall be null,
void and no effect.
9. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Maryland 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 Maryland.
10. SUCCESSORS. The REIT and the Company shall require any successor to all
or substantially all of the REIT's or 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 REIT and the Company would be required to
perform it if no such succession had taken place. Failure of the REIT or 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 the REIT 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 following a Change in Control.
References in this Agreement to the "Company" include the Company as herein
before 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.
References in this Agreement to the "REIT" include the REIT as herein before
defined and any successor to the REIT's business, assets or both which assumes
and agrees to perform this Agreement by operation of law or otherwise.
11. BINDING AGREEMENT. This Agreement shall inure to the benefit of and be
enforceable by Executive and his personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Executive dies while any amount remains payable to him hereunder, all such
amounts shall be paid in accordance with the terms of this Agreement to
Executive's devisee, legatee or other designee or, if there is none, to
Executive's estate.
12. NO EMPLOYMENT RIGHTS. Nothing in this Agreement confers on Executive
any right to continuance of employment by the Company, the REIT or any
affiliate. Nothing in this Agreement interferes with the right of the Company,
the REIT or an affiliate to terminate Executive's employment at any time for any
reason whatsoever, with or without Cause, subject
to the requirements of this Agreement. Nothing in this Agreement restricts the
right of Executive to terminate his employment with the Company, the REIT and
affiliates at any time for any reason whatsoever, with or without Good Reason.
13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together constitute one and the same instrument.
14. ENTIRE AGREEMENT. This Agreement expresses the whole and entire
agreement between the parties with reference to the payment of the Termination
Benefits and supersedes and replaces any prior agreement, understanding or
arrangement (whether oral or written) by or between the REIT, the Company and
Executive with respect to the payment of the Termination Benefits.
15. NOTICES. All notices, requests and other communications to any party
under this Agreement shall be in writing and shall be given to such party at its
address set forth below or such other address as such party may hereafter
specify for the purpose by notice to the other party:
If to Executive: 0000 Xxxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
If to the REIT: 0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
If to the Company: 0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Each notice, request or other communication shall be effective if (i) given by
mail, seventy-two hours after such communication is deposited in the mails with
first class postage prepaid, address as aforesaid or (ii) if given by any other
means, when delivered at the address specified in this Section 15.
16. MODIFICATION OF AGREEMENT. No waiver or modification of this Agreement
shall be valid unless in writing and duly executed by the party to be charged
therewith. No evidence of any waiver or modification shall be offered or
received in evidence at any proceeding, arbitration or litigation between the
parties unless such waiver or modification is in writing, duly and executed. The
parties agree that this Section 16 may not be waived except as herein set forth.
17. JOINT AND SEVERAL LIABILITY. The REIT and the Company are jointly and
severally liable to make the payments and provide the benefits provided under
this Agreement including, by way of illustration, the payment of the Termination
Benefits described in Section 4 and the payment of the excise tax
indemnification described in Section 5.
18. RECITALS. The Recitals to this Agreement are incorporated herein and
shall constitute an integral part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
XXXXXXXXX X. XXXXXX
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WINDROSE MEDICAL PROPERTIES TRUST
By:
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Title:
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WINDROSE MEDICAL PROPERTIES L.P.
By:
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Title:
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