EXHIBIT 10.10
HEALTHCARE REALTY TRUST
INCORPORATED
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of January 1, 2003 ("Effective Date") by and between HEALTHCARE REALTY TRUST
INCORPORATED, a Maryland corporation ("Corporation"), and XXXXX X. XXXXX
("Officer").
RECITAL
Corporation desires to employ Officer as its President and Chief
Executive Officer and Officer is willing to accept such employment by
Corporation, on the terms and subject to the conditions set forth in this
Agreement.
AGREEMENT
THE PARTIES AGREE AS FOLLOWS:
1. DUTIES. During the term of this Agreement, Officer agrees to
be employed by and to serve Corporation as its President and Chief Executive
Officer, and Corporation agrees to employ and retain Officer in such capacities.
Officer's duties shall be to be primarily responsible for the general management
of the business of Corporation and for implementing the policies and directives
of Corporation's Board of Directors. Officer shall devote such of his business
time, energy, and skill to the affairs of Corporation as shall be necessary to
perform his duties under this Agreement, and shall have no set number of hours
or days he is required to spend in Corporation's offices. Officer shall report
only to Corporation's Board of Directors and at all times during the term of
this Agreement shall have powers and duties at least commensurate with his
position as President and Chief Executive Officer. Officer's principal place of
business with respect to his services to Corporation shall be within 35 miles of
Nashville, Tennessee.
2. TERM OF EMPLOYMENT.
2.1 DEFINITIONS. For purposes of this Agreement the
following terms shall have the following meanings:
(a) "TERMINATION FOR CAUSE" shall mean
termination by Corporation of Officer's employment by Corporation by reason of
Officer's material, substantial and willful dishonesty towards, fraud upon, or
deliberate injury or attempted injury to, Corporation or by reason of Officer's
material, substantial and willful breach of this Agreement which has resulted in
material injury to Corporation. For purposes of this Agreement, a termination of
Officer's employment with Corporation shall be deemed a Termination Other Than
For Cause rather than a Termination For Cause unless and until established by
Corporation to the contrary by a final, nonappealable decision by a court of
competent jurisdiction. Corporation shall have the burden of establishing that
any termination of Officer's employment by Corporation is a Termination For
Cause.
(b) "TERMINATION OTHER THAN FOR CAUSE" shall
mean any termination by Corporation of Officer's employment by Corporation
(other than a Termination For Cause) and shall include a Constructive
Termination of Officer's employment, effective upon notice from Officer to
Corporation of such Constructive Termination. A failure or refusal of
Corporation to extend the term of employment of Officer in accordance with
Section 2.2 hereof, other than as a result of circumstances which would warrant
a Termination For Cause hereunder, shall be deemed a Termination Other Than For
Cause.
(c) "VOLUNTARY TERMINATION" shall mean
termination by Officer of Officer's employment by Corporation other than (i) a
Constructive Termination as described in subsection 2.1(g), (ii) "Termination
Upon a Change in Control" as described in Section 2.1(d), (iii) termination by
reason of Officer's death or disability as described in Sections 2.5 and 2.6,
and (iv) termination by reason of retirement by Officer upon attainment of
eligibility to retire in accordance with the Executive Retirement Plan as in
effect upon the date of this Agreement.
(d) "TERMINATION UPON A CHANGE IN CONTROL" shall
mean a termination by Officer of Officer's employment with Corporation within 24
months following a "Change in Control."
(e) "CHANGE IN CONTROL" shall mean (i) the time
that Corporation first determines that any person and all other persons who
constitute a group (within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934 ("Exchange Act")) have acquired direct or indirect
beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act)
of 20 percent or more of Corporation's outstanding securities, unless a majority
of the "Continuing Directors" approves the acquisition not later than ten
business days after Corporation makes that determination, or (ii) the first day
on which a majority of the members of Corporation's Board of Directors are not
"Continuing Directors."
(f) "CONTINUING DIRECTORS" shall mean, as of any
date of determination, any member of the Board of Directors of Corporation who
(i) was a member of that Board of Directors on January l, 2003, (ii) has been a
member of that Board of Directors for the two years immediately preceding such
date of determination, or (iii) was nominated for election or elected to the
Board of Directors with the affirmative vote of the greater of (x) a majority of
Continuing Directors who were members of the Board at the time of such
nomination or election or (y) at least four Continuing Directors.
(g) "CONSTRUCTIVE TERMINATION" shall mean (i)
any material breach of this Agreement by Corporation, (ii) any actual or implied
threat of discharge of Officer by Corporation under circumstances which would
not constitute a Termination For Cause and which results in an involuntary
resignation of employment by Officer, (iii) any substantial reduction in the
authority or responsibility of Officer or other substantial reduction in the
terms and conditions of Officer's employment under circumstances which would not
justify a Termination For Cause and which are not the result of a material
breach by Officer of this Agreement, (iv) any act(s) by Corporation which are
designed or
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have the effect of rendering Officer's working conditions so intolerable or
demeaning on a recurring basis that a reasonable person would resign such
employment, (v) a material adverse alteration in Officer's reporting
relationships, position, responsibilities, title or status; (vi) a reduction in
Officer's compensation or a substantial reduction in benefits provided to
Officer that are provided for or referenced hereunder; or (vii) relocation of
Officer to a location that is more than 35 miles from the location of
Corporation's headquarters on the date this Agreement is executed.
(h) "DEFERRED COMPENSATION" or "deferred
compensation" shall mean any individual or group plan, program, agreement or
other arrangement, whether or not a "plan" for purposes of the Employee
Retirement Income Security Act of 1974 ("ERISA") and whether or not a retirement
plan or supplemental executive retirement plan or additional retirement plan of
Corporation, but which in any event involves an agreement by Corporation to make
payment(s) to Officer at a future date as compensation for current services to
Corporation. The term Deferred Compensation or deferred compensation shall
include, but not be limited to, benefits described in the Healthcare Realty
Trust Incorporated Executive Retirement Plan, any Incentive Plan, and any
implementation thereof or incentive award thereunder, each as it now exists or
may hereafter be amended.
(i) "INCENTIVE PLANS" shall mean Corporation's
1993 Employees Stock Incentive Plan, the 2003 Employees Restricted Stock
Incentive Plan, and any successor plans.
2.2 BASIC TERM. The term of employment of Officer by
Corporation shall be from January 1, 2003 through December 31, 2007, unless
terminated earlier pursuant to this Section 2. Commencing in 2004, on the first
day of January of each year, the first sentence of this Section 2.2 shall be
amended by deleting each year then appearing therein and inserting in each place
the next subsequent year.
2.3 TERMINATION FOR CAUSE. Termination For Cause may be
effected by Corporation at any time during the term of this Agreement and shall
be effected by written notification to Officer. Upon Termination For Cause,
Officer immediately shall be paid all accrued salary, bonus compensation, if
any, to the extent earned, vested deferred compensation (other than pension plan
or profit sharing plan benefits which will be paid in accordance with the
applicable plan), any benefits under any plans of Corporation in which Officer
is a participant to the full extent of Officer's rights under such plans,
accrued vacation pay and any appropriate business expenses incurred by Officer
in connection with his duties hereunder, all to the date of termination, but
Officer shall not be paid any other compensation or reimbursement of any kind,
including without limitation, severance compensation.
2.4 TERMINATION OTHER THAN FOR CAUSE. Notwithstanding
anything else in this Agreement, Corporation may effect a Termination Other Than
For Cause at any time upon giving written notice to Officer of such termination.
Upon any Termination Other Than For Cause, Officer shall immediately be paid all
accrued salary, bonus compensation, if any, to the extent earned, whether or not
vested without regard to such Termination (other than pension plan or profit
sharing plan benefits which will be paid in accordance with the applicable
plan), any benefits under any plans of Corporation in which Officer is a
participant to the full extent of Officer's rights under such plans (including
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accelerated release and full vesting of shares reserved for Officer under the
Incentive Plans, and any implementation thereof or incentive award thereunder),
accrued vacation pay and any appropriate business expenses incurred by Officer
in connection with his duties hereunder, all to the date of termination, and all
severance compensation provided in Section 4.2, but no other compensation or
reimbursement of any kind.
2.5 TERMINATION BY REASON OF DISABILITY. If, during the
term of this Agreement, Officer, in the reasonable judgment of the Board of
Directors of Corporation, has failed to perform his duties under this Agreement
on account of illness or physical or mental incapacity, and such illness or
incapacity continues for a period of more than 12 consecutive months,
Corporation shall have the right to terminate Officer's employment hereunder by
written notification to Officer and payment to Officer of all accrued salary,
bonus compensation, if any, to the extent earned, deferred compensation, whether
or not vested without regard to such illness or incapacity (other than pension
plan or profit sharing plan benefits which will be paid in accordance with the
applicable plan), any benefits under any plans of Corporation in which Officer
is a participant to the full extent of Officer's rights under such plans
(including accelerated release and full vesting of shares reserved for Officer
under the Incentive Plans, and any implementation thereof or incentive award
thereunder), accrued vacation pay and any appropriate business expenses incurred
by Officer in connection with his duties hereunder, all to the date of
termination, with the exception of medical and dental benefits which shall
continue through the expiration of this Agreement, but Officer shall not be paid
any other compensation or reimbursement of any kind, including without
limitation, severance compensation. Notwithstanding the foregoing, any Officer
who incurs a disability within the contemplation of the Executive Retirement
Plan shall accrue such additional post-disability, post-termination benefits as
may be determined in accordance with such plan.
2.6 DEATH. In the event of Officer's death during the
term of this Agreement, Officer's employment shall be deemed to have terminated
as of the last day of the month during which his death occurs and Corporation
shall pay to his estate or such beneficiaries as Officer may from time to time
designate all accrued salary, bonus compensation, if any, to the extent earned,
whether or not vested without regard to such Termination (other than pension
plan or profit sharing plan benefits which will be paid in accordance with the
applicable plan), any benefits under any plans of Corporation in which Officer
is a participant to the full extent of Officer's rights under such plans
(including accelerated release and full vesting of shares reserved for Officer
under the Incentive Plans, and any implementation thereof or incentive award
thereunder), accrued vacation pay and any appropriate business expenses incurred
by Officer in connection with his duties hereunder, all to the date of
termination, but Officer's estate shall not be paid any other compensation or
reimbursement of any kind, including without limitation, severance compensation.
2.7 VOLUNTARY TERMINATION. In the event of a Voluntary
Termination, Corporation shall immediately pay all accrued salary, bonus
compensation, if any, to the extent earned, vested deferred compensation (other
than pension plan or profit sharing plan benefits which will be paid in
accordance with the applicable plan), any benefits under any plans of
Corporation in which Officer is a participant to the full extent of Officer's
rights under such plans, accrued vacation pay and any appropriate business
expenses incurred by Officer in connection with his duties hereunder, all to the
date of termination,
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but no other compensation or reimbursement of any kind, including without
limitation, severance compensation.
2.8 TERMINATION UPON A CHANGE IN CONTROL OR RETIREMENT.
In the event of (i) a Termination Upon a Change in Control or (ii) retirement by
Officer upon attainment of eligibility to retire in accordance with the
Executive Retirement Plan as in effect upon the date of this Agreement, Officer
shall immediately be paid all accrued salary, bonus compensation, if any, to the
extent earned through the date of termination, including compensation that was
earned and deferred, whether or not vested without regard to the Change in
Control (other than pension plan or profit sharing plan benefits which will be
paid in accordance with the applicable plan), any benefits under any plans of
Corporation in which Officer is a participant to the full extent of Officer's
rights under such plans (including accelerated release and full vesting of
shares reserved for Officer under the Incentive Plans, and any implementation
thereof or incentive award thereunder), accrued vacation pay and any appropriate
business expenses incurred by Officer in connection with his duties hereunder,
all to the date of termination, and all severance compensation provided in
Section 4.1, but no other compensation or reimbursement of any kind.
2.9 NOTICE OF TERMINATION. Corporation may effect a
termination of this Agreement pursuant to the provisions of this Section 2 upon
giving 30 days written notice to Officer of such termination. Officer may effect
a termination of this Agreement pursuant to the provisions of this Section 2
upon giving 60 days written notice to Corporation of such termination.
2.10 DETERMINATION OF BENEFIT UPON EARLY PAYMENT. In the
event Officer's deferred compensation benefit becomes vested in accordance with
Sections 2.4, 2.5, 2.6 or 2.8, Officer shall have the following rights and
Corporation shall take appropriate action to amend or modify its compensation
arrangements in order to cause:
(a) any deferred compensation under the
Incentive Plans to be effected by an immediate full vesting of any awards
granted to Officer under the Incentive Plans, and any implementation thereof or
incentive award thereunder; and an immediate release and full vesting of awards
that have been reserved by Corporation for Officer under the Incentive Plans,
and any implementation thereof or incentive award thereunder, or otherwise, such
release and vesting to be made within a reasonable time after the relevant
event;
(b) any deferred compensation payable under a
nonqualified defined contribution plan to be made available for payment within
an administratively practicable time after the relevant event, in an amount
equal to the then-current book account balance; and
(c) any deferred compensation payable under a
nonqualified defined benefit plan to be made available for payment within an
administratively practicable time after the relevant event in an amount equal to
the greater of (i) the benefit, if any, otherwise determined in accordance with
the relevant plan, or (ii) the present value of the then-accrued benefit,
determined by reducing the accrued benefit from age 65 to the date as of which
payment is made, using the actuarial assumptions which have been used for
financial accounting purposes under generally accepted accounting principles.
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3. SALARY, BENEFITS AND BONUS COMPENSATION.
3.1 BASE SALARY. As payment for the services to be
rendered by Officer as provided in Section 1 and subject to the terms and
conditions of Section 2, Corporation agrees to pay to Officer a "Base Salary"
for the 12 calendar months beginning January 1, 2003 at the rate of $461,330.62
per annum payable in 24 equal semi-monthly installments. The Base Salary for
each year (or portion thereof) beginning January 1, 2004 shall be determined by
the Compensation Committee of the Board of Directors (the "Compensation
Committee") which shall authorize an increase in Officer's Base Salary in an
amount which, at a minimum, shall be equal to the cumulative cost-of-living
increment on the Base Salary as reported in the "Consumer Price Index,
Nashville, Tennessee, All Items," published by the U.S. Department of Labor.
Officer's Base Salary shall be reviewed annually by the Compensation Committee.
3.2 BONUSES. Officer shall be eligible to receive a bonus
for each year (or portion thereof) during the term of this Agreement and any
extensions thereof, with the actual amount of any such bonus to be determined by
the Compensation Committee in accordance with Corporation's Executive Variable
Incentive Plan. All such bonuses shall be payable within 45 days after the end
of the year to which such bonus relates. All such bonuses shall be reviewed
annually by the Compensation Committee.
3.3 ADDITIONAL BENEFITS. During the term of this
Agreement, Officer shall be entitled to the following fringe benefits:
(a) OFFICER BENEFITS. Officer shall be eligible
to participate in such of Corporation's benefits and deferred compensation plans
as are now generally available or later made generally available to executive
officers of Corporation, including, without limitation, the Incentive Plans, and
any implementation thereof or incentive award thereunder, profit sharing plans,
annual physical examinations, dental and medical plans, personal catastrophe and
disability insurance, financial planning, retirement plans and supplementary
executive retirement plans, if any. For purposes of establishing the length of
service under any benefit plans or programs of Corporation, Officer's employment
with Corporation will be deemed to have commenced on May 1, 1993.
(b) VACATION. Officer shall be entitled to six
weeks of vacation during each year during the term of this Agreement and any
extensions thereof, prorated for partial years.
(c) LIFE INSURANCE. For the term of this
Agreement and any extensions thereof, Corporation shall at its expense procure
and keep in effect term life insurance on the life of Officer, payable to such
beneficiaries as Officer may from time to time designate, in the aggregate
amount of $2,000,000. Such policy shall be owned by Officer or by a member of
his immediate family.
(d) REIMBURSEMENT FOR EXPENSES. During the term
of this Agreement, Corporation shall reimburse Officer for reasonable and
properly documented out-of-pocket business and/or entertainment expenses
incurred by Officer in connection with his duties under this Agreement.
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4. SEVERANCE COMPENSATION.
4.1 SEVERANCE COMPENSATION IN THE EVENT OF A TERMINATION
UPON A CHANGE IN CONTROL. In the event Officer's employment is terminated in a
Termination Upon a Change in Control, Officer shall be paid as severance
compensation his Base Salary (at the rate payable at the time of such
termination), through the remaining term of this Agreement and any extensions
thereof, on the dates specified in Section 3.1; provided, however, that if
Officer is employed by a new employer during such period, the severance
compensation payable to Officer during such period will be reduced by the amount
of compensation that Officer is receiving from the new employer. However,
Officer is under no obligation to mitigate the amount owed Officer pursuant to
this Section 4.1 by seeking other employment or otherwise. Notwithstanding
anything in this Section 4.1 to the contrary, Officer may in Officer's sole
discretion, by delivery of a notice to Corporation within 30 days following a
Termination Upon a Change in Control, elect to receive from Corporation a lump
sum severance payment by bank cashier's check equal to the present value of the
flow of cash payments that would otherwise be paid to Officer pursuant to this
Section 4.1. However, in no event shall payment pursuant to this Section 4.1 be
less than three times Base Salary as defined herein for the applicable period.
Such present value shall be determined as of the date of delivery of the notice
of election by Officer and shall be based on a discount rate equal to the
interest rate on 90-day U.S. Treasury bills, as reported in the Wall Street
Journal (or similar publication), on the date of delivery of the election
notice. If Officer elects to receive a lump sum severance payment, Corporation
shall make such payment to Officer within ten days following the date on which
Officer notifies Corporation of Officer's election. In addition to the severance
payment payable under this Section 4.1, Officer shall be paid an amount equal to
three times the average annual bonus, if any, earned by Officer in the two years
immediately preceding the date of termination. Officer shall also receive (i)
full vesting of any awards granted to Officer under the Incentive Plans, and any
implementation thereof or incentive award thereunder; and (ii) an immediate
release of awards that have been reserved by Corporation for Officer under the
Incentive Plans, and any implementation thereof or incentive award thereunder,
or otherwise, and full vesting of such awards. Officer shall continue to accrue
retirement benefits and shall continue to enjoy any benefits under any plans of
Corporation in which Officer is a participant to the full extent of Officer's
rights under such plans, including any perquisites provided under this
Agreement, through the remaining term of this Agreement; provided, however, that
the benefits under any such plans of Corporation in which Officer is a
participant, including any such perquisites, shall cease upon re-employment by a
new employer.
4.2 SEVERANCE COMPENSATION IN THE EVENT OF A TERMINATION
OTHER THAN FOR CAUSE. In the event Officer's employment is terminated in a
Termination Other Than For Cause, Officer shall be paid as severance
compensation his Base Salary (at the rate payable at the time of such
termination), for a period of three years from the date of such termination, on
the dates specified in Section 3.1; provided, however, that if Officer is
employed by a new employer during such period, the severance compensation
payable to Officer during such period will be reduced by the amount of
compensation that Officer is receiving from the new employer. However, Officer
is under no obligation to mitigate the amount owed Officer pursuant to this
Section 4.2 by seeking other employment or otherwise. Notwithstanding anything
in this Section 4.2 to the contrary, Officer may in Officer's sole discretion,
by delivery of a notice to Corporation within 30 days following a
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Termination Other Than For Cause, elect to receive from Corporation a lump sum
severance payment by bank cashier's check equal to the present value of the flow
of cash payments that would otherwise be paid to Officer pursuant to this
Section 4.2. However, in no event shall payment pursuant to this Section 4.2 be
less than three times Base Salary as defined herein for the applicable period.
Such present value shall be determined as of the date of delivery of the notice
of election by Officer and shall be based on a discount rate equal to the
interest rate on 90-day U.S. Treasury bills, as reported in the Wall Street
Journal (or similar publication), on the date of delivery of the election
notice. If Officer elects to receive a lump sum severance payment, Corporation
shall make such payment to Officer within ten days following the date on which
Officer notifies Corporation of Officer's election. In addition to the severance
payment payable under this Section 4.2, Officer shall be paid an amount equal to
two times the average annual bonus earned by Officer in the two years
immediately preceding the date of termination and Officer shall also receive (i)
full vesting of any awards granted to Officer under the Incentive Plans, and any
implementation thereof or incentive award thereunder; and (ii) an immediate
release of awards that have been reserved for Officer under the Incentive Plans,
and any implementation thereof or incentive award thereunder, or otherwise, and
full vesting of such awards. Officer shall be entitled to accelerated vesting of
any accrued benefit under each deferred compensation plan. Notwithstanding the
foregoing, continued benefit accrual shall not apply in the case of any
tax-qualified retirement plan if such accrual would adversely affect the
tax-qualified status of such plan; provided, however, that the benefit which
would otherwise have been contributed by Corporation to the account of Officer
in any tax-qualified defined contribution and the single sum value of the
benefit plan shall be paid by Corporation to Officer as each such contribution
or benefit would have been made or accrued, as applicable, assuming that Officer
had remained employed on a full-time basis with a rate of pay equal to his Base
Salary. In the case of a Termination Other Than For Cause by reason of the
disability of Officer, and if Officer is retired for disability under the
Executive Retirement Plan, then Officer will continue to accrue benefits as
provided in the Executive Retirement Plan at the time he incurs his disability,
notwithstanding any subsequent nonsubstantial employment.
4.3 NO SEVERANCE COMPENSATION UPON OTHER TERMINATION. In
the event of a Voluntary Termination, Termination For Cause, termination by
reason of Officer's disability pursuant to Section 2.5, or termination by reason
of Officer's death pursuant to Section 2.6, Officer or his estate shall not be
paid any severance compensation and shall receive only the benefits as provided
in the appropriate section of Article II applicable to the respective
termination.
4.4 ADDITIONAL PAYMENTS DUE TO CHANGE IN CONTROL.
(a) GROSS UP PAYMENT. Anything in this Agreement
to the contrary notwithstanding, in the event it shall be determined that any
payment or distribution by or on behalf of Corporation to or for the benefit of
Officer as a result of a "change in control," as defined in Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"), involving Corporation or
its affiliates (whether paid or payable or distributed or distributable pursuant
to the terms of this Agreement or otherwise, but determined without regard to
any additional payments required under this Section 4.4 (a "Payment")) would be
subject to the excise tax imposed by Section 4999 of the Code, or any interest
or penalties are incurred by Officer with respect to such excise tax (such
excise tax,
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together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then Officer shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after payment
by Officer of all taxes (including any interest or penalties imposed with
respect to such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Gross-Up Payment, Officer retains an amount of the Gross-Up Payment equal to
the Excise Tax imposed upon the Payments.
(b) TAX OPINION. Subject to the provisions of
Section 4.4(c), all determinations required to be made under this Section 4.4,
including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such
determination, shall be made by a nationally recognized accounting firm or law
firm selected by Corporation (the "Tax Firm"); provided, however, that the Tax
Firm shall not determine that no Excise Tax is payable by Officer unless it
delivers to Officer a written opinion (the "Tax Opinion") that failure to pay
the Excise Tax and to report the Excise Tax and the payments potentially subject
thereto on or with Officer's applicable federal income tax return will not
result in the imposition of an accuracy-related or other penalty on Officer. All
fees and expenses of the Tax Firm shall be borne solely by Corporation. Within
15 business days of the receipt of notice from Officer that there has been a
Payment, or such earlier time as is requested by Corporation, the Tax Firm shall
make all determinations required under this Section 4.4, shall provide to
Corporation and Officer a written report setting forth such determinations,
together with detailed supporting calculations, and, if the Tax Firm determines
that no Excise Tax is payable, shall deliver the Tax Opinion to Officer. Any
Gross-Up Payment, as determined pursuant to this Section 4.4, shall be paid by
Corporation to Officer within 15 days of the receipt of the Tax Firm's
determination. Subject to the remainder of this Section 4.4, any determination
by the Tax Firm shall be binding upon Corporation and Officer; provided,
however, that Officer shall only be bound to the extent that the determinations
of the Tax Firm hereunder, including the determinations made in the Tax Opinion,
are reasonable and reasonably supported by applicable law. As a result of the
uncertainty in the application of Section 4999 of the Code at the time of the
initial determination by the Tax Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by Corporation should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that it is ultimately determined in accordance with the
procedures set forth in Section 4.4(c) that Officer is required to make a
payment of any Excise Tax, the Tax Firm shall reasonably determine the amount of
the Underpayment that has occurred and any such Underpayment shall be promptly
paid by Corporation to or for the benefit of Officer. In determining the
reasonableness of the Tax Firm's determinations hereunder, and the effect
thereof, Officer shall be provided a reasonable opportunity to review such
determinations with the Tax Firm and Officer's tax counsel. The Tax Firm's
determinations hereunder, and the Tax Opinion, shall not be deemed reasonable
until Officer's reasonable objections and comments thereto have been
satisfactorily accommodated by the Tax Firm.
(c) NOTICE OF IRS CLAIM. Officer shall notify
Corporation in writing of any claims by the Internal Revenue Service that, if
successful, would require the payment by Corporation of the Gross-Up Payment.
Such notification shall be given as soon as practicable but no later than 30
calendar days after Officer actually receives notice in writing of such claim
and shall apprise Corporation of the nature of such claim and the date
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on which such claim is requested to be paid; provided, however, that the failure
of Officer to notify Corporation of such claim (or to provide any required
information with respect thereto) shall not affect any rights granted to Officer
under this Section 4.4 except to the extent that Corporation is materially
prejudiced in the defense of such claim as a direct result of such failure.
Officer shall not pay such claim prior to the expiration of the 30-day period
following the date on which he gives such notice to Corporation (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If Corporation notifies Officer in writing prior to the expiration of
such period that it desires to contest such claim, Officer shall do all of the
following:
(i) give Corporation any information
reasonably requested by Corporation relating to such claim;
(ii) take such action in connection with
contesting such claim as Corporation shall reasonably request in writing from
time to time, including, without limitation, accepting legal representation with
respect to such claim by an attorney selected by Corporation and reasonably
acceptable to Officer;
(iii) cooperate with Corporation in good
faith in order effectively to contest such claim; and
(iv) if Corporation elects not to assume
and control the defense of such claim, permit Corporation to participate in any
proceedings relating to such claim;
provided, however, that Corporation shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold Officer harmless, on an after-tax
basis, for any Excise Tax or income tax (including interest and penalties with
respect thereto) imposed as a result of such representation and payment of costs
and expenses. Without limiting the foregoing provisions of this Section 4.4,
Corporation shall have the right, at its sole option, to assume the defense of
and control all proceedings in connection with such contest, in which case it
may pursue or forego any and all administrative appeals, proceedings, hearings
and conferences with the taxing authority in respect of such claim and may
either direct Officer to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and Officer agrees to prosecute such contest to
a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as Corporation shall
determine; provided, however, that if Corporation directs Officer to pay such
claim and xxx for a refund, Corporation shall advance the amount of such payment
to Officer, on an interest-free basis and shall indemnify and hold Officer
harmless, on an after-tax basis, from any Excise Tax or income tax (including
interest or penalties with respect thereto) imposed with respect to such advance
or with respect to any imputed income with respect to such advance; and further
provided that any extension of the statute of limitations relating to payment of
taxes for the taxable year of Officer with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, Corporation's right to assume the defense of and control the
contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and Officer shall be entitled to settle or contest,
as the case may be, any other issue raised by the Internal Revenue Service or
any other taxing authority.
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(d) RIGHT TO TAX REFUND. If, after the receipt
by Officer of an amount advanced by Corporation pursuant to Section 4.4, Officer
becomes entitled to receive any refund with respect to such claim, Officer shall
(subject to Corporation's complying with the requirements of Section 4.4(c))
promptly pay to Corporation the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the
receipt by Officer of an amount advanced by Corporation pursuant to Section
4.4(c), a determination is made that Officer is not entitled to a refund with
respect to such claim and Corporation does not notify Officer in writing of its
intent to contest such denial of refund prior to the expiration of 30 days after
such determination, then such advance shall, to the extent of such denial, be
forgiven and shall not be required to be repaid and the amount of forgiven
advance shall offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.
5. NON-COMPETITION; DISCLOSURE OF INVESTMENTS. During the term of
this Agreement, including the period, if any, during which Officer shall be
entitled to severance compensation pursuant to Section 4.2, Officer shall not
engage in any activity competitive with Corporation. Simultaneously with
Officer's execution of this Agreement and upon each anniversary of the Effective
Date, Officer shall notify the Chairman of the Compensation Committee of the
nature and extent of Officer's investments, stock holdings, employment as an
employee, director, or any similar interest in any business or enterprise other
than Corporation; provided, however, that Officer shall have no obligation to
disclose any investment under $100,000 in value or any holdings of publicly
traded securities which are not in excess of one percent of the outstanding
class of such securities. Notwithstanding any provision herein to the contrary,
the restrictions and covenants of this Section 5 shall not apply in the event of
a Termination Upon a Change in Control.
6. MISCELLANEOUS.
6.1 PAYMENT OBLIGATIONS. Corporation's obligation to pay
Officer the compensation and to make the arrangements provided herein shall be
unconditional, and Officer shall have no obligation whatsoever to mitigate
damages hereunder. If litigation after a Change in Control shall be brought to
enforce or interpret any provision contained herein, Corporation, to the extent
permitted by applicable law and Corporation's Articles of Incorporation and
Bylaws, hereby indemnifies Officer for Officer's reasonable attorneys' fees and
disbursements incurred in such litigation.
6.2 CONFIDENTIALITY. Officer agrees that all confidential
and proprietary information relating to the business of Corporation shall be
kept and treated as confidential both during and after the term of this
Agreement, except as may be permitted in writing by Corporation's Board of
Directors or as such information is within the public domain or comes within the
public domain without any breach of this Agreement.
6.3 WAIVER. The waiver of the breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach of the same or other provision hereof.
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6.4 ENTIRE AGREEMENT; MODIFICATIONS. Except as otherwise
provided herein, this Agreement represents the entire understanding among the
parties with respect to the subject matter hereof, and this Agreement supersedes
any and all prior understandings, agreements, plans and negotiations, whether
written or oral, with respect to the subject matter hereof, including without
limitation, any understandings, agreements or obligations respecting any past or
future compensation, bonuses, reimbursements or other payments to Officer from
Corporation. All modifications to the Agreement must be in writing and signed by
the party against whom enforcement of such modification is sought.
6.5 NOTICES. All notices and other communications under
this Agreement shall be in writing and shall be given by telegraph or first
class mail, certified or registered with return receipt requested, and shall be
deemed to have been duly given three days after mailing or 12 hours after
transmission of a telegram to the respective persons named below:
If to Corporation:
Healthcare Realty Trust Incorporated
0000 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to Officer:
Xx. Xxxxx X. Xxxxx
000 Xxxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Any party may change such party's address for notices by notice duly give
pursuant to this Section 6.5.
6.6 HEADINGS. The Section headings herein are intended
for reference and shall not by themselves determine the construction or
interpretation of this Agreement.
6.7 GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Tennessee.
6.8 ARBITRATION. Any controversy or claim arising out of
or relating to this Agreement, or breach thereof, shall be settled by
arbitration in Nashville, Tennessee in accordance with the Rules of the American
Arbitration Association, and judgment upon any proper award rendered by the
Arbitrators may be entered in any court having jurisdiction thereof. There shall
be three arbitrators, one to be chosen directly by each party at will, and the
third arbitrator to be selected by the two arbitrators so chosen. To the extent
permitted by the Rules of the American Arbitration Association, the selected
arbitrators may grant equitable relief. Each party shall pay the fees of the
arbitrator selected by him and of his own attorneys, and the expenses of his
witnesses and all other expenses connected with the presentation of his case.
The cost of the arbitration including the cost of the record or transcripts
thereof, if any, administrative fees, and all other fees and costs shall be
borne equally by the parties. To the extent that Officer prevails with respect
to any portion of an
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arbitration award, Officer shall be reimbursed by Corporation for the costs and
expenses incurred by Officer in connection with the arbitration in an amount
proportionate to the award to Officer as compared to the amount in dispute.
6.9 SEVERABILITY. Should a court or other body of
competent jurisdiction determine that any provision of this Agreement is
excessive in scope or otherwise invalid or unenforceable, such provision shall
be adjusted rather than voided, if possible, and all other provisions of this
Agreement shall be deemed valid and enforceable to the extent possible.
6.10 SURVIVAL OF CORPORATION'S OBLIGATIONS. Corporation's
obligations hereunder shall not be terminated by reason of any liquidation,
dissolution, bankruptcy, cessation of business, or similar event relating to
Corporation. This Agreement shall not be terminated by any merger or
consolidation or other reorganization of Corporation. In the event any such
merger, consolidation or reorganization shall be accomplished by transfer of
stock or by transfer of assets or otherwise, the provisions of this Agreement
shall be binding upon and inure to the benefit of the surviving or resulting
corporation or person. This Agreement shall be binding upon and inure to the
benefit of the executors, administrators, heirs, successors and assigns of the
parties; provided, however, that except as herein expressly provided, this
Agreement shall not be assignable either by Corporation (except to an affiliate
of Corporation in which event Corporation shall remain liable if the affiliate
fails to meet any obligations to make payments or provide benefits or otherwise)
or by Officer.
6.11 COUNTERPARTS. This Agreement may be executed in one
or more counterparts, all of which taken together shall constitute one and the
same Agreement.
6.12 WITHHOLDINGS. All compensation and benefits to
Officer hereunder shall be reduced only by all federal, state, local and other
withholdings and similar taxes and payments that are required by applicable law.
Except as otherwise specifically agreed by Officer, no other offsets or
withholdings shall apply to reduce the payment of compensation and benefits
hereunder.
6.13 INDEMNIFICATION. In addition to any rights to
indemnification to which Officer is entitled to under Corporation's Articles of
Incorporation and Bylaws, Corporation shall indemnify Officer at all times
during and after the term of this Agreement to the maximum extent permitted
under Section 2-418 of the General Corporation Law of the State of Maryland or
any successor provision thereof and any other applicable state law, and shall
pay Officer's expenses in defending any civil or criminal action, suit, or
proceeding in advance of the final disposition of such action, suit, or
proceeding, to the maximum extent permitted under such applicable state laws.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first above written.
CORPORATION:
HEALTHCARE REALTY TRUST INCORPORATED
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chairman
Date: January 1, 2003
OFFICER:
/s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx
Date: January 1, 2003
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