EXHIBIT 10.15
EMPLOYMENT AGREEMENT
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(Xxxx X. Xxxxxxx)
THIS EMPLOYMENT AGREEMENT is entered into by and between Nationwide Health
Properties, Inc., a Maryland corporation (the "Company") and Xxxx X. Xxxxxxx
(the "Executive") as of February 25, 1998.
The Board of Directors of the Company (the "Board") has determined that it is in
the best interests of the Company and its shareholders to enter into this
Employment Agreement with Executive to assure that the Company will have the
continued service and dedication of Executive. Except for the Company's
Executive Employment Security Policy, which remains in full force and effect and
is fully operative between Executive and Company in accordance with its terms,
this Employment Agreement contains the entire agreement between the parties with
respect to the matters specified herein, and supersedes any prior oral and
written employment agreements, understandings and commitments between the
Company and Executive.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
I. Definitions.
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A. "Cause" shall mean (a) the willful and continued failure of Executive
to perform substantially his duties with the Company (other than any
such failure resulting from incapacity due to physical or mental
illness) which is not remedied promptly by Executive after a written
demand for substantial performance is delivered to Executive by the
Board which specifically identifies the manner in which the Board
believes that Executive has not substantially performed his duties, or
(b) the willful engaging by Executive in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the
Company. For purposes of this definition, no act or failure to act on
the part of Executive shall be considered "willful" unless it is done,
or omitted to be done, by Executive in bad faith or without reasonable
belief that Executive's action or omission was in the best interests
of the Company. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or based on the
advice of counsel for the Company shall be conclusively presumed to be
done, or omitted to be done, by Executive in good faith and in the
best interests of the Company.
B. "Change of Control" shall mean a change in control of the Company of a
nature that would be required to be reported in response to Item 6(e)
of Schedule 14A, Regulation 240.14a-101, promulgated under the
Securities Exchange Act of 1934 as in effect on the date of this
Policy or, if Item 6(e) is no longer in effect, any regulation issued
by the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934 which serves similar purposes; provided that,
without limitation, a Change of Control shall be deemed to have
occurred if and
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when (a) any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934) is or becomes a
beneficial owner, directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the combined voting power
of the Company's then outstanding securities or (b) individuals who
are members of the Board immediately prior to a meeting of the
shareholders of the Company involving a contest for the election of
directors shall not constitute a majority of the Board following such
election. Notwithstanding the above, this change of control provision
is applicable only to a merger, takeover, or corporate combination not
approved by the then Company's Board of Directors in advance of such
merger, takeover, or corporate combination.
C. "Disability" shall mean the absence of Executive from his duties with
the Company on a full-time basis for a period of (a) ninety (90)
consecutive calendar days or (b) an aggregate of one hundred fifty
(l50) or more calendar days in any fiscal year as a result of mental
or physical illness which is determined to be total and permanent by a
physician selected by the Company or its insurers and acceptable to
Executive.
D. "Effective Date" shall mean the date hereof, which is set forth in the
first paragraph of this Agreement.
E. "Employment Period" shall mean the period commencing on the Effective
Date and ending on February 28, 2001.
II. Conditions of Employment.
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A. Position and Duties. Executive is currently employed as Senior Vice-
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President and Chief Financial Officer of the Company. Executive shall
have such duties as are assigned to him by the Board of Directors of
the Company or by the President and Chief Executive Officer. During
the Employment Period, and excluding any periods of vacation and sick
leave to which Executive is entitled, Executive agrees to devote
reasonable attention and time to the business and affairs of the
Company, and, to the extent necessary to discharge the
responsibilities assigned to Executive hereunder, to use Executive's
reasonable best efforts to perform faithfully and efficiently such
responsibilities. Subject to the approval of the President and Chief
Executive Officer of the Company, during the Employment Period, it
shall not be a violation of this Agreement for Executive to serve on
corporate, civic or charitable boards or committees so long as such
activities do not interfere with the performance of Executive's
responsibilities as an employee of the Company in accordance with this
Agreement.
B. Compensation.
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1. Base Salary. As of the Effective Date, Executive shall
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receive an annual base salary (the "Annual Base Salary") of
$195,000, payable in bi-weekly installments (except if deferred by
Executive under a Company-sponsored
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deferral plan). Executive's Annual Base Salary shall be reviewed by
the Compensation Committee of the Board (the "Committee") each
January during the Employment Period. Any increase in Annual Base
Salary approved by the Committee shall not serve to limit or reduce
any other obligation to Executive under this Agreement. Executive's
Annual Base Salary may not be reduced during the Employment Period
except as part of a general, across the board salary reduction
which applies in a comparable manner to all other senior executives
of the Company. As it applies to Executive, such reduction shall be
limited to a maximum of 10% in any calendar year unless Executive
agrees to accept a larger reduction.
2. Annual Bonus. In addition to Annual Base Salary, Executive
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shall be eligible to receive, for each fiscal year ending during
the Employment Period, an annual bonus (the "Annual Bonus"). Such
Annual Bonus may range from 0% to 80% (with a target of 40%) of the
Annual Base Salary earned by Executive during the fiscal year, with
the specific amount determined by the Committee based on its
assessment of the Company's and Executive's performance for the
fiscal year. In assessing such performance, the Committee shall
take into account the growth and income of the Company relative to
its annual financial plan, the quality of the Company's assets,
Executive's performance in terms of implementing the Company's
business strategy, and other considerations deemed by the Committee
to be relevant to the current and future success of the Company.
Annual Bonus earned by Executive shall be paid to Executive no
later than ninety (90) days following the end of the fiscal year to
which the Annual Bonus applies, unless such Annual Bonus is
voluntarily deferred by Executive in accordance with a Company
sponsored deferral program.
3. Stock Options. In addition to Annual Base Salary and Annual
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Bonus, Executive shall be eligible to receive, for each fiscal year
of the Employment Period, a grant of Stock Options (the "Stock
Options"). Such Stock Options shall (i) be granted to Executive
each January during the Employment Period, (ii) have not less than
a ten-year term, (iii) carry an exercise price equal to the market
price of the Company's common stock on the date of grant (as such
price is defined in the Company's Stock Option Plan), and (iv) be
granted in conjunction with the right to earn a cash payment equal
to the amount of dividends paid by the Company from the date of
grant of the Stock Option to the date the Stock Option is exercised
on an equivalent number of common shares to the shares represented
by the Stock Option (the "Performance-Based Dividend Equivalents").
The specific number of shares represented by Stock Options granted
annually to Executive, the specific performance objectives
associated with earning the Performance-Based Dividend Equivalents
for each grant of Stock Options, and any vesting restrictions
placed on the exercise of such Stock Options and
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Performance-Based Dividend Equivalents shall be determined by the
Committee.
Notwithstanding the above, the Committee may, in its discretion,
replace future grants of Stock Options and Performance-Based
Dividend Equivalents for Executive during the Employment Period
with another form of long-term incentive compensation of similar
value and risk as determined by outside experts acceptable to
Executive and the Committee.
4. Benefit Plans. During the Employment Period, Executive and/or
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Executive's beneficiaries, as the case may be, shall participate in
and shall receive all benefits under Company-sponsored retirement
plans, savings plans, deferral plans, medical plans (including
dental, vision and drug prescription plans), life insurance plans,
disability plans, and accidental death and travel accident
insurance plans provided to Executive as of the Effective Date, and
any benefit plans or programs that may be introduced by the Company
during the Employment Period for other senior executives of the
Company which are not already provided to Executive.
5. Fringe Benefits. During the Employment Period, Executive
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shall be entitled to annual paid vacation time of four (4) weeks.
In addition, Executive shall be entitled to receive any fringe
benefits or perquisites introduced by the Company during the
Employment Period for other senior executives of the Company which
are not already provided to Executive.
III. Termination of Employment
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A. Death or Disability. Executive's employment with the Company shall
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terminate automatically upon Executive's death during the Employment
Period. In the event of Executive's Disability during the Employment
Period (pursuant to the definition of Disability set forth in Section
I(C) of this Agreement), the Company may, at the discretion of the
Board, give Executive written notice in accordance with Section IX(B)
of this Agreement of its intention to terminate Executive's employment
with the Company. In such event, Executive's employment with the
Company shall terminate effective on the 30/th/ day after receipt of
such notice by Executive (the "Effective Disability Date"), provided
that, within the 30 days after such receipt, Executive shall not have
returned to full-time performance of his duties.
B. Cause. The Company may terminate Executive's employment during the
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Employment Period for Cause. The termination of employment of
Executive shall not be deemed to be for Cause unless and until there
shall have been delivered to Executive a notice that Executive is
guilty of the conduct described in Section I(A) specifying the
particulars thereof in reasonable detail.
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C. Within Three Years After Change of Control. Any termination of
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Executive's employment with the Company, whether by Executive or by
the Company, within three years after a Change of Control of Company
shall be subject to the provisions of and governed by the Company's
Executive Employment Security Policy, as the same may be amended from
time to time.
D. Notice of Termination. Any termination of employment of Executive
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during the Employment Period by the Company or by Executive shall be
communicated to the other party hereto in accordance with Section
IX(B) of this Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (a) indicates the specific
termination provision in this Agreement relied upon, (b) to the extent
applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of
Executive's employment with the Company under the provision so
indicated, and (c) if the Date of Termination (as defined below) is
other than the date of receipt of such notice, specifies the
termination date (which date shall not be more than thirty days after
giving of such notice). The failure by Executive or the Company to set
forth in the Notice of Termination any fact or circumstance shall not
waive any right of Executive or the Company, respectively, hereunder
or preclude Executive or the Company, respectively, from asserting
such fact or circumstance in enforcing Executive's or the Company's
rights hereunder.
E. Date of Termination. "Date of Termination" means (a) if Executive's
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employment is terminated by the Company for Cause, the date of receipt
of the Notice of Termination or any later date specified therein, as
the case may be, (b) if Executive's employment is terminated by the
Company other than for Cause or Disability, the date on which the
Company notifies Executive of such termination, and (c) if Executive's
employment is terminated by reason of death or Disability, the date of
death of Executive or the Effective Disability Date, as the case may
be.
IV. Obligations of the Company Upon Termination of Executive's Employment
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A. Termination by Company Other than for Cause, Death or Disability.
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Except within three years after a Change of Control of Company in
which case any termination of Executive's employment shall be governed
by the Company's Executive Employment Security Policy, and except as
provided for in Section VI of this Agreement, if during the Employment
Period, the Company shall terminate Executive's employment other than
for Cause or Disability, the Company shall pay to Executive (a) any
Annual Base Salary owed to Executive through the Date of Termination
to the extent not previously paid, (b) an amount equal to 150% of
Executive's highest Annual Base Salary during any of the last three
full fiscal years prior to the Date of Termination, and (c) an amount
equal to 150% of the average Annual Bonus earned by Executive over the
last three full fiscal years prior to the Date of Termination.
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In addition to the payments described in subparagraphs (a), (b), and
(c) above, the Company also shall (i) arrange to provide to Executive
for a period of eighteen months from the Date of Termination, medical
(including dental, vision and prescription drug coverage) and life
insurance with terms no less favorable, in the aggregate, than the
most favorable of those provided to Executive during the year
immediately preceding the Date of Termination, (ii) immediately vest
all previously unvested shares of Restricted Stock and Stock Options
held by Executive, (iii) provide Executive with any Performance-Based
Dividend Equivalents that would have been earned by Executive during
the eighteen months following the Date of Termination, and (iv) pay
any compensation previously deferred by Executive in accordance with
the provisions of the plan under which such compensation was deferred.
Payments pursuant to subparagraph (a) above shall be made within
thirty (30) days following the Date of Termination. Payments pursuant
to subparagraph (b) above shall be made in equal monthly installments
over the eighteen- month period following the Date of Termination.
Payments pursuant to subparagraph (c) above shall be made in equal
annual installments over the eighteen-month period following the Date
of Termination. Payments pursuant to subparagraph (iii) above shall be
made at the time such payments would have been made had Executive
remained in the employment of the Company.
To the extent that any of the payments and benefits provided for in
this Agreement or otherwise payable to Executive constitute "parachute
payments" within the meaning of Section 280G of the Internal Revenue
Code of 1986, as amended (the "Code"), and but for this subparagraph
of this Section IV(1), would be subject to the excise tax imposed by
Section 4999 of the Code or any similar or successor provision, the
aggregate amount of such payments and benefits shall be reduced, but
only to the extent necessary so that none of such payments and
benefits are subject to excise tax pursuant to Section 4999 of the
Code.
If Executive should die while receiving payments pursuant to this
Section IV(A), the remaining payments which would have been made to
Executive if he had lived shall be paid to the beneficiary designated
in writing by Executive, or if there is no effective written
designation, then to his spouse, or if there is neither an effective
written designation nor a surviving spouse, then to Executive's
estate. Designation of a beneficiary or beneficiaries to receive the
balance of any such payments shall be made by written notice to the
Company, and Executive may revoke or change any such designation of
beneficiary at any time by a later written notice to the Company.
B. Death. Except within three years after a Change of Control of
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Company in which case any termination of Executive's employment shall
be governed by the Company's Executive Employment Security Policy, if
Executive's employment with the Company is terminated by reason of
Executive's death during the
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Employment Period, this Agreement shall terminate without further
obligations to Executive's legal representatives under this Agreement,
other than for (a) payment of any Base Salary previously earned by
Executive but as yet unpaid, (b) payment of any Annual Bonus
previously awarded to Executive for a fiscal year completed prior to
the Date of Termination but as yet unpaid, and (c) the continuation of
any existing rights Executive may have following death under the
provisions of any benefit, stock option, deferral or compensation plan
provided to Executive by the Company.
C. Disability. Except within three years after a Change of Control of
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Company in which case any termination of Executive's employment shall
be governed by the Company's Executive Employment Security Policy, if
Executive's employment with the Company is terminated by reason of
Executive's Disability during the Employment Period in accordance with
Section III(A) of this Agreement, this Agreement shall terminate
without further obligations to Executive other than for (a) payment of
any Base Salary previously earned by Executive but as yet unpaid, (b)
payment of any Annual Bonus previously awarded to Executive for a
fiscal year completed prior to the Date of Termination but as yet
unpaid, and (c) the continuation of any existing rights Executive may
have following Disability under any benefit, stock option, deferral or
compensation plan provided to Executive by the Company.
D. Cause or Voluntary Termination by Executive. Except within three
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years after a Change of Control of Company in which case any
termination of Executive's employment shall be governed by the
Company's Executive Employment Security Policy, if, during the
Employment Period, Executive's employment shall be terminated for
Cause, or if Executive voluntarily terminates his employment with the
Company, this Agreement shall terminate without further obligations to
Executive other than for (a) payment of any Base Salary previously
earned by Executive but as yet unpaid, (b) payment of any Annual Bonus
previously awarded to Executive for a fiscal year completed prior to
the Date of Termination but as yet unpaid, and (c) the continuation of
any existing rights Executive may have following termination for Cause
or voluntary termination under any benefit, stock option, deferral or
compensation plan provided to Executive by the Company.
V. Non-Exclusivity of Rights.
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Nothing in this Agreement shall prevent or limit Executive's continuing or
future participation in any plan, program, policy or practice provided by
the Company for which Executive may qualify, nor shall anything herein
limit or otherwise affect such rights as Executive may have under any
contract or agreement with the Company. Amounts which are vested or which
Executive is otherwise entitled to receive under any plan, policy, practice
or program of, or any contract or agreement (other than this Agreement)
with the Company at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or
contract or agreement except as explicitly modified by this
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Agreement. Except for the Company's Executive Employment Security Policy,
which remains in full force and effect and is fully operative between
Executive and Company in accordance with its terms, Executive shall no
longer be covered by any prior employment agreement, security policy or
understanding thereof after the Effective date of this Agreement and shall
not be covered by any severance policy, practice or program of the Company.
VI. Full Settlement; Offsets.
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Except as provided for in this Section VI, the Company's obligations
to make payments provided for in this Agreement and otherwise to perform
its obligations hereunder shall not be affected by any set-off,
counterclaim, defense or other claim, right or action which the Company may
have against Executive or others.
Executive shall not be obligated to seek other employment or to take
any other action by way of mitigation of the amounts payable to Executive
under any of the provisions of this Agreement. However, the amount of any
payments and benefits provided for in this Agreement shall be reduced by
one hundred percent (100%) of any benefits and earned income (within the
meaning of section 911 (d) (2) (A) of the Internal Revenue Code, as
amended) which are earned by Executive for services rendered to persons or
entities other than the Company during or with respect to the 18-month
period after the Date of Termination. In the event Executive becomes
eligible for any medical (including dental, vision, and prescription drug)
benefits from another employer during or with respect to the 18-month
period after the Date of Termination, any medical (including dental,
vision, and prescription drug) benefits provided for in this Agreement
shall be secondary to those provided by the other employer.
Not less frequently than on each anniversary of the Termination Date
(the "Reporting Date"), Executive shall account to the Company with respect
to all benefits and earned income earned by Executive which are required
hereunder to be offset against payments or benefits received by Executive
from the Company under this Agreement. If the Company has paid amounts in
excess of those to which Executive is entitled, Executive shall reimburse
the Company for such excess within thirty (30) days following the Reporting
Date. The requirements imposed by this paragraph shall terminate following
the next Reporting Date after the third anniversary of the Date of
Termination.
VII. Confidential Information.
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Executive shall hold in a fiduciary capacity for the benefit of the Company
all secret or confidential business information and knowledge or data
relating to the Company and its business which shall have been obtained
during Executive's employment by the Company and which shall not be or
become public knowledge (other than by acts of Executive or representatives
of Executive in violation of this Agreement). After termination of
Executive's employment with the Company, Executive shall not, without the
prior written consent of the Board, or as may otherwise be required by law
or legal process, communicate or divulge any such information, knowledge or
data to anyone other than the Company or those designated by it. Upon
Executive's violation of the provisions of this Section VII, the Company
shall be relieved of all future obligations to Executive under this
Agreement.
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However, in no event shall an asserted or alleged violation of
the provisions of this Section VII constitute a basis for deferring or
withholding any amounts otherwise payable to Executive until such asserted
or alleged violation is reasonably confirmed by the Board.
VIII. Successors.
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A. This Agreement is personal to Executive and without the prior written
consent of the Board shall not be assignable by Executive otherwise
than by will or by the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by
Executive's legal representatives.
B. This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
C. The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to
assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined,
and any successor to its business and/or assets as aforesaid, which
assumes and agrees to perform this Agreement by operation of law of
otherwise.
IX. Miscellaneous.
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A. This Agreement shall be governed by and construed in accordance with
the laws of the State of California, without reference to principles
or conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written
agreement executed by the parties hereto or their respective
successors and legal representatives.
B. All notices and other communications hereunder shall be in writing
and shall be given by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to Executive:
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Xxxx X. Xxxxxxx, Senior Vice-President and Chief Financial Officer
000 Xxxxxxx Xxxxxx Xxxxx Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
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With a copy to:
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Xxxx X. Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxxxxxx, Xxxxxxxxxx 00000
If to the Company:
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Nationwide Health Properties, Inc.
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: President
With a copy to:
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Xx. Xxxxxxx X. Xxxxxx, Chairman
000 Xxxxx Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
or to such other address as either party shall have furnished to
the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by the
addressee.
C. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision
of this Agreement.
D. The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
E. Any failure by Executive or the Company to insist upon strict
compliance with any provision hereof or any other provision of this
Agreement, or the failure to assert any right Executive or the Company
may have hereunder shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Agreement.
X. Arbitration.
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A. The parties agree that any disputes, controversies or claims which
arise out of or are related to this Agreement, Executive's employment
or termination of employment, including, but not limited to, any claim
relating to the purported validity, interpretation, enforceability or
breach of this Agreement, and/or any other claim or controversy
arising out of the relationship between Executive and the Company (or
the nature of the relationship) or the continuation or termination of
that relationship, including, but not limited to, claims that a
termination was for Cause or for Good
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Reason, claims for breach of covenant, breach of an implied covenant
of good faith and fair dealing, wrongful termination, breach of
contract, intentional infliction of emotional distress, defamation,
breach of right of privacy, interference with advantageous or
contractual relations, fraud, conspiracy or other tort or property
claims of any kind, which are not settled between the parties, shall
be settled by arbitration in accordance with the then-current Rules of
Practice and Procedure for Employment Arbitration (the "Rules") of the
Judicial Arbitration and Mediation Services, Inc. ("JAMS").
B. The arbitration shall be before a single arbitrator selected in
accordance with the JAMS Rules or otherwise by mutual agreement of the
parties. The Arbitration shall take place in Orange County,
California, unless the parties mutually agree to hold the arbitration
at another location. Depositions and other discovery shall be allowed
in accordance with the JAMS Rules. The arbitrator shall apply the
substantive law (and the law of remedies, if applicable) of the State
of California or Federal law, or both, as applicable to the claim(s)
asserted.
C. In consideration of the parties' agreement to submit to arbitration
all disputes with regard to this Agreement and/or with regard to any
alleged contract, or any other claim arising out of their conduct, the
relationship existing hereunder or the continuation or termination of
that relationship, and in further consideration of the anticipated
expedition and the minimizing of expense of this arbitration remedy,
the arbitration provisions of this Agreement shall provide the
exclusive remedy, and each party expressly waives any right he or it
may have to seek redress in another forum. The arbitrator, and not any
Federal, state, or local court or agency shall have exclusive
authority to resolve any dispute relating to the interpretation,
applicability, enforceability or formation of this Agreement,
including but not limited to, any claim that all or any part of this
Agreement is void or voidable. The arbitration shall be final and
binding upon the parties.
D. Either party may bring an action in any court of competent
jurisdiction to compel arbitration under this Agreement and to enforce
an arbitration award. Except as otherwise provided for in this
Agreement, both the Company and Executive agree that neither of them
shall initiate or prosecute any lawsuit or administrative action in
any way related to any claim covered by this Agreement.
E. Any claim which either party has against the other party that could be
submitted for resolution pursuant to this Section X must be presented
in writing by the claiming party to the other party within one year of
the date the claiming party knew or should have known of the facts
giving rise to the claim, except that claims arising out of or related
to the termination of Executive's employment must be presented by
Executive within one year of the Date of Termination. Unless the party
against whom any claim is asserted waives the time limits set forth
above, any claim not brought within the time periods specified herein
shall be waived and forever barred,
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even if there is a Federal or state statute of limitations which would
have given more time to pursue the claim.
F. The Company shall advance the costs and expenses of the arbitrator. In
any arbitration to enforce any of the provisions or rights under this
Agreement, the unsuccessful party in such arbitration, as determined
by the arbitrator, shall pay to the successful party all costs,
expenses and reasonable attorneys' fees incurred therein by such party
(including without limitation such costs, expenses and fees on any
appeals), and if such successful party shall recover an award in any
such arbitration proceeding, such costs, expenses and attorneys' fees
shall be included as part of such award. Notwithstanding the foregoing
provision, in no event shall the successful party be entitled to
recover an amount from the unsuccessful party for costs, expenses and
attorneys' fees that exceeds the unsuccessful party's costs, expenses
and attorneys' fees incurred in connection with the action or
proceeding.
G. Any decision and award or order of the arbitrator shall be final and
binding upon the parties hereto and judgment thereon may be entered in
the Superior Court of the State of California or any other court
having jurisdiction.
H. Each of the above terms and conditions shall have separate validity,
and the invalidity of any part thereof shall not affect the remaining
parts.
I. Any decision and award or order of the arbitrator shall be final and
binding between the parties as to all claims which were or could have
been raised in connection with the dispute to the full extent
permitted by law. In all other cases the parties agree that the
decision of the arbitrator shall be a condition precedent to the
institution or maintenance of any legal, equitable, administrative, or
other formal proceeding by Executive or the Company in connection with
the dispute, and that the decision and opinion of the arbitrator may
be presented in any other forum on the merits of the dispute.
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IN WITNESS WHEREOF, Executive has hereunto set Executive's hand, and pursuant to
the authorization from the Board, the Company has caused this Agreement to be
executed in its name on its behalf, all as of the day and year first above
written.
NATIONWIDE HEALTH PROPERTIES, INC.
By:_______________________________________________
R. Xxxxx Xxxxxxx, President
Executive:
_________________________________________________
Xxxx X. Xxxxxxx
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