EXHIBIT 10.6
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT, made as of June 4, 2002 (the "Agreement"), is
by and among Ventas, Inc., a Delaware corporation (the "Company") and Paragon
Consulting Group, LLC, a Michigan limited liability company and XxXxx X'Xxxxxxx
("X'Xxxxxxx") (the "Consultant").
W I T N E S S E T H :
WHEREAS, the Consultant has caused X'Xxxxxxx to perform certain asset
management advisory services to the Company pursuant to the Consulting
Agreement, dated February 10, 2002, between the Company and the Consultant (the
"Consulting Agreement"); and
WHEREAS, the Consultant has delivered written notice to the Company
pursuant to Section 7(c) of the Consulting Agreement of the Consultant's
voluntary termination of the Consulting Agreement;
WHEREAS, pursuant to Section 7(c) of the Consulting Agreement, the
Consulting Agreement would terminate sixty (60) days after delivery of a notice
of voluntary termination by Consultant; and
WHEREAS, the Company, the Consultant and X'Xxxxxxx desire to terminate
the Consulting Agreement and thereby terminate the services being provided by
X'Xxxxxxx, effective June 7, 2002 (the "Termination Date"), instead of at the
end of the aforementioned sixty (60) day period; and
WHEREAS, the Company, the Consultant, and X'Xxxxxxx desire to settle all
claims the Consultant and/or X'Xxxxxxx may have against the Company and the
Company may have against the Consultant and/or X'Xxxxxxx, including, but not
limited to, all claims that have arisen or might arise out of, or are in any
way, related to X'Xxxxxxx'x relationship with the Company or the termination of
the Consulting Agreement.
NOW, THEREFORE, in consideration of the covenants and mutual promises
herein contained and the Company's release of the Consultant's obligation to
perform the services provided for under the Consulting Agreement for a period of
at least three months, it is agreed as follows:
1. Termination of Consulting Agreement. At the request of the
Consultant, the Consulting Agreement and any services to be performed by the
Consultant and/or X'Xxxxxxx under the Consulting Agreement are terminated
effective as of the Termination Date. Except as provided in Sections 3(b), 3(c)
and 3 (d) of this Agreement, any ongoing obligations of the Company, the
Consultant and X'Xxxxxxx are contained solely in this Agreement.
2. Outstanding Consulting Fee/Expenses. The Company shall pay the
Consultant all outstanding amounts due and owing as the "Consulting Fee" (as
defined in the Consulting Agreement), through the Termination Date, payable
within fifteen (15) days following the Termination Date. Upon presentation of
expense statements or vouchers and such
other supporting information as the Company may reasonably request, and in
accordance with such policies set forth by the Company for its executives, the
Company shall reimburse the Consultant for all reasonable travel, entertainment,
lodging, home office and other expenses incurred by the Consultant in connection
with the performance of its services under the Consulting Agreement, through the
Termination Date, payable within fifteen (15) days following the later of the
Termination Date or the date the Consultant submits such expense statements;
provided, however, that the Consultant must submit all expense statements and
supporting information with respect to expenses incurred prior to the
Termination Date, within thirty (30) days of the Termination Date. Except as set
forth in this Agreement, the Company shall have no further obligations to
Consultant.
3. Employment by Kindred; Nonsolicitation; Confidentiality;
Indemnification; Nondisparagement.
(a) Employment by Kindred. For a period of three (3) months following the
Termination Date, the Consultant and X'Xxxxxxx (collectively, the Consultant,
for purposes of this Section 3) shall not be employed by Kindred Healthcare,
Inc. or its consolidated subsidiaries.
(b) Nonsolicitation. The Consultant hereby acknowledges and reaffirms the
nonsolicitation covenant contained in Section 9(b) of the Consulting Agreement.
(c) Confidentiality. The Consultant hereby acknowledges and reaffirms the
covenants contained in Section 9(c) of the Consulting Agreement including the
confidential information covenant and the restriction on communication with the
press covenant.
(d) Indemnification. The Company hereby acknowledges and reaffirms the
indemnification covenant contained in Section 8 of the Consulting Agreement.
(e) Nondisparagement. Following the Termination Date, the parties hereto
each agree not to make disparaging public statements concerning the other,
provided that nothing herein shall prevent either party hereto from enforcing
its rights hereunder.
(f) Acknowledgment. The Consultant acknowledges and confirms that (i) the
restrictive covenants contained in this Section 3 and Sections 9(b) and (c) of
the Consulting Agreement (collectively, the "Restrictive Covenants") are
reasonably necessary to protect the legitimate business interests of the
Company, and (ii) the Restrictive Covenants (including without limitation the
length of the term of the Restrictive Covenants) are not overbroad, overlong, or
unfair and are not the result of overreaching, duress or coercion of any kind.
The Consultant further acknowledges and confirms that its full, uninhibited and
faithful observance of each of the Restrictive Covenants will not cause it any
undue hardship, financial or otherwise, and that enforcement of each of the
covenants contained herein will not impair its ability to obtain work
commensurate with its abilities and on terms fully acceptable to it or otherwise
to obtain income required for the satisfaction of the needs of its creditors.
The Consultant acknowledges and confirms that its special knowledge of the
business of the Company is such as would cause the Company serious injury or
loss if it were to use such ability and knowledge to the benefit of a competitor
or were to compete with the Company in violation of the terms of the
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Restrictive Covenants. The Consultant further acknowledges that the Restrictive
Covenants are intended to be, and shall be, for the benefit of and shall be
enforceable by, the Company's successors and assigns.
(g) Reformation by Court. In the event that a court of competent
jurisdiction shall determine that any of the Restrictive Covenants is invalid or
more restrictive than permitted under the governing law of such jurisdiction,
then only as to enforcement of the Restrictive Covenants within the jurisdiction
of such court, such provision shall be interpreted and enforced as if it
provided for the maximum restriction permitted under such governing law.
(h) Injunction. It is recognized and hereby acknowledged by the parties
hereto that a breach by the Consultant of any of the Restrictive Covenants will
cause irreparable harm and damage to the Company, the monetary amount of which
may be virtually impossible to ascertain. As a result, the Consultant recognizes
and hereby acknowledges that the Company shall be entitled to an injunction from
any court of competent jurisdiction enjoining and restraining any violation of
any or all of the Restrictive Covenants by the Consultant or any of its
affiliates, associates, partners or agents, either directly or indirectly, and
that such right to injunction shall be cumulative and in addition to whatever
other remedies the Company may possess.
4. No Financial Interest in the Company or Affiliates. The Consultant
hereby acknowledges that it has no entitlement to or interest of any kind in the
equity, profits, revenue or any other financial interest in the Company or any
of its affiliates, unless specifically agreed by the Company in a writing
executed subsequent to the date of this Agreement.
5. Mutual Release and Waiver of Claims.
(a) The Consultant and X'Xxxxxxx, on behalf of themselves, their
families, heirs, executors, administrators, legal representatives and assigns
(collectively referred to in this Section 5 of this Agreement as the
"Consultant"), hereby unconditionally and forever releases, discharges and
waives any and all claims of any nature whatsoever, whether legal, equitable or
otherwise which the Consultant may have against the Company, its employees,
officers, directors, predecessors, subsidiaries, representatives and agents, and
any person or entity which may succeed to the rights and liabilities of any such
entities or persons by assignment or otherwise (collectively referred to in this
Release as the "Company"), arising at any time on or before the Termination
Date, in each case relating to or in connection with the Consultant's engagement
by the Company or the termination of the Consulting Agreement, other than with
respect to the obligations of the Company to the Consultant under this
Agreement. This Section 5 is a release of all claims of any nature whatsoever by
the Consultant against the Company, other than with respect to the obligations
of the Company to the Consultant under this Agreement, and includes, other than
as herein provided, any and all claims, demands, causes of action, liabilities
whether known or unknown including those caused by, arising from or related to
the Consultant's engagement by the Company including, but without limitation,
any and all alleged discrimination or acts of discrimination which occurred or
may have occurred on or before the Termination Date based upon race, color, sex,
creed, national origin, age, disability or any other violation of any Equal
Employment Opportunity Law, ordinance, rule, regulation or order, including, but
not limited to, Title VII of the Civil Rights Act of 1964, as amended; the Civil
Rights Act of 1991; the Age Discrimination in Employment Act, as amended; the
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Americans with Disabilities Act; claims under the Employee Retirement Income
Security Act of 1974, as amended; or any other federal, state or local laws or
regulations regarding employment discrimination or termination of employment.
This release also includes claims for wrongful discharge, fraud, or
misrepresentation under any statute, rule, regulation or under the common law.
(b) The Company, its officers, directors, predecessors and
subsidiaries, and any person or entity which may succeed to the rights of any
such entities or persons by assignment or otherwise (collectively referred to in
this Section 5 of this Agreement as the "Company"), hereby unconditionally and
forever releases, discharges and waives any and all claims of any nature
whatsoever, whether legal, equitable or otherwise which the Company may have
against the Consultant, X'Xxxxxxx, their employees, officers, directors,
predecessors, subsidiaries, representatives and agents, and any person or entity
which may succeed to the rights and liabilities of any such entities or persons
by assignment or otherwise (collectively referred to in this Section 5(b) as the
"Consultant"), arising at any time on or before the Termination Date, in each
case relating to or in connection with the Consultant's engagement by the
Company or the termination of the Consulting Agreement, other than with respect
to the obligations of the Consultant under this Agreement and the Surviving
Provisions. This Section 5(b) is a release of all claims of any nature
whatsoever by the Company against the Consultant, other than with respect to the
obligations of the Consultant to the Company under this Agreement, and includes,
other than as herein provided, any and all claims, demands, causes of action,
liabilities whether known or unknown including those caused by, arising from or
related to the Consultant's engagement by the Company.
(c) The Company, on the one hand, and the Consultant, on the other
hand, understand and knowingly agree to this release because it is their intent
in executing this Agreement to forever discharge each other from any and all
causes of action, foreseen or unforeseen, that may have existed on or prior to
the Termination Date, except for the obligations set forth in this Agreement.
6. Return of Property. All Company files, documents, software, access
keys, desk keys, ID badges, credit cards, laptop computers, fax machines,
cellular phones, and all other property of the Company, in the Consultant's or
X'Xxxxxxx'x possession must be returned as soon as practicable, but in no event
later than June 13, 2002.
7. Miscellaneous.
(a) This Agreement shall not in any way be construed as an
admission by the Company or the Consultant that any party has any valid claims
whatsoever against any other party.
(b) This Agreement sets forth the entire agreement among the
parties hereto and may be changed only with the written consent of all of the
parties and only if all of the parties make express reference to this Agreement.
The surviving provisions of the Consulting Agreement, are hereby reaffirmed and
shall remain in full force and effect, and together with this Agreement contain
the entire agreement and understanding between the Consultant, X'Xxxxxxx and the
Company with respect to the termination of the Consulting Agreement. In the
event
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there is a conflict between this Agreement and the Consulting Agreement, the
terms and conditions of this Agreement shall govern. The parties may execute
this Agreement in counterparts, each of which shall constitute but one and the
same instrument.
(c) Consultant represents that it has the full and absolute power and
authority to enter into this Agreement and this Agreement is a legal, valid and
binding obligation of the Consultant, enforceable against the Consultant in
accordance with its terms. The Company represents that it has the full and
absolute power and authority to enter into this Agreement and this Agreement is
a legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
(d) This Agreement shall be governed, construed, interpreted and
enforced in accordance with the substantive laws of the State of Kentucky,
without regard to principles of conflicts of laws. The parties hereby consent to
jurisdiction of the Commonwealth of Kentucky.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
VENTAS, INC PARAGON CONSULTING GROUP, LLC
/s/ T. Xxxxxxx Xxxxx /s/ XxXxx X'Xxxxxxx
By:___________________________ By: ___________________________
Its: T. Xxxxxxx Xxxxx Its: Principal
Executive Vice President XxXxx X'Xxxxxxx
and General Counsel
/s/ XxXxx X'Xxxxxxx
________________________________
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