EXHIBIT 10.13
EMPLOYMENT AGREEMENT
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(R. Xxxxx Xxxxxxx)
This EMPLOYMENT AGREEMENT is entered into by and between Nationwide Health
Properties, Inc., a Maryland corporation (the "Company") and R. Xxxxx 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. 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,
and any severance or employment security policy of the Company which may cover
Executive.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
I. Definitions.
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(1) "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
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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.
(2) "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.
(3) "Effective Date" shall mean the date hereof, which is set forth in the
first paragraph of this Agreement.
(4) "Employment Period" shall mean the period commencing on the Effective
Date and ending on the third anniversary of the Effective Date; provided,
however, that commencing on the first day of the month next following the
Effective Date and on the first day of each month thereafter (the most recent of
such dates is hereinafter referred to as the "Renewal Date"), the Employment
Period shall be automatically extended so as to terminate on the third
anniversary of such Renewal Date (but not later than the date when Executive
attains age 65), unless the
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Company or Executive shall give notice to the other that the Employment Period
shall not be further extended prior to any such Renewal Date.
II. Conditions of Employment.
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(1) Position and Duties. Executive is currently employed as President and
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Chief Executive Officer of the Company. During the Employment Period, (a)
Executive's position (including titles), authority, duties and responsibilities
shall be at least commensurate with the most significant of those held,
exercised and assigned to Executive immediately preceding the Effective Date,
and (b) Executive's services shall be performed at the location where Executive
was employed immediately preceding the Effective Date or any office or location
within 25 miles from such location. 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 during normal business hours 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. 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.
(2) Compensation
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(a) Base Salary. As of the Effective Date, Executive shall receive an
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annual base salary (the "Annual Base Salary") of $425,000, payable in twice
monthly installments (except if deferred by Executive under a Company-sponsored
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.
(b) Annual Bonus. In addition to Annual Base Salary, Executive shall
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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 120% (with a target of 60%) 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
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(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.
(c) Stock Options. In addition to Annual Base Salary and Annual Bonus,
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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
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
Performance-Based Dividend Equivalents shall be determined by the Committee.
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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.
(d) 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.
(e) Fringe Benefits. During the Employment Period, Executive shall
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be entitled to annual paid vacation time of four (4) weeks and a monthly car
allowance of $675. 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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(1) 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(2) of this Agreement), the
Company may, at the discretion of the Board, give Executive written notice in
accordance with Section IX(2) 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.
(2) 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(1) specifying the particulars thereof in reasonable detail.
(3) Good Reason. Executive's employment with the Company may be
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terminated by Executive during the Employment Period for Good Reason. For
purposes of this Agreement, "Good Reason" shall mean (a) without the express
written consent of Executive, the assignment to Executive of any duties or any
other action by the Board which results in a material diminution in Executive's
position (including titles), authority, duties or responsibilities from those
contemplated in Section II(1) of this Agreement, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in bad faith and which
is remedied by the Board promptly after receipt of notice thereof given by
Executive; (b) any failure by the Company to comply with any of the provisions
of Section II(2) of this Agreement, other than an isolated,
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insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by
Executive; (c) a requirement by the Board that the primary business location of
Executive be relocated more than 25 miles from the location where Executive was
employed immediately preceding the Effective Date; (d) any purported termination
by the Company of Executive's employment other than as expressly permitted by
this Agreement; or (e) any failure by the Company to comply with and satisfy
Section VIII(3) of this Agreement.
(4) Notice of Termination. Any termination of employment of Executive
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during the Employment Period by the Company for Cause, or by Executive for Good
Reason, shall be communicated to the other party hereto in accordance with
Section IX(2) 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 which contributes to a showing of Good
Reason or Cause
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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.
(5) Date of Termination. "Date of Termination" means (a) if Executive's
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employment is terminated by the Company for Cause, or by Executive for Good
Reason, 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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(1) Good Reason; Other than for Cause, Death or Disability.
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(a) Prior to Executive's 63rd Birthday. Except as provided for in Section
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VI of this Agreement, if during the Employment Period and prior to the
Executive's 63rd birthday, the Company shall terminate Executive's employment
other than for Cause or Disability,
or Executive shall terminate his employment with the Company for Good Reason,
the Company shall pay to Executive (i) any Annual Base Salary owed to Executive
through the Date of Termination to the extent not previously paid, (ii) an
amount equal to three (3) times Executive's
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highest Annual Base Salary during any of the last three full fiscal years prior
to the Date of Termination, and (iii) an amount equal to three (3) times the
average Annual Bonus earned by Executive over the last three full fiscal years
prior to the Date of Termination.
In addition to the payments described in subparagraphs (i), (ii), and (iii)
above, the Company also shall (A) arrange to provide to Executive for a period
of three years 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, (B) immediately vest all
previously unvested shares of Restricted Stock and Stock Options held by
Executive, (C) provide Executive with any Performance-Based Dividend Equivalents
that would have been earned by Executive during the three years following the
Date of Termination, and (D) 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 (i) above shall be made within thirty
(30) days following the Date of Termination. Payments pursuant to subparagraph
(ii) above shall be made in equal monthly installments over the three-year
period following the Date of Termination. Payments pursuant to subparagraph
(iii) above shall be made in equal annual installments over the three-year
period following the Date of Termination on each anniversary following the Date
of Termination. Payments pursuant to subparagraph (C) above shall be made at
the time such payments would have been made had Executive remained in the
employment of the Company.
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(b) On or After Executive's 63rd Birthday but Prior to Executive's 64th
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Birthday. Except as provided for in Section VI of this Agreement, if during the
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Employment Period and on or after Executive's 63rd birthday but prior to the
Executive's 64th birthday, the Company shall terminate Executive's employment
other than for Cause or Disability, or Executive shall terminate his employment
with the Company for Good Reason, the Company shall pay to Executive (i) any
Annual Base Salary owed to Executive through the Date of Termination to the
extent not previously paid, (ii) an amount equal to two (2) times Executive's
highest Annual Base Salary during any of the last three full fiscal years prior
to the Date of Termination, and (iii) an amount equal to two (2) times the
average Annual Bonus earned by Executive over the last three full fiscal years
prior to the Date of Termination.
In addition to the payments described in subparagraphs (i), (ii), and (iii)
above, the Company also shall (A) arrange to provide to Executive for a period
of two years 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, (B) immediately vest all
previously unvested shares of Restricted Stock and Stock Options held by
Executive, (C) provide Executive with any Performance-Based Dividend Equivalents
that would have been earned by Executive during the two years following the Date
of Termination, and (D)
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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 (b)(i) above shall be made within thirty
(30) days following the Date of Termination. Payments pursuant to subparagraph
(b)(ii) above shall be made in equal monthly installments over the two-year
period following the Date of Termination. Payments pursuant to subparagraph
(b)(iii) above shall be made in equal annual installments over the two-year
period following the Date of Termination on each anniversary following the Date
of Termination. Payments pursuant to subparagraph (C) above shall be made at
the time such payments would have been made had Executive remained in the
employment of the Company.
(c) On or after Executive's 64th Birthday but Prior to Executive's
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65th Birthday. Except as provided for in Section VI of this Agreement, if
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during the Employment Period and on or after Executive's 64th birthday but prior
to Executive's 65th birthday, the Company shall terminate Executive's employment
other than for Cause or Disability, or Executive shall terminate his employment
with the Company for Good Reason, the Company shall pay to Executive (i) any
Annual Base Salary owed to Executive through the Date of Termination to the
extent not previously paid, (ii) an amount equal to the Executive's highest
Annual Base Salary during any of the last three fiscal years prior to the Date
of Termination, and (iii) an amount equal to 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 (i), (ii), and (iii)
above, the Company also shall (A) arrange to provide to Executive for a period
of one year 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, (B) immediately vest all
previously unvested shares of Restricted Stock and Stock Options held by
Executive, (C) provide Executive with any Performance-Based Dividend Equivalents
that would have been earned by Executive during the one year following the Date
of Termination, and (D) 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 (c)(i) above shall be made within thirty
(30) days following the Date of Termination. Payments pursuant to subparagraph
(c)(ii) above shall be made in equal monthly installments over the twelve-month
period following the Date of Termination. Payments pursuant to subparagraph
(c)(iii) above shall be made in one installment on the date of the first
anniversary of the Date of Termination. Payments pursuant to subparagraph (C)
above shall be made at the time such payments would have been made had Executive
remained in the employment of the Company.
If Executive should die while receiving payments pursuant to this Section
IV(1)(a), (b), or (c), 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
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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.
(2) Death. If Executive's employment with the Company is terminated by
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reason of Executive's death during the 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.
(3) Disability. If Executive's employment with the Company is terminated
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by reason of Executive's Disability during the Employment Period in accordance
with Section III(1) 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.
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(4) Cause; Other than for Good Reason. If, during the Employment Period,
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Executive's employment shall be terminated for Cause or if Executive voluntarily
terminates his employment with the Company other than for Good Reason, 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 other than for Good Reason under
any benefit, stock option, deferral or compensation plan provided to Executive
by the Company.
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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 Agreement. 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.
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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 36-month period after the Date of Termination (24-month
period if the Date of Termination falls on or after Executive's 63th birthday
and before Executive's 64th birthday, and the 12-month period if the Date of
Termination falls after Executive's 64th birthday). In the event Executive
becomes eligible for any medical (including dental, vision, and prescription
drug) benefits from another employer during or with respect to any 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.
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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. 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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(1) 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
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distribution. This Agreement shall inure to the benefit of and be enforceable by
Executive's legal representatives.
(2) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
(3) 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 or otherwise.
IX. Miscellaneous.
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(1) 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.
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(2) 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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R. Xxxxx Xxxxxxx, President and Chief Executive Officer
000 Xxxxxxx Xxxxxx Xxxxx Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
With a copy to:
R. Xxxxx Xxxxxxx
(Home Address)
If to the Company:
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Nationwide Health Properties
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Attention: Chairman
With a copy to:
Xx. Xxxxxxx X. Xxxxxx, Chairman
000 Xxxxx Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxx, XX 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.
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(3) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
(4) 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.
(5) 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,
including, without limitation, the right of Executive to terminate employment
with the Company for Good Reason, shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Agreement.
I. Arbitration.
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(1) 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 Reason, claims for breach of
covenant, breach of an implied covenant of good faith and
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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").
(2) 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.
(3) 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,
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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.
(4) 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.
(5) Any claim which either party has against the other party that could be
submitted for resoluton pursuant to this Section IX 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, even if there is a Federal
or state statute of limitations which would have given more time to pursue the
claim.
(6) 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
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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.
(7) 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.
(8) Each of the above terms and conditions shall have separate validity,
and the invalidity of any part thereof shall not affect the remaining parts.
(9) 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
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dispute, and that the decision and opinion of the arbitrator may be presented in
any other forum on the merits of the dispute.
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
By _______________________________
Title ____________________________
Executive
___________________________________
Title
Executive
R. Xxxxx Xxxxxxx
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