Exhibit 10.7
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT, (the "Amended and Restated
Agreement"), dated as of September 10, 2003 (the "Effective Date"), among
Medical Properties Trust, Inc. (the "REIT"), MPT Operating Partnership, L.P., a
Delaware limited partnership (the "Operating Partnership"), (the REIT and the
Operating Partnership being herein referred to collectively as the "Company"),
and Xxxxxxx X. XxXxxxxx (the "Executive"):
WHEREAS, the REIT is a limited partner and, through its wholly owned
limited liability company, Medical Properties Trust, LLC (the "LLC"), the sole
general partner of the Operating Partnership:
WHEREAS, the Executive and the Company entered into an Employment
Agreement dated as of September 10, 2003 (the "Original Agreement"); and
WHEREAS, the parties desire to supersede the Original Agreement and
substitute in lieu thereof this Amended and Restated Employment Agreement.
NOW, THEREFORE, the Company and the Executive, in consideration of the
respective covenants set out below, hereby agree to the provisions of this
Amended and Restated Agreement as follows:
1. EMPLOYMENT.
(a) POSITIONS. The Executive shall be employed by the Operating
Partnership as a part time employee and shall also serve as Vice-Chairman of the
Board of Directors of the REIT (the "Board"), on a part-time basis as provided
below.
(b) DUTIES. During the term of this Amended and Restated Agreement, the
Executive shall perform such duties and tasks as the Company shall reasonably
request from time to time, including, without limitation, (i) serving as the
Vice-Chairman of the Board, (ii) assisting the Company with strategic planning,
marketing, acquisition of healthcare properties and other managerial functions
from time to time, (iii) speaking at seminars, lectures and other public and
private engagements, and (iv) such other duties and tasks concerning the
ownership and leasing of healthcare properties (collectively, the "Services") as
the Chief Executive Officer and the Board shall from time to time reasonably
assign to the Executive. The Executive shall be available to provide a minimum
of Fifty (50) hours of services during each month during the Term (as herein
defined).
2. TERM. This Amended and Restated Agreement shall be effective as of the
Effective Date and shall continue in full force and effect thereafter for a term
of three (3) years following the Effective Date and shall be automatically
extended for an additional one (1) year period on each one (1) year anniversary
of the Effective Date, including an anniversary that occurs within the initial
three (3) year term (the last day of each such one (1) year period ending on an
anniversary of the Effective Date is referred to herein as a "Term Date"),
unless either party gives notice of non-renewal not later than sixty (60) days
prior to a Term Date by providing written notice to the other
party of such party's intent not to renew (in which case the Amended and
Restated Agreement shall not be so automatically extended for such additional
one (1) year period and shall terminate at the conclusion of the remaining
unextended Term), or it is sooner terminated pursuant to Section 7, but for
purposes of all compensation and benefits payable pursuant to Sections 3 through
5 hereof the Term shall be deemed to commence as of August 1, 2003.
3. COMPENSATION.
(a) BASE SALARY. The Company shall pay the Executive a Base Salary that
shall be payable in periodic installments according to the Company's normal
payroll practices, but no less frequently than monthly. The initial Base Salary
shall be $175,000 per year. The Board or its compensation committee (the
"Compensation Committee") shall review the Base Salary at least once a year to
determine whether and to what extent the Base Salary should be increased,
effective January 1 of any year during the Term; provided, however, that on
January 1, 2005, the Base Salary shall be not less than $183,750 and on each
January 1 thereafter during the Term, the Base Salary shall be increased at a
minimum by a positive amount equal to the Base Salary in effect on January 1 of
the prior year multiplied by the percentage increase in the Consumer Price Index
for such year. The amount of the increase shall be determined before March 31 of
each year and shall be retroactive to January 1 of such year. The Base Salary,
including any increases, shall not be decreased during the Term. For purposes of
this Amended and Restated Agreement, the term "Base Salary" shall mean the
amount established and adjusted from time to time pursuant to this Section 3.
(b) INCENTIVE AWARDS: ANNUAL INCENTIVE BONUS. The Executive shall be
entitled to receive an annual cash incentive bonus for each fiscal year during
the Term of this Amendment and Restated Agreement consistent with such bonus
policy as may be adopted by the Board or its Compensation Committee ("Bonus
Policy") in an amount of not less than 40% of the Executive's Base Salary (the
"Minimum Bonus") or more than 100% of the Executive's Base Salary unless in the
opinion of the Compensation Committee, the Executive deserves a higher amount
(the "Maximum Bonus"). If the Executive or the Company, as the case may be,
satisfies the performance criteria contained in such Bonus Policy for a fiscal
year, he shall receive an annual incentive bonus (the "Incentive Bonus"),
consistent with the provisions relating to the Minimum Bonus and the Maximum
Bonus, in an amount determined by the Compensation Committee and subject to
ratification by the Board, if required. If the Executive or the Company, as the
case may be, fails to satisfy the performance criteria contained in such Bonus
Policy for a fiscal year, the Compensation Committee may determine whether any
Incentive Bonus shall be payable to the Executive for that year other than the
Minimum Bonus, subject to ratification by the Board, if required. Beginning
January 1, 2004, the Bonus Policy shall contain both individual and group goals.
4. STOCK BASED AWARDS. The REIT has established the 2004 Equity Incentive Plan
("Equity Incentive Plan") which provides for the grants of options to acquire
shares of the Company's $.001 par value common stock (the "Common Shares"),
awards of restricted Common Shares and awards of stock appreciation rights and
performance units. Effective upon the consummation of the private placement
offering or initial public offering, whichever occurs first, the Company has
reserved for issuance to the Company's executive officers and other employees
two and six-tenths percent (2.6%) of the outstanding Common Shares on a
fully-diluted basis for awards of restricted Common Shares ("Restricted Share
Grants"). The Executive shall be eligible to
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receive Restricted Share Grants as approved by the Compensation Committee, and
if the Compensation Committee approves Restricted Share Grants to executives of
the Company, then, as appropriate in the context, the Executive will receive
Restricted Share Grants consistent with, and appropriate in respect of, his
position as Executive. Restricted Share Grants awarded to the Executive shall be
subject to vesting at the rate of 8.33% of the underlying Common Shares on the
last day of each fiscal quarter thereafter until fully vested; provided,
however, that the Executive will be 100% vested and all restrictions will lapse
upon (i) a Change of Control (as defined herein), (ii) a termination by the
Company without Cause (as defined herein), (iii) a termination by the Executive
for Good Reason (as defined herein), (iv) his death, or (v) his becoming
Permanently Disabled (as defined herein). The Executive will forfeit all
unvested Restricted Share Grants if he is terminated for Cause or he terminates
for other than Good Reason. The Common Shares issued as Restricted Share Grants
will have voting and dividend rights, and, following the restriction period,
shall be registered and fully transferable by the Executive.
5. EXPENSES AND INSURANCE.
(a) DIRECTORS AND OFFICERS INSURANCE. During the Term, the Executive shall
be entitled to director and officer insurance coverage for his acts and
omissions while an officer and director of the Company on a basis no less
favorable to him than the coverage provided to any other then current officers
and directors.
(b) EXPENSES, OFFICE AND SECRETARIAL SUPPORT. The Executive shall be
entitled to reimbursement of all reasonable expenses, in accordance with the
Company's policy as in effect from time to time and on a basis no less favorable
than that applicable to any other executive of the Company, including, without
limitation, telephone, travel and entertainment expenses incurred by the
Executive in connection with the business of the Company, promptly upon the
presentation by the Executive of appropriate documentation. The Executive shall
also be entitled to appropriate office space, administrative support, and such
other facilities and services as are suitable to the Executive's positions and
adequate for the performance of the Executive's duties.
6. CHANGE OF CONTROL.
(a) CHANGE OF CONTROL. For purposes of this Amended and Restated
Agreement, a "Change of Control" will be deemed to have taken place upon the
occurrence of any of the following events:
(i) any person, entity or affiliated group, excluding the REIT or
any employee benefit plan of the REIT, acquiring more than 50% of the then
outstanding voting shares of the REIT,
(ii) the consummation of any merger or consolidation of the REIT
into another company, such that the holders of the voting shares of the REIT
immediately prior to such merger or consolidation own less than 50% of the
voting power of the securities of the surviving company or the parent of such
surviving company, or
(iii) the complete liquidation of the REIT or the sale or
disposition of all or substantially all of the REIT's assets, such that after
the transaction, the holders of the voting shares
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of the REIT immediately prior to the transaction own less than 50% of the voting
securities of the acquiror or the parent of the acquiror.
(b) CERTAIN BENEFITS UPON A CHANGE OF CONTROL. In the event of a Change of
Control, the Executive shall become 100% vested in the stock options and
restricted Common Shares awarded under the Equity Incentive Plan (or any other
or successor plan) and, if the Executive voluntarily terminates his employment
without Good Reason after the Change of Control, then the Executive shall have
whatever remaining period under the options following the Change of Control in
which to exercise his vested stock options, including those stock options that
vested upon the Change of Control. In addition, if the Executive's employment
with the Company is terminated by the Company for Cause or by the Executive
without Good Reason in connection with a Change of Control, the Executive shall
receive (in addition to the applicable benefits described in Section 8 hereof) a
lump sum payment equal to the largest cash compensation from the Company for any
twelve (12) period during the Executive's tenure with the Company, multiplied by
three (3).
(c) EXCISE TAX.
(i) In the event that any payment or benefit received or to be
received by the Executive in connection with a termination of the Executive's
employment (whether pursuant to the terms of this Amended and Restated Agreement
or any other plan, arrangement or agreement with the Company, any person whose
actions result in a change in control or any person affiliated with the Company
or such person) (all such payments and benefits being hereinafter called "Total
Payments"), such that the Executive will be subject (in whole or in part) to the
excise tax imposed under Code Section 4999 ("Excise Tax") on such payments and
benefits, then the Company shall pay to the Executive an additional amount (the
"Gross-Up Payment") such that the net amount retained by the Executive, after
deduction of the Excise Tax and any federal, state and local tax on the Gross-Up
Payment, will be equal to the Total Payments. For purposes of determining the
amount of the Gross-Up Payment, the Executive shall be deemed to pay federal
income taxes at the highest marginal rate of federal income taxation in the
calendar year in which the Gross-Up Payment is to be made and state and local
income taxes at the highest marginal rate of taxation in the state and locality
of the Executive's residence on such date, net of the maximum deduction in
federal income taxes which could be obtained from deduction of such state and
local taxes.
(ii) The Executive or the Company may request, prior to the time any
payments under this Amended and Restated Agreement are made, a determination of
whether any or all of the Total Payments will be subject to the Excise Tax and,
if so, the amount of such Excise Tax and the federal, state and local tax
imposed on the Gross-Up Payment. If such a determination is requested, it shall
be made promptly, at the Company's expense, by tax counsel selected by the
Executive and approved by the Company (with such approval not being unreasonably
withheld), and such determination shall be conclusive and binding on both
parties. The Company agrees to provide any information reasonably requested by
such tax counsel. Tax counsel may engage accountants or other experts, at the
Company's expense, to the extent deemed necessary or advisable for them to reach
a determination. For these purposes, the term "tax counsel" shall mean a law
firm with expertise in federal income tax matters.
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(iii) In the event that the Excise Tax is subsequently determined to
be less than the amount taken into account hereunder, the Executive will repay
to the Company, at the time that the amount of such reduction in Excise Tax is
finally determined, the portion of the Gross-Up Payment attributable to such
reduction plus that portion of the Gross-Up Payment attributable to the Excise
Tax and federal, state and local income tax imposed on the Gross-Up Payment,
without any interest thereon. In the event that the Excise Tax is determined to
exceed the amount taken into account hereunder, the Company will make an
additional Gross-Up Payment in respect of such excess and in respect of any
portion of the Excise Tax with respect to which the Company had not previously
made a Gross-Up Payment (plus any interest, penalties or additions payable by
the Executive with respect to such excess and such portion) at the time that the
amount of such excess is finally determined, without any interest thereon.
(iv) Each party agrees to notify the other party, in writing, of any
claim that, if successful, would require the payment by the Company of a
Gross-Up Payment or might entitle the Company to a refund of all or part of any
previous Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten (10) business days after the Executive or
Company is informed in writing of such claim or otherwise becomes aware of such
claim. If notice of the claim arose as a result of a claim made against the
Executive by a taxing authority, Executive shall not pay such claim prior to the
expiration of the thirty (30) day period following the date on which he gives
notice to the Company. If the Company notifies the Executive in writing prior to
the expiration of such period that it desires to contest such claim, the
Executive shall: (A) give the Company any information reasonably requested by
the Company relating to such claim, (B) take such action in connection with
contesting such claim as the Company 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 the Executive and approved by
the Company (with such approval not being unreasonably withheld), (C) cooperate
with the Company in good faith in order to effectively contest such claim, and
(D) permit the Company to reasonably participate in any proceedings relating to
such claim. The Company shall bear and pay directly all costs and expenses
(including legal fees and additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses.
(v) Notwithstanding the foregoing, the Company shall control all
audits and proceedings taken in connection with any claim, audit or proceeding
involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue
or forego any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of any such claim, audit or
proceeding and may, at its sole option, either direct the Executive to pay the
tax claimed and xxx for a refund or contest the tax in any permissible manner,
and the Executive 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 the Company shall determine; provided, however, that if the
Company directs the Executive to pay such tax and xxx for a refund, the Company
shall advance the amount of such payment to the Executive, (including interest
or penalties with respect thereto) and shall indemnify and hold the Executive
harmless, on an after-tax basis, for 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. The Company
shall be required to consult with and keep the Executive fully apprised of
developments and actions being
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considered or taken with respect to such claim, audit or proceeding. The
Company's control of the contest shall be limited to issues with respect to
which such a Gross-Up Payment would be payable or refundable hereunder and the
Executive shall be entitled to settle or contest, as the case may be, any other
issue. Each party agrees to keep the other party fully apprised of developments
concerning such claim, audit or proceeding and to cooperate with the other in
good faith in order to effectively resolve such claim, audit or proceeding.
(vi) For purposes of this Subsection (c), a determination of whether
a payment is subject to Excise Taxes, including but not limited to, a
determination of Change in Control, shall be made pursuant to Code Section 280G.
7. TERMINATION. The employment of the Executive by the Company pursuant to this
Amended and Restated Agreement shall terminate upon the occurrence of any of the
following:
(a) DEATH OR PERMANENT DISABILITY. Immediately upon death or a
determination of Permanent Disability of the Executive. As used in this Amended
and Restated Agreement, "Permanent Disability" shall mean an inability due to a
physical or mental impairment to perform the material services contemplated
under this Amended and Restated Agreement for a period of six (6) months,
whether or not consecutive, during any 365-day period. A determination of
Permanent Disability shall be made by a physician satisfactory to both the
Executive and the Company, provided that if the Executive and the Company do not
agree on a physician, the Executive and the Company shall each select a
physician and these two together shall select a third physician, whose
determination as to Permanent Disability shall be binding on all parties. The
appointment of one or more individuals to carry out the offices or duties of the
Executive during a period of the Executive's inability to perform such duties
and pending a determination of Permanent Disability shall not be considered a
breach of this Amended and Restated Agreement by the Company.
(b) FOR CAUSE. At the election of the Company and subject to the
provisions of this Section 7(b), immediately upon written notice by the Company
to the Executive of his termination for Cause. For purposes of this Amended and
Restated Agreement, "Cause" for termination shall be deemed to exist solely in
the event of (i) the conviction of the Executive of, or the entry of a plea of
guilty or nolo contendere by the Executive to, a felony (exclusive of any felony
relating to negligent operation of a motor vehicle and also exclusive of a
conviction, plea of guilty or nolo contendere arising solely under a statutory
provision imposing criminal liability upon the Executive on a per se basis due
to the Company offices held by the Executive, so long as any act or omission of
the Executive with respect to such matter was not taken or omitted in
contravention of any applicable policy or directive of the Board or Chief
Executive Officer), (ii) a willful breach of his duty of loyalty which is
materially detrimental to the Company, (iii) a willful failure to materially
perform or materially adhere to explicitly stated duties that are consistent
with the terms of this Amended and Restated Agreement, or the Company's
reasonable and customary guidelines of employment or reasonable and customary
corporate governance guidelines or policies, including, without limitation, any
business code of ethics adopted by the Board, or to follow the lawful directives
of the Board or the Chief Executive Officer (provided such directives are
consistent with the terms of this Amended and Restated Agreement), which, in any
such case, continues for thirty (30) days after written notice from the Board or
the Chief Executive Officer to the Executive, or (iv) gross negligence or
willful misconduct in the material performance of the Executive's duties. For
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purposes of this Section 7(b), no act, or failure to act, on the Executive's
part will be deemed "gross negligence" or "willful misconduct" unless done, or
omitted to be done, by the Executive not in good faith and without a reasonable
belief that the Executive's act, or failure to act, was in the best interest of
the Company.
(c) WITHOUT CAUSE; WITHOUT GOOD REASON. At the election of the Company,
without Cause, and at the election of the Executive, without Good Reason, in
either case upon thirty (30) days prior written notice to the Executive or the
Company, as the case may be.
(d) FOR GOOD REASON. At the election of the Executive, for Good Reason.
For purposes of this Amended and Restated Agreement, "Good Reason" shall mean
any of the following actions or omissions, provided the Executive notifies the
Company of his determination that Good Reason exists within sixty (60) days of
the action or omission on which such determination is based:
(i) failure of this Amended and Restated Agreement to be
automatically renewed, on at least comparable terms, as a result of the Company
giving notice pursuant to Section 2,
(ii) the Company's failure to maintain a Bonus Policy in Section 3
hereof or to continue in effect the Equity Incentive Plan, unless comparable
alternative compensation arrangements (embodied in ongoing substitute or
alternative plans) have been provided to the reasonable satisfaction of the
Executive,
(iii) a breach by the Company of any provision of this Amended and
Restated Agreement that continues for a period of thirty (30) days after
Executive provides written notice to the Company of such breach.
8. TERMINATION ON PERMANENT DISABILITY; BY THE COMPANY WITHOUT CAUSE; BY THE
EXECUTIVE FOR GOOD REASON. If the employment of the Executive should terminate
by reason of his becoming Permanently Disabled, a termination by the Company for
any reason other than Cause, or by the Executive for Good Reason, then the
Company shall pay all compensation and benefits for the Executive as follows:
(i) any Base Salary, Incentive Bonus, expense reimbursements and all
other compensation related payments that are payable as of the effective date of
the termination of his employment that are related to the period of his
employment preceding the effective date of the termination of his employment,
including pay in lieu of accrued, but unused, vacation, and
(ii) the prorated amount of the Incentive Bonus for the year in
which the termination of employment occurs, pro rated for the portion of such
year during which the Executive was employed prior to the effective date of the
termination of his employment, and
(iii) an amount equal to the product of (A) the sum of (1) the
Executive's Base Salary as of the effective date of termination of his
employment, and (2) the average cash bonus received by Executive for the past
three (3) fiscal years preceding the effective date of termination (or such
shorter period, if applicable), multiplied by (B) three (3).
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The sum of the amount payable under subsections (ii) and (iii)
hereof is referred to herein as his "Severance Payment".
(iv) The Severance Payment shall be made in a single, lump sum cash
payment no later than thirty (30) days after the effective date of the
termination of the Executive's employment.
(v) The Executive's stock options awarded under the Equity Incentive
Plan (or any other or successor plan) shall immediately become 100% vested and
he shall have whatever remaining period under the options following the
effective date of his termination of employment in which to exercise his vested
stock options, including those stock options that vested upon his termination of
employment.
(vi) The Executive's restricted Common Shares awarded under the
Equity Incentive Plan (or any other or successor plan) shall immediately become
100% vested and all restrictions shall lapse.
(b) TERMINATION ON DEATH. Upon a termination of employment due to the
Executive's death, the Executive shall become 100% vested in his stock options
and restricted Common Shares awarded under the Equity Incentive Plan. The
Executive's personal representative shall have whatever remaining period under
the options following the Executive's death in which to exercise his vested
stock options, including those stock options that vested on death. The Company
shall pay to the Executive's personal representative any Base Salary, Incentive
Bonus, expense reimbursements and all other compensation related payments that
are payable as of his date of death and that are related to his period of
employment preceding his date of death. Within sixty (60) days after the
Executive's death, the Company shall pay to the Executive's personal
representative the prorated amount of the Incentive Bonus for the year in which
the Executive's death occurs, prorated for the portion of the year during which
the Executive was employed prior to his death.
(c) BY THE COMPANY FOR CAUSE OR BY THE EXECUTIVE WITHOUT GOOD REASON. In
the event that the Executive's employment is terminated by the Company for Cause
or by the Executive without Good Reason, the Company shall pay the Executive his
Base Salary, Incentive Bonus, expense reimbursements and all other compensation
related payments that are payable as of his termination of employment date and
that are related to his period of employment preceding his termination date. The
Executive shall be entitled to exercise his vested stock options, determined as
of his termination date, pursuant to the terms of the option grant.
(d) TERMINATION OF AUTHORITY. Immediately upon the Executive terminating
or being terminated from his employment with the Company for any reason,
notwithstanding anything else appearing in this Amended and Restated Agreement
or otherwise, the Executive will stop serving the functions of his terminated or
expired positions, and shall be without any of the authority or responsibility
for such positions. On request of the Board at any time following his
termination of employment for any reason, the Executive shall resign from the
Board if then a member.
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9. CONFIDENTIAL INFORMATION. The Executive recognizes and acknowledges that
certain assets of the Company constitute Confidential Information. The term
"Confidential Information" as used in this Amended and Restated Agreement shall
mean all information which is known only to the Executive or the Company, other
employees of the Company, or others in a confidential relationship with the
Company, and relating to the Company's business including, without limitation,
information regarding clients, customers, pricing policies, methods of
operation, proprietary Company programs, sales products, profits, costs,
markets, key personnel, formulae, product applications, technical processes, and
trade secrets, as such information may exist from time to time, which the
Executive acquired or obtained by virtue of work performed for the Company, or
which the Executive may acquire or may have acquired knowledge of during the
performance of said work. The Executive shall not, during the Term and for a
period of three (3) years thereafter disclose all or any part of the
Confidential Information to any person, firm, corporation, association, or any
other entity for any reason or purpose whatsoever, directly or indirectly,
except as may be required pursuant to his employment hereunder, or as otherwise
required by law, unless and until such Confidential Information becomes publicly
available other than as a consequence of the breach by the Executive of his
confidentiality obligations hereunder by law or in any judicial or
administrative proceeding (in which case, the Executive shall provide the
Company with notice). In the event of the termination of his employment, whether
voluntary or involuntary and whether by the Company or the Executive, the
Executive shall deliver to the Company all documents and data pertaining to the
Confidential Information and shall not retain any documents or data of any kind
or any reproductions (in whole or in part) or extracts of any items relating to
the Confidential Information. The Company acknowledges that prior to his
employment with the Company, the Executive has lawfully acquired extensive
knowledge of the industries and businesses in which the Company engages in
business, and that the provisions of this Section 9 are not intended to restrict
the Executive's use of such previously acquired knowledge.
In the event that the Executive receives a request or is required (by
deposition, interrogatory, request for documents, subpoena, civil investigative
demand or similar process) to disclose all or any part of the Confidential
Information, the Executive agrees to (a) promptly notify the Company in writing
of the existence, terms and circumstances surrounding such request or
requirement, (b) consult with the Company on the advisability of taking legally
available steps to resist or narrow such request or requirement, and (c) assist
the Company in seeking a protective order or other appropriate remedy. In the
event that such protective order or other remedy is not obtained or that the
Company waives compliance with the provisions hereof the Executive shall not be
liable for such disclosure unless disclosure to any such tribunal was caused by
or resulted from a previous disclosure by the Executive not permitted by this
Amended and Restated Agreement.
10. NON-COMPETITION AND NONSOLICITATION. During the Term and for a period of
eighteen (18) calendar months after the termination of the Executive's
employment (the "Non-Compete Period"), the Executive shall not, directly or
indirectly, either as a principal, agent, independent contractor, employee,
employer, stockholder, partner or in any other capacity whatsoever: (a) engage
or assist others engaged, in whole or in part, in any business which is engaged
in a business or enterprise involving the ownership, leasing or management of
healthcare real estate (it being understood that the activity of operating a
healthcare operating company which owns its own healthcare real estate is not so
prohibited) or (b) without the prior consent of the Board, employ or solicit the
employment of, or assist others in employing or soliciting the employment of,
any individual employed by the Company (other than the Executive's personal
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assistant or Executive's secretary) at any time while the Executive was employed
by the Company; provided, however, that the provisions of this Section 10 shall
not apply in the event the termination is by the Company without Cause or by the
Executive for Good Reason.
Nothing in this Section 10 shall impede, restrict or otherwise interfere
with Executive's management and operation of those companies and businesses he
owned, operated or controlled at the date of this Amended and Restated Agreement
that were not transferred to or purchased by the Company or the REIT, provided
such activities do not materially detract from the Executive's performance of
his duties hereunder. Further, nothing in this Section 10 shall prohibit
Executive from making any passive investment in a public company, where he is
the owner of five percent (5%) or less of the issued and outstanding voting
securities of any entity, provided such ownership does not result in his being
obligated or required to devote any managerial efforts.
The Executive agrees that the restraints imposed upon him pursuant to this
Section 10 are necessary for the reasonable and proper protection of the Company
and its subsidiaries and affiliates, and that each and every one of the
restraints is reasonable in respect to subject matter, length of time and
geographic area. The parties further agree that, in the event that any provision
of this Section 10 shall be determined by any court of competent jurisdiction to
be unenforceable by reason of its being extended over too great a time, too
large a geographic area or too great a range of activities, such provision shall
be deemed to be modified to permit its enforcement to the maximum extent
permitted by law.
11. DISPUTES.
(a) EQUITABLE RELIEF. The Executive acknowledges and agrees that upon any
breach by the Executive of his obligations under Sections 9 or 10 hereof, the
Company will have no adequate remedy at law, and accordingly will be entitled to
specific performance and other appropriate injunctive and equitable relief.
(b) LEGAL FEES. The Company shall pay or promptly reimburse the Executive
for the reasonable legal fees and expenses incurred by the Executive in
successfully enforcing or defending any right of the Executive pursuant to this
Amended and Restated Agreement even if the Executive does not prevail on each
issue.
12. INDEMNIFICATION. The Company shall indemnify the Executive, to the maximum
extent permitted by applicable law, against all costs, charges and expenses
incurred or sustained by the Executive, including the cost of legal counsel
selected and retained by the Executive in connection with any action, suit or
proceeding to which the Executive may be made a party by reason of the Executive
being or having been an officer, director, or employee of the Company.
13. COOPERATION IN FUTURE MATTERS. The Executive hereby agrees that for a period
of eighteen (18) months following his termination of employment he shall
cooperate with the Company's reasonable requests relating to matters that
pertain to the Executive's employment by the Company, including, without
limitation, providing information or limited consultation as to such matters,
participating in legal proceedings, investigations or audits on behalf of the
Company, or otherwise making himself reasonably available to the Company for
other related purposes. Any such cooperation shall be performed at scheduled
times taking into consideration the Executive's
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other commitments, and the Executive shall be compensated at a reasonable hourly
or per diem rate to be agreed upon by the parties to the extent such cooperation
is required on more than an occasional and limited basis. The Executive shall
not be required to perform such cooperation to the extent it conflicts with any
requirements of exclusivity of services for another employer or otherwise, nor
in any manner that in the good faith belief of the Executive would conflict with
his rights under or ability to enforce this Amended and Restated Agreement.
14. GENERAL.
(a) NOTICES. All notices and other communications hereunder shall be in
writing or by written telecommunication, and shall be deemed to have been duly
given if delivered personally or if sent by overnight courier or by certified
mail, return receipt requested, postage prepaid or sent by written
telecommunication or telecopy, to the relevant address set forth below, or to
such other address as the recipient of such notice or communication shall have
specified in writing to the other party hereto, in accordance with this Section
14(a).
If to the Company, to:
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
If to Executive, at his last residence shown on the records of the
Company.
Any such notice shall be effective (i) if delivered personally, when received,
(ii) if sent by overnight courier, when receipted for, (iii) if mailed, five (5)
days after being mailed, and (iv) on confirmed receipt if sent by written
telecommunication or telecopy, provided a copy of such communication is sent by
regular mail, as described above.
(b) SEVERABILITY. If any provision of this Amended and Restated Agreement
is or becomes invalid, illegal or unenforceable in any respect under any law,
the validity, legality and enforceability of the remaining provisions hereof
shall not in any way be affected or impaired.
(c) WAIVERS. No delay or omission by either party hereto in exercising any
right, power or privilege hereunder shall impair such right, power or privilege,
nor shall any single or partial exercise of any such right, power or privilege
preclude any further exercise thereof or the exercise of any other right, power
or privilege.
(d) COUNTERPARTS. This Amended and Restated Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. In making proof of
this Amended and Restated Agreement, it shall not be necessary to produce or
account for more than one such counterpart.
(e) ASSIGNS. This Amended and Restated Agreement shall be binding upon and
inure to the benefit of the Company's successors and the Executive's personal or
legal representatives, executors, administrators, heirs, distributees, devisees
and legatees. This Amended and Restated Agreement shall not be assignable by the
Executive, it being understood and agreed that this is a
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contract for the Executive's personal services. This Amended and Restated
Agreement shall not be assignable by the Company except that the Company shall
assign it in connection with a transaction involving the succession by a third
party to all or substantially all of the Company's business and/or assets
(whether direct or indirect and whether by purchase, merger, consolidation,
liquidation or otherwise). When assigned to a successor, the assignee shall
assume this Amended and Restated Agreement and expressly agree to perform this
Agreement in the same manner and to the same extent as the Company would be
required to perform it in the absence of such an assignment. For all purposes
under this Amended and Restated Agreement, the term "Company" shall include any
successor to the Company's business and/or assets that executes and delivers the
assumption agreement described in the immediately preceding sentence or that
becomes bound by this Amended and Restated Agreement by operation of law.
(f) ENTIRE AGREEMENT. This Amended and Restated Agreement contains the
entire understanding of the parties, supersedes and terminates all prior
agreements (including the Original Agreement) and understandings, whether
written or oral, relating to the subject matter hereof and may not be amended
except by a written instrument hereafter signed by the Executive and a duly
authorized representative of the Company (other than the Executive).
(g) GOVERNING LAW. This Amended and Restated Agreement and the performance
hereof shall be construed and governed in accordance with the laws of the State
of Delaware, without giving effect to principles of conflicts of law.
(h) CONSTRUCTION. The language used in this Amended and Restated Agreement
shall be deemed to be the language chosen by the parties to express their mutual
intent, and no rule of strict construction shall be applied against any party.
The headings of sections of this Amended and Restated Agreement are for
convenience of reference only and shall not affect its meaning or construction.
Whenever any word is used herein in one gender, it shall be construed to include
the other gender, and any word used in the singular shall be construed to
include the plural in any case in which it would apply and vice versa.
(i) PAYMENTS AND EXERCISE OF RIGHTS AFTER DEATH. Any amounts payable
hereunder after the Executive's death shall be paid to the Executive's
designated beneficiary or beneficiaries, whether received as a designated
beneficiary or by will or the laws of descent and distribution. The Executive
may designate a beneficiary or beneficiaries for all purposes of this Agreement,
and may change at any time such designation, by notice to the Company making
specific reference to this Amended and Restated Agreement. If no designated
beneficiary survives the Executive or the Executive fails to designate a
beneficiary for purposes of this Amended and Restated Agreement prior to his
death, all amounts thereafter due hereunder shall be paid, as and when payable,
to his spouse, if she survives the Executive, and otherwise to his estate.
(j) CONSULTATION WITH COUNSEL. The Executive acknowledges that he has had
a full and complete opportunity to consult with counsel or other advisers of his
own choosing concerning the terms, enforceability and implications of this
Amended and Restated Agreement, and that the Company has not made any
representations or warranties to the Executive concerning the terms,
enforceability and implications of this Amended and Restated Agreement other
than as are reflected in this Agreement.
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(k) WITHHOLDING. Any payments provided for in this Amended and Restated
Agreement shall be paid net of any applicable income tax withholding required
under federal, state or local law.
(l) CONSUMER PRICE INDEX. For purposes of this Amended and Restated
Agreement, the terms "Consumer Price Index" or "CPI" refers to the Consumer
Price Index as published by the Bureau of Labor Statistics of the United States
Department of Labor, U.S. City Average, All Items for Urban Wage Earners and
Clerical Workers (1982-1984=100). If the CPI is hereafter converted to a
different standard reference base or otherwise revised, the determination of the
CPI adjustment shall be made with the use of such conversion factor, formula or
table for converting the CPI, as may be published by the Bureau of Labor
Statistics, or, if the bureau shall no longer publish the same, then with the
use of such conversion factor, formula or table as may be published by an agency
of the United States, or failing such publication, by a nationally recognized
publisher of similar statistical information.
(m) SURVIVAL. The provisions of Sections 6, 8, 9, 10, 11, 12 and 13 shall
survive the termination of this Amended and Restated Agreement.
{Signatures to appear on the following page.}
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto have caused this Amended and Restated Agreement to be duly executed as of
the date first above written.
OPERATING PARTNERSHIP: EXECUTIVE:
MPT OPERATING PARTNERSHIP, L.P.
BY: MEDICAL PROPERTIES TRUST, LLC /s/ Xxxxxxx X. XxXxxxxx
ITS: GENERAL PARTNER -------------------------------------
BY: MEDICAL PROPERTIES TRUST, INC. Xxxxxxx X. XxXxxxxx
ITS SOLE MEMBER
Dated: March 8, 2004
------------------------------
By: /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
--------------------------------
Title: President & CEO
-------------------------------
Dated: March 8, 2004
-------------------------------
REIT:
MEDICAL PROPERTIES TRUST, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
--------------------------------
Title: President & CEO
-------------------------------
Dated: March 8, 2004
-------------------------------
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