Exhibit 10.6
EMPLOYMENT AGREEMENT
This Employment Agreement (the "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. Xxxxxx (the "Executive"):
WHEREAS, the REIT is a limited partner and, through its wholly-owned
limited liability company, Medical Properties Trust, LLC (the "LLC"), is the
sole general partner of the Operating Partnership;
WHEREAS, the Executive has experience in serving in the role of chief
financial officer for operating companies and also possesses expertise relating
to investment banking activities; and
WHEREAS, the Company desires to employ the Executive and the Executive
desires to accept such employment, upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, the Company and the Executive, in consideration of the
respective covenants set out below, hereby agree as follows:
1. EMPLOYMENT.
(a) POSITIONS. The Executive shall be employed by the Operating
Partnership as its Executive Vice President and Chief Financial Officer. The
Executive shall also serve as the Executive Vice President and Chief Financial
Officer of the REIT.
(b) DUTIES. The Executive shall report to the Chief Executive Officer of
the Company and his principal employment duties and responsibilities shall be
those duties and responsibilities customary for the positions of Executive Vice
President and Chief Financial Officer, along with such other duties and
responsibilities as the Chief Executive Officer and the Board of Directors of
the REIT (the "Board") shall from time to time reasonably assign to the
Executive.
(c) EXTENT OF SERVICES. Except for illnesses and vacation periods, the
Executive shall devote substantially all of his business time and attention and
his good faith reasonable efforts to the performance of his duties and
responsibilities under this Agreement. Notwithstanding the foregoing, the
Executive (i) shall be permitted to continue to manage, operate and devote time
and attention to Transaction Analysis, LLC and those companies and businesses he
owned, operated or controlled at the date of this Agreement that were not
transferred to or purchased by the Company or the REIT (collectively referred to
herein as the "Excluded Businesses"), provided that such activities do not
materially detract from Executive's performance of his duties hereunder (and if
determined by the CEO of the Company that such continued management of
Transaction Analysis, LLC is not in the best interest of the Company, the
Executive will
be given a reasonable time period to wind down the activities of such business
so that the Executive may devote 100% of his time to the Company), (ii) may make
any passive investment where he is not obligated or required to, and shall not
in fact, devote any material managerial efforts, (iii) may participate in
charitable, academic or community activities, and in trade or professional
organizations, and (iv) may hold directorships in other companies consistent
with the Company's conflict of interest policies and corporate governance
guidelines as in effect from time to time.
2. TERM. This 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 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 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.
For purposes of this Agreement, "Term" shall mean the actual duration of the
Executive's employment hereunder, taking into account any extensions pursuant to
this Section 2 or early termination of employment pursuant to Section 7, but for
purposes of all compensation and benefits payable pursuant to sections 3 through
6 hereof the Term shall be deemed to commence as of August 1, 2003.
3. 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
$250,000 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 $262,500 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 Agreement, the term "Base Salary" shall mean the amount established and
adjusted from time to time pursuant to this Section 3.
4. 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 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
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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.
5. 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 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 positions as Executive
Vice-President and Chief Financial Officer. 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.
6. BENEFITS.
(a) VACATION. The Executive shall be entitled to three (3) weeks of
vacation per full calendar year. Any unused vacation time will accrue through
the first quarter of the following year.
(b) SICK AND PERSONAL DAYS. The Executive shall be entitled to sick and
personal days on an as needed basis.
(c) EMPLOYEE BENEFITS.
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(i) PARTICIPATION IN EMPLOYEE BENEFIT PLANS. The Executive and his
spouse and eligible dependents, if any, and their respective designated
beneficiaries where applicable, will be eligible for and entitled to
participate, at the Company's expense, in any Company sponsored employee benefit
plans, including but not limited to benefits such as group health, dental,
accident, disability insurance and group life insurance as such benefits may be
offered from time to time, on a basis no less favorable than that applicable to
any other executive of the Company. In addition, Executive shall be entitled to
participate, on the same basis as other Executives of the Company, in any 401(k)
or other retirement plan sponsored by the Company.
(ii) DISABILITY INSURANCE. The Company shall maintain, at its cost,
supplemental renewable long-term disability insurance with such terms as agreed
to by the Company and the Executive.
(d) OTHER BENEFITS.
(i) ANNUAL PHYSICAL. The Company shall provide, at its costs, a
medical examination for the Executive on an annual basis by a licensed physician
selected by the Executive.
(ii) CAR ALLOWANCE. In lieu of mileage reimbursement and repairs and
maintenance expense, the Company shall pay Executive a monthly car allowance of
$750.
(iii) TAX PREPARATION AND FINANCIAL PLANNING. The Company shall pay
or promptly reimburse the Executive for costs incurred by him in connection with
tax preparation and financial planning assistance, to be furnished by such
advisors, including, but not limited to, auditors and attorneys, as chosen by
the Executive, up to a maximum aggregate of $10,000 annually. The amount shall
be paid by the Company promptly upon presentation by the Executive of copies of
any bills due to such tax and financial planning advisors. The amount paid by
the Company shall be imputed as income to the Executive, and the Company will
pay to the Executive such additional amount as necessary to pay any federal,
state or local tax liability with respect to such imputed income and the payment
of such additional amount.
(iv) DIRECTORS AND OFFICERS INSURANCE. During the Term and the
Severance Period (as defined herein), 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.
(v) LIFE INSURANCE. The Company will pay the Executive an amount of
up to $10,000 per year for life insurance policies for his benefit and
beneficiaries of his choosing. Such amount shall increase on January 1st of each
year under the term hereof by multiplying by the percentage increase in the
Consumer Price Index for such year. The amount shall be paid by the Company
promptly upon presentation by the Executive of copies of the premium notices.
The amount paid by the
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Company shall be imputed as income to the Executive, and the Company will pay to
the Executive such additional amount as necessary to pay any federal, state or
local tax liability with respect to such imputed income and the payment of such
additional amount (the "Executive Life Insurance Program").
(vi) 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.
7. TERMINATION. The employment of the Executive by the Company pursuant to this
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
Agreement, "Permanent Disability" shall mean an inability due to a physical or
mental impairment to perform the material services contemplated under this
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 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 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), (ii) a willful breach of his duty
of loyalty which is materially detrimental to the Company, (iii) a willful
failure to perform or adhere to explicitly stated duties that are consistent
with the terms of this Agreement, or the Company's reasonable and customary
guidelines of employment or reasonable and customary corporate governance
guidelines or policies, including, without limitation, any
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business code of ethics adopted by the Board, or to follow the lawful directives
of the Board (provided such directives are consistent with the terms of this
Agreement), which, in any such case, continues for thirty (30) days after
written notice from the Board to the Executive, or (iv) gross negligence or
willful misconduct in the performance of the Executive's duties. For 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 ninety (90) 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 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 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 consistent
with Section 4 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 reduction or loss of employee benefits or material fringe
benefits, both in terms of the amount of the benefit and the level of the
Executive's participation therein, enjoyed by the Executive under the employee
benefit and welfare plans of the Company, including, without limitation, such
benefits as group health, dental, 401(k), accident, disability insurance, or
group life insurance, that is caused by the Company except as is required by
applicable law, or
(iv) a breach by the Company of any provision of this Agreement that
continues for a period of thirty (30) days after Executive provides written
notice to the Company of such breach.
8. EFFECTS OF TERMINATION.
(a) 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:
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(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 (A) the sum of (1) the Executive's Base
Salary (as of the effective date of termination) 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).
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. Such Severance Payment shall be
reduced, in the case of a termination due to Permanent Disability, by the
present value of the of the amount of disability proceeds to be received by
Executive under the long term disability insurance policy carried by the
Company.
(v) The Company shall allow the Executive and his spouse and
dependants to continue to participate during the three (3) year period following
the effective date of the termination of his employment (the "Severance Period")
in any and all of the employee benefit and welfare plans and programs of the
Company, excluding any 401(k) plan, in which the Executive was entitled to
participate immediately prior to his termination, to the same extent and upon
the same terms as the Executive participated in such plans prior to his
termination, provided that the Executive's continued participation is
permissible or otherwise practicable under the general terms and provisions of
such benefit plans and programs. During the Severance Period, the Company shall
pay for the Executive's and his spouse's and dependants' continued participation
in said employee benefit and welfare plans, including but not limited to
premiums for group health, dental, accident, disability insurance, director's
and officers insurance, group life insurance, and his car allowance, but
excluding any 401(k) plan. To the extent that continued participation is neither
permissible nor practicable, the Company shall take such actions as may be
necessary to provide the Executive, his spouse, and his dependants with
substantially comparable benefits (without additional cost to the Executive,
including any additional taxes) outside the scope of such plans including,
without limitation, reimbursing the Executive for his costs in obtaining such
coverage, such as COBRA premiums paid by the Executive and/or his eligible
dependents. If the Executive engages in regular employment after his termination
of employment (whether as an executive or as a self-employed person, but
excluding his
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management or operation of the Excluded Businesses), any employee benefit and
welfare benefits received by the Executive in consideration of such employment
which are similar in nature to the employee benefit and welfare benefits
provided by the Company will relieve the Company of its obligation under this
Section 8(a)(v) to provide comparable benefits to the extent of the benefits so
received.
(vi) 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.
(vii) 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. The Executive's spouse and each
of his dependants shall be covered under the Company's health insurance program
until the earlier to occur of (i) the expiration date of the Term if such
termination had not occurred or (ii) such spouse or dependant obtaining
full-time employment. The Company shall pay for such coverage for a period of
three (3) years and after that the Executive's spouse or dependents shall pay
for such coverage.
(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. All unvested
options and unvested restricted Common Shares shall be forfeited on his
termination date. The Executive shall also be entitled to all benefits accrued
and vested under any employee benefit plan of the Company. The Executive, the
Executive's spouse and each of his dependants shall be allowed to be covered by
the Company's
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health insurance plan, at the Executive's costs, for the period remaining in the
Term had such termination not occurred or until such time as such spouse or
dependant obtains full-time employment, whichever period is shorter.
(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 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.
9. CHANGE OF CONTROL.
(a) CHANGE OF CONTROL. For purposes of this 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 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) month period during the Executive's tenure with the Company,
multiplied by three (3).
(c) EXCISE TAX.
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(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 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 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.
(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.
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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 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.
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10. CONFIDENTIAL INFORMATION. The Executive recognizes and acknowledges that
certain assets of the Company constitute Confidential Information. The term
"Confidential Information" as used in this 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 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 10 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
Agreement.
11. NON-COMPETITION AND NONSOLICITATION. During the Term and for a period of an
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, 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
12
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,
solicit the employment of, or assist others in soliciting the employment of, any
individual employed by the Company (other than the Executive's personal
assistant or Executive's secretary) at any time while the Executive was also so
employed; provided, however, that the provisions of this Section 11 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 11 shall impede, restrict or otherwise
interfere with Executive's management and operation of the Excluded Businesses.
Further, nothing in this Section 11 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 11 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 11 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.
12. INTELLECTUAL PROPERTY. During the Term, the Executive shall promptly
disclose to the Company or any successor or assign, and grant to the Company and
its successors and assigns without any separate remuneration or compensation
other than that received by him in the course of his employment, his entire
right, title and interest in and to any and all inventions, developments,
discoveries, models, or any other intellectual property of any type or nature
whatsoever ("Intellectual Property"), whether developed by him during or after
business hours, or alone or in connection with others, that is in any way
related to the business of the Company, its successors or assigns. This
provision shall not apply to books or articles authored by the Executive during
non-work hours, consistent with his obligations under this Agreement, so long as
such books or articles (a) are not funded in whole or in part by the Company,
and (b) do not contain any confidential Information or Intellectual Property of
the Company. The Executive agrees, at the Company's expense, to take all steps
necessary or proper to vest title to all such Intellectual Property in the
Company, and cooperate fully and assist the Company in any litigation or other
proceedings involving any such Intellectual Property.
13. DISPUTES.
(a) EQUITABLE RELIEF. The Executive acknowledges and agrees that upon any
breach by the Executive of his obligations under Sections 10, 11, or 12 hereof,
the
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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
Agreement even if the Executive does not prevail on each issue.
14. 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.
15. 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 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 Agreement.
16. EXPENSE REIMBURSEMENT. The parties acknowledge that the Executive is owed
Three Hundred Eighty One and 96/100 Dollars ($381.96) of expense reimbursement
by the LLC which has been assumed by the Operating Partnership The Company shall
pay said sum to the Executive contemporaneously with the closing of its private
placement offering or initial public offering, whichever occurs first.
17. 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
17(a).
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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 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 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 Agreement, it
shall not be necessary to produce or account for more than one such counterpart.
(e) ASSIGNS. This 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 Agreement shall not be assignable by the Executive, it being
understood and agreed that this is a contract for the Executive's personal
services. This 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 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 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 Agreement by operation of law.
(f) ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties, supersedes all prior agreements and understandings, whether written
or oral, relating to the subject matter hereof and may not be amended except by
a
15
written instrument hereafter signed by the Executive and a duly authorized
representative of the Company (other than the Executive).
(g) GOVERNING LAW. This 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 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 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 Agreement. If no designated beneficiary survives the
Executive or the Executive fails to designate a beneficiary for purposes of this
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
Agreement, and that the Company has not made any representations or warranties
to the Executive concerning the terms, enforceability and implications of this
Agreement other than as are reflected in this Agreement.
(k) WITHHOLDING. Any payments provided for in this 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 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
16
States or failing such publication, by a nationally recognized publisher of
similar statistical information.
(m) SURVIVAL. The provisions of Sections 8, 9, 10 11, 12, 13, 14 and 15
shall survive the termination of this 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 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. Xxxxxx
ITS: GENERAL PARTNER ------------------------------------
BY: MEDICAL PROPERTIES TRUST, INC. Xxxxxxx X. Xxxxxx
ITS: SOLE MEMBER
Dated: As of September 10, 2003
-----------------------------
By: /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
--------------------------------
Title: President & CEO
-------------------------------
Dated: March 1, 2004
-------------------------------
REIT:
MEDICAL PROPERTIES TRUST, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
--------------------------------
Title: President & CEO
-------------------------------
Dated: March 1, 2004
-------------------------------
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