SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement ("Agreement") is made by and between
Ventas, Inc. ("Company") and Xxxxxx X. Xxxxxx ("Employee"). Employee has been
employed by Company as its Executive Vice President and Chief Financial Officer.
The parties hereby agree to the separation from that employment and from any
office or position held in any affiliates of Company upon the following terms:
1. TERMINATION DATE. Employee's separation from the Company's employment
will be effective February 9, 2000 (the "Termination Date"). As of the
Termination Date, Employee shall be relieved of all duties. Employee hereby
resigns from any and all capacities and positions with the Company and all its
affiliates effective as of February 9, 2000, and the Company hereby accepts such
resignation effective as of such date, on behalf of the Company and all of its
affiliates.
2. CONSIDERATION. In exchange for the mutual promises and releases set out
in this Agreement, Company agrees that unless the Agreement is revoked pursuant
to Paragraph 6, it will:
(a) pay Employee the gross amount of four hundred twenty thousand dollars
($420,000), minus all applicable taxes and withholding, two hundred thousand
dollars ($200,000) of which includes 1999 bonus and all accrued vacation.
Company will pay this severance pay in a lump sum no later than ten business
days following Company's receipt of this Agreement executed by Employee.
Employee agrees this amount includes all vacation pay he has accrued;
(b) continue to provide, at Company expense, for one year following the
Termination Date, health insurance to Employee with the same coverage as other
Company executives. When this coverage ends, employee will be entitled to COBRA;
(c) continue to provide, at Company expense for one year following the
Termination Date, Employee's life insurance being provided by the Company as of
Termination Date;
(d) continue to provide, at Company expense for one year following the
Termination Date, long-term disability insurance benefits to Employee equivalent
to the coverage that the Employee would have had he remained employed by the
Company;
(e) credit Employee with one additional year of vesting for purposes of the
restricted stock awards granted as of September 21, 1998 and January 13, 1999.
The parties acknowledge that (i) the granting of such additional vesting results
in a total of 12,500 shares of the restricted stock award granted as of
September 21, 1998 being vested and 12,500 shares of such restricted stock award
being forfeited and reconveyed to the Company by Employee without additional
consideration and (ii) the granting of such additional vesting results in a
total of 10,000 shares of the restricted stock award granted as of January 13,
1999 being vested and 10,000 shares of such restricted stock award being
forfeited and reconveyed to the Company by Employee without additional
consideration. Notwithstanding the preceding sentences, no additional shares
shall be treated as vested until Employee has provided the Company with or
reimbursed the Company for applicable tax withholding on the vesting, including
prior vesting, of all shares of restricted stock. The parties acknowledge that
Employee made an 83(b) election on the September 21, 1998 grant of stock and
that the Company withheld taxes on that grant of stock;
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(f) subject to the terms of the Ventas, Inc. 1997 Incentive Compensation
Plan, Employee shall have the right to exercise options for up to 18,750 shares
through May 9, 2001 pursuant to the nonqualified stock option agreement dated
September 21, 1998. The parties acknowledge that options for the remaining
56,250 shares pursuant to the nonqualified stock option agreement dated
September 21, 1998 as well as options for the full 50,000 shares pursuant to the
nonqualified stock option agreement dated May 13, 1999 are forfeited and
canceled;
(g) extinguish the promissory note dated October 22, 1998 in the aggregate
principal sum of one hundred thirty six thousand eight hundred fifty five
dollars and sixty-eight cents ($136,855.68) and forgive the unpaid principal
balance. The amount of said forgiveness will be included in Employee's February
2000 wage and earnings statement as compensation. The Company will withhold and
pay to the appropriate taxing authorities at the highest applicable rate an
amount equal to all taxes required on the amount of forgiveness and will, in
addition, include the taxes required on the gross-up and will withhold and pay
to the appropriate taxing authorities at the highest applicable rate an amount
equal to all taxes required on the gross-up such that all income and withholding
equals two hundred seventy-two thousand one hundred seventy-eight dollars and
sixteen cents ($272,178.16); and
(h) any reimburseable business expenses incurred by Employee in the regular
course of his duties, provided that Employee submits documentation acceptable to
the Company of the amount and purpose of the expenses.
3. OFFSET. The Company may offset any amounts otherwise due to Employee
pursuant to Paragraph 2 to the extent that Employees owes Company any money,
including, for example only, and not as a limit to such monies owed, personal
expenses of Employee paid by the Company or any taxes due on vested restricted
stock.
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4. INDEMNIFICATION. Employee shall indemnify Company and hold it harmless
for and from any liability, claim, demand, cost, penalties, interest, expenses,
or attorneys' fees incurred by it as a result of any assertion by the Internal
Revenue Service or any state or local taxation authority that the payments made
to Employee under this Agreement are subject to withholding tax under the
provisions of federal, state or local law. Upon receipt of any notice, inquiry,
demand, or threat of assertion of liability with respect to the settlement
payment made to Employee, Company will give Employee written notice within
fifteen (15) days by mailing such notice to his last known address.
5. RELEASE. In consideration for the promises made by the parties and the
payments to be made by Company under this Agreement, the receipt and sufficiency
of which are hereby acknowledged:
(a) Employee hereby releases and forever discharges the Company and its
affiliates and their respective shareholders, directors, officers, agents,
representatives, and employees, past and present, from any and all claims,
demands, causes of action or liabilities, which Employee ever had or now has
against the Company or its officers or directors, including, without limitation,
any such claim, demand, cause of action or liability arising out of or in any
way connected with his employment by and/or separation from the Company
(exclusive of this Agreement). Without limiting the generality of the foregoing,
this release applies to all contracts and agreements (exclusive of this
Agreement) between Employee and Company, including without limitation, the
Change of Control and Severance Agreement and the Employment Agreement, both
entered into between Company and Employee on or about September 28, 1998, and to
any right which Employee has or may have to commence or maintain a charge or
action alleging discrimination under any federal, state or local statute
(whether before a court or an
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administrative agency), including, but not limited to, the Age Discrimination in
Employment Act of 1967, Title VII of the Civil Rights Act of 1964, the Employee
Retirement Income Security Act of 1974, the Americans with Disabilities Act, the
Family and Medical Leave Act, the Fair Labor Standards Act, the Kentucky Civil
Rights Act, all as amended from time to time, and to any right which Employee
has or may have to commence or maintain a claim for attorneys' fees, wrongful
discharge, estoppel, breach of contract, damage to personal or professional
reputation, misrepresentation, and/or intentional or negligent infliction of
emotional distress.
Employee warrants and represents he has not directly or indirectly
transferred or assigned rights or causes of action against Company. Employee
agrees not to make, assert or maintain any charge, claim, demand or action which
would be covered by this release.
Employee further agrees that this Agreement replaces the Change of Control
Agreement and the Employment Agreement, each entered into between Company and
Employee on or about September 21, 1998, and terminates any rights or
obligations either Company or Employee had under the Change of Control Agreement
and the Employment Agreement.
(b) The Company has no knowledge at this time of any claims it may have
against Employee.
(c) The parties agree that Employee will be covered by the Company's
Directors and Officers Liability Insurance for acts he undertook as an employee
of the Company prior to the Termination Date to the extent that other officers
of the Company are covered.
6. ADEA WAIVER. Employee acknowledges that this Agreement includes a waiver
of any rights and claims arising under the Age Discrimination in Employment Act.
Employee understands he is not waiving rights or claims that may arise after the
date this Agreement is executed. Employee acknowledges that the consideration he
is receiving in
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exchange for his waiver of the rights and claims specified herein exceeds
anything of value to which he already is entitled. Employee acknowledges that he
was advised in writing to consult with an attorney prior to executing this
Agreement. Employee represents and agrees that he fully understands his right to
discuss all aspects of this Agreement with legal counsel and, to the extent he
deems appropriate, he has fully availed himself of this right. Employee
acknowledges that he has entered into this Agreement knowingly and voluntarily
with full understanding of its terms and after having had the opportunity to
seek and receive advice and counsel from his attorney. Employee acknowledges
that he has been given a period of at least twenty-one (21) days within which to
consider this Agreement. Employee understands that he may revoke this Agreement
during the seven (7) days following the execution of this Agreement and that
this paragraph of the Agreement will not become effective until that seven-day
revocation period has expired.
7. NON-LIABILITY. This Agreement is not intended to constitute and should
not be construed as constituting an admission of fault, wrongdoing or liability
by either party, but rather reflects the desire of the parties to resolve fairly
and amicably any past, present, or future disputes or claims.
8. NON-DISPARAGEMENT. The parties agree that they will not, directly or
indirectly, individually or in concert with others, engage in any conduct or
make any statement that is calculated or likely to have the effect of
undermining, disparaging or otherwise reflecting poorly upon the other,
including upon the reputation of the Company or its good will, products,
officers, directors, or business opportunities or that is in any manner
detrimental to Company and/or its officers, directors, agents, representatives,
or employees, past or present. Employee specifically agrees that he will not at
any time speak with the press or any other media about his
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employment with Company, the separation of that employment, his duties with the
Company, or the Company's business or affairs.
9. COOPERATION. Employee agrees to make himself available at reasonable
times to Company and its accountants, counsel, officers and employees for the
purpose of assisting the Company with the transition of his duties, answering
any questions, signing any documents, and resolving any problems. Employee
agrees to cooperate with Company as reasonably directed by it by responding to
questions, depositions, administrative proceedings and court hearings, executing
documents, and cooperating with Company and its accountants and legal counsel
with respect to business or financial issues, and/or claims and litigation of
which he has personal or corporate knowledge. Employee also shall make himself
available at reasonable times to answer questions or provide other information
within his possession and requested by Company relating to Company or its
operations in order to facilitate the smooth transition of Employee's duties to
his successor. Company will pay Employee one hundred fifty dollars ($150) per
hour for time he spends on such matters.
Employee specifically agrees that he will cooperate fully with the Company
to transfer his responsibility for bank accounts and investments to
Company-designated representatives and that he will take no action after the
Termination Date with respect to any Company bank account or investment.
10. CONFIDENTIALITY OF TERMS OF AGREEMENT. The parties agree that the terms
of this Agreement are confidential, and they promise not to disclose any of the
terms hereof to any third party, except that they may disclose it to their
respective financial and/or legal counsel, as required by the terms of a court
order or other legal process, or, in the Company's case, as required by business
necessity or as may be required by applicable law. If
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any party is required to reveal this information pursuant to a court order or
other legal process, that party agrees to provide the other party with written
notice of the requirement and a copy of the court order or legal process within
two business days of receipt of the court order or legal process and prior to
any disclosure pursuant to such requirement and agrees to cooperate with the
other party in any efforts by that party to limit the scope of disclosure of the
information and to obtain confidential treatment of any material disclosed.
Company hereby notifies Employee that it will disclose the terms of this
Agreement with its filings of Form 10-K statements with the United States
Securities and Exchange Commission. Employee agrees that Company may issue a
press release announcing his departure from the Company to pursue other
opportunities and that such press release will not breach the provisions of this
Paragraph.
11. COMPANY PROPERTY. Employee agrees that he will return to the Company
(in its current form and substance) no later than 2 business days after the
Termination Date any and all property of the Company and the Company's
Confidential Information (as defined below) which came into his possession, or
which he prepared or helped prepare, in connection with or during his employment
with the Company (including, but not limited to any and all copies of financial
statements, auditors reports and letters, records, ledgers, spreadsheets,
writings, materials, memoranda and other tangible manifestations of and/or
pertaining to such Confidential Information, regardless of for whom the same
were prepared). Employee further agrees that he has not retained and will not
retain any copies, duplicates, reproductions, or excerpts thereof. This
obligation specifically applies to any Company computer files Employee may have
in any other location other than at the Company, including in his home and the
laptop computer Employee was allowed to use in the performance of his duties.
Employee specifically
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agrees that effective immediately, he will not use and will immediately return
all Company keys, credit cards, calling cards, limousine cards and vouchers,
computers, and the like.
12. CONFIDENTIAL COMPANY INFORMATION. The Company's Confidential
Information (as defined below) is the property of the Company, and its use,
misappropriation or disclosure will constitute a breach of trust and cause
irreparable injury or harm to the Company and to its strategic and competitive
position. It is essential to the protection of the Company's business and good
will and to the maintenance of the Company's strategic and competitive position
that the Confidential Information be kept secret and confidential and that
Employee not disclose the Confidential Information to any other person or entity
or use the Confidential Information to his own advantage or the advantage to
others.
Employee agrees that he will not, without the prior written consent of the
Board, disclose or make available to anyone for use outside the Company's
organization at any time any of the Company's Confidential Information, whether
or not developed by the him, except to the extent that such information (i) is
or becomes generally available to the public other than as a result of a
disclosure by Employee in violation of this Agreement, (ii) was available to
Employee on a non-confidential basis prior to the date hereof, or (iii) is
required to be disclosed pursuant to a court order or other legal process
(provided Employee gives the Company notice of such obligation when he receives
notice of such obligation and prior to any disclosure pursuant to such
obligation affords the Company the opportunity and cooperates with the Company
in any efforts by the Company to limit the scope of such obligation and/or to
obtain confidential treatment of any material disclosed pursuant to such
obligation).
For purposes of this Agreement, the term "Confidential Information"
includes information of any nature and in any form which at the time or times
concerned is not generally
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known to those persons engaged in a business similar to that conducted or
contemplated by the Company and which relates to any one or more of the aspects
of the Company's business, actual or potential products of the Company, or the
Company's strategies or potential liabilities, including, but not limited to,
information protected by the Company's attorney/client, work product, or tax
advisor/audit privilege; tax matters and information; negotiations with third
parties; methods, policies, processes, formulas, techniques, know-how and other
knowledge; trade practices, trade secrets, or financial matters; customers,
lists of customers or customers' purchases; lists of suppliers, manufacturers,
representatives, or other distributors; requirements for systems, programs,
machines, or other equipment; information regarding Company's bank accounts,
credit agreement, or financial projections information; and information
regarding its directors or officers or their personal affairs.
13. NON-COMPETE. Employee agrees that, for a period of two years following
the Termination Date (the "Restricted Period"), he shall not directly or
indirectly become employed by or engage or participate in Vencor, Inc. or any of
its parent, sister, subsidiary, or affiliated entities in any manner, including,
without limitation, as an owner, principal, partner, officer, director,
stockholder, employee, consultant, contractor, agent, broker, representative or
otherwise. The parties agree that Employee will not be in breach of this
Paragraph if, as part of a restructuring of Vencor in which Ventas stock holders
receive Vencor stock, he becomes a shareholder in Vencor.
14. NO SOLICITATION OF EMPLOYEES. Employee agrees that, during the
Restricted Period, he will not, either directly or indirectly, on his own or in
the service or on behalf of others solicit, divert or hire, any person employed
by the Company at any time from the Termination Date through the expiration of
the Restricted Period.
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15. INJUNCTIVE RELIEF. Employee agrees that it would be difficult to
compensate the Company fully for damages for any violation of the provisions of
this Agreement, including without limitation the provisions of Paragraphs 10
through 14. Accordingly, Employee specifically agrees that the Company shall be
entitled to temporary and permanent injunctive relief for violations of the
provisions of this Agreement.
16. BREACH OF THE AGREEMENT. In the event Employee is in material breach of
any provision of this Agreement, it shall be deemed to constitute a failure of
consideration and the Company shall be relieved of all its obligations
hereunder. Employee agrees to indemnify the Company from and against all
liability, costs and expenses, including reasonable attorneys' fees, arising out
of a breach of this Agreement.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties concerning the subject matter hereof and supersedes all
prior and contemporaneous agreements, if any, between the parties relating to
the subject matter hereof. The Agreement may be modified or amended only by a
supplemental written agreement signed by Employee and the Company.
18. ASSIGNMENT. This Agreement shall inure to the benefit of the Company
and its successors and assigns. In view of the personal nature of Employee's
obligations under this Agreement, he shall not have the right to assign or
transfer any of his rights, obligations, or benefits under this Agreement
without first obtaining the written consent of the Company.
19. ACKNOWLEDGMENT. EMPLOYEE REPRESENTS AND AGREES THAT HE FULLY
UNDERSTANDS HIS RIGHT TO DISCUSS ALL ASPECTS OF THIS AGREEMENT WITH LEGAL
COUNSEL AND, TO THE EXTENT HE DEEMS APPROPRIATE, HE HAS FULLY AVAILED HIMSELF OF
THIS RIGHT, AND HE HAS
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CAREFULLY READ AND FULLY UNDERSTANDS ALL THE PROVISIONS OF THIS AGREEMENT AND IS
VOLUNTARILY ENTERING INTO THEM.
20. CHOICE OF LAWS. The provisions of this Agreement shall be construed in
accordance with the internal laws, but not the laws of conflicts, applicable to
agreements made in the Commonwealth of Kentucky.
21. COUNTERPARTS. This Agreement may be signed in single or separate
counterparts, each of which shall constitute an original.
VENTAS, INC. XXXXXX X. XXXXXX
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
------------------------------ ------------------------------
Xxxxx X. Xxxxxx
President
Dated: 2/29/00 Dated: 2/29/00
