Exhibit 10.16.3
AMENDMENT TO AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amendment to the Amended and
Restated Employment Agreement (“Employment Agreement”),
dated as of December 31, 2004 and amended as of March 19,
2007 between Ventas, Inc., a Delaware corporation (the
“Company”), and Richard A. Schweinhart (the
“Executive”) is made as of December 31,
2008.
WITNESSETH:
WHEREAS, the Company and Executive
entered into the Employment Agreement; and
WHEREAS, the Executive Compensation
Committee of the Board of Directors of the Company has determined
that it is in the best interests of the Company and Executive to
make certain changes to the Employment Agreement.
NOW, THEREFORE, the Company and
Executive agree as follows:
1. The following sentence is added
at the end of Section 6(e) Date of Termination of the
Employment Agreement:
To the extent necessary to have
payments and benefits under this Agreement be exempt from the
requirements of Section 409A of the Internal Revenue Code of
1986, as amended (“Code Section 409A”) or comply
with the requirements of Code Section 409A, the Company and
Executive agree to cooperate in a reasonable manner (including with
regard to any post-termination services by the Executive) such that
the Date of Termination as defined in this Agreement shall
constitute a “separation from service” pursuant to Code
Section 409A (“Separation from Service”).
Notwithstanding anything contained in this Agreement to the
contrary, the date on which a Separation from Service occurs shall
be the “Date of Termination” or termination of
employment for purposes of determining the timing of payments under
this Agreement to the extent necessary to have such payments and
benefits under this Agreement be exempt from the requirements of
Section 409A of the Code or comply with the requirements of
Code Section 409A.
2. The second sentence of
Section 7(a) Death or Disability of the Employment
Agreement is amended and restated in its entirety as
follows:
Such amount shall be paid within 30
days of the date when such amounts would otherwise have been
payable to the Executive if Executive’s employment had not
terminated but in no event later than the March 15th of the
calendar year following the calendar year in which the
Executive’s employment terminated.
3. The third sentence of
Section 13 Certain Additional Payments by the Company
of the Employment Agreement is amended and restated in its entirety
as follows:
Such reduction, if applicable, shall
be made generally by first reducing the payments under
Section 8(a)(i) of this Agreement and in any event shall be
made in such a manner as to maximize the value of all Payments
actually made to Executive.
4. Section 22 COMPLIANCE
WITH SECTION 409A OF THE INTERNAL REVENUE CODE of the
Employment Agreement is amended and restated in its entirety as
follows:
22. Compliance with
Section 409A of the Internal Revenue Code . All payments
pursuant to this Agreement shall be subject to the provisions of
this Section 22. Notwithstanding anything herein to the
contrary, this Agreement is intended to be interpreted and operated
to the fullest extent possible so that the payments and benefits
under this Agreement either shall be exempt from the requirements
of Code Section 409A or shall comply with the requirements of
such provision; provided, however, that notwithstanding anything to
the contrary in this Agreement in no event shall the Company be
liable to the Executive for or with respect to any taxes, penalties
or interest which may be imposed upon the Executive pursuant to
Code Section 409A. This Section 22 shall not limit any
tax payments (other than Code Section 409A tax payments)
provided in this Agreement.
(a) Payments to Specified
Employees . To the extent that any payment or benefit pursuant
to this Agreement constitutes a “deferral of
compensation” subject to Code Section 409A (after taking
into account to the maximum extent possible any applicable
exemptions) (a “409A Payment”) treated as payable upon
Separation from Service, then, if on the date of the
Executive’s Separation from Service, the Executive is a
Specified Employee, then to the extent required for Executive not
to incur additional taxes pursuant to Code Section 409A, no
such 409A Payment shall be made to the Executive earlier than the
earlier of (i) six (6) months after the Executive’s
Separation from Service; or (ii) the date of his death. Should
this Section 22 otherwise result in the delay of in-kind
benefits (for example, health benefits), any such benefit shall be
made available to the Executive by the Company during such delay
period at Executive’s expense. Should this Section 22
result in of payments or benefits to Executive at a later time than
otherwise would have been made under this Agreement, on the first
day any such payments or benefits may be made without incurring
additional tax pursuant to Code Section 409A (the “409A
Payment Date”), the Company shall make such payments and
provide such benefits as provided for in this Agreement, provided
that any amounts that would have been payable earlier but for the
application of this Section 22, as well as reimbursement of
the amount Executive paid for benefits pursuant to the preceding
sentence, shall be paid in lump-sum on the 409A Payment Date along
with accrued interest at the rate of interest published in the Wall
Street Journal as the “prime rate” (or equivalent)
on
