Exhibit 10.3
AMENDED AND
RESTATED
EMPLOYMENT
AGREEMENT
(Douglas M. Pasquale)
This AMENDED AND RESTATED EMPLOYMENT
AGREEMENT is entered into this 23rd day of April, 2007, by and
between Nationwide Health Properties, Inc., a Maryland corporation
(the “Company”), and Douglas M. Pasquale (the
“Executive”).
The Board of Directors of the
Company has determined that it is in the best interests of the
Company and its shareholders to enter into this Amended and
Restated Employment Agreement with Executive to assure that the
Company will continue to have the service and dedication of
Executive. Except for any stock unit awards, restricted stock
awards, stock appreciation rights awards, performance share awards
or other similar equity grants, including Stock Options, this
Amended and Restated Employment Agreement contains the entire
agreement between the parties with respect to the matters specified
herein, and supersedes any prior oral and written employment
agreements, understandings and commitments between the Company and
Executive, and any severance or employment security policy of the
Company which may cover Executive.
NOW, THEREFORE, IT IS HEREBY
AGREED AS FOLLOWS:
(1) “ Cause ”
shall mean (a) the willful and continued failure of Executive
to perform substantially his duties with the Company (other than
any such failure resulting from incapacity due to physical or
mental illness) which is not remedied promptly by Executive after a
written demand for substantial performance is delivered to
Executive by the Board which specifically identifies the manner in
which the Board believes that Executive has not substantially
performed his duties, or (b) the willful engaging by Executive
in illegal conduct as determined by a court of law or gross
misconduct, which
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is materially and demonstrably injurious to the
Company. For purposes of this definition, no act or failure to act
on the part of Executive shall be considered “willful”
unless it is done, or omitted to be done, by Executive in bad faith
or without reasonable belief that Executive’s action or
omission was in the best interests of the Company. Any act, or
failure to act, based upon authority given pursuant to a resolution
duly adopted by the Board or a committee thereof or based on the
advice of counsel for the Company shall be conclusively presumed to
be done, or omitted to be done, by Executive in good faith and in
the best interests of the Company.
(2) “Disability”
shall mean the absence of Executive from his duties with the
Company on a full-time basis for a period of (a) ninety
(90) consecutive calendar days or (b) an aggregate of one
hundred fifty (150) or more calendar days in any fiscal year,
as a result of mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its
insurers and acceptable to Executive.
(3) “Effective
Date” shall mean January 1, 2007.
(4) “ Employment Period
” shall mean the period commencing on November 1, 2003
and ending on the third anniversary thereof; provided, however,
that commencing on December 1, 2003 and on the first day of
each month thereafter (the most recent of such dates is hereinafter
referred to as the “Renewal Date”), the Employment
Period shall be automatically extended so as to terminate on the
third anniversary of such Renewal Date, unless the Company or
Executive shall give notice to the other that the Employment Period
shall not be further extended prior to any such Renewal
Date.
(5) “ Stock
Options” means only stock options issued pursuant to
Nationwide Health Properties, Inc. 1989 Stock Option Plan as
Amended and Restated April 20, 2001, and as it may be further
amended, or any other stock option plan of the Company approved by
the shareholders.
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II. Conditions of Employment.
(1) Position and Duties
. Executive is to be employed as President and Chief Executive
Officer of the Company. During the Employment Period,
(a) Executive’s position (including titles), authority,
duties and responsibilities shall be at least commensurate with the
most significant of those held, exercised and assigned to Executive
at any time, and (b) Executive’s services shall be
performed at the location where Executive was employed at the
commencement of the Employment Period or any office or location
within ten (10) miles from such location. During the
Employment Period, and excluding any periods of vacation and sick
leave to which Executive is entitled, Executive agrees to devote
reasonable attention and time during normal business hours to the
business and affairs of the Company, and, to the extent necessary
to discharge the responsibilities assigned to Executive hereunder,
to use Executive’s reasonable best efforts to perform
faithfully and efficiently such responsibilities. During the
Employment Period, it shall not be a violation of this Agreement
for Executive to serve on corporate, civic or charitable boards or
committees so long as such activities do not interfere with the
performance of Executive’s responsibilities as an employee of
the Company in accordance with this Agreement.
(2) Compensation
(a) Base Salary . As
of the Effective Date, Executive shall receive an annual salary
base salary (the “Annual Base Salary”) of $538,500,
payable in twice monthly installments (except if deferred by
Executive under a Company-sponsored deferral plan).
Executive’s Annual Base Salary shall be reviewed by the
Compensation Committee of the Board (the “Committee”)
each January during the Employment Period. Any increase in Annual
Base Salary approved by the Committee shall not serve to limit or
reduce any other obligation to Executive under this
Agreement.
(b) Annual Bonus . In
addition to Annual Base Salary, Executive shall be eligible to
receive, for each fiscal year ending during the Employment Period,
an annual bonus (the “Annual Bonus”), with the specific
amount determined by the Committee
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based on its
assessment of the Company’s and Executive’s performance
for the fiscal year. Such Annual Bonus shall range from 0% to 200%,
with a target of 100%, of the Annual Base Salary earned by
Executive in such fiscal year. In assessing such performance, the
Committee shall take into account the growth and income of the
Company relative to its annual financial plan, the quality of the
Company’s assets, Executive’s performance in terms of
implementing the Company’s business strategy, and other
considerations deemed by the Committee to be relevant to the
current and future success of the Company. The Annual Bonus earned
by Executive shall be paid to Executive no later than the 15
th
day of
the third month following the end of the fiscal year to which the
Annual Bonus applies, unless such Annual Bonus is voluntarily
deferred by Executive in accordance with a Company sponsored
deferral program.
(c) Share–Based
Compensation . In addition to Annual Base Salary and Annual
Bonus, Executive shall be eligible to receive share-based
compensation at least annually in accordance with the
Company’s compensation plan.
The specific share-based
compensation awards granted to Executive, the specific performance
objectives associated with earning the share-based compensation,
and any vesting restrictions placed on the share-based compensation
shall be determined by the Committee.
(d) Benefit Plans .
During the Employment Period, Executive and/or Executive’s
beneficiaries, as the case may be, shall participate in and shall
receive all benefits under Company-sponsored retirement plans,
savings plans, deferral plans, medical plans (including dental,
vision and drug prescription plans), life insurance plans,
disability plans, and accidental death and travel accident
insurance plans provided to Executive as of the Effective Date or
as otherwise agreed to by Executive.
(e) Fringe Benefits .
During the Employment Period, Executive shall be entitled to annual
paid vacation time of five (5) weeks per calendar year. In
addition, Executive shall be entitled to receive any fringe
benefits or perquisites, or substantial
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equivalents thereof, including club memberships,
existing or subsequently introduced by the Company during the
Employment Period for the President and Chief Executive
Officer.
(f) Expenses . Upon
presentment of verifiable invoices to the Company’s
Controller or Chief Financial Officer (the “Authorized
Officer”) and other documentation as may be requested by the
Company, and subject to the Company’s expense reimbursement
policies, the Company shall reimburse Executive for the reasonable
costs and expenses which he incurs in connection with the
performance of his duties and obligations under this Agreement. In
addition, the Company shall reimburse Executive for all legal
expenses incurred by Executive in the preparation, negotiation and
execution of this Agreement.
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III.
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Termination of Employment
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(1) Death or
Disability . Executive’s employment with the Company
shall terminate automatically upon Executive’s death during
the Employment Period. In the event of Executive’s Disability
during the Employment Period (pursuant to the definition of
Disability set forth in Section I (2) of this Agreement), the
Company may, at the discretion of the Board, give Executive written
notice in accordance with Section IX (2) of this Agreement of
its intention to terminate Executive’s employment with the
Company. In such event, Executive’s employment with the
Company shall terminate effective on the 30
th
day
after receipt of such notice by Executive (the “Effective
Disability Date”), provided that, within the thirty
(30) days after such receipt, Executive shall not have
returned to full-time performance of his duties; provided that if
Executive has returned to full-time performance of his duties, the
Company may not terminate Executive due to a Disability until such
time limits have again been met.
(2) Cause . The
Company may terminate Executive’s employment during the
Employment Period for Cause. The termination of employment of
Executive shall not be
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deemed to be for Cause unless and until there
shall have been delivered to Executive a notice that Executive is
guilty of the conduct described in Section I (1) specifying
the particulars thereof in reasonable detail.
(3) Good Reason .
Executive’s employment with the Company may be terminated by
Executive during the Employment Period for Good Reason. For
purposes of this Agreement, “Good Reason” shall mean
(a) without the express written consent of Executive, the
assignment to Executive of any duties or any other action by the
Board which results in a material diminution in Executive’s
position (including titles), authority, duties or responsibilities
from those contemplated in Section II (1) of this Agreement,
excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by
the Board promptly after receipt of notice thereof given by
Executive; (b) any failure by the Company to comply with any
of the provisions of Section II (2) of this Agreement, other
than an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by Executive; (c) a
requirement by the Board that the primary business location of
Executive be relocated more than ten (10) miles from the
location where Executive was employed at the commencement of the
Employment Period; (d) any purported termination by the
Company of Executive’s employment other than as expressly
permitted by this Agreement; or (e) any Change of Control of
the Company. “Change of Control” shall mean a change in
control of the Company of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A, Regulation
240.14a-101, promulgated under the Securities Exchange Act of 1934
as in effect on the Effective Date or, if Item 6(e) is no
longer in effect, any regulation issued by the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934
which serves similar purposes; provided that, without limitation, a
Change of Control shall be deemed to have occurred if and when
(a) any “person” (as such term is used in Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934) is
or
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becomes a beneficial owner, directly or
indirectly, of securities of the Company representing fifty percent
(50%) or more of the combined voting power of the
Company’s then outstanding securities, or
(b) individuals who are members of the Board immediately prior
to a meeting of the shareholders of the Company involving the
election of directors shall not constitute a majority of the Board
following such election.
(4) Notice of
Termination . Any termination of employment of Executive
during the Employment Period by the Company for Cause, or by
Executive for Good Reason, shall be communicated to the other party
hereto in accordance with Section IX (2) of this Agreement.
For purposes of this Agreement, a “Notice of
Termination” means a written notice which (a) indicates
the specific termination provision in this Agreement relied upon,
(b) to the extent applicable, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of Executive’s employment with the Company under
the provision so indicated, and (c) if the Date of Termination
(as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall not be
more than thirty (30) days after giving of such notice). The
failure by Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing
of Good Reason or Cause shall not waive any right of Executive or
the Company, respectively, hereunder or preclude Executive or the
Company, respectively, from asserting such fact or circumstance in
enforcing Executive’s or the Company’s rights
hereunder.
(5) Date of
Termination . “Date of Termination” means
(a) if Executive’s employment is terminated by the
Company for Cause, or by Executive for Good Reason, the date of
receipt of the Notice of Termination or any later date specified
therein, as the case may be, (b) if Executive’s
employment is terminated by the Company other than for Cause, death
or