Exhibit 10.5
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this
“Agreement”), effective as of December 14, 2007 (the
“Effective Date”), is entered into by and among BioMed
Realty Trust, Inc., a Maryland corporation (the
“REIT”), BioMed Realty, L.P., a Maryland limited
partnership (the “Operating Partnership”), and John F.
Wilson II (the “Executive”).
WHEREAS,
the REIT and the Operating Partnership (collectively, the
“Company”) and the Executive are parties to that
certain Employment Agreement effective as of August 6, 2004,
as amended by that certain First Amendment to Employment Agreement
effective as of March 27, 2006 (collectively, the “Prior
Agreement”); and
WHEREAS,
the Company and the Executive desire to amend and restate the Prior
Agreement upon the terms and conditions hereinafter set
forth.
NOW,
THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1.
Employment Period . Subject to the provisions for earlier
termination hereinafter provided, the Executive’s employment
hereunder shall be for a term (the “Employment Period”)
commencing on the Effective Date and ending on the first
anniversary of the Effective Date (the “Initial Termination
Date”); provided , however , that this
Agreement shall be automatically extended for one
(1) additional year on the Initial Termination Date and on
each subsequent anniversary of the Initial Termination Date (each
such extension, a “Renewal Year”), unless either the
Executive or the Company elects not to so extend the term of the
Agreement by notifying the other party, in writing, of such
election not less than six months (6) months prior to the last
day of the Employment Period as then in effect.
2.
Terms of Employment .
(a)
Position and Duties .
(i)
During the Employment Period, the Executive shall serve as
Executive Vice President of the REIT and the Operating Partnership
and shall perform such employment duties as are assigned by the
REIT’s Chief Executive Officer and usual and customary for
such positions. In such position, the Executive shall report to the
REIT’s Board of Directors or, if the Board of Directors
delegates such authority, to the REIT’s Chief Executive
Officer. At the Company’s request, the Executive shall serve
the Company and/or its subsidiaries and affiliates in other offices
and capacities in addition to the foregoing. In the event that the
Executive, during the Employment Period, serves in any one or more
of such additional capacities, the Executive’s compensation
shall not be increased beyond that specified in Section 2(b) of
this Agreement. In addition, in the event the Executive’s
service in one or more of such additional capacities is terminated,
the Executive’s compensation, as specified in Section 2(b) of
this Agreement, shall not be diminished or reduced in any manner as
a result of such termination for so long as the Executive otherwise
remains employed under the terms of this Agreement.
(ii)
During the Employment Period, and excluding any periods of vacation
and sick leave to which the Executive is entitled, the Executive
agrees to devote such attention and time during normal business
hours to the business and affairs of the Company as are necessary
for the performance of his duties hereunder. During the Employment
Period it shall not be a violation of this Agreement for the
Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) fulfill limited teaching, speaking
and writing engagements or (C) manage his personal investments, so
long as such activities do not significantly interfere with the
performance of the Executive’s responsibilities as an
employee and officer of the Company in accordance with this
Agreement. It is expressly understood and agreed that to the extent
that any such activities have been conducted by the Executive prior
to the Effective Date, the continued conduct of such activities (or
the conduct of activities similar in nature and scope thereto)
subsequent to the Effective Date shall not thereafter be deemed to
interfere with the performance of the Executive’s
responsibilities to the Company; provided that no such activity
that violates any written non-competition agreement between the
parties shall be permitted.
(b)
Compensation .
(i)
Base Salary . During the Employment Period, the Executive
shall receive a base salary (the “Base Salary”) of
$298,500 per annum. The Base Salary shall be paid by the
Partnership at such intervals as the Partnership pays executive
salaries generally. The Executive shall provide services to the
REIT as described in this Agreement for no additional salary.
During the Employment Period, the Base Salary then in effect shall
be increased, effective on January 1 st of each
calendar year, beginning on January 1, 2008, for increases in the
cost of living based on inflation as measured by the federal
Consumer Price Index for All Urban Consumers (“CPI”).
To determine the adjusted Base Salary using the CPI, the Base
Salary shall be multiplied by a fraction, the numerator of which
shall be the CPI published for the December of the year immediately
preceding the date of the Base Salary adjustment (the “First
Adjustment Year”), and the denominator of which shall be the
CPI published for the December of the year immediately preceding
the First Adjustment Year. Any increase in Base Salary shall not
serve to limit or reduce any other obligation to the Executive
under this Agreement. The Base Salary shall not be reduced after
any such increase and the term “Base Salary” as
utilized in this Agreement shall refer to Base Salary as so
increased from time to time. The Base Salary may be reviewed
annually by the REIT’s Board of Directors, or the
Compensation Committee thereof, and may be increased beyond the
cost-of-living adjustment in the discretion of the REIT’s
Board of Directors, or the Compensation Committee thereof.
(ii)
Annual Bonus . In addition to the Base Salary, the Executive
shall be eligible to earn, for each fiscal year of the Company
ending during the Employment Period, an annual cash performance
bonus (an “Annual Bonus”) under the Company’s
bonus plan or plans applicable to senior executives. The
Executive’s Annual Bonus shall be at least 50% of his Base
Salary actually paid for such year under this Agreement and the
Prior Agreement. The Executive’s actual Annual Bonus may be
up to 150% of the Base Salary actually paid for such year under
this Agreement and the Prior Agreement, determined on the basis of
the Executive’s and/or the Company’s attainment of
objective
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financial or
other operating criteria established by the REIT’s Board of
Directors, or the Compensation Committee thereof in accordance with
the terms and conditions of such bonus plan(s). The Annual Bonus
shall be paid to the Executive by the Partnership within
seventy-five (75) days following the end of each fiscal year.
If the Executive’s Annual Bonus in any year is materially
less than 50% of his Base Salary, that shall constitute a material
breach of this Agreement.
(iii) Incentive, Savings and
Retirement Plans . During the Employment Period, the Executive
shall be entitled to participate in all other incentive plans,
practices, policies and programs, and all savings and retirement
plans, practices, policies and programs, in each case that are
applicable generally to senior executives of the Company under the
terms and conditions therein as in effect from time to time.
(iv) Welfare Benefit Plans .
During the Employment Period, the Executive and the
Executive’s eligible family members shall be eligible for
participation in the welfare benefit plans, practices, policies and
programs (including, if applicable, medical, dental, disability,
employee life, group life and accidental death insurance plans and
programs) maintained by the Company for its senior executives under
the terms and conditions therein as in effect from time to time;
provided , however , that the Company shall provide
the Executive with a long-term disability policy that provides for
the payment of benefits at least equal to 60% of his Base
Salary.
(v) Expenses . During the
Employment Period, the Executive shall be entitled to receive
prompt reimbursement for all reasonable business expenses incurred
by the Executive in accordance with the policies, practices and
procedures of the Company provided to senior executives of the
Company under the terms and conditions as in effect from time to
time.
(vi) Fringe Benefits . During
the Employment Period, the Executive shall be entitled to such
fringe benefits and perquisites as are provided by the Company to
its senior executives from time to time, in accordance with the
policies, practices and procedures of the Company, and shall
receive such additional fringe benefits and perquisites as the
Company may, in its discretion, from time-to-time provide. The
Company shall also reimburse Executive for (a) the costs of
maintaining a cellular phone, and (b) the costs of maintaining
an automobile in an amount up to $750 per month.
(vii) Vacation . During the
Employment Period, the Executive shall be entitled to four
(4) weeks paid vacation.
(viii) Term Life Insurance .
In addition to any term life insurance provided to other senior
executives of the Company, the Company maintains and shall continue
to maintain a term life insurance policy in the amount of
$1,000,000 on the life of the Executive. Except as provided in
Section 4 below, the policy shall remain in effect for the
Employment Period. The obligation of the Company to purchase such
policy shall be conditioned on Executive’s successful
completion of any required medical examination(s) such that the
policy can be bought at standard rates. The Executive shall, in his
sole discretion, name the beneficiaries of the policy.
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3.
Termination of Employment .
(a)
Death or Disability . The Executive’s employment shall
terminate automatically upon the Executive’s death or
Disability during the Employment Period. For purposes of this
Agreement, “Disability” shall mean the absence of the
Executive from the Executive’s duties with the Company on a
full-time basis for ninety (90) consecutive days or on a total
of one hundred eighty (180) days in any twelve (12) month
period, in either case as a result of incapacity due to mental or
physical illness which is determined to be total and permanent by a
physician selected by the Company and reasonably acceptable to the
Executive or the Executive’s legal representative.
(b)
Cause . The Company may terminate the Executive’s
employment during the Employment Period for Cause or without Cause.
For purposes of this Agreement, “Cause” shall mean the
occurrence of any one or more of the following events unless the
Executive fully corrects the circumstances constituting Cause
within thirty (30) days following the date written notice is
delivered to the Executive which specifically identifies the
circumstances constituting Cause (provided such circumstances are
capable of correction):
(i) the
Executive’s willful and continued failure substantially to
perform his duties with the Company (other than any such failure
resulting from the Executive’s incapacity due to physical or
mental illness), after a written demand for substantial performance
is delivered to the Executive by the REIT’s Board of
Directors, which demand specifically identifies the manner in which
the REIT’s Board of Directors believes that the Executive has
not substantially performed his duties;
(ii)
the Executive’s willful commission of an act of fraud or
dishonesty resulting in economic or financial damage to the
Company;
(iii)
the Executive’s conviction of, or entry by the Executive of a
guilty or no contest plea to, the commission of a felony or a crime
involving moral turpitude;
(iv) a
willful breach by the Executive of his fiduciary duty to the
Company which results in economic or other damage to the Company;
or
(v) the
Executive’s willful and material breach of the
Executive’s covenants set forth in Section 9(a) or 9(b)
hereof.
For
purposes of this provision, no act or failure to act, on the part
of the Executive, shall be considered “willful” unless
it is done, or omitted to be done, by the Executive in bad faith or
without reasonable belief that the 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 REIT’s Board of Directors or based upon
the advice of counsel for the Company shall be conclusively
presumed to be done, or omitted to be done, by the Executive in
good faith and in the best interests of the Company. The cessation
of employment of the Executive shall not be deemed to be for Cause
unless and until there shall have been delivered to the Executive a
copy of a resolution duly adopted by the affirmative vote of not
less than two-thirds of the entire
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membership of the REIT’s Board of Directors at a meeting of
the REIT’s Board of Directors called and held for such
purpose (after reasonable notice is provided to the Executive and
the Executive is given an opportunity, together with counsel for
the Executive, to be heard before the REIT’s Board of
Directors), finding that, in the good faith opinion of the Board,
the Executive is guilty of any of the conduct described in
Section 3(b), and specifying the particulars thereof in
detail.
(c)
Good Reason . The Executive’s employment may be
terminated by the Executive for Good Reason or by the Executive
without Good Reason. For purposes of this Agreement, “Good
Reason” shall mean the occurrence of any one or more of the
following events without the Executive’s prior written
consent, unless the Company fully corrects the circumstances
constituting Good Reason within thirty (30) days following the
date written notice is delivered to the REIT’s Board of
Directors by the Executive which specifically identifies the
circumstances constituting Good Reason (provided such circumstances
are capable of correction), after:
(i) a
material diminution in Executive’s base compensation;
(ii) a
material diminution in Executive’s authority, duties or
responsibilities, including a requirement that Executive report to
another corporate officer or employee instead of reporting directly
to the REIT’s Chief Executive Officer or to the REIT’s
Board of Directors;
(iii) a
material change in the geographic location at which Executive must
perform his or her duties; or
(iv)
any other action or inaction that constitutes a material breach by
the Company of its obligations to Executive under this
Agreement.
Notwithstanding
the foregoing, “Good Reason” shall only exist if
Executive shall have provided the REIT’s Board of Directors
with written notice within ninety (90) days of the initial
occurrence of any of the foregoing events or conditions which
specifically identifies the circumstances constituting Good Reason
(provided such circumstances are capable of correction), and the
Company fails to fully correct the circumstances constituting Good
Reason within thirty (30) days following the date such written
notice is delivered to the REIT’s Board of Directors.
Executive’s termination by reason of resignation from
employment with the Company for Good Reason shall be treated as
involuntary. Executive’s resignation from employment with the
Company for Good Reason must occur within two (2) years
following the initial existence of the event or condition
constituting Good Reason.
(d)
Notice of Termination . Any termination by the Company, or
by the Executive, shall be communicated by Notice of Termination to
the other parties hereto given in accordance with Section 13(c) of
this Agreement. For purposes of this Agreement, a “Notice of
Termination” means a written notice which (i) indicates
the specific termination provision in this Agreement relied upon,
(ii) to the extent applicable, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of the Executive’s employment under the provision
so indicated and (iii) 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 be not more than
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sixty
(60) days after the giving of such notice). The failure by the
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 the Executive or the
Company, respectively, hereunder or preclude the Executive or the
Company, respectively, from asserting such fact or circumstance in
enforcing the Executive’s or the Company’s rights
hereunder.
(e)
Date of Termination . “Date of Termination”
means (i) if the Executive’s employment is terminated by
the Company for Cause, or by the Executive for Good Reason, the
date specified in the Notice of Termination (which date shall not
be prior to the expiration of the applicable correction period and
shall not be more than sixty (60) days after the giving of
such notice), as the case may be, (ii) if the
Executive’s employment is terminated by the Company other
than for Cause or Disability, the Date of Termination shall be the
date on which the Company notifies the Executive of such
termination (or such other date specified by the Company, which
date shall not be more than sixty (60) days after the giving
of such notice), (iii) if the Executive’s employment is
terminated by the Executive without Good Reason, the Date of
Termination shall be the thirtieth (30 th ) day after the
date on which the Executive notifies the Company of such
termination, unless otherwise agreed by the Company and the
Executive, and (iv) if the Executive’s employment is
terminated by reason of death or Disability, the Date of
Termination shall be the date of death or Disability of the
Executive, as the case may be.
4.
Obligations of the Company upon Termination .
(a)
Without Cause or For Good Reason . If, during the Employment
Period, the Company shall terminate the Executive’s
employment without Cause or the Executive shall terminate his
employment for Good Reason:
(i) The
Executive shall be paid the aggregate amount of
(A) the
Executive’s earned but unpaid Base Salary and accrued but
unpaid vacation pay through the Date of Termination, and any Annual
Bonus required to be paid to the Executive pursuant to
Section 2(b)(ii) above for any fiscal year of the Company that
ends on or before the Date of Termination to the extent not
previously paid (the “Accrued Obligations”), and
(B)
(I) the sum of (x) the Base Salary in effect on the Date
of Termination plus (y) the average Annual Bonus received by
the Executive for the three (3) complete fiscal years (or such
lesser number of years as the Executive has been employed by the
Company) of the Company immediately prior to the Date of
Termination, multiplied by (II) three (3) (such amount
determined under this clause (B) payable to the Executive, the
“Severance Amount”).
The
Severance Amount shall be paid to the Executive as follows:
(A) 50% of the Severance Amount shall be paid in a single lump
sum payment within ten (10) days after the Release Effective
Date (as defined below) and (B) the remaining 50% of the
Severance Amount shall be paid in a single lump sum payment on
March 1 st of the year
following the calendar year in which the Date of Termination
occurred; provided , however , that if the
Executive’s employment is terminated by the Company without
Cause or by the Executive for Good Reason,
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in each case
within one (1) year after the effective date of a Change in
Control (as defined below), then the Severance Amount shall be paid
in a single lump sum payment within ten (10) days following
the Release Effective Date;
(ii)
For a period of eighteen (18) months following the Date of
Termination, the Company shall continue to provide the Executive
and the Executive’s eligible family members with group health
insurance coverage at least equal to that which would have been
provided to them if the Executive’s employment had not been
terminated under the terms and conditions of the applicable plans;
provided , however , that if the Executive becomes
re-employed with another employer and is eligible to receive group
health insurance coverage under another employer’s plans, the
Company’s obligations under this Section 4(a)(ii) shall
be terminated to the extent comparable coverage is actually
provided to the Executive and the Executive’s eligible family
members, and any such coverage shall be reported by the Executive
to the Company;
(iii)
The Company shall pay to Executive an amount equal to the premiums
for the long-term disability and life insurance coverage described
in Sections 2(b)(iv) and 2(b)(viii) for a twelve
(12) month period following the Date of Termination,
determined by reference to the premiums in effect immediately prior
to the Date of Termination, which amount shall be paid to the
Executive in a single lump sum payment within ten (10) days
after the Release Effective Date;
(iv)
For a period of eighteen (18) months following the Date of
Termination, the Company shall, at its sole expense and on an
as-incurred basis, provide the Executive with up to $15,000 towards
outplacement services the scope and provider of which shall be
reasonable and consistent with industry practice for similarly
situated executives;
(v) To
the extent not theretofore paid or provided, the Company shall
timely pay or provide to the Executive any vested benefits and
other amounts or benefits required to be paid or provided or which
the Executive is eligible to receive under any plan, program,
policy or practice or contract or agreement of the Company and its
affiliates (such other amounts and benefits shall be hereinafter
referred to as the “Other Benefits”); and
(vi) On
the Date of Termination, 100% of the outstanding unvested stock
options, restricted stock and other equity awards granted to the
Executive under any of the Company’s equity incentive plans
(or awards substituted therefore covering the securities of a
successor company) shall become immediately vested and exercisable
in full.
Notwithstanding the foregoing, it shall be a condition to the
Executive’s right to receive the amounts provided for in
Sections 4(a)(i)(B) and 4(a)(ii), (iii) and
(iv) above that the Executive execute, deliver to the Company
and not revoke a release of claims in substantially the form
attached hereto as Exhibit A (the “Release”).
Executive shall have fifty (50) days following the Date of
Termination to execute such Release. It is understood that, in the
event that Executive is at least forty (40) years old on the
Date of Termination, Executive has a certain period to consider
whether to execute such Release, and Executive may revoke such
Release within seven
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(7) business days after execution. In the event Executive does
not execute such Release within the applicable period, or if
Executive revokes such Release within the subsequent seven
(7) business day period, the Executive shall not be entitled
to the amounts provided for in Sections 4(a)(i)(B) and
4(a)(ii), (iii) and (iv) above. The date on which the
Executive’s Release becomes effective and the applicable
revocation period lapses shall be the “Release Effective
Date.”
(b)
For Cause or Without Good Reason . If the Executive’s
employment shall be terminated by the Company for Cause or by the
Executive without Good Reason during the Employment Period, the
Company shall have no further obligations to the Executive under
this Agreement other than pursuant to Sections 7 and 8 hereof,
and the obligation to pay to the Executive the Accrued Obligations
in cash within thirty (30) days after the Date of Termination
and to provide the Other Benefits.
(c)
Death or Disability . If the Executive’s employment is
terminated by reason of the Executive’s death or Disability
during the Employment Period:
(i) The
Accrued Obligations shall be paid to the Executive’s estate
or beneficiaries or to the Executive, as applicable, in cash within
thirty (30) days of the Date of Termination;
(ii)
100% of the Executive’s annual Base Salary, as in effect on
the Date of Termination, shall be paid to the Executive’s
estate or beneficiaries or to the Executive, as applicable, in cash
within thirty (30) days following the Date of
Termination;
(iii)
For a period of twelve (12) months following the Date of
Termination, the Executive and the Executive’s eligible
family members shall continue to be provided with group health
insurance coverage at least equal to that which would have been
provided to them if the Executive’s employment had not been
terminated;
(iv) In
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