Exhibit 10.1
AGREEMENT
This AGREEMENT is made as of the
10th day of November, 2005 (the “Effective Date”), by
and between Ventas, Inc., a Delaware corporation (the
“Company”), and Robert J. Brehl (the
“Employee”).
W I T N E S S E T H:
WHEREAS, the Company desires to
employ the Employee as its Chief Accounting Officer and Controller;
and
WHEREAS, the Company and Employee
have reached agreement concerning the terms and conditions of his
employment and wish to formalize that agreement;
NOW, THEREFORE, in consideration of
the premises and the respective covenants and agreements contained
herein, and intending to be legally bound hereby, the Company and
Employee agree as follows:
1. EMPLOYMENT. The Company hereby
agrees to employ Employee and Employee hereby agrees to be employed
by the Company on the terms and conditions herein set forth.
Employee’s employment under this Agreement shall begin on
January 3, 2006 (the “Commencement
Date”).
2. DUTIES. The Company hereby
employs Employee and Employee hereby accepts employment with the
Company as Chief Accounting Officer and Controller. Employee shall
have the title, status, responsibilities and duties of Chief
Accounting Officer and Controller. Employee shall report to the
Chief Financial Officer of the Company.
3. EXTENT OF SERVICES. So long as
Employee is employed by the Company, Employee shall devote his
working time, attention, labor, skill and energies to the business
of the Company, and shall not be actively engaged in any other
business activity, whether or not such business activity is pursued
for gain, profit or other pecuniary advantage. Notwithstanding the
preceding sentence, Employee shall be permitted, to the extent such
activities do not adversely affect the ability of Employee to
perform fully his duties and responsibilities under this Agreement,
to serve on civic or charitable boards or committees.
4. COMPENSATION. As compensation for
services rendered while employed by the Company, Employee shall
receive:
(a) Base Salary . A base
salary at a rate of one hundred ninety thousand dollars ($190,000)
per year. Employee’s base salary shall be payable in equal
installments in accordance with the Company’s normal payroll
procedures. The term “Base Salary” for purposes of this
Agreement shall refer to Employee’s base salary annualized,
as same may be increased from time to time.
(b) Annual Bonus . In
addition to Base Salary, for the calendar year 2006 and thereafter,
Employee shall be eligible to receive an annual cash bonus
(“Annual Bonus”) of up to fifty percent (50%) of
Base Salary, as senior management of the Company may determine in
its discretion.
(c) Engagement Compensation .
Employee shall receive a one time equity grant on the Commencement
Date comprised of 2,000 shares of restricted stock of the Company
and 5,000 options to purchase stock in the Company, such stock and
options to vest one third on the first anniversary date of the
Commencement Date, one third on the second anniversary date of the
Commencement Date and one third on the third anniversary date of
the Commencement Date.
(d) Long Term Incentive .
Senior management will recommend to the Executive Compensation
Committee of the Board of Directors of the Company that Employee be
eligible to participate in the Company’s applicable long term
incentive compensation plan beginning with the 2007 calendar year;
provided, however, Employee’s eligibility to participate
shall be determined in the sole discretion of the Executive
Compensation Committee.
5. BENEFITS.
(a) While employed by the Company,
Employee shall be entitled to participate in any 401(k) plan,
medical, dental, disability and group life insurance and fringe
benefit plans from time to time in effect for employees generally
of the Company in accordance with the terms and conditions
thereof.
(b) While employed by the Company,
Employee shall be entitled to three weeks of paid vacation in each
calendar year in accordance with the Company’s vacation plan
policy or program in effect from time to time, at a time or times
mutually agreed between Employee and the Chief Financial
Officer.
(c) While employed by the Company,
Employee may incur reasonable business-related expenses including
for promoting the business and expenses for entertainment, travel,
cellular telephone and similar items related thereto. The Company
shall reimburse Employee for all such reasonable expenses subject
to the Company’s reimbursement procedures and policies
regarding such expenses.
(d) While employed by the Company,
Employee’s principal place of employment shall be the
Company’s office in Louisville, Kentucky, provided, however,
that Employee shall, as directed by the Company, travel from time
to time to the Company’s office in Chicago, Illinois. The
Company shall pay or promptly reimburse Employee for
(y) reasonable travel expenses incurred by Employee to travel
to and from the Chicago area and (z) reasonable expenses for
temporary lodging incurred by Employee while in the Chicago area.
Employee shall comply with the Company’s policies and
procedures regarding the reporting and documentation for
reimbursement of all such travel and lodging expenses.
6. TERMINATION OF EMPLOYMENT. The
Company may terminate Employee’s employment at any time for
any reason whatsoever or for no reason and with or without cause.
Employee acknowledges and agrees that his employment with the
Company is terminable at the will of the Company.
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7. OBLIGATIONS OF THE COMPANY UPON
TERMINATION.
(a) Following any termination of
Employee’s employment hereunder for any reason whatsoever,
the Company shall pay Employee the portion of his Base Salary that
relates to the period through the date of termination, accrued
vacation and reimbursable expenses incurred but not yet reimbursed
through date of termination and all amounts owed to Employee
pursuant to the terms and conditions of the benefit plans, programs
and arrangements of the Company at the time such payments are
due.
(b) If the Company shall terminate
Employee’s employment other than for Cause (as defined
below), subject to Employee’s execution and delivery to the
Company of a general release of claims in form reasonably
determined by the Company (the “Release”), the Company
shall pay to Employee not later than the tenth (10
th
) business day
after his execution and delivery of the Release, in cash in one
lump sum, an amount equal to one-half of Employee’s Base
Salary in effect on his date of termination.
8. CHANGE OF CONTROL.
(a) Provided Employee is then
employed by the Company, if a Change of Control (as defined below)
shall occur and within one hundred eighty (180) calendar days
from the date of the occurrence of such Change of Control, the
Company or Surviving Company (as defined below), as applicable,
shall terminate Employee’s employment other than for Cause
(as defined below) or the Employee shall terminate his employment
for Good Reason (as defined below), subject to Employee’s
execution and delivery of the Release and in addition to the
benefits under Section 7(a) hereof and in place and stead of
the payment under Section 7(b) hereof, Employee shall be paid
no later than the tenth (10 th ) business day following the
Employee’s execution and delivery of the Release, in cash in
one lump sum, an amount equal to one-half of the Employee’s
Base Salary in effect as of the date of the Change of
Control.
(b) For purposes of all provisions
of this Agreement, the term “Change of Control” shall
mean any one or more of the following events:
(i) An acquisition (other than
directly from the Company) of any voting securities of the Company
(the “Voting Securities”) by any “Person”
(having the meaning ascribed to such term in Section 3(a)(9)
of the Securities Exchange Act of 1934, as amended (“1934
Act”) and used in Sections 13(d) and 14(d) thereof, including
a “group” as defined in Section 13(d)), such that
immediately after which such Person has “Beneficial
Ownership” (within the meaning of Rule 13d-3 under the 1934
Act) of 50% or more of the combined voting power of the
Company’s then outstanding Voting Securities; provided
, however , that in determining whether a Change of Control
has occurred, Voting Securities which are acquired in an
acquisition by (x) the Company or any of its subsidiaries,
(y) an employee benefit plan (or a trust forming a part
thereof) maintained by the Company or any of its subsidiaries, or
(z) any Person in connection with an acquisition referred to
in the preceding clauses (x) or (y), shall not constitute an
acquisition which would cause a Change of Control.
(ii) The individuals who, as of the
Effective Date, constituted the Board of Directors of the Company
(the “Incumbent Board”) cease for any reason to
constitute over 50%
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of the Board; provided, however, that if the
election, or nomination for election by the Company’s
stockholders, of any new director was approved by a vote of over
50% of the Incumbent Board, such new director shall, for purposes
of this Section 8(b)(ii), be considered as though such person
were a member of the Incumbent Board; provided, further, however,
that no individual shall be considered a member of the Incumbent
Board if such individual initially assumed office as a result of
either an actual or threatened “Election Contest” (as
described in the former Rule 14a-11 promulgated under the 1934 Act)
or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Incumbent Board (a
“Proxy Contest”), including by reason of any agreement
intended to avoid or settle any Election Contest or Proxy
Contest.
(iii) Consummation of a merger,
consolidation or reorganization involving the Company, unless each
of the following events occurs in connection with such merger,
consolidation or reorganization:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization,
have Beneficial Ownership, directly or indirectly immediately
following such merger, consolidation or reorganization, of over 50%
of the combined voting power of all voting securities of the
corporation resulting from such merger or consolidation or
reorganization (the “Surviving Company”) in
substantially the same proportion as their Beneficial Ownership of
the Voting Securities immediately before such merger, consolidation
or reorganization;
(B) the individuals who were members
of the Incumbent Board immediately prior to the execution of the
agreement providing for such merger, consolidation or
reorganization constitute over 50% of the members of the board of
directors of the Surviving Company; and
(C) no Person (other than the
Company, any of its subsidiaries, any employee benefit plan (or any
trust forming a part thereof) maintained by the Company, the
Surviving Company or any Person who, immediately prior to such
merger, consolidation or reorganization had Beneficial Ownership of
50% or more of the then outstanding Voting Securities) has
Beneficial Ownership of 50% or more of the combined voting power of
the Surviving Company’s then outstanding voting
securities.
(iv) The occurrence of a complete
liquidation or dissolution of the Company.
(v) The occurrence of the sale or
other disposition of all or substantially all of the assets of the
Company to any Person (other than a transfer to a subsidiary of the
Company).
(vi) Any other event that the Board
shall determine constitutes an effective change of control of the
Company.
(vii) Notwithstanding the foregoing,
a Change of Control shall not be deemed to occur solely because any
Person (the “Subject Person”) acquired Beneficial
Ownership of more than the permitted amount of the outstanding
Voting Securities as a result of the acquisition of Voting
Securities by the Company which, by reducing the number of Voting
Securities outstanding, increases the proportional number of shares
Beneficially Owned by the Subject
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Person; provided that if a Change of Control
would occur (but for the operation of this sentence) as a result of
the acquisition of Voting Securities by the Company, and after such
acquisition of Voting Securities by the Company, the Subject Person
becomes the Beneficial Owner of any additional Voting Securities
which increases the percentage of the Voting Securities
Beneficially Owned by the Subject Person, then a Change of Control
shall occur.
(c) For purposes of this Agreement,
“Cause” shall mean the Employee’s
(i) indictment for, conviction of, or plea of nolo
contendere to, any felony or a misdemeanor involving fraud,
dishonesty or moral turpitude; (ii) willful or intentional
material breach by Employee of his duties and responsibilities;
(iii) willful or intentional material misconduct by Employee
in the performance of his duties under this Agreement; or
(iv) willful or intentional failure to comply with any lawful
instruction or directive of senior management of the
Company.
(d) For purposes of this Agreement,
“Good Reason” shall exist upon the occurrence, without
Employee’s express written consent, of any of the following
events:
(i) a material diminution in
Employee’s position, authority or duties (including the
assignment to Employee of any duties materially and adversely
inconsistent with Employee’s position, auth
