Exhibit 10.15.8
AMENDMENT TO CHANGE-IN-CONTROL
SEVERANCE AGREEMENT
This Amendment to the
Change-in-Control Severance Agreement (the “Severance
Agreement”), dated as of May 1, 1998 and amended as of
September 30, 1999 and March 19, 2007 between Ventas,
Inc., a Delaware corporation (the “Company”), and T.
Richard Riney (the “Employee”) is made as of
December 31, 2008.
WITNESSETH:
WHEREAS, the Company and Employee
entered into the Severance 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 Employee to
make certain changes to the Severance Agreement.
NOW, THEREFORE, the Company and
Employee agree as follows:
1. The following sentence is added
at the end of Section 1.h “ Termination of
Employment ” of the Severance 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
Employee agree to cooperate in a reasonable manner (including with
regard to any post-termination services by the Employee) such that
the Termination of Employment 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 “Termination of Employment” or variation of
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 Severance
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 Employee if Employee’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
Employee’s employment terminated.
3. Section 21 COMPLIANCE WITH
SECTION 409A OF THE INTERNAL REVENUE CODE of the Severance
Agreement is amended and restated in its entirety as
follows:
21. Compliance with
Section 409A of the Internal Revenue Code. All payments
pursuant to this Agreement shall be subject to the provisions of
this Section 21.
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 Employee for or with
respect to any taxes, penalties or interest which may be imposed
upon the Employee pursuant to Code Section 409A. This
Section 21 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
Employee’s Separation from Service, the Employee is a
Specified Employee, then to the extent required for Employee not to
incur additional taxes pursuant to Code Section 409A, no such
409A Payment shall be made to the Employee earlier than the earlier
of (i) six (6) months after the Employee’s
Separation from Service; or (ii) the date of his death. Should
this Section 21 otherwise result in the delay of in-kind
benefits (for example, health benefits), any such benefit shall be
made available to the Employee by the Company during such delay
period at Employee’s expense. Should this Section 21
result in payments or benefits to Employee 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 21, as well as reimbursement of
the amount Employee 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 the date that payments or benefits, as applicable,
to Employee should have been made under this Agreement. For
purposes of this Section 21, the term “Specified
Employee” shall have the meaning set forth in Code
Section 409A, as determined in accordance with the methodology
established by the Company. For pur
