展品10.1
健康房地产信托股份有限公司
雇佣协议的修正案1
本《雇佣协议》的修订协议第1号（以下简称“修订”）于2024年10月1日进入并生效（以下简称“生效日期”），由马里兰州公司HEALTHCARE REALTY TRUSt INCORPORATED（以下简称“公司”）和奥斯汀·赫尔弗里奇（以下简称“官员”）签订，并修订了2021年1月1日公司与官员签订的某个《雇佣协议》（以下简称“协议”）。
前言
鉴于 这位官员曾担任过公司的首席副总裁，投资组合战略，并于2024年10月1日被公司任命为临时首席财务官；
鉴于 公司和官员希望按照以下要求修改协议；
鉴于 本修正案中使用的大写字母术语，但未定义的，应具有协议中赋予这些术语的相同含义。
协议
1. 协议第1部分已完全删除，并替换为以下内容:
“1. 职责在本协议期间，官员同意受聘并担任公司的临时首席财务官（“临时CFO”），公司同意雇佣并留用官员担任该职位。官员应该根据公司首席执行官和/或董事会规定的职责和责任，并向公司首席执行官汇报。官员应将他的一部分业务时间、能源和技能投入到公司事务中，以完成他在本协议下的职责。官员进一步承认：（1）公司正在寻找永久首席财务官，（2）官员将被考虑永久职位，（3）公司未向官员作出任何他将被聘用为永久职位的陈述或保证，（4）公司任命另一人为首席财务官不构成公司在本协议下的任何违约或违约行为。
2. 协议的第2.1节将按以下方式修改：
(a)第2.1(b)条（“持续董事”）修改为删除“2020年2月11日”并替换为“2024年10月1日”。
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(b) 第2.1(d)条（“激励计划”）经删除“2015年股权激励计划及任何后续计划”并替换为“修订后的2006年激励计划，日期为2021年4月29日，和先前或后续的激励计划。”
3. 协议的第3.1节将被完全删除，并替换为以下内容：
“3.1 基本工资. 作为在第1节规定的服务的支付，并且在第2节的条款和条件下，公司同意向官员支付每年45万美元的“基本工资”，从生效日期起，每半个月支付一次，直到他作为临时首席财务官结束任期。
协议的第3.2条已完全删除，并用以下内容替换:
“3.2 奖金. 官员应当有资格根据其作为First Vice President，Portfolio Strategy的现金激励计划在2024年日历年提供服务而获得现金激励报酬，官员认可其等于年度目标级别绩效的171,600美元。在2025年继续任职临时CFO期间，官员将有资格根据适用于公司执行副总裁的现金激励计划获得2025年的现金激励报酬，根据2025年作为临时CFO的部分任职年份按比例分配。
协议的第3.3(b)节一般经修订，规定在本协议期间，官员每个日历年可享受四周的假期，按部分年份比例计算。
第6条。合同第4.2节的第一句被删除，并替换为以下内容：
如果官员的雇佣关系以除因为其他原因而解除以外的方式终止，官员应支付作为补偿金的金额:(a) 214,500美元，官员承认这相当于担任临时CFO前一刻的年度支付基准工资的九个月，从终止日期起的九个月内以相同的半月分期支付；(b)基于终止发生时官员将通过完整期间工作而将获得的任何现金激励报酬的比例部分，根据截至终止日期为止在这种期间内已经过去的天数，与公司支付给其高管的现金激励报酬的时间相同一次性支付。
7. 协议新增第8.13节如下：
“8.13 回收政策。官员确认收悉并已阅读并理解公司《收回错误授予的薪酬政策》（“追回政策”）。官员应遵守追回政策或公司不时生效的其他追索、追回或类似政策的条款，以及适用法律的类似规定，其中在某些情况下可能要求偿还或没收错误授予的奖励性薪酬、现金、证券或其他
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关于此类激励性报酬所收到的财产（包括从处置此类证券或财产中获得的任何价值）。”
8. 整体协议；修改. 除非另有规定，协议，经修订的修正案，代表各方就此主题达成的完整理解，并取代任何和所有先前关于此主题的理解、协议、计划和谈判，无论是书面还是口头。所有对协议的修改必须以书面形式进行，并由寻求强制执行的当事方签字。
9. 相关方. 此修正案可由一份或多份副本执行，所有副本合在一起应视为同一修正案。
10. 协议的重新确认。 除非本协议另有修改，否则协议的条款仍然有效。
特此证明，签署本协议的各方为上述日期所载，但以生效日期为准。
公司：
健康房地产信托股份有限公司
作者： /sTodd J. Meredith
姓名：Todd J. Meredith
标题: 总裁兼首席执行官
官员：
/s/ 奥斯汀·赫尔弗里奇
奥斯汀·赫尔弗里希
展品10.1
健康房地产信托股份有限公司
雇佣协议
本雇佣协议（以下简称“协议”）由健康房地产信托股份有限公司（下称“公司”），马里兰州公司与奥斯汀·赫尔夫里奇（下称“官员”）于2021年1月1日（以下简称“生效日”）签订并生效。
RECITAL
Corporation desires to employ Officer as its Vice President, Corporate Finance, and Officer is willing to accept such employment by Corporation, on the terms and subject to the conditions set forth in this Agreement.
AGREEMENT
THE PARTIES AGREE AS FOLLOWS:
1. Duties. During the term of this Agreement, Officer agrees to be employed by and to serve Corporation as its Vice President, Corporate Finance and Corporation agrees to employ and retain Officer in such capacity. Officer shall devote his business time, energy, and skill to the affairs of Corporation as shall be necessary to perform his duties under this Agreement.
2. Term of Employment.
2.1 Definitions. For purposes of this Agreement the following terms shall have the following meanings:
(a) “Change in Control” shall mean (i) the time that Corporation first determines that any person and all other persons who constitute a group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (“Exchange Act”)) have acquired direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of 20 percent or more of Corporation’s outstanding securities, unless a majority of the “Continuing Directors” approves the acquisition not later than ten business days after Corporation makes that determination, or (ii) the first day on which a majority of the members of Corporation’s Board of Directors are not “Continuing Directors.”
(b) “Continuing Directors” shall mean, as of any date of determination, any member of the Board of Directors of Corporation who (i) was a member of that Board of Directors on February 11, 2020, (ii) has been a member of that Board of Directors for the two years immediately preceding such date of determination, or (iii) was nominated for election or elected to the Board of Directors with the affirmative vote of the greater of (x) a majority of Continuing Directors who were members of the Board at the time of such nomination or election or (y) at least four Continuing Directors.
(c) “Deferred Compensation” or “deferred compensation” shall mean any individual or group plan, program, agreement or other arrangement, whether or not a “plan” for
Exhibit 10.1
purposes of the Employee Retirement Income Security Act of 1974 (“ERISA”) and whether or not a retirement plan or supplemental executive retirement plan or additional retirement plan, but which in any event involves an agreement by Corporation to make payment(s) to Officer at a future date as compensation for current services to Corporation. The term Deferred Compensation or deferred compensation shall include, but not be limited to, benefits described in any Incentive Plan, and any implementation thereof or incentive award thereunder, each as it now exists or may hereafter be amended. This definition shall not be construed as including all forms of deferred compensation within the application of Code Section 409A. The term deferred compensation is not intended to include grants of restricted stock or certain payments of severance or separation pay which are not deferred compensation for Code Section 409A purposes.
(d) “Incentive Plans” shall mean the Corporation’s 2015 Stock Incentive Plan, and any successor plans.
(e) “Termination For Cause” shall mean termination by Corporation of Officer’s employment by Corporation by reason of Officer’s insubordination, failure or inability to perform the duties of his position, dishonesty towards, fraud upon, or deliberate injury or attempted injury to, Corporation or by reason of Officer’s breach of this Agreement, or the Company’s policies and procedures, including the Company’s Code of Business Conduct and Ethics. The determination by Corporation that a termination of Officer’s employment by Corporation is a Termination For Cause shall be conclusive and binding upon Officer.
(f) “Termination Other Than For Cause” shall mean any termination by Corporation of Officer’s employment by Corporation (other than a Termination For Cause or a Termination Upon a Change in Control). A failure or refusal of Corporation to extend the term of employment of Officer in accordance with Section 2.2 hereof, other than as a result of circumstances which would warrant a Termination For Cause hereunder, shall be deemed a Termination Other Than For Cause.
(g) “Termination Upon a Change in Control” shall mean a termination by Corporation of Officer’s employment with Corporation within 12 months following a “Change in Control.”
(h) “Voluntary Termination” shall mean termination by Officer of Officer’s employment by Corporation other than termination by reason of Officer’s death as described in Section 2.5.
2.2 Basic Term. The term of employment of Officer by Corporation shall be from January 1, 2021 through December 31, 2021, unless terminated earlier pursuant to this Section 2. Commencing in 2021, on the last day of December of each year, the first sentence of this Section 2.2 shall be automatically amended without any action by the parties by deleting each year then appearing therein and inserting in each place the next subsequent year, such that this Agreement shall be deemed to have been renewed each year prior to the expiration of the current term.
2.3 Termination For Cause. Termination For Cause may be effected by Corporation at any time during the term of this Agreement and shall be effected by written notification to Officer. Upon Termination For Cause, Officer immediately shall be paid all accrued salary, bonus compensation, if any, to the extent awarded, any benefits under any defined
Exhibit 10.1
contribution or health and welfare benefit plans of Corporation in which Officer is a participant to the full extent of Officer’s rights under such plans, accrued vacation pay and any appropriate business expenses incurred by Officer in connection with his duties hereunder, all to the date of termination, but Officer shall not be paid any other compensation or reimbursement of any kind, including without limitation, severance compensation or accelerated vesting of any unvested awards granted under the Incentive Plans.
2.4 Termination Other Than For Cause. Notwithstanding anything else in this Agreement, Corporation may effect a Termination Other Than For Cause at any time upon giving written notice to Officer of such termination. Upon any Termination Other Than For Cause, Officer shall immediately be paid all accrued salary, bonus compensation, if any, to the extent awarded, any benefits under any defined contribution or health and welfare benefit plans of Corporation in which Officer is a participant to the full extent of Officer’s rights under such plans, the full and immediate vesting without restriction of any awards previously granted to Officer under the Incentive Plans, accrued vacation pay and any appropriate business expenses incurred by Officer in connection with his duties hereunder, all to the date of termination, and all severance compensation provided in Section 4.2, but no other compensation or reimbursement of any kind.
2.5 Death. In the event of Officer’s death during the term of this Agreement, Officer’s employment shall be deemed to have terminated as of the last day of the month during which his death occurs and Corporation shall pay to his estate or such beneficiaries as Officer may from time to time designate all accrued salary, bonus compensation if any, to the extent awarded, any benefits under any defined contribution or health and welfare benefit plans of Corporation in which Officer is a participant to the full extent of Officer’s rights under such plans, the full and immediate vesting of any awards previously granted to Officer under the Incentive Plans, accrued vacation pay and any appropriate business expenses incurred by Officer in connection with his duties hereunder, all to the date of termination, but Officer’s estate shall not be paid any other compensation or reimbursement of any kind, including without limitation, severance compensation.
2.6 Voluntary Termination. In the event of a Voluntary Termination, Corporation shall immediately pay all accrued salary, bonus compensation, if any, to the extent awarded, any benefits under any defined contribution or health and welfare benefit plans of Corporation in which Officer is a participant to the full extent of Officer’s rights under such plans, accrued vacation pay and any appropriate business expenses incurred by Officer in connection with his duties hereunder, all to the date of termination, but no other compensation or reimbursement of any kind, including without limitation, severance compensation or accelerated vesting of any unvested awards granted under the Incentive Plans.
2.7 Termination Upon a Change in Control. In the event of a Termination Upon a Change in Control, Officer shall immediately be paid all accrued salary, bonus compensation, if any, to the extent awarded, any benefits under any defined contribution or health and welfare benefit plans of Corporation in which Officer is a participant to the full extent of Officer’s rights under such plans, the full and immediate vesting without restriction of any awards previously granted to Officer under the Incentive Plans, accrued vacation pay and any appropriate business expenses incurred by Officer in connection with his duties hereunder, all to the date of termination, and all severance compensation provided in Section 4.1, but no other compensation or reimbursement of any kind.
Exhibit 10.1
2.8 Notice of Termination. Corporation may effect a termination of this Agreement pursuant to the provisions of this Section 2 upon giving 30 days written notice to Officer of such termination. Officer may effect a termination of this Agreement pursuant to the provisions of this Section 2 upon giving 30 days written notice to Corporation of such termination.
3. Salary and Benefits.
3.1 Base Salary. As payment for the services to be rendered by Officer as provided in Section 1 and subject to the terms and conditions of Section 2, Corporation agrees to pay to Officer a “Base Salary” at the rate of $220,000 per annum payable in equal semi-monthly installments. The Base Salary for each year (or portion thereof) beginning January 1, 2021 shall be determined according to the Corporation’s then-existing policy governing cost-of-living adjustments.
3.2 Bonuses. Officer shall be eligible to receive bonus and/or incentive compensation each year (or portion thereof) during the term of this Agreement and any extensions thereof, in accordance with the Incentive Plans or other policy, plan or arrangement adopted by the Corporation from time to time.
3.3 Additional Benefits. During the term of this Agreement, Officer shall be entitled to the following additional benefits:
(a) Officer Benefits. Officer shall be eligible to participate in such of Corporation’s benefits and deferred compensation plans as are now generally available or later made generally available to employees and officers of Corporation, including without limitation, the Incentive Plans, dental and medical plans, personal catastrophe and disability insurance, and qualified retirement plans. For purposes of establishing the length of service under any benefit plans or programs of Corporation, Officer’s employment with Corporation will be deemed to have commenced June 3, 2019.
(b) Vacation. Officer shall be entitled to three weeks of vacation during each year during the term of this Agreement and any extensions thereof, prorated for partial years.
(c) Reimbursement for Expenses. During the term of this Agreement, Corporation shall reimburse Officer for reasonable and properly documented out-of-pocket business and/or entertainment expenses incurred by Officer in connection with his duties under this Agreement.
4. Severance Compensation.
4.1 Severance Compensation in the Event of a Termination Upon a Change in Control. In the event Officer’s employment is terminated in a Termination Upon a Change in Control, Officer shall be paid as severance compensation his Base Salary (at the rate payable at the time of such termination) for a period of nine months from the date of such termination, including compensation that was earned and deferred, whether or not vested without regard to the Change in Control. Officer shall also receive full and immediate vesting without restriction of any awards previously granted to Officer under the Incentive Plans.
Exhibit 10.1
4.2 Severance Compensation in the Event of a Termination Other Than For Cause. In the event Officer’s employment is terminated in a Termination Other Than For Cause, Officer shall be paid as severance compensation his Base Salary (at the rate payable at the time of such termination), for a period of six months from the date of such termination, on the dates specified in Section 3.1, provided, however, that if Officer is employed by a new employer during such period, the severance compensation payable to Officer during such period will be reduced by the amount of compensation that Officer is receiving from the new employer. However, Officer is under no obligation to mitigate the amount owed Officer pursuant to this Section 4.2 by seeking other employment or otherwise. The parties intend that, to the greatest extent possible, such severance compensation be treated as made pursuant to a “separation pay plan,” and not subject to the restrictions imposed by Section 4.4, as provided under Treas. Reg. §1.409A-1(b)(9), and agree to pay such severance in separate installments if the amount of severance hereunder exceeds the limits thereof. To the extent permissible under the group health benefit plans of the Corporation (or its successor), Officer may continue to participate in such plans under the same terms as active employees, pursuant to continuation coverage under COBRA, until the expiration of such COBRA continuation coverage.
4.3 No Severance Compensation Upon Other Termination. In the event of a Voluntary Termination, Termination For Cause or termination by reason of Officer’s death pursuant to Section 2.5, Officer or his estate shall not be paid any severance compensation and shall receive only the benefits as provided in the appropriate sub-section of Section 2 applicable to the respective termination.
4.4 Section 409A Payment Restrictions. The provisions of this Agreement shall be construed in a manner that is consistent with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) (Section 409A of the Code, together, with any state law of similar effect, “Section 409A”) in order to avoid any adverse tax consequences to the Officer. It is intended that each installment of the payments of the severance compensation described in this Section 4, together with all other payments and benefits provided to Officer by Corporation, whether under this Agreement or otherwise, is a separate “payment” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i) and satisfies, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treas. Reg. §§ 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9). However, to the extent it is determined that such payments constitute “deferred compensation” under Section 409A and Officer is a “specified employee,” as such term is defined in Section 409A(a)(2)(B)(i) of the Code, then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of such payments shall be delayed as follows: on the earlier of six months and one day after Officer’s separation from service (as defined below) or the date of Officer’s death, the Corporation shall (A) pay to Officer a lump sum amount equal to the sum of the payments that Officer would otherwise have received through the delayed payment date, and (B) commence any remaining payments in accordance with the terms of this Agreement. To the extent that any such deferred compensation benefit is payable upon an event involving the Officer’s cessation of services, such payment(s) shall not be made unless such event constitutes a “separation from service” pursuant to the default definition in Treas. Reg. § 1.409A-1(h).
4.5 Golden Parachute Restrictions. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by or on behalf of the Corporation to or for the benefit of the Officer as a result of and contingent on a “change in
Exhibit 10.1
control,” as defined in section 280G of the Code, (such amounts contingent on a change in control as described in Treas. Reg. § 1.280G-1 Q/A-22) whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, (together, the “Contingent Payment”) would constitute a “parachute payment,” as defined in Treas. Reg. § 1.280G-1 Q/A-30, the amount of the Contingent Payment to Officer shall be (A) reduced to an amount that is one dollar less than 300% of the Officer’s “base amount” (as defined in section 280G(b)(3)(A) of the Code), so that the amount of such payments do not constitute a parachute payment (the “Safe Harbor Payment”), or, if greater, (B) the entire Contingent Payment, unreduced by the calculation in clause (A), provided that the net value of such Contingent Payment to the Officer exceeds the Safe Harbor Payment, after taking into account the additional taxes to Officer that apply to the unreduced Contingent Payment, including the excise taxes imposed thereon under section 4999 of the Code. The determination of the amount to be paid to Officer on account of this Section 4.5 shall be made by the accountant, tax counsel or other similar expert advisor to Officer (the “Tax Advisor”), which shall, if requested, provide detailed supporting calculations both to the Corporation and the Executive and if requested, a written opinion. The supporting calculations shall include a valuation of the non-competition provisions of Section 5. The costs and expenses of the Tax Advisor shall be the responsibility of the Corporation.
4.6 Release of Claims. The payments set forth in Sections 4.1 and 4.2 of this Agreement are subject to the execution and delivery by Officer of a waiver and general release of claims (the “Release”) to Corporation substantially in the form attached hereto as Exhibit A (and having not revoked such Release for a period of seven (7) days following its execution by Officer and its delivery to the Corporation).
5. Non-Competition; Disclosure of Investments; Consulting. During the term of this Agreement and for any period during which Officer is receiving periodic severance payments pursuant to Section 4.2, or, for a period of nine months following a Termination Upon a Change in Control, so long as the payments provided for in Section 4.1 are made on a timely basis:
(a) Officer shall not, without the prior written consent of Corporation, directly or indirectly, own, manage, operate, control, be connected with as an officer, employee, partner, consultant or otherwise, or otherwise engage or participate in any corporation or other business entity engaged in the business of buying, selling, developing, building and/or managing real estate facilities for the medical, healthcare and retirement sectors of the real estate industry. Officer understands and acknowledges that Corporation carries on business nationwide and that the nature of Corporation’s activities cannot be confined to a limited area. Accordingly, Officer agrees that the geographic scope of this Section 5 shall include the United States of America. Notwithstanding the foregoing, the ownership by Officer of less than 2% of any class of the outstanding capital stock of any corporation conducting such a competitive business which is regularly traded on a national securities exchange or in the over-the-counter market shall not be a violation of the foregoing covenant.
(b) Simultaneously with Officer’s execution of this Agreement and upon each anniversary of the Effective Date, Officer shall notify the Chairman of the Compensation Committee of the nature and extent of Officer’s investments, stock holdings, employment as an employee, director, or any similar interest in any business or enterprise engaged in buying, selling, developing, building, and/or managing real estate facilities for the medical, healthcare, and retirement sectors of the real estate industry other than Corporation engaged in the business of
Exhibit 10.1
buying, selling, developing, building and/or managing real estate facilities for the medical, healthcare and retirement sectors of the real estate industry; provided, however, that Officer shall have no obligation to disclose any investment under $100,000 in value or any holdings of publicly traded securities which are not in excess of one percent of the outstanding class of such securities.
(c) Officer shall not contact or solicit, directly or indirectly, any customer, client, tenant or account whose identity Officer obtained through association with Corporation, regardless of the geographical location of such customer, client, tenant or account, nor shall Officer, directly or indirectly, entice or induce, or attempt to entice or induce, any employee of Corporation to leave such employ, nor shall Officer employ any such person in any business similar to or in competition with that of Corporation. Officer hereby acknowledges and agrees that the provisions set forth in this Section 5 constitute a reasonable restriction on his ability to compete with Corporation and will not adversely affect his ability to earn income sufficient to support himself and/or his family.
(d) The parties hereto agree that, in the event a court of competent jurisdiction shall determine that the geographical or durational elements of this covenant are unenforceable, such determination shall not render the entire covenant unenforceable. Rather, the excessive aspects of the covenant shall be reduced to the threshold, which is enforceable, and the remaining aspects shall not be affected thereby.
(e) Officer shall provide consulting services to the Corporation on such matters and at such times as the Corporation may reasonably request.
6. Trade Secrets and Customer Lists. Officer agrees to hold in strict confidence all information concerning any matters affecting or relating to the business of Corporation and its subsidiaries and affiliates, including, without limiting the generality of the foregoing, its manner of operation, business plans, business prospects, agreements, protocols, processes, computer programs, customer lists, market strategies, internal performance statistics, financial data, marketing information and analyses, or other data, without regard to the capacity in which such information was acquired. Officer agrees that he/she will not, directly or indirectly, use any such information for the benefit of any person or entity other than Corporation or disclose or communicate any of such information in any manner whatsoever other than to the directors, officers, employees, agents, and representatives of Corporation who need to know such information, who shall be informed by Officer of the confidential nature of such information and directed by Officer to treat such information confidentially. Such information does not include information which (i) was or becomes generally available to the public other than as a result of a disclosure by Officer or his representatives, or (ii) was or becomes available to Officer on a non‑confidential basis from a source other than Corporation or its advisors provided that such source is not known to Officer to be bound by a confidentiality agreement with Corporation, or otherwise prohibited from transmitting the information to Officer by a contractual, legal or fiduciary obligation; notwithstanding the foregoing, if any such information does become generally available to the public, Officer agrees not to further discuss or disseminate such information except in the performance of his duties as Officer. Upon Corporation's request, Officer will return all information furnished to him related to the business of Corporation. The parties hereto stipulate that all such information is material and confidential and gravely affects the effective and successful conduct of the business of Corporation and Corporation's goodwill, and that any breach of the terms of this Section 6 shall be a material breach of this Agreement. The terms of this Section 6 shall remain in effect following the termination of this Agreement.
Exhibit 10.1
7. Use of Proprietary Information. Officer recognizes that Corporation possesses a proprietary interest in all of the information described in Section 6 and has the exclusive right and privilege to use, protect by copyright, patent or trademark, manufacture or otherwise exploit the processes, ideas and concepts described therein to the exclusion of Officer, except as otherwise agreed between Corporation and Officer in writing. Officer expressly agrees that any products, inventions, discoveries or improvements made by Officer, his agents or affiliates based on or arising out of the information described in Section 6 shall be (i) deemed a work made for hire under the terms of United States Copyright Act, 17 U.S.C. § 101 et seq., and Corporation shall be the owner of all such rights with respect thereto and (ii) the property of and inure to the exclusive benefit of Corporation.
8. Miscellaneous.
8.1 Payment Obligations. Corporation’s obligation to pay Officer the compensation and to make the arrangements provided herein shall be unconditional, and Officer shall have no obligation whatsoever to mitigate damages hereunder. In the event that any arbitration, litigation or other action after a Change in Control is brought to enforce or interpret any provision contained herein, Corporation, to the extent permitted by applicable law and Corporation’s Articles of Incorporation and Bylaws, hereby indemnifies Officer for Officer’s reasonable attorneys’ fees and disbursements incurred in such arbitration, litigation, or other action and shall advance payment of such attorney’s fees and disbursements.
8.2 Waiver. The waiver of the breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of the same or other provision hereof.
8.3 Entire Agreement; Modifications. Except as otherwise provided herein, this Agreement represents the entire understanding among the parties with respect to the subject matter hereof, and this Agreement supersedes any and all prior understandings, agreements, plans and negotiations, whether written or oral, with respect to the subject matter hereof. All modifications to the Agreement must be in writing and signed by the party against whom enforcement of such modification is sought.
8.4 Notices. All notices and other communications under this Agreement shall be in writing and shall be given by personal delivery, nationally recognized overnight courier, facsimile or first class mail, certified or registered with return receipt requested, and shall be deemed to have been duly given upon receipt in the event of personal delivery or overnight courier, three days after mailing, or 12 hours after transmission of a facsimile to the respective persons named below:
If to Corporation:
Healthcare Realty Trust Incorporated
3310 West End Avenue, Suite 700
Nashville, TN 37203
Phone: (615) 269-8175
Fax: (615) 269-8260
Exhibit 10.1
Attention: General Counsel
If to Officer: by hand delivery to Officer on the premises of the Corporation or by any other method set forth above to the most recent address of Officer maintained in the records of the Corporation.
Any party may change such party’s address for notices by notice duly given pursuant to this Section 8.4.
8.5 Headings. The Section headings herein are intended for reference and shall not by themselves determine the construction or interpretation of this Agreement.
8.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee.
8.7 Arbitration. Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in Nashville, Tennessee in accordance with the Rules of the American Arbitration Association, and judgment upon any proper award rendered by the Arbitrators may be entered in any court having jurisdiction thereof. There shall be three arbitrators, one to be chosen directly by each party at will, and the third arbitrator to be selected by the two arbitrators so chosen. To the extent permitted by the Rules of the American Arbitration Association, the selected arbitrators may grant equitable relief. The cost of the arbitration including the cost of the record or transcripts thereof, if any, administrative fees, and all other fees shall be borne by the Corporation. Except as otherwise provided in Section 8.1 with respect to events following a Change in Control, to the extent that Officer prevails with respect to any portion of an arbitration award, Officer shall be reimbursed by Corporation for the costs and expenses incurred by Officer, including reasonable attorney’s fees, in connection with the arbitration in an amount proportionate to the award to Officer as compared to the amount in dispute.
8.8 Severability. Should a court or other body of competent jurisdiction determine that any provision of this Agreement is excessive in scope or otherwise invalid or unenforceable, such provision shall be adjusted rather than voided, if possible, and all other provisions of this Agreement shall be deemed valid and enforceable to the extent possible.
8.9 Survival of Corporation’s Obligations. Corporation’s obligations hereunder shall not be terminated by reason of any liquidation, dissolution, bankruptcy, cessation of business, or similar event relating to Corporation. This Agreement shall not be terminated by any merger or consolidation or other reorganization of Corporation. In the event any such merger, consolidation or reorganization shall be accomplished by transfer of stock or by transfer of assets or otherwise, the provisions of this Agreement shall be binding upon and inure to the benefit of the surviving or resulting corporation or person. This Agreement shall be binding upon and inure to the benefit of the executors, administrators, heirs, successors and assigns of the parties; provided, however, that except as herein expressly provided, this Agreement shall not be assignable either by Corporation (except to an affiliate of Corporation in which event Corporation shall remain liable if the affiliate fails to meet any obligations to make payments or provide benefits or otherwise) or by Officer.
Exhibit 10.1
8.10 Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same Agreement.
8.11 Withholdings. All compensation and benefits to Officer hereunder shall be reduced only by all federal, state, local and other withholdings and similar taxes and payments that are required b applicable law. Except as otherwise specifically agreed by Officer, no other offsets or withholdings shall apply to reduce the payment of compensation and benefits hereunder.
8.12 Indemnification. In addition to any rights to indemnification to which Officer is entitled to under Corporation’s Articles of Incorporation and Bylaws, Corporation shall indemnify Officer at all times during and after the term of this Agreement to the maximum extent permitted under Section 2-418 of the General Corporation Law of the State of Maryland or any successor provision thereof and any other applicable state law, and shall pay Officer’s expenses in defending any civil or criminal action, suit, or proceeding (unrelated to a dispute under this Agreement) in advance of the final disposition of such action, suit, or proceeding, to the maximum extent permitted under such applicable state laws. The Corporation will provide advance payment of legal costs and expenses that are reasonable and appropriate for defending such action, suit or proceeding. The indemnification provisions contained in this Section 8.12 shall survive the termination of this Agreement and Officer’s employment by Corporation indefinitely.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the day and year first above written.
CORPORATION:
HEALTHCARE REALTY TRUST INCORPORATED
By: /s/ Andrew E. Loope
Name: Andrew E. Loope
Title: Senior Vice President, Corporate Counsel and Secretary
OFFICER:
/s/ Austen Helfrich
Austen Helfrich
Exhibit 10.1
Exhibit A
Form of Release
GENERAL RELEASE, dated as of [_______________], 20[__] (the “Effective Date”), entered into by Austen Helfrich (“Officer”) in favor of Healthcare Realty Trust Incorporated (along with its affiliates and subsidiaries, the “Corporation”) and the current and prior directors, officers, employees, agents and representatives of the Corporation and its subsidiaries, in their capacity as such (collectively, the “Released Parties”).
WHEREAS, Officer and the Corporation previously entered into an Employment Agreement (the “Employment Agreement”), dated as of February 11, 2020 that has governed the terms and conditions of Officer’s employment by the Corporation, and Officer’s retention thereunder has been terminated in accordance with the terms thereof.
WHEREAS, this General Release (this “Release”) is the release referred to in Section 4.6 of the Employment Agreement.
WHEREAS, following execution of this Release and expiration of the seven-day revocation period referred to in Section 5 below, Officer will be entitled to payment of certain amounts (such amounts, collectively, “Termination Payments”) and other rights and benefits (such other rights and benefits, collectively, “Termination Benefits”) referred to in Sections 4.1 and/or 4.2 of the Employment Agreement, as applicable.
WHEREAS, Officer desires to compromise, finally settle and fully release actual or potential claims, including, without limitation, those related to Officer’s retention and termination of retention that Officer in any capacity may have or claim to have against the Corporation or any of the other Released Parties, excepting only those claims expressly provided herein to be excluded.
WHEREAS, Officer acknowledges that he is waiving his rights or claims only in exchange for consideration in addition to anything of value to which he already is entitled.
NOW, THEREFORE, in consideration of the foregoing and the Corporation’s agreement to pay the Termination Benefits and to provide the Termination Benefits, Officer, intending to be legally bound hereby, for himself and his heirs, executors, administrators, legal representatives, successors and assigns, does hereby agree as follows:
1. The recitals above are true and correct.
2. Except as expressly provided in Section 4 below, Officer does hereby completely release and forever discharge the Corporation and the other Released Parties of and from any and all actions, causes of action, suits, counterclaims, debts, dues, covenants, contracts, bonuses, controversies, agreements, promises, rights, claims, charges, complaints, expenses, costs (including, without limitation, attorneys’ fees and other costs of defense or prosecution), damages, losses, liabilities and demands whatsoever in law or equity (all of the foregoing, collectively, “Claims”)
Exhibit 10.1
whatsoever and of every nature and description, whether known or unknown, suspected or unsuspected, foreseen or unforeseen, real or imaginary, actual or potential, liquidated or unliquidated, contingent or certain, and whether arising at law or in equity, under the common law, state law, federal law or any other law or otherwise, that Officer ever had, may now have or hereafter can, shall or may have against the Corporation or any of the other Released Parties, for, upon or by reason of any matter, cause or thing whatsoever from the beginning of time to the date of this Release.
3. The release set forth in Section 2 above shall extend and apply, without limitation, to any and all Claims in connection with Officer's employment or the termination thereof, including, without limitation, wrongful termination, breach of express or implied contract or unpaid wages or pursuant to any federal, state or local employment laws, regulations or executive orders prohibiting, inter alia, discrimination on the basis of age, race, sex, national origin, religion, handicap and/or disability; and any and all other federal, state and local laws and regulations prohibiting, without limitation, discrimination in employment, retaliation, conspiracy, tortious or wrongful discharge, breach of an express or implied contract, breach of a covenant of good faith and fair dealing, intentional and/or negligent infliction of emotional distress, defamation, misrepresentation or fraud, negligence, negligent supervision, hiring or retention, assault, battery, detrimental reliance or any other offense.
4. Officer’s release provided in Sections 2 and 3 above does not extend or apply to any Claims with respect to the following (“Excluded Claims”): (a) the Corporation’s obligations to pay the Termination Payments or to pay or provide the Termination Benefits, (b) Officer’s entitlement to be indemnified by the Corporation with respect to Claims relating to any action or inaction, or any conduct or misconduct, by Officer in his capacity as an officer of the Corporation or otherwise as an employee of the Corporation (or in any similar capacity), whether pursuant to (i) the Corporation’s articles of incorporation (as amended, restated or otherwise modified and in effect at the relevant time), (ii) the Corporation’s bylaws (as amended, restated or otherwise modified and in effect at the relevant time), (iii) any resolution duly adopted by the Corporation’s Board of Directors or shareholders and in effect at the relevant time, (iv) the Maryland General Corporation Law, (v) any other applicable law, rule or regulation or court order or judgment or any other agreement in effect at the relevant time or (c) any other rights or claims that may arise after the date of this Release, and/or (vi) Corporation’s obligations to indemnify Officer pursuant to Section 8.12 of the Employment Agreement. For avoidance of doubt, nothing contained herein shall be deemed a waiver or release by Officer with respect to any protections or other rights to which he may be entitled under any D&O or other insurance policy.
5. Pursuant to the provisions of the Older Workers Benefit Protection Act (“OWBPA”), which applies to Officer’s waiver of rights under the Age Discrimination in Employment Act, Officer has had a period of at least twenty-one (21) days within which to consider whether to execute this Release. Also pursuant to the OWBPA, Officer may revoke the Release within seven (7) days of its execution. It is specifically understood that this Release shall not become effective or enforceable until the seven-day revocation period has expired. Consideration for this Release will not be paid until the later of (a) expiration of the seven-day revocation period or (b) the date provided for in the Employment Agreement.
6. Officer acknowledges that, pursuant to the OWBPA, the Corporation has advised Officer, in writing, to consult with an attorney before executing this Release.
Exhibit 10.1
7. Officer covenants and agrees that he will not bring, initiate, enter into, maintain or participate in any suit, arbitration or other administrative or judicial proceeding, by means of a direct claim, cross claim, counterclaim, setoff or otherwise, against any Released Party based or premised on any of the Claims released above.
8.Officer acknowledges that the Corporation will not pay or be obligated to pay, and Officer shall not be entitled to, any consideration other than as expressly provided for by this Release or the Employment Agreement or with respect to Excluded Claims.
9. This Release does not constitute an admission by the Corporation or any other Released Party of a violation of any law, order, regulation or enactment or of wrongdoing of any kind.
10. Any controversy or claim arising out of or relating to this Release, or breach thereof, shall be settled by arbitration in Nashville, Tennessee in accordance with the Rules of the American Arbitration Association, and judgment upon any proper award rendered by the Arbitrators may be entered in any court having jurisdiction thereof. There shall be three arbitrators, one to be chosen directly by each party at will, and the third arbitrator to be selected by the two arbitrators so chosen. To the extent permitted by the Rules of the American Arbitration Association, the selected arbitrators may grant equitable relief. The cost of the arbitration, including the cost of the record or transcripts thereof, if any, administrative fees, and all other fees shall be borne by Corporation. To the extent that Officer prevails with respect to any portion of an arbitration award, Officer shall be reimbursed by Corporation for the costs and expenses incurred by Officer, including reasonable attorneys’ fees, in connection with the arbitration in an amount proportionate to the award to Officer as compared to the amount in dispute.
11. The failure of any provision of this Release shall in no manner affect the right to enforce the same, and the waiver by any party of any breach of any provision of this Release shall not be construed to be a waiver of such party of any succeeding breach of such provision or a waiver by such party of any breach of any other provision. In the event that any provision or portion of this Release shall be determined to be invalid or unenforceable for any reason, the remaining provisions of this Release shall be unaffected thereby and shall remain in full force and effect.
12. This Release represents the entire understanding and agreement of Officer and the Released Parties with respect to the subject matter hereof, and there are no promises, agreements, conditions, undertakings, warranties or representations, whether written or oral, express or implied, by or among Officer and the Released Parties with respect to such subject matter other than as set forth herein. This Release cannot be amended, supplemented or modified except by an instrument in writing signed by Officer and the Corporation, and no waiver of this Release or any provision hereof shall be effective except to the extent such waiver is in writing, specifies that the purpose thereof is to waive this Release or a provision hereof and is executed and delivered by the party to be charged therewith.
13.This Release shall be binding upon and be enforceable against Officer and his heirs, executors, administrators, legal representatives, successors and assigns and shall inure to the benefit of and be enforceable by each of the Released Parties and his, her or its heirs, executors, administrators, legal representatives, successors and assigns.
Exhibit 10.1
14.OFFICER REPRESENTS AND CONFIRMS THAT HE HAS CAREFULLY READ THIS RELEASE, THAT THIS RELEASE HAS BEEN FULLY EXPLAINED TO HIM, THAT HE HAS HAD THE OPPORTUNITY TO HAVE THIS RELEASE REVIEWED BY AN ATTORNEY, THAT HE FULLY UNDERSTANDS the FINAL AND BINDING EFFECT OF THIS RELEASE, THAT THE ONLY PROMISES MADE TO HIM TO SIGN THE RELEASE ARE THOSE STATED IN THIS RELEASE AND THAT OFFICER IS SIGNING THIS RELEASE VOLUNTARILY WITH THE FULL INTENT OF RELEASING THE RELEASED PARTIES OF ALL CLAIMS DESCRIBED HEREIN.
Officer has executed and delivered this Release as of the date set forth below and this Release is and shall be effective, subject to expiration of the seven-day revocation period referred to in Section 5 above.
Dated:_______________, 20__
| Austen Helfrich | ||||||||