EXHIBIT 10.8
HEALTHCARE REALTY TRUST
INCORPORATED
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
January 1, 1996 ("Effective Date") by and between HEALTHCARE REALTY TRUST
INCORPORATED, A Maryland corporation ("Corporation"), and Roger O. West
(Officer).
RECITAL
Corporation desires to employ Officer as its Executive Vice-President and
General Counsel 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 Executive Vice President and General Counsel,
and Corporation agrees to employ and retain Officer in such capacities. Officer
shall devote such of his business time, energy, and skill to the affairs of
Corporation as shall be necessary to perform the duties of such positions.
Officer shall report only to Corporation's Board of Directors and/or President
and at all times during the term of this Agreement shall have powers and duties
at least commensurate with his position as Executive Vice President and General
Counsel. Officer's principal place of business with respect to his services to
Corporation shall be within 20 miles of Nashville, Tennessee.
2. Term of Employment.
2.1 Definitions. For purposes of this Agreement the following terms shall
have the following meanings:
(a) "Termination For Cause" shall mean termination by Corporation of
Officer's employment by Corporation by reason of Officer's material,
substantial and willful dishonesty towards, fraud upon, or deliberate
injury or attempted injury to, Corporation or by reason of Officer's
material, substantial and willful breach of this Agreement which has
resulted in material injury to Corporation. For purposes of this Agreement,
a termination of Officer's employment with the Corporation shall be deemed
a Termination Other Than For Cause rather than a Termination For Cause
unless and until established by Corporation to the contrary by a final,
nonappealable decision by a court of competent jurisdiction. The
Corporation shall have the burden of establishing that any termination of
Officer's employment by Corporation is a Termination For Cause.
(b) "Termination Other Than For Cause" shall mean any termination by
Corporation of Officer's employment by Corporation (other than in a
Termination for Cause) and shall include Constructive Termination of
Officer's employment, effective upon notice from Officer to Corporation of
such Constructive Termination. 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 of Cause hereunder, shall be deemed a Termination Other Than
For Cause.
(1)
(c) "Voluntary Termination" shall mean termination by Officer of Officer's
employment by Corporation other than (i) Constructive Termination as
described in subsection 2.1(g), (ii) "Termination Upon a Change in
Control," (iii) termination by reason of Officer's death or disability as
described in Sections 2.5 and 2.6 and (iv) termination by reason of
retirement by Officer upon attainment of eligibility to retire in
accordance with the Executive Retirement Plan as in effect upon the date of
this Agreement.
(d) "Termination Upon a Change in Control" shall mean a termination by
Officer of Officer's employment with Corporation within twenty-four (24)
months following a "Change in Control."
(e) "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
twenty percent (20%) or more of Corporation's outstanding securities,
unless a majority of the "Continuing Directors" approves the acquisition
not later than ten (10) 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."
(f) "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 January 1, 1993, (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.
(g) "Constructive Termination" shall mean any material breach of this
Agreement by Corporation; any actual or implied threat of discharge of
Officer by Corporation under circumstances which would not constitute a
Termination for Cause and which results in an involuntary resignation of
employment by Officer; any substantial reduction in the authority or
responsibility of Officer or other substantial reduction in the terms and
conditions of Officer's employment under circumstances which would not
justify a Termination for Cause and which are not the result of a material
breach by Officer of this Agreement; or any act(s) by Corporation which are
designed or have the effect of rendering Officer's working conditions so
intolerable or demeaning on a recurring basis that a reasonable person
would resign such employment.
(h) Deferred Compensation or deferred compensation shall mean any
individual or group plan, program, agreement or other arrangement, whether
or not a plan for 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 as contemplated by
Section 3.11 of the Agreement, but which in any event involves an agreement
by the Corporation to make payment(s) to Officer at a future date as
compensation for current services to the Corporation. The term Deferred
Compensation or deferred compensation shall include, but not be limited to,
benefits described in the Healthcare Realty Trust Incorporated Executive
Retirement Plan, the 1993 Employees Stock Incentive Plan and the First
Performance Based Restricted Stock Implementation under the 1993 Employees
Stock Incentive Plan, or any additional implementation thereof, each as it
now exists or may hereafter be amended.
2.2 Basic Term. The term of employment of Officer by Corporation shall be
from January 1, 1996 through December 31, 2000, unless terminated earlier
pursuant to this Section 2. Commencing in 1996, on the first day of January of
each year, the first and third sentences of this Section 2.2 shall be amended by
deleting the year then appearing therein and inserting in its place the next
subsequent year.
(2)
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 to the extent
earned, vested deferred compensation (other than pension plan or profit sharing
plan benefits which will be paid in accordance with the applicable plan), any
benefits under any plans of the 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.
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 to the extent earned, whether or not vested without regard to
such Termination (other than pension plan or profit sharing plan benefits which
will be paid in accordance with the applicable plan), any benefits under any
plans of the Corporation in which Officer is a participant to the full extent of
Officer's rights under such plans (including accelerated vesting of any awards
granted to Officer under Corporation's 1993 Employees Stock Incentive Plan, and
any implementation thereof), 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 Termination by Reason of Disability. If, during the term of this
Agreement, Officer, in the reasonable judgment of the Board of Directors of
Corporation, has failed to perform his duties under this Agreement on account of
illness or physical or mental incapacity, and such illness or incapacity
continues for a period of more than twelve (12) consecutive months, Corporation
shall have the right to terminate Officer's employment hereunder by written
notification to Officer and payment to Officer of all accrued salary, bonus
compensation to the extent earned, deferred compensation, whether or not vested
without regard to such illness or incapacity (other than pension plan or profit
sharing plan benefits which will be paid in accordance with the applicable
plan), any benefits under any plans of the Corporation in which Officer is a
participant to the full extent of Officer's rights under such plans (including
accelerated vesting of any awards granted to Officer under Corporation's 1993
Employees Stock Incentive Plan, and any implementation thereof), accrued
vacation pay and any appropriate business expenses incurred by Officer in
connection with his duties hereunder, all to the date of termination, with the
exception of medical and dental benefits which shall continue through the
expiration of this Agreement, but Officer shall not be paid any other
compensation or reimbursement of any kind, including without limitation,
severance compensation. Notwithstanding the foregoing, any Officer who incurs a
Disability within the contemplation of the Executive Retirement Plan shall
accrue such additional post-disability, post-termination benefits as may be
determined in accordance with such Plan.
2.6 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 to the extent earned, whether or not vested
without regard to such Termination (other than pension plan or profit sharing
plan benefits which will be paid in accordance with the applicable plan), any
benefits under any plans of the Corporation in which Officer is a participant to
the full extent of Officer's rights under such plans (including accelerated
vesting of any awards granted to Officer under the Corporation's 1993 Employees
Stock Incentive Plan, and any implementation thereof), 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.
(3)
2.7 Voluntary Termination. In the event of a Voluntary Termination,
Corporation shall immediately pay all accrued salary, bonus compensation to the
extent earned, vested deferred compensation (other than pension plan or profit
sharing plan benefits which will be paid in accordance with the applicable
plan), any benefits under any plans of the 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.
2.8 Termination Upon a Change in Control or Retirement. In the event of (i)
a Termination Upon a Change in Control or (ii) retirement by Officer upon
attainment of eligibility to retire in accordance with the Executive Retirement
Plan as in effect upon the date of this Agreement, Officer shall immediately be
paid all accrued salary, bonus compensation to the extent earned, whether or not
vested without regard to the Change in Control (other than pension plan or
profit sharing plan benefits which will be paid in accordance with the
applicable plan), any benefits under any plans of the Corporation in which
Officer is a participant to the full extent of Officer's rights under such plans
(including accelerated vesting of any awards granted to Officer under
Corporation's 1993 Employees Stock Incentive Plan, and any implementation
thereof), 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.
2.9 Notice of Termination. Corporation may effect a termination of this
Agreement pursuant to the provisions of this Section 2 upon giving thirty (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 sixty (60) days' written notice to Corporation of such termination.
2.10 Determination of Benefit Upon Early Payment. In the event a
Participant's deferred compensation benefit becomes vested in accordance with
Sections 2.4, 2.5, 2.6 or 2.8:
(a) any deferred compensation payable under the Corporation's 1993
Employees Stock Incentive Plan, and any implementation thereof, shall be
effected by an immediate vesting and release of the shares of stock at
issue, at the specified exercise price, if any, such release to be made
within a reasonable time after the later of the relevant event or payment
of the exercise price, if any;
(b) any deferred compensation payable under a nonqualified defined
contribution plan shall be made available for payment within an
administratively practicable time after the relevant event, in an amount
equal to the then-current book account balance; and
(c) any deferred compensation payable under a nonqualified defined benefit
plan shall be made available for payment within an administratively
practicable time after the relevant event in an amount equal to the greater
of (1) the benefit, if any, otherwise determined in accordance with the
relevant plan, or (2) the present value of the then-accrued benefit,
determined by reducing the accrued benefit from age sixty-five (65) to the
date as of which payment is made, using the actuarial assumptions which
have been used for financial accounting purposes under generally accepted
accounting principles.
(4)
3. Salary, Benefits and Bonus Compensation.
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" for the twelve (12)
calendar months beginning January 1, 1996 at the rate of $200,500 per annum
payable in 24 equal semi-monthly installments. The Base Salary for each year (or
portion thereof) beginning January 1, 1994 shall be determined by the Board of
Directors which shall authorize an increase in Officer's Base Salary in an
amount which, at a minimum, shall be equal to the cumulative cost-of-living
increment on the Base Salary as reported in the "Consumer Price Index,
Nashville, Tennessee, All Items," published by the U.S. Department of Labor.
Officer's Base Salary shall be reviewed annually by the Compensation Committee
of the Board of Directors (the Compensation Committee).
3.2 Bonuses. Officer shall be eligible to receive a bonus for each year (or
portion thereof) during the term of this Agreement and any extensions thereof,
with the actual amount of any such bonus to be determined by the Compensation
Committee in accordance with the Corporation's Executive Variable Incentive
Plan. All such bonuses shall be payable within forty-five (45) days after the
end of the year to which such bonus relates. All such bonuses shall be reviewed
annually by the Compensation Committee.
3.3 Additional Benefits. During the term of this Agreement, Officer shall
be entitled to the following fringe benefits:
3.3.1 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 executive officers of the
Corporation, including, without limitation, Corporation's 1993 Employees Stock
Incentive Plan, and any implementation thereof,, profit sharing plans, annual
physical examinations, dental and medical plans, personal catastrophe and
disability insurance, financial planning, retirement plans and supplementary
executive retirement plans, if any. For purposes of establishing the length of
service under any benefit plans or programs of Corporation, Officer's employment
with the Corporation will be deemed to have commenced on May 1, 1994.
3.3.2 Vacation. Officer shall be entitled to six (6) weeks of vacation
during each year during the term of this Agreement and any extensions thereof,
prorated for partial years.
3.3.3 Life Insurance. For the term of this Agreement and any extensions
thereof, Corporation shall at its expense procure and keep in effect term life
insurance on the life of Officer, payable to such beneficiaries as Officer may
from time to time designate, in the aggregate amount of $1,500,000.00. Such
policy shall be owned by Officer or by a member of his immediate family.
3.3.4 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.
3.4 Restricted Stock Inducement. To induce Officer to undertake the
employment evidenced by this Agreement, Corporation agrees to grant to Officer:
(i) fifteen thousand shares of stock of the Corporation (the Inducement
Shares) and (ii) twenty thousand shares of stock of the Corporation (the
"Incentive Shares"). Officer agrees that the Inducement Shares and Incentive
Shares are non-transferable except to an entity owned solely by Officer or his
immediate family, or both. Officer and Corporation agree that the dividends
relating to the Inducement Shares and Incentive Shares shall be paid to Officer
at the regular dividend payment date; however, the Inducement Shares and the
Incentive Shares shall be subject to the vesting restrictions as set forth in
the First Performance Based Restricted Stock Implementation. The Incentive
Shares be credited against the Shares Reserved for Release for the benefit of
Officer by the First Performance Based Restricted Stock Implementation. The
certificates representing the Inducement Shares and the Incentive Shares shall
be imprinted with a legend stating that the shares represented thereby may not
be sold, exchanged, transferred, pledged, hypothecated, or otherwise disposed of
except in accordance with this Agreement.
(5)
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), through the
remaining term of this Agreement and any extensions thereof, 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 4.1 by seeking other
employment or otherwise. Notwithstanding anything in this Section 4.1 to the
contrary, Officer may in Officer's sole discretion, by delivery of a notice to
Corporation within thirty (30) days following a Termination Upon a Change in
Control, elect to receive from Corporation a lump sum severance payment by bank
cashier's check equal to the present value of the flow of cash payments that
would otherwise be paid to Officer pursuant to this Section 4.1. However, in no
event shall payment pursuant to this Section 4.1 be less than three (3) times
Base Salary as defined herein for the applicable period. Such present value
shall be determined as of the date of delivery of the notice of election by
Officer and shall be based on a discount rate equal to the interest rate on
90-day U.S. Treasury bills, as reported in the Wall Street Journal (or similar
publication), on the date of delivery of the election notice. If Officer elects
to receive a lump sum severance payment, Corporation shall make such payment to
Officer within ten (10) days following the date on which Officer notifies
Corporation of Officer's election. In addition to the severance payment payable
under this Section 4.1, Officer shall be paid an amount equal to two (2) times
the average annual bonus earned by Officer in the two (2) years immediately
preceding the date of termination. Officer shall also be entitled to an
accelerated vesting of any awards granted to Officer under the Corporation's
1993 Employees Stock Incentive Plan, and any implementation thereof; and Officer
shall receive any Inducement Shares not previously delivered to Officer pursuant
to Section 3.4 of this Agreement. Officer shall continue to accrue retirement
benefits and shall continue to enjoy any benefits under any plans of the
Corporation in which Officer is a participant to the full extent of Officer's
rights under such plans, including any perquisites provided under this
Agreement, through the remaining term of this Agreement; provided, however, that
the benefits under any such plans of the Corporation in which Officer is a
participant, including any such perquisites, shall cease upon re-employment by a
new employer.
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 three (3)
years 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. Notwithstanding anything in this Section 4.2 to the contrary, Officer
may in Officer's sole discretion, by delivery of a notice to Corporation within
thirty (30) days following a Termination Other Than for Cause, elect to receive
from Corporation a lump sum severance payment by bank cashier's check equal to
the present value of the flow of cash payments that would otherwise be paid to
Officer pursuant to this Section 4.2. However, in no event shall payment
pursuant to this Section 4.2 be less than two (2) times Base Salary as defined
herein for the applicable period. Such present value shall be determined as of
the date of delivery of the notice of election by Officer and shall be based on
a discount rate equal to the interest rate on 90-day U.S. Treasury bills, as
reported in the Wall Street Journal (or similar publication), on the date of
delivery of the election notice. If Officer elects to receive a lump sum
severance payment, Corporation shall make such payment to Officer within ten
(10) days following the date on which Officer notifies Corporation of Officer's
election. In addition to the severance payment payable under this Section 4.2,
Officer shall be paid an amount equal to two (2) times the average annual bonus
earned by Officer in the two (2) years immediately preceding the date of
termination and Officer shall be entitled to an accelerated vesting of any
awards granted to Officer under Corporation's 1993 Employees Stock Incentive
Plan, and any implementation thereof; and Officer shall receive any Inducement
Shares stock not previously delivered to Officer pursuant to Section 3.4 of this
Agreement. Officer shall be entitled to accelerated vesting of any Accrued
Benefit under each Deferred Compensation plan. Notwithstanding the second prior
sentence, continued benefit accrual shall not apply in the case of any
tax-qualified retirement plan if such accrual would adversely affect the
tax-qualified status of such plan; provided, however, that the benefit which
would otherwise have been contributed by the Corporation to the account of the
Officer in any tax-qualified defined contribution and the single sum value of
the benefit plan shall be paid by the Corporation to the Officer as each such
contribution or benefit would have been made or accrued, as applicable, assuming
that the Officer had remained employed on a full-time basis with a rate of pay
equal to his Base Salary. In the case of a Termination Other Than for Cause by
reason of the disability of the Participant, and if the Participant is retired
for Disability under the Executive Retirement Plan, then the Officer will
continue to accrue benefits as provided in the Executive Retirement Plan at the
time he incurs his Disability, notwithstanding any subsequent nonsubstantial
employment.
(6)
4.3 No Severance Compensation Upon Other Termination. In the event of a
Voluntary Termination, Termination For Cause, termination by reason of Officer's
disability pursuant to Section 2.5, or termination by reason of Officer's death
pursuant to Section 2.6, Officer or his estate shall not be paid any severance
compensation.
4.4 Limit on Aggregate Compensation Upon a Change in Control.
Notwithstanding anything else in this Agreement, solely in the event of a
Termination Upon a Change in Control pursuant to Section 2.8, the amount of
severance compensation paid to Officer under Sections 2 and 4 or otherwise, but
exclusive of any payments to Officer in respect of any stock options or
restricted stock then held by Officer (or any compensation deemed to be received
by Officer in connection with the exercise of any stock options at any time) or
by virtue of Officer's exercise of a Limited Right under the Option Plan upon a
Change in Control, shall not include any amount that Corporation is prohibited
from deducting for federal income tax purposes by virtue of Section 280G of the
Internal Revenue Code or any successor provision.
5. Non-Competition; Disclosure of Investments. During the term of this
Agreement, including the period, if any, during which Officer shall be entitled
to severance compensation pursuant to Section 4.1 or 4.2, Officer shall not
engage in any activity competitive with the Corporation. 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 other
than Corporation; 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 (1%) of the outstanding
class of such securities.
6. Miscellaneous.
6.1 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. If litigation after a Change in Control shall be brought to
enforce or interpret any provision contained herein, Corporation, to the extent
permitted by applicable law and the Corporation's Articles of Incorporation and
Bylaws, hereby indemnifies Officer for Officer's reasonable attorneys' fees and
disbursements incurred in such litigation.
(7)
6.2 Confidentiality. Officer agrees that all confidential and proprietary
information relating to the business of Corporation shall be kept and treated as
confidential both during and after the term of this Agreement, except as may be
permitted in writing by Corporation's Board of Directors or as such information
is within the public domain or comes within the public domain without any breach
of this Agreement.
6.3 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.
6.4 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, including without limitation,
any understandings, agreements or obligations respecting any past or future
compensation, bonuses, reimbursements or other payments to Officer from
Corporation. All modifications to the Agreement must be in writing and signed by
the party against whom enforcement of such modification is sought.
6.5 Notices. All notices and other communications under this Agreement
shall be in writing and shall be given by telegraph or first class mail,
certified or registered with return receipt requested, and shall be deemed to
have been duly given three (3) days after mailing or twelve (12) hours after
transmission of a telegram to the respective persons named below:
If to Corporation: Healthcare Realty Trust Incorporated
3310 West End Avenue
Nashville, Tennessee 37203
Phone: (615) 269-8175
Fax: (615) 269-8122
If to Officer: Mr. Roger O. West
9014 Split Log Road.
Brentwood, Tennessee 37027
Any party may change such party's address for notices by notice duly give
pursuant to this Section 6.5.
6.6 Headings. The Section headings herein are intended for reference and
shall not by themselves determine the construction or interpretation of this
Agreement.
6.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Tennessee.
6.8 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 (3) arbitrators, one
(1) to be chosen directly by each party at will, and the third arbitrator to be
selected by the two (2) arbitrators so chosen. To the extent permitted by the
Rules of the American Arbitration Association, the selected arbitrators may
grant equitable relief. Each party shall pay the fees of the arbitrator selected
by him and of his own attorneys, and the expenses of his witnesses and all other
expenses connected with the presentation of his case. The cost of the
arbitration including the cost of the record or transcripts thereof, if any,
administrative fees, and all other fees and costs shall be borne equally by the
parties. To the extent that Officer prevails with respect to any portion of an
arbitration award, Officer shall be reimbursed by the Corporation for the costs
and expenses incurred by Officer in connection with the arbitration in an amount
proportionate to the award to Officer as compared to the amount in dispute.
(8)
6.9 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.
6.10 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 the Corporation.
This Agreement shall not be terminated by any merger or consolidation or other
reorganization of the 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 the Corporation (except to an affiliate of the 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.
6.11 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
Agreement.
6.12 Withholdings. All compensation and benefits to Officer hereunder shall
be reduced by all federal, state, local and other withholdings and similar taxes
and payments required by applicable law.
6.13 Indemnification. In addition to any rights to indemnification to which
Officer is entitled to under the 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 in advance of the
final disposition of such action, suit, or proceeding, to the maximum extent
permitted under such applicable state laws.
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,
a Maryland corporation
By:_________________________________
Name:_______________________________
Title:______________________________
Date:_______________________________
OFFICER:
____________________________________
Roger O. West
Date:_______________________________
(9)