UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


FORM 8-K

 


CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of Earliest Event Reported): March 19, 2007

 


VENTAS, INC.

(Exact Name of Registrant as Specified in Its Charter)

 


 

Delaware   1-10989   61-1055020

(State or Other Jurisdiction

of Incorporation)

  (Commission File Number)  

(IRS Employer

Identification No.)

 

10350 Ormsby Park Place, Suite 300, Louisville, Kentucky   40223
(Address of Principal Executive Offices)   (Zip Code)

Registrant’s Telephone Number, Including Area Code: (502) 357-9000

Not Applicable

Former Name or Former Address, if Changed Since Last Report

 


Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 



Item 5.02. Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensatory Arrangements of Certain Officers.

On March 19, 2007, Ventas, Inc. (the “Company”) entered into agreements (the “Amendments”) with each of T. Richard Riney, Executive Vice President, Chief Administrative Officer, General Counsel and Corporate Secretary of the Company, Richard A. Schweinhart, Executive Vice President and Chief Financial Officer of the Company, and Raymond J. Lewis, Executive Vice President and Chief Investment Officer of the Company (each, an “Executive”), amending certain terms of the Executives’ existing employment agreements and Mr. Riney’s change-in-control severance agreement.

The Amendments limit the amount of severance payable to each Executive upon termination of his employment by the Company other than for Cause (as defined in the applicable agreement) or by him for Good Reason (as defined in the applicable agreement) to a maximum of $3 million (as adjusted annually to reflect increases in the Consumer Price Index). The Amendments also clarify that, upon any such termination, each Executive shall be entitled to receive a lump sum payment equal to the amount of awards previously granted to him under the Company’s deferred cash incentive program but not yet paid. All other terms of the agreements, including the vesting of equity awards, remain unchanged.

The foregoing description is qualified by reference in its entirety to the Amendments, copies of which are filed herewith as Exhibits 10.1, 10.2, 10.3 and 10.4 and incorporated in this Item 5.02 by reference.

 

Item 9.01. Financial Statements and Exhibits.

 

  (a) Financial Statements of Businesses Acquired.

Not applicable.

 

  (b) Pro Forma Financial Information.

Not applicable.

 

  (c) Exhibits:

 

Exhibit
Number
 

Description

10.1   Amendment dated as of March 19, 2007 to Amended and Restated Employment Agreement dated as of July 31, 1998, as amended, between the Company and T. Richard Riney.
10.2   Amendment dated as of March 19, 2007 to Amended and Restated Employment Agreement dated as of December 31, 2004 between the Company and Richard A. Schweinhart.
10.3   Amendment dated as of March 19, 2007 to Employment Agreement dated as of September 18, 2002, as amended, between the Company and Raymond J. Lewis.
10.4   Amendment dated as of March 19, 2007 to Change-in-Control Severance Agreement dated as of May 1, 1998, as amended, between the Company and T. Richard Riney.


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

    VENTAS, INC.
Date: March 23, 2007   By:  

/s/ T. Richard Riney

    T. Richard Riney
    Executive Vice President, Chief Administrative Officer, General Counsel and Corporate Secretary


EXHIBIT INDEX

 

Exhibit
Number
 

Description

10.1   Amendment dated as of March 19, 2007 to Amended and Restated Employment Agreement dated as of July 31, 1998, as amended, between the Company and T. Richard Riney.
10.2   Amendment dated as of March 19, 2007 to Amended and Restated Employment Agreement dated as of December 31, 2004 between the Company and Richard A. Schweinhart.
10.3   Amendment dated as of March 19, 2007 to Employment Agreement dated as of September 18, 2002, as amended, between the Company and Raymond J. Lewis.
10.4   Amendment dated as of March 19, 2007 to Change-in-Control Severance Agreement dated as of May 1, 1998, as amended, between the Company and T. Richard Riney.

Exhibit 10.1

AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT

This Amendment to the Amended and Restated Employment Agreement (“Employment Agreement”), dated as of July 31, 1998 and amended as of September 30, 1999 between Ventas, Inc., a Delaware corporation (the “Company”), and T. Richard Riney (the “Executive”) is made as of March 19, 2007.

WITNESSETH:

WHEREAS, the Executive and the Company entered into the Employment Agreement;

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 to enter into this Amendment to the Employment Agreement.

NOW, THEREFORE, the Company and Executive agree as follows:

1. Section 7(b) of the Employment Agreement is amended and restated in its entirety as follows:

(b) Good Reason; Other than for Cause . If, during the Term, the Company shall terminate Executive’s employment other than for Cause (but not for Disability), or the Executive shall terminate his employment for Good Reason:

(1) Within fourteen (14) days of Executive’s Date of Termination, the Company shall pay to Executive (i) the prorated portion of the Target Bonus for Executive for the year in which the Date of Termination occurs, plus (ii) an amount equal to the Executive’s Base Salary and Target Bonus as of the Date of Termination. For purposes of this Agreement: “Target Bonus” shall mean the full amount of bonuses and/or performance compensation (other than Base Salary and awards under the Company’s 1997 Incentive Compensation Plan) that would be payable to the Executive, assuming all performance criteria on which such bonus and/or performance compensation are based were deemed to be satisfied, in respect of services for the calendar year in which the date in question occurs.

Notwithstanding the foregoing, in no event shall the payment made pursuant to this Section 7(b)(1) be in excess of the Maximum Amount. The term Maximum Amount, for purposes of this Agreement, shall mean $3,000,000, provided, however, that for any termination that occurs in calendar years subsequent to 2007, the Maximum Amount will be adjusted to reflect increases, if any, in the Consumer Price Index that have occurred in the period between December 31, 2006 and the end of the calendar year immediately preceding the date of termination. As an example, if the termination occurs in 2008, the Maximum Amount shall be adjusted for increases in the Consumer Price Index that occur between December 31, 2006-December 31, 2007 and if the termination occurs in 2009, the Maximum Amount shall be adjusted for increases in the Consumer Price Index that occur between December 31, 2006-December 31, 2008. For purposes of this Agreement, Consumer Price Index means the CPI for All Urban Consumers (All Items; Base Year 1982 ), compiled and published by the Bureau of Labor Statistics of the United States Department of Labor.

 

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(2) For a period of one year following the Date of Termination, the Executive shall be treated as if he or she had continued to be an Executive for all purposes under the Company’s Health Insurance Plan and Dental Insurance Plan; or if the Company has not yet established its own Health Insurance Plan and/or Dental Plan or the Executive is prohibited from participating in such plan, the Company shall, at its sole cost and expense, provide health and dental insurance coverage for Executive which is equivalent to the coverage provided to Executive as of the Date of Termination. Following this continuation period, the Executive shall be entitled to receive continuation coverage under Part 6 of Title I or ERISA (“COBRA Benefits”) treating the end of this period as a termination of the Executive’s employment if allowed by law.

(3) For a period of one year following the Date of Termination, Company shall maintain in force, at its expense, the Executive’s life insurance being provided by the Company as of the Date of Termination.

(4) For a period of one year following the Executive’s Date of Termination, the Company shall provide short-term and long-term disability insurance benefits to Executive equivalent to the coverage that the Executive would have had he remained employed under the disability insurance plans applicable to Executive on the Date of Termination. Should Executive become disabled during such period, Executive shall be entitled to receive such benefits, and for such duration, as the applicable plan provides.

(5) To the extent not already vested pursuant to the terms of such plan, the Executive’s interests under the Vencor, Inc. Retirement Savings Plan and any Retirement Savings Plan of the Company shall be automatically fully (i.e., 100%) vested, without regard to otherwise applicable percentages for the vesting of employer matching contributions based upon the Executive’s years of service with the Company.

(6) The Company shall adopt such amendments to its Executive benefit plans, if any, as are necessary to effectuate the provisions of this Agreement.

(7) Executive shall be credited with an additional one year of vesting for purposes of all restricted stock awards and Executive will have an additional one year in which to exercise all outstanding stock option awards.

(8) The Company shall pay Executive within 30 days of the date of termination of employment (but not earlier than the date on which the Release becomes irrevocable) a lump sum payment equal to the amount of awards under the Company’s Performance Cash Plan (“PCP”) that are based on actual performance for completed fiscal years but have not yet been paid. As an example, assume that Executive, following the 2006 fiscal year, was awarded a PCP award of $100 that would, assuming continuous employment, have been paid out following the end of the 2008 fiscal year (the “Outstanding PCP Award”). Upon a termination subject to this Section 7(b) that occurs prior to the payment of such Outstanding PCP Award, the Company would be obligated, pursuant to this Section 7(b)(8), to pay Executive $100 in respect of such Outstanding PCP Award.

 

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2. A new Section 19 will be added to the Employment Agreement, as follows:

19 . COMPLIANCE WITH SECTION 409A OF THE INTERNAL REVENUE CODE . All payments pursuant to this Agreement shall be subject to the provisions of this Section 19. If Executive is a “Specified Employee” of the Company for purposes of Internal Revenue Code Section 409A (“Code Section 409A”) at the time of a payment event set forth in this Agreement, then no severance or other payments pursuant to this Agreement shall be made to Executive by the Company until the amount of time has passed that is necessary to avoid incurring excise taxes under Code Section 409A. Should this Section 19 result in a delay of payments to Executive, on the first day any such payments may be made without incurring a penalty pursuant to Code Section 409A (the “409A Payment Date”), the Company shall begin to make such payments as provided for in this Agreement, provided that any amounts that would have been payable earlier but for the application of this Section 19, 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 to Executive should have been made under this Agreement. For purposes of this provision, the term Specified Employee shall have the meaning set forth in Section 409A(2)(B)(i) of the Internal Revenue Code of 1986, as amended or any successor provision and the treasury regulations and rulings issued thereunder. If any compensation or benefits provided by this Agreement may result in the application of Code Section 409A, the Company shall, in consultation with the Executive, modify the Agreement in the least restrictive manner necessary in order to exclude such compensation from the definition of “deferred compensation” within the meaning of such Code Section 409A or in order to comply with the provisions of Code Section 409A of the Code and without any diminution in the value of the payments or benefits to the Executive.

3. In all other respects, the Employment Agreement shall continue in full force and effect.

* * * * * * * * *

 

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VENTAS, INC.
By:  

/s/ Debra A. Cafaro

  Debra A. Cafaro,
  President and Chief Executive Officer
EXECUTIVE
By:  

/s/ T. Richard Riney

  T. Richard Riney

 

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Exhibit 10.2

AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT

This Amendment to the Amended and Restated Employment Agreement (“Employment Agreement”), dated as of December 31, 2004 between Ventas, Inc., a Delaware corporation (the “Company”), and Richard A. Schweinhart (the “Executive”) is made as of March 19, 2007.

WITNESSETH:

WHEREAS, the Executive and the Company entered into the Employment Agreement;

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 to enter into this Amendment to the Employment Agreement.

NOW, THEREFORE, the Company and Executive agree as follows:

1. Section 7(b) of the Employment Agreement is amended and restated in its entirety as follows:

(b) Other than for Cause, or for Good Reason . If, during the Term, the Company shall terminate Executive’s employment other than for Cause (but not for Disability), or if the Executive shall terminate his employment for Good Reason,

(1) The Company shall pay Executive within 30 days of the date of termination of employment (but not earlier than the date on which the Release becomes irrevocable) a lump sum payment equal to one year of Executive’s annual Base Salary as then in effect plus Executive’s Maximum Annual Bonus for the year of termination; provided that in no event shall the payment made pursuant to this Section 7(b)(1) be in excess of the Maximum Amount. The term Maximum Amount, for purposes of this Agreement, shall mean $3,000,000, provided, however, that for any termination that occurs in calendar years subsequent to 2007, the Maximum Amount will be adjusted to reflect increases, if any, in the Consumer Price Index that have occurred in the period between December 31, 2006 and the end of the calendar year immediately preceding the date of termination. As an example, if the termination occurs in 2008, the Maximum Amount shall be adjusted for increases in the Consumer Price Index that occur between December 31, 2006-December 31, 2007 and if the termination occurs in 2009, the Maximum Amount shall be adjusted for increases in the Consumer Price Index that occur between December 31, 2006-December 31, 2008. For purposes of this Agreement, Consumer Price Index means the CPI for All Urban Consumers (All Items; Base Year 1982 ), compiled and published by the Bureau of Labor Statistics of the United States Department of Labor.

(2) Executive shall be treated as having one additional year of service for purposes of vesting in Restricted Stock then outstanding and not yet fully vested, and the duration within which any Option awarded to Executive then outstanding and vested and exercisable may be exercised shall be extended by one year (but not beyond the maximum duration for Options permitted by the LTIP).

 

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(3) During the one-year period beginning on the Date of Termination (the “Severance Period”), the Company shall provide Executive with continued medical, dental, long-term disability and life insurance benefits at the same levels as if he remained actively employed during the Severance Period; provided that Executive shall not participate in any bonus, vacation pay, retirement benefits, long-term incentive, stock option or other equity grant plan, program or arrangement after the Date of Termination, provided further, if Executive is unable to participate in such benefit plans as offered by the Company to active employees, the Company will pay to Executive the premium cost which the Company pays for similarly situated active senior management employees; provided further, that Executive shall pay the Company on a monthly basis the—portion of the periodic cost of such continued coverage equal to the dollar amount of such periodic cost as if he remained employed during the Severance Period; provided further, that such welfare benefits shall be reduced to the extent Executive receives similar benefits from a subsequent employer. As and to the extent provided by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), Executive will be eligible to continue his health insurance benefits at his own expense for the statutory period prescribed by COBRA following the “qualifying event” (as defined in COBRA) occurring at the end of Severance Period and, later, to the extent provided in such benefit plan, program or arrangement, to convert such benefits to an individual policy.

(4) The Company shall pay Executive within 30 days of the date of termination of employment (but not earlier than the date on which the Release becomes irrevocable) a lump sum payment equal to the amount of awards under the Company’s Performance Cash Plan (“PCP”) that are based on actual performance for completed fiscal years but have not yet been paid. As an example, assume that Executive, following the 2006 fiscal year, was awarded a PCP award of $100 that would, assuming continuous employment, have been paid out following the end of the 2008 fiscal year (the “Outstanding PCP Award”). Upon a termination subject to this Section 7(b) that occurs prior to the payment of such Outstanding PCP Award, the Company would be obligated, pursuant to this Section 7(b)(4), to pay Executive $100 in respect of such Outstanding PCP Award.

(5) Executive shall become immediately vested in all accounts or accrued benefits under any defined contribution plan or program qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended, including without limitation the 401(k) Plan; provided that to the extent such vesting is not allowed pursuant to the terms of such plans, the Company shall pay to Executive an amount equal to the sum of the value of the unvested portion of such accounts or accrued benefits as of the Date of Termination and forfeited by Executive due to termination of employment.

2. Section 8(a) of the Employment Agreement is amended and restated in its entirety as follows:

(a) Termination other than for Cause, or for Good Reason . If during the Term a Change of Control (as defined below) shall occur and within one year from the date of the occurrence of such Change of Control the Company shall terminate Executive’s employment other than for Cause or the Executive shall terminate his employment for Good Reason (a “Change of Control Severance”), subject to Executive’s execution of the Release and in lieu of the benefits under Section 7 hereof,

 

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(1) The Company shall pay Executive within 30 days of the date of termination of employment (but not earlier than the date on which the Release becomes irrevocable) a lump sum payment equal to two (2) times the sum of (i) one year of Executive’s annual Base Salary as then in effect, plus (ii) Executive’s Maximum Annual Bonus for the year of termination, plus (iii) the fair market value (determined as of the Date of Termination) of the maximum number of shares of Restricted Stock authorized to be granted to Executive under the LTIP in the year of termination assuming all performance criteria for such award were deemed satisfied; provided that in no event shall the amount of such payment exceed the Maximum Amount.

(2) Options held by Executive for which the exercise period has not yet lapsed or expired shall become fully vested and exercisable, all Restricted Stock held by Executive shall become fully vested and the Company shall pay Executive within 30 days of the date of termination of employment (but not earlier than the date on which the Release becomes irrevocable) a lump sum payment equal to the amount of awards under the PCP that are based on actual performance for completed fiscal years but have not yet been paid. The example included in Section 7(b)(4) to demonstrate the intended operation of that provision also demonstrates the intended treatment of outstanding PCP awards for the purposes of this Section 8(a)(2).

(3) During the two (2) year period commencing on the date of the Change of Control Severance (“Change of Control Severance Period”) the Company shall provide Executive with continued medical, dental, long-term disability and life insurance benefits at the same levels as if he remained actively employed during the Change of Control Severance Period; provided that Executive shall not participate in any bonus, vacation pay, retirement benefits, long-term incentive, stock option or other equity grant plan, program or arrangement after the Date of Termination, provided further, if Executive is unable to participate in such benefit plans as offered by the Company to active employees, the Company will pay to Executive the premium cost which the Company pays for similarly situated active senior management employees; provided further, that Executive shall pay the Company on a monthly basis the portion of the periodic cost of such continued coverage equal to the dollar amount of such periodic cost as if he remained employed during the Change of Control Severance Period; provided further, that such welfare benefits shall be reduced to the extent Executive receives similar benefits from a subsequent employer. As and to the extent provided by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), Executive will be eligible to continue his health insurance benefits at his own expense for the statutory period prescribed by COBRA following the “qualifying event” (as defined in COBRA) occurring at the end of the two (2) year period and, later, to the extent provided in such benefit plan, program or arrangement, to convert such benefits to an individual policy.

(4) Executive shall become immediately vested in all accounts or accrued benefits under any defined contribution plan or program qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended, including without limitation the 401(k)

 

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Plan; provided that to the extent such vesting is not allowed pursuant to the terms of such plans, the Company shall pay to Executive an amount equal to the sum of the value of the unvested portion of such accounts or accrued benefits as of the Date of Termination and forfeited by Executive due to termination of employment.

3. A new Section 22 will be added to the Employment Agreement, as follows:

22 . COMPLIANCE WITH SECTION 409A OF THE INTERNAL REVENUE CODE . All payments pursuant to this Agreement shall be subject to the provisions of this Section 22. If Executive is a “Specified Employee” of the Company for purposes of Internal Revenue Code Section 409A (“Code Section 409A”) at the time of a payment event set forth in this Agreement, then no severance or other payments pursuant to this Agreement shall be made to Executive by the Company until the amount of time has passed that is necessary to avoid incurring excise taxes under Code Section 409A. Should this Section 22 result in a delay of payments to Executive, on the first day any such payments may be made without incurring a penalty pursuant to Code Section 409A (the “409A Payment Date”), the Company shall begin to make such payments as provided for in this Agreement, provided that any amounts that would have been payable earlier but for the application of this Section 22, 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 to Executive should have been made under this Agreement. For purposes of this provision, the term Specified Employee shall have the meaning set forth in Section 409A(2)(B)(i) of the Internal Revenue Code of 1986, as amended or any successor provision and the treasury regulations and rulings issued thereunder. If any compensation or benefits provided by this Agreement may result in the application of Code Section 409A, the Company shall, in consultation with the Executive, modify the Agreement in the least restrictive manner necessary in order to exclude such compensation from the definition of “deferred compensation” within the meaning of such Code Section 409A or in order to comply with the provisions of Code Section 409A of the Code and without any diminution in the value of the payments or benefits to the Executive.

4. In all other respects, the Employment Agreement shall continue in full force and effect.

* * * * * * * * *

 

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VENTAS, INC.
By:  

/s/ Debra A. Cafaro

  Debra A. Cafaro,
  President and Chief Executive Officer
EXECUTIVE
By:  

/s/ Richard A. Schweinhart

  Richard A. Schweinhart

 

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Exhibit 10.3

AMENDMENT TO EMPLOYMENT AGREEMENT

This Amendment to the Employment Agreement (“Employment Agreement”), dated as of September 18, 2002 between Ventas, Inc., a Delaware corporation (the “Company”), and Raymond J. Lewis (the “Executive”) is made as of March 19, 2007.

WITNESSETH:

WHEREAS, the Executive and the Company entered into the Employment Agreement;

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 to enter into this Amendment to the Employment Agreement.

NOW, THEREFORE, the Company and Executive agree as follows:

1. Section 7(b) of the Employment Agreement is amended and restated in its entirety as follows:

(b) Other than for Cause, or for Good Reason . If, during the Term, the Company shall terminate Executive’s employment other than for Cause (but not for Disability), or if the Executive shall terminate his employment for Good Reason,

(1) The Company shall pay Executive within 30 days of the date of termination of employment (but not earlier than the date on which the Release becomes irrevocable) a lump sum payment equal to one year of Executive’s annual Base Salary as then in effect plus Executive’s Maximum Annual Bonus for the year of termination; provided that in no event shall the payment made pursuant to this Section 7(b)(1) be in excess of the Maximum Amount. The term Maximum Amount, for purposes of this Agreement, shall mean $3,000,000, provided, however, that for any termination that occurs in calendar years subsequent to 2007, the Maximum Amount will be adjusted to reflect increases, if any, in the Consumer Price Index that have occurred in the period between December 31, 2006 and the end of the calendar year immediately preceding the date of termination. As an example, if the termination occurs in 2008, the Maximum Amount shall be adjusted for increases in the Consumer Price Index that occur between December 31, 2006-December 31, 2007 and if the termination occurs in 2009, the Maximum Amount shall be adjusted for increases in the Consumer Price Index that occur between December 31, 2006-December 31, 2008. For purposes of this Agreement, Consumer Price Index means the CPI for All Urban Consumers (All Items; Base Year 1982 ), compiled and published by the Bureau of Labor Statistics of the United States Department of Labor.

(2) Executive shall be treated as having one additional year of service for purposes of vesting in Restricted Stock then outstanding and not yet fully vested, and the duration within which any Option awarded to Executive then outstanding and vested and exercisable may be exercised shall be extended by one year (but not beyond the maximum duration for Options permitted by the LTIP); provided, however, that any Options and Restricted Stock granted as an engagement bonus under Section 4(c) hereof then outstanding and not yet fully vested, shall become fully vested.

 

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(3) During the one-year period beginning on the Date of Termination (the “Severance Period”), the Company shall provide Executive with continued medical, dental, long-term disability and life insurance benefits at the same levels as if he remained actively employed during the Severance Period; provided that Executive shall not participate in any bonus, vacation pay, retirement benefits, long-term incentive, stock option or other equity grant plan, program or arrangement after the Date of Termination, provided further, if Executive is unable to participate in such benefit plans as offered by the Company to active employees, the Company will pay to Executive the premium cost which the Company pays for similarly situated active senior management employees; provided further, that Executive shall pay the Company on a monthly basis the—portion of the periodic cost of such continued coverage equal to the dollar amount of such periodic cost as if he remained employed during the Severance Period; provided further, that such welfare benefits shall be reduced to the extent Executive receives similar benefits from a subsequent employer. As and to the extent provided by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), Executive will be eligible to continue his health insurance benefits at his own expense for the statutory period prescribed by COBRA following the “qualifying event” (as defined in COBRA) occurring at the end of Severance Period and, later, to the extent provided in cash benefit plan, program or arrangement, to convert such benefits to an individual policy.

(4) The Company shall pay Executive within 30 days of the date of termination of employment (but not earlier than the date on which the Release becomes irrevocable) a lump sum payment equal to the amount of awards under the Company’s Performance Cash Plan (“PCP”) that are based on actual performance for completed fiscal years but have not yet been paid. As an example, assume that Executive, following the 2006 fiscal year, was awarded a PCP award of $100 that would, assuming continuous employment, have been paid out following the end of the 2008 fiscal year (the “Outstanding PCP Award”). Upon a termination subject to this Section 7(b) that occurs prior to the payment of such Outstanding PCP Award, the Company would be obligated, pursuant to this Section 7(b)(4), to pay Executive $100 in respect of such Outstanding PCP Award.

(5) Executive shall become immediately vested in all accounts or accrued benefits under any defined contribution plan or program qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended, including without limitation the 401(k) Plan; provided that to the extent such vesting is not allowed pursuant to the terms of such plans, the Company shall pay to Executive an amount equal to the sum of the value of the unvested portion of such accounts or accrued benefits as of the Date of Termination and forfeited by Executive due to termination of employment.

2. Section 8(a) of the Employment Agreement is amended and restated in its entirety as follows:

(a) Termination other than for Cause, or for Good Reason. If during the Term a Change of Control (as defined below) shall occur and within one year from the date of the occurrence of such Change of Control the Company shall terminate Executive’s employment other than for Cause or the Executive shall terminate his employment for Good Reason (a “Change of Control Severance”), subject to Executive’s execution of the Release and in lieu of the benefits under Section 7 hereof,

 

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(1) The Company shall pay Executive within 30 days of the date of termination of employment (but not earlier than the date on which the Release becomes irrevocable) a lump sum payment equal to two (2) times the sum of (i) one year of Executive’s annual Base Salary as then in effect, plus (ii) Executive’s Maximum Annual Bonus for the year of termination, plus (iii) the fair market value (determined as of the Date of Termination) of the maximum number of Restricted Shares authorized to be granted to Executive under the LTIP in the year of termination assuming all performance criteria for such award was deemed satisfied; provided that in no event shall the amount of such payment exceed the Maximum Amount.

(2) Options held by Executive for which the exercise period has not yet lapsed or expired shall become fully vested and exercisable, all Restricted Stock held by Executive shall become fully vested and the Company shall pay Executive within 30 days of the date of termination of employment (but not earlier than the date on which the Release becomes irrevocable) a lump sum payment equal to the amount of awards under the PCP that are based on actual performance for completed fiscal years but have not yet been paid. The example included in Section 7(b)(4) to demonstrate the intended operation of that provision also demonstrates the intended treatment of outstanding PCP awards for the purposes of this Section 8(a)(2).

(3) During the two (2) year period commencing on the date of the Change of Control Severance the Company shall provide Executive with continued medical, dental, long-term disability and life insurance benefits at the same levels as if he remained actively employed during the Severance Period; provided that Executive shall not participate in any bonus, vacation pay, retirement benefits, long-term incentive, stock option or other equity grant plan, program or arrangement after the Date of Termination, provided further, if Executive is unable to participate in such benefit plans as offered by the Company to active employees, the Company will pay to Executive the premium cost which the Company pays for similarly situated active senior management employees; provided further, that Executive shall pay the Company on a monthly basis the portion of the periodic cost of such continued coverage equal to the dollar amount of such periodic cost as if he remained employed during the Severance Period; provided further, that such welfare benefits shall be reduced to the extent Executive receives similar benefits from a subsequent employer. As and to the extent provided by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), Executive will be eligible to continue his health insurance benefits at his own expense for the statutory period prescribed by COBRA following the “qualifying event” (as defined in COBRA) occurring at the end of the two (2) year period and, later, to the extent provided in cash benefit plan, program or arrangement, to convert such benefits to an individual policy.

 

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(4) Executive shall become immediately vested in all accounts or accrued benefits under any defined contribution plan or program qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended, including without limitation the 401(k) Plan; provided that to the extent such vesting is not allowed pursuant to the terms of such plans, the Company shall pay to Executive an amount equal to the sum of the value of the unvested portion of such accounts or accrued benefits as of the Date of Termination and forfeited by Executive due to termination of employment.

3. A new Section 22 will be added to the Employment Agreement, as follows:

22 . COMPLIANCE WITH SECTION 409A OF THE INTERNAL REVENUE CODE . All payments pursuant to this Agreement shall be subject to the provisions of this Section 22. If Executive is a “Specified Employee” of the Company for purposes of Internal Revenue Code Section 409A (“Code Section 409A”) at the time of a payment event set forth in this Agreement, then no severance or other payments pursuant to this Agreement shall be made to Executive by the Company until the amount of time has passed that is necessary to avoid incurring excise taxes under Code Section 409A. Should this Section 22 result in a delay of payments to Executive, on the first day any such payments may be made without incurring a penalty pursuant to Code Section 409A (the “409A Payment Date”), the Company shall begin to make such payments as provided for in this Agreement, provided that any amounts that would have been payable earlier but for the application of this Section 22, 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 to Executive should have been made under this Agreement. For purposes of this provision, the term Specified Employee shall have the meaning set forth in Section 409A(2)(B)(i) of the Internal Revenue Code of 1986, as amended or any successor provision and the treasury regulations and rulings issued thereunder. If any compensation or benefits provided by this Agreement may result in the application of Code Section 409A, the Company shall, in consultation with the Executive, modify the Agreement in the least restrictive manner necessary in order to exclude such compensation from the definition of “deferred compensation” within the meaning of such Code Section 409A or in order to comply with the provisions of Code Section 409A of the Code and without any diminution in the value of the payments or benefits to the Executive.

4. In all other respects, the Employment Agreement shall continue in full force and effect.

* * * * * * * * *

 

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VENTAS, INC.
By:  

/s/ Debra A. Cafaro

  Debra A. Cafaro,
  President and Chief Executive Officer
EXECUTIVE
By:  

/s/ Raymond J. Lewis

  Raymond J. Lewis

 

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Exhibit 10.4

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 between Ventas, Inc., a Delaware corporation (the “Company”), and T. Richard Riney (the “Employee”) is made as of March 19, 2007.

WITNESSETH:

WHEREAS, the Employee and the Company entered into the Severance Agreement;

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 to enter into this Amendment to the Severance Agreement.

NOW, THEREFORE, the Company and Employee agree as follows:

1. Section 3 of the Severance Agreement is amended and restated in its entirety as follows:

3. Severance Benefits. If at any time following a Change in Control and continuing for two years thereafter, the Company terminates the Employee without Cause, or the Employee terminates employment with the Company either for Good Reason or during any Window Period, then as compensation for services previously rendered the Employee shall be entitled to the following benefits:

a. Cash Payment. The Employee shall be paid cash equal to two times the greater of:

(i) the sum of (x) the Employee’s Base Salary and Target Bonus as of the Termination of Employment, and (y) the fair market value (determined as of the Termination of Employment) of any targeted number of restricted shares authorized to be issued to the Employee in respect of the year in which such Termination of Employment occurs (without regard to any acceleration of the award for such year), assuming for such purpose that all performance criteria applicable to such award with respect to the year in which such Termination of Employment occurs were deemed to be satisfied, or

(ii) the sum of (x) the Employee’s Base Salary and Target Bonus as of the Change-in-Control Date, and (y) the fair market value (determined as of the Change-in-Control Date) of any targeted number of restricted shares authorized to be issued to the Employee in respect of the year in which such Change-in-Control Date occurs (without regard to any acceleration of the award for such year), assuming for such purpose that all performance criteria applicable to such award with respect to the year in which such Change-in-Control Date occurs were deemed to be satisfied.

 

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Notwithstanding the foregoing, in no event shall the Employee receive more than the Maximum Amount pursuant to this Section 3(a). The term Maximum Amount, for purposes of this Agreement, shall mean $3,000,000, provided, however, that for any termination that occurs in calendar years subsequent to 2007, the Maximum Amount will be adjusted to reflect increases, if any, in the Consumer Price Index that have occurred in the period between December 31, 2006 and the end of the calendar year immediately preceding the date of termination. As an example, if the termination occurs in 2008, the Maximum Amount shall be adjusted for increases in the Consumer Price Index that occur between December 31, 2006-December 31, 2007 and if the termination occurs in 2009, the Maximum Amount shall be adjusted for increases in the Consumer Price Index that occur between December 31, 2006-December 31, 2008. For purposes of this Agreement, Consumer Price Index means the CPI for All Urban Consumers (All Items; Base Year 1982 ), compiled and published by the Bureau of Labor Statistics of the United States Department of Labor

For purposes of this Agreement, “fair market value” shall have the meaning ascribed to such term under the Company’s Incentive Compensation Plan. Payment shall be made in a single lump sum upon the Employee’s effective date of termination.

b. Continuation of Benefits.

(i) For a period of two years following the Termination of Employment, the Company, at its sole cost and expense, shall provide health insurance benefits to Employee (and his family) equivalent to the coverage that the Employee would have had had he remained a participant under the health insurance plans applicable to Employee on the date of Termination of Employment, or, at the Employee’s election, the plans applicable to Employee as of the Change-in-Control Date. Such health insurance benefits shall not have any waiting period for coverage and shall provide coverage for any pre-existing condition. Following this continuation period, the Employee shall be entitled to receive continuation coverage under Part 6 of Title I of ERISA (“COBRA Benefits”) treating the end of this period as a termination of the Employee’s employment if allowed by law.

(ii) For a period of two years following the Termination of Employment, the Company shall maintain in force, at its expense, the Employee’s life insurance benefits in effect as of the Change-in-Control Date or as of the date of Termination of Employment, whichever coverage limits are greater.

(iii) For a period of two years following the Employee’s Termination of Employment, the Company shall provide short-term and long-term disability insurance benefits to Employee equivalent to the coverage that the Employee would have had had he remained employed or a participant under the disability insurance plans applicable to Employee on the date of Termination of Employment, or, at the Employee’s election, the plans applicable to Employee as of the Change-in-Control Date. Should Employee become disabled during such period, Employee shall be entitled to receive such benefits, and for such duration, as the applicable plan provides.

 

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c. Retirement Savings Plan. To the extent not already vested pursuant to the terms of such plan, the Employee’s interests under the Retirement Savings Plan shall be automatically fully (i.e., 100%) vested, without regard to otherwise applicable percentages for the vesting of employer-matching contributions based upon the Employee’s years of service with the Company.

d. Outstanding PCP Awards. The Company shall pay Employee within 30 days of the date of termination of employment (but not earlier than the date on which the Release becomes irrevocable) a lump sum payment equal to the amount of awards under the Company’s Performance Cash Plan (“PCP”) that are based on actual performance for completed fiscal years but have not yet been paid. As an example, assume that Employee, following the 2006 fiscal year, was awarded a PCP award of $100 that would, assuming continuous employment, have been paid out following the end of the 2008 fiscal year (the “Outstanding PCP Award”). Upon a termination subject to this Section 3 that occurs prior to the payment of such Outstanding PCP Award, the Company would be obligated, pursuant to this Section 3(d), to pay Employee $100 in respect of such Outstanding PCP Award.

e. Plan Amendments. The Company shall adopt such employee benefit plans or amendments to its employee benefit plans, as applicable, as are necessary to effectuate the provisions of this Agreement.

2. A new Section 21 to the Agreement shall be added 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. If Employee is a “Specified Employee” of the Company for purposes of Internal Revenue Code Section 409A (“Code Section 409A”) at the time of a payment event set forth in this Agreement, then no severance or other payments pursuant to this Agreement shall be made to Employee by the Company until the amount of time has passed that is necessary to avoid incurring excise taxes under Code Section 409A. Should this Section 21 result in a delay of payments to Employee, on the first day any such payments may be made without incurring a penalty pursuant to Code Section 409A (the “409A Payment Date”), the Company shall begin to make such payments as provided for in this Agreement, provided that any amounts that would have been payable earlier but for the application of this Section 21, 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 to Employee should have been made under this Agreement. For purposes of this provision, the term Specified Employee shall have the meaning set forth in Section 409A(2)(B)(i) of the Internal Revenue Code of 1986, as amended or any successor provision and the treasury regulations and rulings issued thereunder. If any compensation or benefits provided by this Agreement may result in the application of Code Section 409A, the Company shall, in consultation with the Employee, modify the Agreement in the least restrictive manner necessary in order to exclude such compensation from the definition of “deferred compensation” within the meaning of such Code Section 409A or in order to comply with the provisions of Code Section 409A of the Code and without any diminution in the value of the payments or benefits to the Employee.

3. In all other respects, the Severance Agreement shall continue in full force and effect.

 

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VENTAS, INC.
By:  

/s/ Debra A. Cafaro

  Debra A. Cafaro,
  President and Chief Executive Officer
EMPLOYEE
By:  

/s/ T. Richard Riney

  T. Richard Riney

 

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