0000877860FALSE00008778602024-02-262024-02-26
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 Reported): February 26, 2024 (February 26, 2024)
NATIONAL HEALTH INVESTORS INC
(Exact name of registrant as specified in its charter)
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| Maryland | | 001-10822 | | 62-1470956 |
(State or other jurisdiction
of incorporation) | | (Commission
File Number) | | (IRS Employer
Identification No.) |
222 Robert Rose Drive, Murfreesboro, TN 37129
(Address of principal executive offices)
(615) 890-9100
(Registrant's telephone number, including area code)
Not Applicable
(Former name, former address and former fiscal year,
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 (see General Instruction A.2. below):
| | | | | |
| ☐ | 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) |
Securities registered pursuant to Section 12(b) of the Act:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Title of each Class | | Trading Symbol(s) | | Name of each exchange on which registered |
| Common Stock, $0.01 par value | | NHI | | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
On February 26, 2024, National Health Investors, Inc. (the “Company”) entered into a Change in Control Severance Agreement (a “CIC Severance Agreement”) with each of the Company’s named executive officers: D. Eric Mendelsohn, President and Chief Executive Officer; Kristin S. Gaines, Chief Credit Officer; Kevin C. Pasco, Chief Investment Officer; John L. Spaid, Chief Financial Officer; and David L. Travis, Chief Accounting Officer.
Each CIC Severance Agreement provides that, subject to the executive’s executing and not revoking a general release of claims and in lieu of any severance under any other agreement or arrangement, in the event the executive’s employment is terminated by the Company without “Cause” or by the executive for “Good Reason” within two years following a “Change in Control” or is terminated without “Cause” within 30 days prior to a “Change in Control” (each term, as defined in the CIC Severance Agreement), the executive will be entitled to receive the following: (1) a lump sum cash payment equal to a multiple (2.0 times for Mr. Mendelsohn and 1.5 times for the other executives) of the average of the executive’s annual base salary and bonus for the most recent five consecutive calendar years (or, if employed by the Company for less than five calendar years, for such number of full calendar years); (2) a lump sum cash payment equal to the greater of the executive’s target annual bonus and annual bonus that would have been earned based on performance through the termination, pro-rated for actual days of service during the performance period; (3) a lump sum cash payment, on an after-tax basis, equal to the full cost of continued COBRA coverage for the executive and the executive’s spouse and dependents (as applicable) for 18 months; and (4) accelerated vesting of all equity or equity-based incentive awards subject solely to time-based vesting.
The CIC Severance Agreements include (i) non-competition restrictions during the executive’s employment and, if severance benefits are payable pursuant to the CIC Severance Agreement, for 12 months thereafter, and (ii) confidentiality restrictions during the executive’s employment and thereafter. In addition, if any payment or benefit pursuant to the CIC Severance Agreement or otherwise would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, then such payments or benefits will be reduced to the largest amount that would not result in such excise tax, if and only if such reduction would result in the executive’s receipt of greater net after-tax proceeds.
The foregoing is a summary only and does not purport to be a complete description of all of the terms, provisions, covenants, and agreements contained in the CIC Severance Agreements, and is subject to and qualified in its entirety by reference to the complete text of the CIC Severance Agreements, which are attached hereto as Exhibit 10.1, Exhibit 10.2, Exhibit 10.3, Exhibit 10.4, and Exhibit 10.5.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
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| Exhibit Index |
| Number | Exhibit |
| 10.1 | |
| 10.2 | |
| 10.3 | |
| 10.4 | |
| 10.5 | |
| 104 | Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101). |
..
SIGNATURE
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.
NATIONAL HEALTH INVESTORS, INC.
By: /s/ John L. Spaid
Name: John L. Spaid
Title: Principal Financial Officer
Date: February 26, 2024
CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT (this “Agreement”) is entered into as of February 26, 2024 (the “Effective Date”), by and between National Health Investors, Inc., a Maryland corporation (the “Company”), and D. Eric Mendelsohn (the “Executive”).
W I T N E S S E T H
WHEREAS, the Executive currently serves as a key employee of the Company and his or her services and knowledge are valuable to the Company; and
WHEREAS, the Committee (as defined in Section 1) has determined that it is in the best interests of the Company and its stockholders to secure the Executive’s continued services and objectivity in the event of any threat or occurrence of, or negotiation or other action that could lead to, or create the possibility of, a Change in Control (as defined in Section 1) of the Company, without concern as to whether the Executive might be hindered or distracted by personal uncertainties and risks created by any such possible Change in Control, and to encourage the Executive’s full attention and dedication to the Company, and in order to further such interests, the Committee has authorized the Company to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants, representations and warranties contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1.Definitions. As used in this Agreement, the following terms shall have the respective meanings set forth below:
a.“Board” means the Board of Directors of the Company.
b.“Cause” means (i) the Executive’s willful refusal to follow a lawful order of the Board, subject, however, to the Executive’s right to receive written notice of the order not followed by the Executive and the opportunity to promptly follow the order, (ii) the Executive’s willful engagement in conduct materially injurious to the business interests of the Company or any of its subsidiaries and affiliates as determined in good faith by the Board or the Committee, (iii) the Executive’s conviction (including a guilty plea or a plea of no contest) of theft, embezzlement, fraud, misappropriation, illegal use or possession of drugs or alcohol, or of any crime that discredits the Company or any of its subsidiaries or affiliates or is detrimental to the reputation or goodwill of the Company or any of its subsidiaries or affiliates as determined in good faith by the Board or the Committee, or (iv) the Executive’s commission of any act of fraud or dishonesty, or commission of an immoral or unethical act, that reflects negatively on the Company as determined in good faith by the Board or the Committee.
c.“Change in Control” means the first to occur of:
i.The date that any one Person, or more than one Person acting as a group, acquires ownership of stock of the Company that, together with stock held by such Person or group, constitutes more than fifty percent (50%) of the total voting power of the stock of the Company; provided, however, that the merger or consolidation of the Company with another entity as a result of which fifty percent (50%) or more of the outstanding voting securities of the surviving or resulting entity (or of the parent entity of such resulting or surviving entity) shall be owned in the aggregate by the shareholders of the Company immediately prior to such merger or consolidation, shall not constitute a Change in Control;
ii.The date of the merger or consolidation of the Company with another entity as a result of which less than fifty percent (50%) of the outstanding voting securities of the surviving or resulting entity (or of the parent entity of such resulting or surviving entity) shall be owned in the aggregate by the shareholders of the Company immediately prior to such merger or consolidation;
iii.The date that a majority of members of the Board are replaced during any twelve (12)-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election; or
iv.On the date that any one Person, or more than one Person acting as a group, acquires (or has acquired during the twelve (12)-month period ending on the date of the most recent acquisition by such person or persons) assets, directly or indirectly, from the Company that have a total gross fair market value equal to or more than fifty percent (50%) of the total gross fair market value of all of the assets owned, directly or indirectly, by the Company immediately prior to such acquisition or acquisitions. Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred under this Section 1.c.iv when there is a transfer to an entity that is controlled by the shareholders of the Company immediately after the transfer as provided in the following sentence. A transfer of assets by Company is not treated as a change in the ownership of such assets if the assets are transferred to (1) a shareholder of the Company (immediately before the asset transfer) in exchange for or with respect to its stock in the Company, (2) an entity, fifty percent (50%) or more of the total voting power of which is owned, directly or indirectly, by the Company, (3) a Person, or more than one Person acting as a group, that owns, directly or indirectly, fifty percent (50%) or more of the total voting power of all the outstanding stock of the Company, or (4) an entity, at least fifty percent (50%) of the total value or voting power of which is owned, directly or indirectly, by a person described in clause (3) of this Section 1.c.iv.
Solely to the extent necessary to avoid adverse consequences under Section 409A (including, without limitation, to comply with the anti-toggling rules of Section 409A), a Change in Control shall be limited to a “change in the ownership of the Company,” a “change in the effective control of the Company,” or a “change in the ownership of a substantial portion of the assets of the Company” as such terms are defined in Section 1.409A-3(i)(5) of the U.S. Treasury Regulations.
d.“Code” means the Internal Revenue Code of 1986, as amended, including any regulations adopted thereunder.
e.“Committee” means the Compensation Committee of the Board.
f.“Disability” means the Executive’s inability, due to physical or mental incapacity, to perform the essential functions of his job with reasonable accommodation for longer than three (3) consecutive months, or for one hundred twenty (120) days out of any three hundred sixty-five (365)-day period.
g.“Final Average Compensation” means the average of the sum of the Executive’s annual base salary and bonus over the most recent five (5) consecutive calendar years, including the calendar year in which the Termination Date occurs. For purposes of calculating the average, (i) the annual base salary for the calendar year in which the Termination Date occurs shall be the annual base salary as of such Termination Date or, if the Executive’s Qualifying Termination is for Good Reason as a result of a material reduction in his base salary, shall be the annual base salary in effect as of immediately prior to such reduction, (ii) the bonus for the calendar year in which the Termination Date occurs shall be the target annual cash incentive bonus payable to the Executive for such calendar year (or in which the Change in Control occurs, if greater), (iii) the bonus for each other calendar year shall be the annual cash incentive bonus paid with respect to performance during such calendar year, even if paid in the following calendar year, and (iv) if the Executive has been employed by the Company for less than five (5) full calendar years (counting the final calendar year of employment as a full calendar year), the Executive’s Final Average Compensation shall be based on the number of full calendar years in which the Executive was an employee of the Company (again counting the final calendar year of employment as a full calendar year).
h.“Good Reason” means, without the Executive’s express written consent, the occurrence of any of the following events:
i.a material diminution in the Executive’s authority, duties, or responsibilities with the Company as in effect immediately prior to the Change in Control (including, without limitation, a material adverse change in the Executive’s reporting relationship after the Change in Control, as a result of the Company’s stock ceasing to be publicly traded, of the Company’s becoming a subsidiary of another entity, or otherwise);
ii.a material reduction in the Executive’s rate of annual base salary as in effect immediately prior to the Change in Control or as the same may be increased from time to time thereafter (or the failure to pay such compensation);
iii.any requirement of the Company or any of its subsidiaries or affiliates that the Executive be based more than thirty-five (35) miles from the location where the Executive is based immediately before the Change in Control (excluding reasonable travel on Company business to the extent substantially consistent with the Executive’s authority, duties, or responsibilities with the Company); or
iv.the failure of the Company to obtain the assumption agreement from any successor as contemplated in Section 7.b.ii or any other material breach of this Agreement (or other material agreement between the Company and the Executive);
provided, however, that Good Reason shall not exist unless (i) the Executive provides written notice to the Company within sixty (60) days following the initial occurrence of any of the events described in clauses (i)-(iv); (ii) the Company fails to cure the event or circumstances within thirty (30) days after receipt of such notice (the “cure period”); and (iii) the Executive’s Termination Date is effective within thirty (30) days following the end of the cure period.
i.“Person” means any individual, corporation, partnership, limited liability company, association, joint-stock company, trust, unincorporated organization, government or political subdivision thereof, or other entity.
j.“Post-CIC Period” means the period beginning on (and including) the date of the consummation of a Change in Control and ending on (and including) the date that is two years following the consummation of such Change in Control.
k.“Pre-CIC Period” means the thirty (30)-day period prior to the consummation of a Change in Control.
l.“Pro Rata Bonus” means (i) the greater of the Executive’s target annual cash incentive bonus for the calendar year in which the Termination Date occurs and the annual cash incentive bonus that would be paid to the Executive with respect to the calendar year in which the Termination Date occurs based on actual performance measured against the performance metrics as of the Termination Date, multiplied by (ii) a fraction, the numerator of which is the number of days from the first day of the performance period applicable to such annual cash incentive bonus to and including the Termination Date, and the denominator of which is the total number of days in such performance period.
m.“Qualifying Termination” means (i) during the Pre-CIC Period, a termination of the Executive’s employment by the Company without Cause and (ii) during the Post-CIC Period, a termination of the Executive’s employment (A) by the Company without Cause or (B) by the Executive for Good Reason. In no event shall a Qualifying Termination include a termination of the Executive’s employment (1) by the Company for Cause, (2) by the Executive for any reason other than Good Reason, or (3) on account of death or Disability.
n.“Termination Date” means the date on which the Executive separates from service within the meaning of Section 409A of the Code.
o.“Termination Period” means both the Pre-CIC Period and the Post-CIC Period.
2.Severance Payments.
a.Accrued Obligations. If Executive’s employment is terminated for any reason during the Termination Period, then subject to Section 3, the Company shall pay or provide to the Executive (or the Executive’s beneficiary or estate), the Accrued Compensation. For purposes of this Agreement, “Accrued Compensation” shall mean all amounts that have accrued to the benefit of the Executive through the Termination Date but have not been paid as of the Termination Date including: (i) base salary, (ii) reimbursement for reasonable and necessary expenses incurred by the Executive on behalf of the Company or any of its subsidiaries or affiliates during the period ending on the Termination Date, (iii) vacation and sick leave pay (to the extent provided by Company policy or applicable law), (iv) any earned but unpaid annual bonus for the calendar year prior to the calendar year in which the Termination Date occurs, with all amounts owed to the Executive under each of (i), (ii), (iii), and (iv) payable in a single lump sum cash payment no later than the Company’s first regularly scheduled payroll date after the Termination Date (unless required to be paid earlier by applicable law), and (v) any amounts that are vested benefits or that the Executive is otherwise entitled to receive under any plan, policy, practice, or program of, or any other contract or agreement with, the Company at or subsequent to the Termination Date, payable in accordance with such plan, policy, practice, or program, contract, or agreement.
b.Change in Control Severance. If a Change in Control occurs and the Executive experiences a Qualifying Termination during the Termination Period, then subject to Sections 2.c, 3, and 4 and the Executive’s continued compliance with Section 5, in addition to the Accrued Compensation, but in lieu of any other severance or payments or benefits the Executive may be entitled to under any other agreement or arrangement:
i.The Company shall pay to the Executive a cash payment in an amount equal to two (2), multiplied by the Executive’s Final Average Compensation;
ii.The Company shall pay to the Executive a cash payment in an amount equal to the Executive’s Pro Rata Bonus;
iii.The Company shall pay to the Executive a cash payment in an amount equal, on an after-tax basis, to the full cost of continued coverage, at the same level of coverage as in effect immediately prior to the Termination Date, for the Executive (and the Executive’s covered spouse and dependents, as applicable) pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for the eighteen (18)-month period following the Termination Date (for the avoidance of doubt, regardless of whether the Executive elects COBRA coverage); and
iv.All outstanding, unvested equity or equity-based incentive awards with respect to the equity securities of the Company or any of its subsidiaries or affiliates (including, without limitation, stock options, restricted stock, and restricted stock units) held by the Executive (A) that are subject solely to time-based vesting requirements as of the Termination Date, will vest in full as of the Termination Date (provided that if such Qualifying Termination occurs during the Pre-CIC Period, such awards shall only vest subject to, and as of immediately prior to, the consummation of the Change in Control) and (B) that are subject to performance-based vesting requirements, will vest in accordance with the award agreement governing such award.
c.Timing and Release. The Company’s obligation to pay or provide the Executive the payments and benefits set forth in Section 2.b (collectively, the “Severance Benefits”) shall be subject to, contingent upon, and in consideration of the Executive’s execution and non-revocation of a general waiver and release of claims in a form satisfactory to the Company (the “Release”) within fifty-three (53) days following the Termination Date, which Release shall, for the avoidance of doubt, include reaffirmation of the restrictive covenants set forth below. The amounts provided for in Sections 2.b.i - 2.b.iii shall be paid to the Executive in a single lump sum cash payment on the sixtieth (60th) day following the Termination Date; provided, however, if necessary to avoid adverse consequences under Section 409A (including, without limitation, to comply with the anti-toggling rules of Section 409A), in connection with a Qualifying Termination during the Pre-CIC Period, the amounts provided for in Sections 2.b.i - 2.b.iii shall instead be paid in equal monthly installments over the twenty-four (24)-month period following the Termination Date, with the first such payment beginning on the sixtieth (60th) day following the Termination Date.
d.Exclusivity of Severance Benefits. For the avoidance of doubt, if the Executive is entitled to the Severance Benefits, then the Severance Benefits shall be in lieu of and not in addition to any other severance or similar payment or benefit under any other agreement or arrangement, including any severance otherwise payable pursuant to that certain Amended and Restated Employment Agreement, effective as of February 15, 2019, by and between the Company and the Executive.
3.Withholding. The Company shall have the authority and right to withhold an amount sufficient to satisfy federal, state and local taxes or other deductions required by law to be withheld with respect to any payments or benefits under this Agreement.
4.Code Section 280G. Notwithstanding any provision of this Agreement to the contrary, in the event it shall be determined that, in connection with a Change in Control, any payment, benefit, or acceleration of vesting to or for the benefit of the Executive (whether pursuant to the terms of this Agreement or otherwise) (“Potential Parachute Payments”) would be subject to the excise tax imposed by Section 4999 of the Code or any similar tax payable under any U.S. federal, state, local, foreign or other law (“Excise Taxes”), then the Potential Parachute Payments shall be reduced to an amount that is one dollar less than the largest amount that would not give rise to such excise tax (the “Reduced Amount”) if and only if such Reduced Amount would be greater than the net after-tax proceeds (taking into account both the Excise Taxes and any interest or penalties payable by the Executive with respect thereto) of the unreduced Potential Parachute Payments payable to the Executive. If any Potential Parachute Payments are required to be
reduced pursuant to this Section 4, such reductions shall be applied first to the amount of lump sum cash severance payments payable under Section 2.b, and then applied to the amounts payable with respect to any equity or equity-based incentive awards, and if further reductions are necessary, such reductions shall be applied on a prorated basis to all other Potential Parachute Payments.
5.Restrictive Covenants. As a material condition of this Agreement, the Executive shall comply with the Restrictive Covenants set forth in this Section 5. The Executive acknowledges and agrees that the covenants contained in this Section 5 are in addition to, and not in lieu of, any similar restrictions that may exist in other agreements between the Executive, on the one hand, and the Company or its subsidiaries on the other hand.
a.Non-Competition. During the period of the Executive’s employment with the Company (the “Employment Period”) and, if the Executive receives Severance Benefits pursuant to this Agreement, for a period of twelve (12) months following the Termination Date (the “Post-Termination Restricted Period”), the Executive shall not, directly or indirectly, individually or on behalf of any Person, in any jurisdiction in which the Company conducts the Business of the Company and throughout the entirety of the United States of America, (i) own any interest in any business or enterprise that engages in the Business of the Company, or (ii) carry on or engage in the Business of the Company or any part of the Business of the Company where the Executive’s engagement or involvement is the same as, or is substantially similar to, the services the Executive performed as an employee of the Company. For this purpose, “Business of the Company” means sale-leaseback, joint venture, and mortgage and mezzanine financing of need-driven and discretionary senior housing investments. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from investing in the publicly-traded equity securities of a Person engaged in the Business of the Company, so long as the Executive (A) is not a controlling person of, or a member of a group which controls, such Person, (B) does not directly or indirectly own more than one percent (1%) of any class of securities of such Person and (C) does not undertake activities involving the Business of the Company with respect to such Person and otherwise have no active participation in the business of such Person.
b.Confidentiality. The Executive acknowledges that, during the course of the Executive’s employment with the Company, the Executive will create and have access to information about the Company or its subsidiaries or affiliates and that the Executive’s employment with the Company shall bring the Executive into close contact with confidential and proprietary information of the Company and its subsidiaries or affiliates. In recognition of the foregoing, the Executive agrees, at all times during the Employment Period and at all times thereafter, to hold in confidence, and not to use, except for the benefit of the Company, or to disclose to any Person, firm, corporation, or other entity without written authorization of the Company, any Confidential Information that the Executive obtains or creates. The Executive further agrees not to make copies of such Confidential Information except as authorized by the Company. The Executive understand that “Confidential Information” means information that the Company or its subsidiaries or affiliates has or will develop, acquire, create, compile, discover, or own, that has value in or to the business of the Company or its subsidiaries or affiliates that is not generally known. The Executive understands that Confidential Information includes, but is not
limited to, any and all non-public information that relates to the actual or anticipated business and/or products, research, or development of the Company or its subsidiaries or affiliates, or to the technical data or trade secrets of the Company or its subsidiaries or affiliates, including, but not limited to, research, development or product plans, or other information regarding the products or services and markets of the Company or its subsidiaries or affiliates, and customer lists (including, but not limited to, customers of the Company or its subsidiaries or affiliates on whom the Executive called or with whom the Executive may become acquainted during the term of the Executive’s employment), software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, acquisition strategies, marketing, finances, confidential personnel information (such as medical records), and other business information disclosed by the Company or its subsidiaries or affiliates either directly or indirectly in writing, orally, or by drawings or inspection of premises, parts, equipment, or other property of the Company. Notwithstanding the foregoing, Confidential Information shall not include (i) any of the foregoing items that have become publicly and widely known through no unauthorized disclosure by the Executive or others who were under confidentiality obligations as to the item or items involved or (ii) any information that the Executive is privileged or required to disclose to, or by, any law, governmental or judicial authority. Additionally, Confidential Information does not include information that arises solely from the Executive's general training, knowledge, skill, or experience.
c.The Executive expressly acknowledges that any breach or threatened breach of any of the terms and/or conditions set forth in this Section 5 will result in substantial, continuing, and irreparable injury to the Company. Therefore, the Executive hereby agrees that, in addition to any other remedy that may be available to the Company, the Company shall be entitled to seek injunctive relief, specific performance, or other equitable relief in the event of any breach or threatened breach of the terms of this Section 5, without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach or posting a bond. Notwithstanding any other provision to the contrary, the Executive acknowledges and agrees that the restrictive period set forth above shall be tolled during any period of violation of any of the Restrictive Covenants in this Section 5 and during any other period required for litigation during which the Company seeks to enforce such covenants against the Company if it is ultimately determined that the Executive was in breach of such covenants.
d.Each of the rights enumerated in this Section 5 shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. If, however, any of the provisions of this Section 5 or any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of this Section 5, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held to be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, the Executive agrees that the court making such determination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration, scope, and/or area permissible by law, and in its reduced form said provision shall then be enforceable.
6.Term of Agreement. This Agreement shall be effective on the Effective Date and shall terminate upon the earlier to occur of (i) the Executive’s termination of employment with the Company for
any reason other than a Qualifying Termination prior to the consummation of a Change in Control and (ii) the expiration of the Termination Period with respect to the first Change in Control to occur after the Effective Date; provided, however, that if the Executive incurs a Qualifying Termination during the Termination Period, this Agreement shall continue in full force and effect until such time as all obligations of the Company hereunder have been fulfilled and all benefits required hereunder have been paid or provided to the Executive.
7.Miscellaneous.
a.Scope of Agreement. Nothing in this Agreement shall be deemed to entitle the Executive to continued employment or service with the Company or its subsidiaries or affiliates and, if the Executive’s employment with the Company or its subsidiaries or affiliates terminates at a time other than during the Termination Period, then the Executive shall have no further rights under this Agreement.
b.Successors; Binding Agreement.
i.This Agreement shall not be terminated by any merger or consolidation of the Company whereby the Company is or is not the surviving or resulting corporation or as a result of any transfer of all or substantially all of the assets of the Company. In the event of any such merger, consolidation, or transfer of assets, the provisions of this Agreement shall be binding upon the surviving or resulting corporation or the person or entity to which such assets are transferred, and all references herein to “the Company” following such merger, consolidation, or transfer of assets shall be deemed references to such surviving or resulting corporation or transferee.
ii.The Company agrees that concurrently with any merger or consolidation in which the Company is not the surviving or resulting corporation or any transfer of all or substantially all of the assets of the Company, it will cause any successor or transferee unconditionally to assume all of the obligations of the Company hereunder. Failure of the Company to obtain such assumption prior to or concurrently with the effectiveness of any such merger, consolidation, or transfer of assets shall be a breach of this Agreement.
iii.This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive shall die while any amounts would be payable to the Executive hereunder had the Executive continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to such person or persons appointed in writing by the Executive to receive such amounts or, if no person is so appointed, to the Executive’s estate.
c.Notices.
i.For purposes of this Agreement, all notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly
given when delivered or three (3) business days after deposit in the United States mail, certified and return receipt requested, postage prepaid, addressed:
1.if to the Executive, to the home address of the Executive maintained in the Company’s business records, and if to the Company, to 222 Robert Rose Drive, Murfreesboro, Tennessee 37129, Attention: Chairman of the Compensation Committee of the Board, or
2.to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.
ii.A written notice of the Executive’s Termination Date by the Company or the Executive, as the case may be, to the other, shall (A) indicate the specific termination provision in this Agreement relied upon, (B) to the extent applicable, set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated and (C) specify the Termination Date (which date shall be not less than fifteen (15) days after the giving of such notice). The failure by the Executive or the Company to set forth in such notice any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company hereunder or preclude the Executive or the Company from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.
d.No Mitigation; Resolution of Disputes.
i.The Company’s obligation to make any payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense, or other claim, right, or action which the Company may have against the Executive or others. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement, and such amounts shall not be reduced whether or not the Executive obtains other employment.
ii.If there shall be any dispute between the Company and the Executive in the event of any termination of the Executive’s employment, then, unless and until there is a final, nonappealable judgment by a court or arbitral tribunal of competent jurisdiction or a written agreement signed by both parties addressing such dispute, in each case declaring that such termination was for Cause, that the termination of employment by the Executive was without Good Reason, or that the Company is not otherwise obligated to pay any amount to the Executive under Section 2, the Company shall pay all amounts, and provide all benefits, to the Executive that the Company would be required to pay or provide pursuant to this Agreement as though such termination were a Qualifying Termination; provided, however, that the Company shall not be required to pay any disputed amounts pursuant to this Section 7.d.ii except upon receipt of an undertaking by or on behalf of the Executive to repay all such amounts to which the Executive is ultimately adjusted by such court not to be entitled.
e.Code Section 409A.
i.This Agreement is intended either to be exempt from or to comply with the requirements of Section 409A of the Code and shall be interpreted and construed consistently with such intent. Without limiting the foregoing, all payments and benefits provided under this Agreement are intended to be exempt from Section 409A of the Code to the maximum extent possible, under either the separation pay exemption pursuant to Treasury Regulation Section 1.409A-1(b)(9)(iii) or as short-term deferrals pursuant to Treasury Regulation Section 1.409A-1(b)(4), and for this purpose, each payment shall constitute a “separately identified” amount within the meaning of Treasury Regulation Section 1.409A-2(b)(2). In the event the terms of this Agreement would subject the Executive to taxes or penalties under Section 409A of the Code (“409A Penalties”), the Company and the Executive shall cooperate diligently to amend the terms of the Agreement to avoid such 409A Penalties, to the extent possible; provided that in no event shall the Company or any of its subsidiaries or affiliates, or any of their respective directors, officers, employees, designees, or agents be responsible for any 409A Penalties (or any related taxes, interest, penalties, costs, or damages) imposed on the Executive that arise in connection with any amounts payable under this Agreement.
ii.Notwithstanding any other provision in this Agreement, to the extent any payments hereunder constitutes nonqualified deferred compensation, within the meaning of Section 409A of the Code, then if the Executive is a “specified employee,” as defined in Section 409A of the Code, as of the Termination Date, then to the extent any amount payable under this Agreement is payable upon the Executive’s separation from service, within the meaning of Section 409A of the Code, and under the terms of this Agreement would be payable prior to the six (6)-month anniversary of the Executive’s Termination Date, such payment, without interest, shall be delayed until the earlier of (A) the date immediately following the six (6)-month anniversary of the Termination Date or (B) the date of the Executive’s death.
f.Governing Law; Validity. The interpretation, construction and performance of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Tennessee, without regard to the conflicts of law principles thereof. Each party hereby irrevocably submits to the non-exclusive jurisdiction of the state and federal courts sitting in Rutherford County, Tennessee, for the adjudication of any dispute hereunder or in connection herewith and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which other provisions shall remain in full force and effect.
g.Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and both of which together shall constitute one and the same instrument.
h.Modification; Waiver. No provision of this Agreement may be modified or waived unless such modification or waiver is agreed to in writing and signed by the Executive and by a duly authorized officer of the Company. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. Failure by the Executive or the Company to insist upon strict compliance with any provision of this Agreement or to assert any right the Executive or the Company may have hereunder, including, without limitation, the right of the Executive to terminate employment for Good Reason, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.
i.Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, if any, understandings and arrangements, oral or written, between the parties hereto with respect to the subject matter hereof.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly authorized officer of the Company and the Executive has executed this Agreement as of the day and year first above written.
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| NATIONAL HEALTH INVESTORS, INC. |
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| By: _______________________________________________ | | /s/ Robert T. Webb |
| Name: | | Robert T. Webb |
| Title: | | Chairman of Compensation Committee |
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| EXECUTIVE |
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| By: | | /s/ D. Eric Mendelsohn |
| Name: | | D. Eric Mendelsohn |
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CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT (this “Agreement”) is entered into as of February 26, 2024 (the “Effective Date”), by and between National Health Investors, Inc., a Maryland corporation (the “Company”), and Kristin S. Gaines (the “Executive”).
W I T N E S S E T H
WHEREAS, the Executive currently serves as a key employee of the Company and his or her services and knowledge are valuable to the Company; and
WHEREAS, the Committee (as defined in Section 1) has determined that it is in the best interests of the Company and its stockholders to secure the Executive’s continued services and objectivity in the event of any threat or occurrence of, or negotiation or other action that could lead to, or create the possibility of, a Change in Control (as defined in Section 1) of the Company, without concern as to whether the Executive might be hindered or distracted by personal uncertainties and risks created by any such possible Change in Control, and to encourage the Executive’s full attention and dedication to the Company, and in order to further such interests, the Committee has authorized the Company to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants, representations and warranties contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1.Definitions. As used in this Agreement, the following terms shall have the respective meanings set forth below:
a.“Board” means the Board of Directors of the Company.
b.“Cause” means (i) the Executive’s willful refusal to follow a lawful order of the Board and/or the Executive’s manager, subject, however, to the Executive’s right to receive written notice of the order not followed by the Executive and the opportunity to promptly follow the order, (ii) the Executive’s willful engagement in conduct materially injurious to the business interests of the Company or any of its subsidiaries and affiliates as determined in good faith by the Board or the Committee, (iii) the Executive’s conviction (including a guilty plea or a plea of no contest) of theft, embezzlement, fraud, misappropriation, illegal use or possession of drugs or alcohol, or of any crime that discredits the Company or any of its subsidiaries or affiliates or is detrimental to the reputation or goodwill of the Company or any of its subsidiaries or affiliates as determined in good faith by the Board or the Committee, or (iv) the Executive’s commission of any act of fraud or dishonesty, or commission of an immoral or unethical act, that reflects negatively on the Company as determined in good faith by the Board or the Committee.
c.“Change in Control” means the first to occur of:
i.The date that any one Person, or more than one Person acting as a group, acquires ownership of stock of the Company that, together with stock held by such Person or group, constitutes more than fifty percent (50%) of the total voting power of the stock of the Company; provided, however, that the merger or consolidation of the Company with another entity as a result of which fifty percent (50%) or more of the outstanding voting securities of the surviving or resulting entity (or of the parent entity of such resulting or surviving entity) shall be owned in the aggregate by the shareholders of the Company immediately prior to such merger or consolidation, shall not constitute a Change in Control;
ii.The date of the merger or consolidation of the Company with another entity as a result of which less than fifty percent (50%) of the outstanding voting securities of the surviving or resulting entity (or of the parent entity of such resulting or surviving entity) shall be owned in the aggregate by the shareholders of the Company immediately prior to such merger or consolidation;
iii.The date that a majority of members of the Board are replaced during any twelve (12)-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election; or
iv.On the date that any one Person, or more than one Person acting as a group, acquires (or has acquired during the twelve (12)-month period ending on the date of the most recent acquisition by such person or persons) assets, directly or indirectly, from the Company that have a total gross fair market value equal to or more than fifty percent (50%) of the total gross fair market value of all of the assets owned, directly or indirectly, by the Company immediately prior to such acquisition or acquisitions. Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred under this Section 1.c.iv when there is a transfer to an entity that is controlled by the shareholders of the Company immediately after the transfer as provided in the following sentence. A transfer of assets by Company is not treated as a change in the ownership of such assets if the assets are transferred to (1) a shareholder of the Company (immediately before the asset transfer) in exchange for or with respect to its stock in the Company, (2) an entity, fifty percent (50%) or more of the total voting power of which is owned, directly or indirectly, by the Company, (3) a Person, or more than one Person acting as a group, that owns, directly or indirectly, fifty percent (50%) or more of the total voting power of all the outstanding stock of the Company, or (4) an entity, at least fifty percent (50%) of the total value or voting power of which is owned, directly or indirectly, by a person described in clause (3) of this Section 1.c.iv.
Solely to the extent necessary to avoid adverse consequences under Section 409A (including, without limitation, to comply with the anti-toggling rules of Section 409A), a Change in Control shall be limited to a “change in the ownership of the Company,” a “change in the effective control of the Company,” or a “change in the ownership of a substantial portion of the assets of the Company” as such terms are defined in Section 1.409A-3(i)(5) of the U.S. Treasury Regulations.
d.“Code” means the Internal Revenue Code of 1986, as amended, including any regulations adopted thereunder.
e.“Committee” means the Compensation Committee of the Board.
f.“Disability” means the Executive’s inability, due to physical or mental incapacity, to perform the essential functions of his job with reasonable accommodation for longer than three (3) consecutive months, or for one hundred twenty (120) days out of any three hundred sixty-five (365)-day period.
g.“Final Average Compensation” means the average of the sum of the Executive’s annual base salary and bonus over the most recent five (5) consecutive calendar years, including the calendar year in which the Termination Date occurs. For purposes of calculating the average, (i) the annual base salary for the calendar year in which the Termination Date occurs shall be the annual base salary as of such Termination Date or, if the Executive’s Qualifying Termination is for Good Reason as a result of a material reduction in his base salary, shall be the annual base salary in effect as of immediately prior to such reduction, (ii) the bonus for the calendar year in which the Termination Date occurs shall be the target annual cash incentive bonus payable to the Executive for such calendar year (or in which the Change in Control occurs, if greater), (iii) the bonus for each other calendar year shall be the annual cash incentive bonus paid with respect to performance during such calendar year, even if paid in the following calendar year, and (iv) if the Executive has been employed by the Company for less than five (5) full calendar years (counting the final calendar year of employment as a full calendar year), the Executive’s Final Average Compensation shall be based on the number of full calendar years in which the Executive was an employee of the Company (again counting the final calendar year of employment as a full calendar year).
h.“Good Reason” means, without the Executive’s express written consent, the occurrence of any of the following events:
i.a material diminution in the Executive’s authority, duties, or responsibilities with the Company as in effect immediately prior to the Change in Control (including, without limitation, a material adverse change in the Executive’s reporting relationship after the Change in Control, as a result of the Company’s stock ceasing to be publicly traded, of the Company’s becoming a subsidiary of another entity, or otherwise);
ii.a material reduction in the Executive’s rate of annual base salary as in effect immediately prior to the Change in Control or as the same may be increased from time to time thereafter (or the failure to pay such compensation);
iii.any requirement of the Company or any of its subsidiaries or affiliates that the Executive be based more than thirty-five (35) miles from the location where the Executive is based immediately before the Change in Control (excluding reasonable travel on Company business to the extent substantially consistent with the Executive’s authority, duties, or responsibilities with the Company); or
iv.the failure of the Company to obtain the assumption agreement from any successor as contemplated in Section 7.b.ii or any other material breach of this Agreement (or other material agreement between the Company and the Executive);
provided, however, that Good Reason shall not exist unless (i) the Executive provides written notice to the Company within sixty (60) days following the initial occurrence of any of the events described in clauses (i)-(iv); (ii) the Company fails to cure the event or circumstances within thirty (30) days after receipt of such notice (the “cure period”); and (iii) the Executive’s Termination Date is effective within thirty (30) days following the end of the cure period.
i.“Person” means any individual, corporation, partnership, limited liability company, association, joint-stock company, trust, unincorporated organization, government or political subdivision thereof, or other entity.
j.“Post-CIC Period” means the period beginning on (and including) the date of the consummation of a Change in Control and ending on (and including) the date that is two years following the consummation of such Change in Control.
k.“Pre-CIC Period” means the thirty (30)-day period prior to the consummation of a Change in Control.
l.“Pro Rata Bonus” means (i) the greater of the Executive’s target annual cash incentive bonus for the calendar year in which the Termination Date occurs and the annual cash incentive bonus that would be paid to the Executive with respect to the calendar year in which the Termination Date occurs based on actual performance measured against the performance metrics as of the Termination Date, multiplied by (ii) a fraction, the numerator of which is the number of days from the first day of the performance period applicable to such annual cash incentive bonus to and including the Termination Date, and the denominator of which is the total number of days in such performance period.
m.“Qualifying Termination” means (i) during the Pre-CIC Period, a termination of the Executive’s employment by the Company without Cause and (ii) during the Post-CIC Period, a termination of the Executive’s employment (A) by the Company without Cause or (B) by the Executive for Good Reason. In no event shall a Qualifying Termination include a termination of the Executive’s employment (1) by the Company for Cause, (2) by the Executive for any reason other than Good Reason, or (3) on account of death or Disability.
n.“Termination Date” means the date on which the Executive separates from service within the meaning of Section 409A of the Code.
o.“Termination Period” means both the Pre-CIC Period and the Post-CIC Period.
2.Severance Payments.
a.Accrued Obligations. If Executive’s employment is terminated for any reason during the Termination Period, then subject to Section 3, the Company shall pay or provide to the Executive (or the Executive’s beneficiary or estate), the Accrued Compensation. For purposes of this Agreement, “Accrued Compensation” shall mean all amounts that have accrued to the benefit of the Executive through the Termination Date but have not been paid as of the Termination Date including: (i) base salary, (ii) reimbursement for reasonable and necessary expenses incurred by the Executive on behalf of the Company or any of its subsidiaries or affiliates during the period ending on the Termination Date, (iii) vacation and sick leave pay (to the extent provided by Company policy or applicable law), (iv) any earned but unpaid annual bonus for the calendar year prior to the calendar year in which the Termination Date occurs, with all amounts owed to the Executive under each of (i), (ii), (iii), and (iv) payable in a single lump sum cash payment no later than the Company’s first regularly scheduled payroll date after the Termination Date (unless required to be paid earlier by applicable law), and (v) any amounts that are vested benefits or that the Executive is otherwise entitled to receive under any plan, policy, practice, or program of, or any other contract or agreement with, the Company at or subsequent to the Termination Date, payable in accordance with such plan, policy, practice, or program, contract, or agreement.
b.Change in Control Severance. If a Change in Control occurs and the Executive experiences a Qualifying Termination during the Termination Period, then subject to Sections 2.c, 3, and 4 and the Executive’s continued compliance with Section 5, in addition to the Accrued Compensation, but in lieu of any other severance or payments or benefits the Executive may be entitled to under any other agreement or arrangement:
i.The Company shall pay to the Executive a cash payment in an amount equal to one and a half (1.5), multiplied by the Executive’s Final Average Compensation;
ii.The Company shall pay to the Executive a cash payment in an amount equal to the Executive’s Pro Rata Bonus;
iii.The Company shall pay to the Executive a cash payment in an amount equal, on an after-tax basis, to the full cost of continued coverage, at the same level of coverage as in effect immediately prior to the Termination Date, for the Executive (and the Executive’s covered spouse and dependents, as applicable) pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for the eighteen (18)-month period following the Termination Date (for the avoidance of doubt, regardless of whether the Executive elects COBRA coverage); and
iv.All outstanding, unvested equity or equity-based incentive awards with respect to the equity securities of the Company or any of its subsidiaries or affiliates (including, without limitation, stock options, restricted stock, and restricted stock units) held by the Executive (A) that are subject solely to time-based vesting requirements as of the Termination Date, will vest in full as of the Termination Date (provided that if such Qualifying Termination occurs during the Pre-CIC Period, such awards shall only vest subject to, and as of immediately prior to, the consummation of the Change in Control) and (B) that are subject to performance-based vesting requirements, will vest in accordance with the award agreement governing such award.
c.Timing and Release. The Company’s obligation to pay or provide the Executive the payments and benefits set forth in Section 2.b (collectively, the “Severance Benefits”) shall be subject to, contingent upon, and in consideration of the Executive’s execution and non-revocation of a general waiver and release of claims in a form satisfactory to the Company (the “Release”) within fifty-three (53) days following the Termination Date, which Release shall, for the avoidance of doubt, include reaffirmation of the restrictive covenants set forth below. The amounts provided for in Sections 2.b.i - 2.b.iii shall be paid to the Executive in a single lump sum cash payment on the sixtieth (60th) day following the Termination Date.
d.Exclusivity of Severance Benefits. For the avoidance of doubt, if the Executive is entitled to the Severance Benefits, then the Severance Benefits shall be in lieu of and not in addition to any other severance or similar payment or benefit under any other agreement or arrangement.
3.Withholding. The Company shall have the authority and right to withhold an amount sufficient to satisfy federal, state and local taxes or other deductions required by law to be withheld with respect to any payments or benefits under this Agreement.
4.Code Section 280G. Notwithstanding any provision of this Agreement to the contrary, in the event it shall be determined that, in connection with a Change in Control, any payment, benefit, or acceleration of vesting to or for the benefit of the Executive (whether pursuant to the terms of this Agreement or otherwise) (“Potential Parachute Payments”) would be subject to the excise tax imposed by Section 4999 of the Code or any similar tax payable under any U.S. federal, state, local, foreign or other law (“Excise Taxes”), then the Potential Parachute Payments shall be reduced to an amount that is one dollar less than the largest amount that would not give rise to such excise tax (the “Reduced Amount”) if and only if such Reduced Amount would be greater than the net after-tax proceeds (taking into account both the Excise Taxes and any interest or penalties payable by the Executive with respect thereto) of the unreduced Potential Parachute Payments payable to the Executive. If any Potential Parachute Payments are required to be reduced pursuant to this Section 4, such reductions shall be applied first to the amount of lump sum cash severance payments payable under Section 2.b, and then applied to the amounts payable with respect to any equity or equity-based incentive awards, and if further reductions are necessary, such reductions shall be applied on a prorated basis to all other Potential Parachute Payments.
5.Restrictive Covenants. As a material condition of this Agreement, the Executive shall comply with the Restrictive Covenants set forth in this Section 5. The Executive acknowledges and
agrees that the covenants contained in this Section 5 are in addition to, and not in lieu of, any similar restrictions that may exist in other agreements between the Executive, on the one hand, and the Company or its subsidiaries on the other hand.
a.Non-Competition. During the period of the Executive’s employment with the Company (the “Employment Period”) and, if the Executive receives Severance Benefits pursuant to this Agreement, for a period of twelve (12) months following the Termination Date (the “Post-Termination Restricted Period”), the Executive shall not, directly or indirectly, individually or on behalf of any Person, in any jurisdiction in which the Company conducts the Business of the Company and throughout the entirety of the United States of America, (i) own any interest in any business or enterprise that engages in the Business of the Company, or (ii) carry on or engage in the Business of the Company or any part of the Business of the Company where the Executive’s engagement or involvement is the same as, or is substantially similar to, the services the Executive performed as an employee of the Company. For this purpose, “Business of the Company” means sale-leaseback, joint venture, and mortgage and mezzanine financing of need-driven and discretionary senior housing investments. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from investing in the publicly-traded equity securities of a Person engaged in the Business of the Company, so long as the Executive (A) is not a controlling person of, or a member of a group which controls, such Person, (B) does not directly or indirectly own more than one percent (1%) of any class of securities of such Person and (C) does not undertake activities involving the Business of the Company with respect to such Person and otherwise have no active participation in the business of such Person.
b.Confidentiality. The Executive acknowledges that, during the course of the Executive’s employment with the Company, the Executive will create and have access to information about the Company or its subsidiaries or affiliates and that the Executive’s employment with the Company shall bring the Executive into close contact with confidential and proprietary information of the Company and its subsidiaries or affiliates. In recognition of the foregoing, the Executive agrees, at all times during the Employment Period and at all times thereafter, to hold in confidence, and not to use, except for the benefit of the Company, or to disclose to any Person, firm, corporation, or other entity without written authorization of the Company, any Confidential Information that the Executive obtains or creates. The Executive further agrees not to make copies of such Confidential Information except as authorized by the Company. The Executive understand that “Confidential Information” means information that the Company or its subsidiaries or affiliates has or will develop, acquire, create, compile, discover, or own, that has value in or to the business of the Company or its subsidiaries or affiliates that is not generally known. The Executive understands that Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual or anticipated business and/or products, research, or development of the Company or its subsidiaries or affiliates, or to the technical data or trade secrets of the Company or its subsidiaries or affiliates, including, but not limited to, research, development or product plans, or other information regarding the products or services and markets of the Company or its subsidiaries or affiliates, and customer lists (including, but not limited to, customers of the Company or its subsidiaries or affiliates on whom the Executive called or with whom the Executive may become acquainted during the term of the Executive’s employment),
software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, acquisition strategies, marketing, finances, confidential personnel information (such as medical records), and other business information disclosed by the Company or its subsidiaries or affiliates either directly or indirectly in writing, orally, or by drawings or inspection of premises, parts, equipment, or other property of the Company. Notwithstanding the foregoing, Confidential Information shall not include (i) any of the foregoing items that have become publicly and widely known through no unauthorized disclosure by the Executive or others who were under confidentiality obligations as to the item or items involved or (ii) any information that the Executive is privileged or required to disclose to, or by, any law, governmental or judicial authority. Additionally, Confidential Information does not include information that arises solely from the Executive's general training, knowledge, skill, or experience.
c.The Executive expressly acknowledges that any breach or threatened breach of any of the terms and/or conditions set forth in this Section 5 will result in substantial, continuing, and irreparable injury to the Company. Therefore, the Executive hereby agrees that, in addition to any other remedy that may be available to the Company, the Company shall be entitled to seek injunctive relief, specific performance, or other equitable relief in the event of any breach or threatened breach of the terms of this Section 5, without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach or posting a bond. Notwithstanding any other provision to the contrary, the Executive acknowledges and agrees that the restrictive period set forth above shall be tolled during any period of violation of any of the Restrictive Covenants in this Section 5 and during any other period required for litigation during which the Company seeks to enforce such covenants against the Company if it is ultimately determined that the Executive was in breach of such covenants.
d.Each of the rights enumerated in this Section 5 shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. If, however, any of the provisions of this Section 5 or any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of this Section 5, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held to be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, the Executive agrees that the court making such determination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration, scope, and/or area permissible by law, and in its reduced form said provision shall then be enforceable.
6.Term of Agreement. This Agreement shall be effective on the Effective Date and shall terminate upon the earlier to occur of (i) the Executive’s termination of employment with the Company for any reason other than a Qualifying Termination prior to the consummation of a Change in Control and (ii) the expiration of the Termination Period with respect to the first Change in Control to occur after the Effective Date; provided, however, that if the Executive incurs a Qualifying Termination during the Termination Period, this Agreement shall continue in full force and effect until such time as all obligations of the Company hereunder have been fulfilled and all benefits required hereunder have been paid or provided to the Executive.
7.Miscellaneous.
a.Scope of Agreement. Nothing in this Agreement shall be deemed to entitle the Executive to continued employment or service with the Company or its subsidiaries or affiliates and, if the Executive’s employment with the Company or its subsidiaries or affiliates terminates at a time other than during the Termination Period, then the Executive shall have no further rights under this Agreement.
b.Successors; Binding Agreement.
i.This Agreement shall not be terminated by any merger or consolidation of the Company whereby the Company is or is not the surviving or resulting corporation or as a result of any transfer of all or substantially all of the assets of the Company. In the event of any such merger, consolidation, or transfer of assets, the provisions of this Agreement shall be binding upon the surviving or resulting corporation or the person or entity to which such assets are transferred, and all references herein to “the Company” following such merger, consolidation, or transfer of assets shall be deemed references to such surviving or resulting corporation or transferee.
ii.The Company agrees that concurrently with any merger or consolidation in which the Company is not the surviving or resulting corporation or any transfer of all or substantially all of the assets of the Company, it will cause any successor or transferee unconditionally to assume all of the obligations of the Company hereunder. Failure of the Company to obtain such assumption prior to or concurrently with the effectiveness of any such merger, consolidation, or transfer of assets shall be a breach of this Agreement.
iii.This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive shall die while any amounts would be payable to the Executive hereunder had the Executive continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to such person or persons appointed in writing by the Executive to receive such amounts or, if no person is so appointed, to the Executive’s estate.
c.Notices.
i.For purposes of this Agreement, all notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given when delivered or three (3) business days after deposit in the United States mail, certified and return receipt requested, postage prepaid, addressed:
1.if to the Executive, to the home address of the Executive maintained in the Company’s business records, and if to the Company, to 222 Robert Rose Drive, Murfreesboro, Tennessee 37129, Attention: Chairman of the Compensation Committee of the Board, or
2.to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.
ii.A written notice of the Executive’s Termination Date by the Company or the Executive, as the case may be, to the other, shall (A) indicate the specific termination provision in this Agreement relied upon, (B) to the extent applicable, set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated and (C) specify the Termination Date (which date shall be not less than fifteen (15) days after the giving of such notice). The failure by the Executive or the Company to set forth in such notice any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company hereunder or preclude the Executive or the Company from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.
d.No Mitigation; Resolution of Disputes.
i.The Company’s obligation to make any payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense, or other claim, right, or action which the Company may have against the Executive or others. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement, and such amounts shall not be reduced whether or not the Executive obtains other employment.
ii.If there shall be any dispute between the Company and the Executive in the event of any termination of the Executive’s employment, then, unless and until there is a final, nonappealable judgment by a court or arbitral tribunal of competent jurisdiction or a written agreement signed by both parties addressing such dispute, in each case declaring that such termination was for Cause, that the termination of employment by the Executive was without Good Reason, or that the Company is not otherwise obligated to pay any amount to the Executive under Section 2, the Company shall pay all amounts, and provide all benefits, to the Executive that the Company would be required to pay or provide pursuant to this Agreement as though such termination were a Qualifying Termination; provided, however, that the Company shall not be required to pay any disputed amounts pursuant to this Section 7.d.ii except upon receipt of an undertaking by or on behalf of the Executive to repay all such amounts to which the Executive is ultimately adjusted by such court not to be entitled.
e.Code Section 409A.
i.This Agreement is intended either to be exempt from or to comply with the requirements of Section 409A of the Code and shall be interpreted and construed consistently with such intent. Without limiting the foregoing, all payments and benefits provided under this Agreement are intended to be exempt from Section
409A of the Code to the maximum extent possible, under either the separation pay exemption pursuant to Treasury Regulation Section 1.409A-1(b)(9)(iii) or as short-term deferrals pursuant to Treasury Regulation Section 1.409A-1(b)(4), and for this purpose, each payment shall constitute a “separately identified” amount within the meaning of Treasury Regulation Section 1.409A-2(b)(2). In the event the terms of this Agreement would subject the Executive to taxes or penalties under Section 409A of the Code (“409A Penalties”), the Company and the Executive shall cooperate diligently to amend the terms of the Agreement to avoid such 409A Penalties, to the extent possible; provided that in no event shall the Company or any of its subsidiaries or affiliates, or any of their respective directors, officers, employees, designees, or agents be responsible for any 409A Penalties (or any related taxes, interest, penalties, costs, or damages) imposed on the Executive that arise in connection with any amounts payable under this Agreement.
ii.Notwithstanding any other provision in this Agreement, to the extent any payments hereunder constitutes nonqualified deferred compensation, within the meaning of Section 409A of the Code, then if the Executive is a “specified employee,” as defined in Section 409A of the Code, as of the Termination Date, then to the extent any amount payable under this Agreement is payable upon the Executive’s separation from service, within the meaning of Section 409A of the Code, and under the terms of this Agreement would be payable prior to the six (6)-month anniversary of the Executive’s Termination Date, such payment, without interest, shall be delayed until the earlier of (A) the date immediately following the six (6)-month anniversary of the Termination Date or (B) the date of the Executive’s death.
f.Governing Law; Validity. The interpretation, construction and performance of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Tennessee, without regard to the conflicts of law principles thereof. Each party hereby irrevocably submits to the non-exclusive jurisdiction of the state and federal courts sitting in Rutherford County, Tennessee, for the adjudication of any dispute hereunder or in connection herewith and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which other provisions shall remain in full force and effect.
g.Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and both of which together shall constitute one and the same instrument.
h.Modification; Waiver. No provision of this Agreement may be modified or waived unless such modification or waiver is agreed to in writing and signed by the Executive and by a duly authorized officer of the Company. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar
or dissimilar provisions or conditions at the same or at any prior or subsequent time. Failure by the Executive or the Company to insist upon strict compliance with any provision of this Agreement or to assert any right the Executive or the Company may have hereunder, including, without limitation, the right of the Executive to terminate employment for Good Reason, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.
i.Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, if any, understandings and arrangements, oral or written, between the parties hereto with respect to the subject matter hereof.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly authorized officer of the Company and the Executive has executed this Agreement as of the day and year first above written.
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| NATIONAL HEALTH INVESTORS, INC. |
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| By: | | /s/ D. Eric Mendelsohn |
| Name: | | D. Eric Mendelsohn |
| Title: | | President and CEO |
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| EXECUTIVE |
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| By: | | /s/ Kristin S. Gaines |
| Name: | | Kristin S. Gaines |
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CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT (this “Agreement”) is entered into as of February 26, 2024 (the “Effective Date”), by and between National Health Investors, Inc., a Maryland corporation (the “Company”), and Kevin C. Pascoe (the “Executive”).
W I T N E S S E T H
WHEREAS, the Executive currently serves as a key employee of the Company and his or her services and knowledge are valuable to the Company; and
WHEREAS, the Committee (as defined in Section 1) has determined that it is in the best interests of the Company and its stockholders to secure the Executive’s continued services and objectivity in the event of any threat or occurrence of, or negotiation or other action that could lead to, or create the possibility of, a Change in Control (as defined in Section 1) of the Company, without concern as to whether the Executive might be hindered or distracted by personal uncertainties and risks created by any such possible Change in Control, and to encourage the Executive’s full attention and dedication to the Company, and in order to further such interests, the Committee has authorized the Company to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants, representations and warranties contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1.Definitions. As used in this Agreement, the following terms shall have the respective meanings set forth below:
a.“Board” means the Board of Directors of the Company.
b.“Cause” means (i) the Executive’s willful refusal to follow a lawful order of the Board and/or the Executive’s manager, subject, however, to the Executive’s right to receive written notice of the order not followed by the Executive and the opportunity to promptly follow the order, (ii) the Executive’s willful engagement in conduct materially injurious to the business interests of the Company or any of its subsidiaries and affiliates as determined in good faith by the Board or the Committee, (iii) the Executive’s conviction (including a guilty plea or a plea of no contest) of theft, embezzlement, fraud, misappropriation, illegal use or possession of drugs or alcohol, or of any crime that discredits the Company or any of its subsidiaries or affiliates or is detrimental to the reputation or goodwill of the Company or any of its subsidiaries or affiliates as determined in good faith by the Board or the Committee, or (iv) the Executive’s commission of any act of fraud or dishonesty, or commission of an immoral or unethical act, that reflects negatively on the Company as determined in good faith by the Board or the Committee.
c.“Change in Control” means the first to occur of:
i.The date that any one Person, or more than one Person acting as a group, acquires ownership of stock of the Company that, together with stock held by such Person or group, constitutes more than fifty percent (50%) of the total voting power of the stock of the Company; provided, however, that the merger or consolidation of the Company with another entity as a result of which fifty percent (50%) or more of the outstanding voting securities of the surviving or resulting entity (or of the parent entity of such resulting or surviving entity) shall be owned in the aggregate by the shareholders of the Company immediately prior to such merger or consolidation, shall not constitute a Change in Control;
ii.The date of the merger or consolidation of the Company with another entity as a result of which less than fifty percent (50%) of the outstanding voting securities of the surviving or resulting entity (or of the parent entity of such resulting or surviving entity) shall be owned in the aggregate by the shareholders of the Company immediately prior to such merger or consolidation;
iii.The date that a majority of members of the Board are replaced during any twelve (12)-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election; or
iv.On the date that any one Person, or more than one Person acting as a group, acquires (or has acquired during the twelve (12)-month period ending on the date of the most recent acquisition by such person or persons) assets, directly or indirectly, from the Company that have a total gross fair market value equal to or more than fifty percent (50%) of the total gross fair market value of all of the assets owned, directly or indirectly, by the Company immediately prior to such acquisition or acquisitions. Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred under this Section 1.c.iv when there is a transfer to an entity that is controlled by the shareholders of the Company immediately after the transfer as provided in the following sentence. A transfer of assets by Company is not treated as a change in the ownership of such assets if the assets are transferred to (1) a shareholder of the Company (immediately before the asset transfer) in exchange for or with respect to its stock in the Company, (2) an entity, fifty percent (50%) or more of the total voting power of which is owned, directly or indirectly, by the Company, (3) a Person, or more than one Person acting as a group, that owns, directly or indirectly, fifty percent (50%) or more of the total voting power of all the outstanding stock of the Company, or (4) an entity, at least fifty percent (50%) of the total value or voting power of which is owned, directly or indirectly, by a person described in clause (3) of this Section 1.c.iv.
Solely to the extent necessary to avoid adverse consequences under Section 409A (including, without limitation, to comply with the anti-toggling rules of Section 409A), a Change in Control shall be limited to a “change in the ownership of the Company,” a “change in the effective control of the Company,” or a “change in the ownership of a substantial portion of the assets of the Company” as such terms are defined in Section 1.409A-3(i)(5) of the U.S. Treasury Regulations.
d.“Code” means the Internal Revenue Code of 1986, as amended, including any regulations adopted thereunder.
e.“Committee” means the Compensation Committee of the Board.
f.“Disability” means the Executive’s inability, due to physical or mental incapacity, to perform the essential functions of his job with reasonable accommodation for longer than three (3) consecutive months, or for one hundred twenty (120) days out of any three hundred sixty-five (365)-day period.
g.“Final Average Compensation” means the average of the sum of the Executive’s annual base salary and bonus over the most recent five (5) consecutive calendar years, including the calendar year in which the Termination Date occurs. For purposes of calculating the average, (i) the annual base salary for the calendar year in which the Termination Date occurs shall be the annual base salary as of such Termination Date or, if the Executive’s Qualifying Termination is for Good Reason as a result of a material reduction in his base salary, shall be the annual base salary in effect as of immediately prior to such reduction, (ii) the bonus for the calendar year in which the Termination Date occurs shall be the target annual cash incentive bonus payable to the Executive for such calendar year (or in which the Change in Control occurs, if greater), (iii) the bonus for each other calendar year shall be the annual cash incentive bonus paid with respect to performance during such calendar year, even if paid in the following calendar year, and (iv) if the Executive has been employed by the Company for less than five (5) full calendar years (counting the final calendar year of employment as a full calendar year), the Executive’s Final Average Compensation shall be based on the number of full calendar years in which the Executive was an employee of the Company (again counting the final calendar year of employment as a full calendar year).
h.“Good Reason” means, without the Executive’s express written consent, the occurrence of any of the following events:
i.a material diminution in the Executive’s authority, duties, or responsibilities with the Company as in effect immediately prior to the Change in Control (including, without limitation, a material adverse change in the Executive’s reporting relationship after the Change in Control, as a result of the Company’s stock ceasing to be publicly traded, of the Company’s becoming a subsidiary of another entity, or otherwise);
ii.a material reduction in the Executive’s rate of annual base salary as in effect immediately prior to the Change in Control or as the same may be increased from time to time thereafter (or the failure to pay such compensation);
iii.any requirement of the Company or any of its subsidiaries or affiliates that the Executive be based more than thirty-five (35) miles from the location where the Executive is based immediately before the Change in Control (excluding reasonable travel on Company business to the extent substantially consistent with the Executive’s authority, duties, or responsibilities with the Company); or
iv.the failure of the Company to obtain the assumption agreement from any successor as contemplated in Section 7.b.ii or any other material breach of this Agreement (or other material agreement between the Company and the Executive);
provided, however, that Good Reason shall not exist unless (i) the Executive provides written notice to the Company within sixty (60) days following the initial occurrence of any of the events described in clauses (i)-(iv); (ii) the Company fails to cure the event or circumstances within thirty (30) days after receipt of such notice (the “cure period”); and (iii) the Executive’s Termination Date is effective within thirty (30) days following the end of the cure period.
i.“Person” means any individual, corporation, partnership, limited liability company, association, joint-stock company, trust, unincorporated organization, government or political subdivision thereof, or other entity.
j.“Post-CIC Period” means the period beginning on (and including) the date of the consummation of a Change in Control and ending on (and including) the date that is two years following the consummation of such Change in Control.
k.“Pre-CIC Period” means the thirty (30)-day period prior to the consummation of a Change in Control.
l.“Pro Rata Bonus” means (i) the greater of the Executive’s target annual cash incentive bonus for the calendar year in which the Termination Date occurs and the annual cash incentive bonus that would be paid to the Executive with respect to the calendar year in which the Termination Date occurs based on actual performance measured against the performance metrics as of the Termination Date, multiplied by (ii) a fraction, the numerator of which is the number of days from the first day of the performance period applicable to such annual cash incentive bonus to and including the Termination Date, and the denominator of which is the total number of days in such performance period.
m.“Qualifying Termination” means (i) during the Pre-CIC Period, a termination of the Executive’s employment by the Company without Cause and (ii) during the Post-CIC Period, a termination of the Executive’s employment (A) by the Company without Cause or (B) by the Executive for Good Reason. In no event shall a Qualifying Termination include a termination of the Executive’s employment (1) by the Company for Cause, (2) by the Executive for any reason other than Good Reason, or (3) on account of death or Disability.
n.“Termination Date” means the date on which the Executive separates from service within the meaning of Section 409A of the Code.
o.“Termination Period” means both the Pre-CIC Period and the Post-CIC Period.
2.Severance Payments.
a.Accrued Obligations. If Executive’s employment is terminated for any reason during the Termination Period, then subject to Section 3, the Company shall pay or provide to the Executive (or the Executive’s beneficiary or estate), the Accrued Compensation. For purposes of this Agreement, “Accrued Compensation” shall mean all amounts that have accrued to the benefit of the Executive through the Termination Date but have not been paid as of the Termination Date including: (i) base salary, (ii) reimbursement for reasonable and necessary expenses incurred by the Executive on behalf of the Company or any of its subsidiaries or affiliates during the period ending on the Termination Date, (iii) vacation and sick leave pay (to the extent provided by Company policy or applicable law), (iv) any earned but unpaid annual bonus for the calendar year prior to the calendar year in which the Termination Date occurs, with all amounts owed to the Executive under each of (i), (ii), (iii), and (iv) payable in a single lump sum cash payment no later than the Company’s first regularly scheduled payroll date after the Termination Date (unless required to be paid earlier by applicable law), and (v) any amounts that are vested benefits or that the Executive is otherwise entitled to receive under any plan, policy, practice, or program of, or any other contract or agreement with, the Company at or subsequent to the Termination Date, payable in accordance with such plan, policy, practice, or program, contract, or agreement.
b.Change in Control Severance. If a Change in Control occurs and the Executive experiences a Qualifying Termination during the Termination Period, then subject to Sections 2.c, 3, and 4 and the Executive’s continued compliance with Section 5, in addition to the Accrued Compensation, but in lieu of any other severance or payments or benefits the Executive may be entitled to under any other agreement or arrangement:
i.The Company shall pay to the Executive a cash payment in an amount equal to one and a half (1.5), multiplied by the Executive’s Final Average Compensation;
ii.The Company shall pay to the Executive a cash payment in an amount equal to the Executive’s Pro Rata Bonus;
iii.The Company shall pay to the Executive a cash payment in an amount equal, on an after-tax basis, to the full cost of continued coverage, at the same level of coverage as in effect immediately prior to the Termination Date, for the Executive (and the Executive’s covered spouse and dependents, as applicable) pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for the eighteen (18)-month period following the Termination Date (for the avoidance of doubt, regardless of whether the Executive elects COBRA coverage); and
iv.All outstanding, unvested equity or equity-based incentive awards with respect to the equity securities of the Company or any of its subsidiaries or affiliates (including, without limitation, stock options, restricted stock, and restricted stock units) held by the Executive (A) that are subject solely to time-based vesting requirements as of the Termination Date, will vest in full as of the Termination Date (provided that if such Qualifying Termination occurs during the Pre-CIC Period, such awards shall only vest subject to, and as of immediately prior to, the consummation of the Change in Control) and (B) that are subject to performance-based vesting requirements, will vest in accordance with the award agreement governing such award.
c.Timing and Release. The Company’s obligation to pay or provide the Executive the payments and benefits set forth in Section 2.b (collectively, the “Severance Benefits”) shall be subject to, contingent upon, and in consideration of the Executive’s execution and non-revocation of a general waiver and release of claims in a form satisfactory to the Company (the “Release”) within fifty-three (53) days following the Termination Date, which Release shall, for the avoidance of doubt, include reaffirmation of the restrictive covenants set forth below. The amounts provided for in Sections 2.b.i - 2.b.iii shall be paid to the Executive in a single lump sum cash payment on the sixtieth (60th) day following the Termination Date.
d.Exclusivity of Severance Benefits. For the avoidance of doubt, if the Executive is entitled to the Severance Benefits, then the Severance Benefits shall be in lieu of and not in addition to any other severance or similar payment or benefit under any other agreement or arrangement.
3.Withholding. The Company shall have the authority and right to withhold an amount sufficient to satisfy federal, state and local taxes or other deductions required by law to be withheld with respect to any payments or benefits under this Agreement.
4.Code Section 280G. Notwithstanding any provision of this Agreement to the contrary, in the event it shall be determined that, in connection with a Change in Control, any payment, benefit, or acceleration of vesting to or for the benefit of the Executive (whether pursuant to the terms of this Agreement or otherwise) (“Potential Parachute Payments”) would be subject to the excise tax imposed by Section 4999 of the Code or any similar tax payable under any U.S. federal, state, local, foreign or other law (“Excise Taxes”), then the Potential Parachute Payments shall be reduced to an amount that is one dollar less than the largest amount that would not give rise to such excise tax (the “Reduced Amount”) if and only if such Reduced Amount would be greater than the net after-tax proceeds (taking into account both the Excise Taxes and any interest or penalties payable by the Executive with respect thereto) of the unreduced Potential Parachute Payments payable to the Executive. If any Potential Parachute Payments are required to be reduced pursuant to this Section 4, such reductions shall be applied first to the amount of lump sum cash severance payments payable under Section 2.b, and then applied to the amounts payable with respect to any equity or equity-based incentive awards, and if further reductions are necessary, such reductions shall be applied on a prorated basis to all other Potential Parachute Payments.
5.Restrictive Covenants. As a material condition of this Agreement, the Executive shall comply with the Restrictive Covenants set forth in this Section 5. The Executive acknowledges and
agrees that the covenants contained in this Section 5 are in addition to, and not in lieu of, any similar restrictions that may exist in other agreements between the Executive, on the one hand, and the Company or its subsidiaries on the other hand.
a.Non-Competition. During the period of the Executive’s employment with the Company (the “Employment Period”) and, if the Executive receives Severance Benefits pursuant to this Agreement, for a period of twelve (12) months following the Termination Date (the “Post-Termination Restricted Period”), the Executive shall not, directly or indirectly, individually or on behalf of any Person, in any jurisdiction in which the Company conducts the Business of the Company and throughout the entirety of the United States of America, (i) own any interest in any business or enterprise that engages in the Business of the Company, or (ii) carry on or engage in the Business of the Company or any part of the Business of the Company where the Executive’s engagement or involvement is the same as, or is substantially similar to, the services the Executive performed as an employee of the Company. For this purpose, “Business of the Company” means sale-leaseback, joint venture, and mortgage and mezzanine financing of need-driven and discretionary senior housing investments. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from investing in the publicly-traded equity securities of a Person engaged in the Business of the Company, so long as the Executive (A) is not a controlling person of, or a member of a group which controls, such Person, (B) does not directly or indirectly own more than one percent (1%) of any class of securities of such Person and (C) does not undertake activities involving the Business of the Company with respect to such Person and otherwise have no active participation in the business of such Person.
b.Confidentiality. The Executive acknowledges that, during the course of the Executive’s employment with the Company, the Executive will create and have access to information about the Company or its subsidiaries or affiliates and that the Executive’s employment with the Company shall bring the Executive into close contact with confidential and proprietary information of the Company and its subsidiaries or affiliates. In recognition of the foregoing, the Executive agrees, at all times during the Employment Period and at all times thereafter, to hold in confidence, and not to use, except for the benefit of the Company, or to disclose to any Person, firm, corporation, or other entity without written authorization of the Company, any Confidential Information that the Executive obtains or creates. The Executive further agrees not to make copies of such Confidential Information except as authorized by the Company. The Executive understand that “Confidential Information” means information that the Company or its subsidiaries or affiliates has or will develop, acquire, create, compile, discover, or own, that has value in or to the business of the Company or its subsidiaries or affiliates that is not generally known. The Executive understands that Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual or anticipated business and/or products, research, or development of the Company or its subsidiaries or affiliates, or to the technical data or trade secrets of the Company or its subsidiaries or affiliates, including, but not limited to, research, development or product plans, or other information regarding the products or services and markets of the Company or its subsidiaries or affiliates, and customer lists (including, but not limited to, customers of the Company or its subsidiaries or affiliates on whom the Executive called or with whom the Executive may become acquainted during the term of the Executive’s employment),
software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, acquisition strategies, marketing, finances, confidential personnel information (such as medical records), and other business information disclosed by the Company or its subsidiaries or affiliates either directly or indirectly in writing, orally, or by drawings or inspection of premises, parts, equipment, or other property of the Company. Notwithstanding the foregoing, Confidential Information shall not include (i) any of the foregoing items that have become publicly and widely known through no unauthorized disclosure by the Executive or others who were under confidentiality obligations as to the item or items involved or (ii) any information that the Executive is privileged or required to disclose to, or by, any law, governmental or judicial authority. Additionally, Confidential Information does not include information that arises solely from the Executive's general training, knowledge, skill, or experience.
c.The Executive expressly acknowledges that any breach or threatened breach of any of the terms and/or conditions set forth in this Section 5 will result in substantial, continuing, and irreparable injury to the Company. Therefore, the Executive hereby agrees that, in addition to any other remedy that may be available to the Company, the Company shall be entitled to seek injunctive relief, specific performance, or other equitable relief in the event of any breach or threatened breach of the terms of this Section 5, without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach or posting a bond. Notwithstanding any other provision to the contrary, the Executive acknowledges and agrees that the restrictive period set forth above shall be tolled during any period of violation of any of the Restrictive Covenants in this Section 5 and during any other period required for litigation during which the Company seeks to enforce such covenants against the Company if it is ultimately determined that the Executive was in breach of such covenants.
d.Each of the rights enumerated in this Section 5 shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. If, however, any of the provisions of this Section 5 or any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of this Section 5, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held to be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, the Executive agrees that the court making such determination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration, scope, and/or area permissible by law, and in its reduced form said provision shall then be enforceable.
6.Term of Agreement. This Agreement shall be effective on the Effective Date and shall terminate upon the earlier to occur of (i) the Executive’s termination of employment with the Company for any reason other than a Qualifying Termination prior to the consummation of a Change in Control and (ii) the expiration of the Termination Period with respect to the first Change in Control to occur after the Effective Date; provided, however, that if the Executive incurs a Qualifying Termination during the Termination Period, this Agreement shall continue in full force and effect until such time as all obligations of the Company hereunder have been fulfilled and all benefits required hereunder have been paid or provided to the Executive.
7.Miscellaneous.
a.Scope of Agreement. Nothing in this Agreement shall be deemed to entitle the Executive to continued employment or service with the Company or its subsidiaries or affiliates and, if the Executive’s employment with the Company or its subsidiaries or affiliates terminates at a time other than during the Termination Period, then the Executive shall have no further rights under this Agreement.
b.Successors; Binding Agreement.
i.This Agreement shall not be terminated by any merger or consolidation of the Company whereby the Company is or is not the surviving or resulting corporation or as a result of any transfer of all or substantially all of the assets of the Company. In the event of any such merger, consolidation, or transfer of assets, the provisions of this Agreement shall be binding upon the surviving or resulting corporation or the person or entity to which such assets are transferred, and all references herein to “the Company” following such merger, consolidation, or transfer of assets shall be deemed references to such surviving or resulting corporation or transferee.
ii.The Company agrees that concurrently with any merger or consolidation in which the Company is not the surviving or resulting corporation or any transfer of all or substantially all of the assets of the Company, it will cause any successor or transferee unconditionally to assume all of the obligations of the Company hereunder. Failure of the Company to obtain such assumption prior to or concurrently with the effectiveness of any such merger, consolidation, or transfer of assets shall be a breach of this Agreement.
iii.This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive shall die while any amounts would be payable to the Executive hereunder had the Executive continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to such person or persons appointed in writing by the Executive to receive such amounts or, if no person is so appointed, to the Executive’s estate.
c.Notices.
i.For purposes of this Agreement, all notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given when delivered or three (3) business days after deposit in the United States mail, certified and return receipt requested, postage prepaid, addressed:
1.if to the Executive, to the home address of the Executive maintained in the Company’s business records, and if to the Company, to 222 Robert Rose Drive, Murfreesboro, Tennessee 37129, Attention: Chairman of the Compensation Committee of the Board, or
2.to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.
ii.A written notice of the Executive’s Termination Date by the Company or the Executive, as the case may be, to the other, shall (A) indicate the specific termination provision in this Agreement relied upon, (B) to the extent applicable, set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated and (C) specify the Termination Date (which date shall be not less than fifteen (15) days after the giving of such notice). The failure by the Executive or the Company to set forth in such notice any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company hereunder or preclude the Executive or the Company from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.
d.No Mitigation; Resolution of Disputes.
i.The Company’s obligation to make any payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense, or other claim, right, or action which the Company may have against the Executive or others. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement, and such amounts shall not be reduced whether or not the Executive obtains other employment.
ii.If there shall be any dispute between the Company and the Executive in the event of any termination of the Executive’s employment, then, unless and until there is a final, nonappealable judgment by a court or arbitral tribunal of competent jurisdiction or a written agreement signed by both parties addressing such dispute, in each case declaring that such termination was for Cause, that the termination of employment by the Executive was without Good Reason, or that the Company is not otherwise obligated to pay any amount to the Executive under Section 2, the Company shall pay all amounts, and provide all benefits, to the Executive that the Company would be required to pay or provide pursuant to this Agreement as though such termination were a Qualifying Termination; provided, however, that the Company shall not be required to pay any disputed amounts pursuant to this Section 7.d.ii except upon receipt of an undertaking by or on behalf of the Executive to repay all such amounts to which the Executive is ultimately adjusted by such court not to be entitled.
e.Code Section 409A.
i.This Agreement is intended either to be exempt from or to comply with the requirements of Section 409A of the Code and shall be interpreted and construed consistently with such intent. Without limiting the foregoing, all payments and benefits provided under this Agreement are intended to be exempt from Section
409A of the Code to the maximum extent possible, under either the separation pay exemption pursuant to Treasury Regulation Section 1.409A-1(b)(9)(iii) or as short-term deferrals pursuant to Treasury Regulation Section 1.409A-1(b)(4), and for this purpose, each payment shall constitute a “separately identified” amount within the meaning of Treasury Regulation Section 1.409A-2(b)(2). In the event the terms of this Agreement would subject the Executive to taxes or penalties under Section 409A of the Code (“409A Penalties”), the Company and the Executive shall cooperate diligently to amend the terms of the Agreement to avoid such 409A Penalties, to the extent possible; provided that in no event shall the Company or any of its subsidiaries or affiliates, or any of their respective directors, officers, employees, designees, or agents be responsible for any 409A Penalties (or any related taxes, interest, penalties, costs, or damages) imposed on the Executive that arise in connection with any amounts payable under this Agreement.
ii.Notwithstanding any other provision in this Agreement, to the extent any payments hereunder constitutes nonqualified deferred compensation, within the meaning of Section 409A of the Code, then if the Executive is a “specified employee,” as defined in Section 409A of the Code, as of the Termination Date, then to the extent any amount payable under this Agreement is payable upon the Executive’s separation from service, within the meaning of Section 409A of the Code, and under the terms of this Agreement would be payable prior to the six (6)-month anniversary of the Executive’s Termination Date, such payment, without interest, shall be delayed until the earlier of (A) the date immediately following the six (6)-month anniversary of the Termination Date or (B) the date of the Executive’s death.
f.Governing Law; Validity. The interpretation, construction and performance of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Tennessee, without regard to the conflicts of law principles thereof. Each party hereby irrevocably submits to the non-exclusive jurisdiction of the state and federal courts sitting in Rutherford County, Tennessee, for the adjudication of any dispute hereunder or in connection herewith and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which other provisions shall remain in full force and effect.
g.Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and both of which together shall constitute one and the same instrument.
h.Modification; Waiver. No provision of this Agreement may be modified or waived unless such modification or waiver is agreed to in writing and signed by the Executive and by a duly authorized officer of the Company. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar
or dissimilar provisions or conditions at the same or at any prior or subsequent time. Failure by the Executive or the Company to insist upon strict compliance with any provision of this Agreement or to assert any right the Executive or the Company may have hereunder, including, without limitation, the right of the Executive to terminate employment for Good Reason, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.
i.Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, if any, understandings and arrangements, oral or written, between the parties hereto with respect to the subject matter hereof.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly authorized officer of the Company and the Executive has executed this Agreement as of the day and year first above written.
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| | NATIONAL HEALTH INVESTORS, INC. |
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| | By: | | /s/ D. Eric Mendelsohn |
| | Name: | | D. Eric Mendelsohn |
| | Title: | | President and CEO |
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| | EXECUTIVE |
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| | By: | | /s/ Kevin C. Pascoe |
| | Name: | | Kevin C. Pascoe |
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CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT (this “Agreement”) is entered into as of February 26, 2024 (the “Effective Date”), by and between National Health Investors, Inc., a Maryland corporation (the “Company”), and John L. Spaid (the “Executive”).
W I T N E S S E T H
WHEREAS, the Executive currently serves as a key employee of the Company and his or her services and knowledge are valuable to the Company; and
WHEREAS, the Committee (as defined in Section 1) has determined that it is in the best interests of the Company and its stockholders to secure the Executive’s continued services and objectivity in the event of any threat or occurrence of, or negotiation or other action that could lead to, or create the possibility of, a Change in Control (as defined in Section 1) of the Company, without concern as to whether the Executive might be hindered or distracted by personal uncertainties and risks created by any such possible Change in Control, and to encourage the Executive’s full attention and dedication to the Company, and in order to further such interests, the Committee has authorized the Company to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants, representations and warranties contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1.Definitions. As used in this Agreement, the following terms shall have the respective meanings set forth below:
a.“Board” means the Board of Directors of the Company.
b.“Cause” means (i) the Executive’s willful refusal to follow a lawful order of the Board and/or the Executive’s manager, subject, however, to the Executive’s right to receive written notice of the order not followed by the Executive and the opportunity to promptly follow the order, (ii) the Executive’s willful engagement in conduct materially injurious to the business interests of the Company or any of its subsidiaries and affiliates as determined in good faith by the Board or the Committee, (iii) the Executive’s conviction (including a guilty plea or a plea of no contest) of theft, embezzlement, fraud, misappropriation, illegal use or possession of drugs or alcohol, or of any crime that discredits the Company or any of its subsidiaries or affiliates or is detrimental to the reputation or goodwill of the Company or any of its subsidiaries or affiliates as determined in good faith by the Board or the Committee, or (iv) the Executive’s commission of any act of fraud or dishonesty, or commission of an immoral or unethical act, that reflects negatively on the Company as determined in good faith by the Board or the Committee.
c.“Change in Control” means the first to occur of:
i.The date that any one Person, or more than one Person acting as a group, acquires ownership of stock of the Company that, together with stock held by such Person or group, constitutes more than fifty percent (50%) of the total voting power of the stock of the Company; provided, however, that the merger or consolidation of the Company with another entity as a result of which fifty percent (50%) or more of the outstanding voting securities of the surviving or resulting entity (or of the parent entity of such resulting or surviving entity) shall be owned in the aggregate by the shareholders of the Company immediately prior to such merger or consolidation, shall not constitute a Change in Control;
ii.The date of the merger or consolidation of the Company with another entity as a result of which less than fifty percent (50%) of the outstanding voting securities of the surviving or resulting entity (or of the parent entity of such resulting or surviving entity) shall be owned in the aggregate by the shareholders of the Company immediately prior to such merger or consolidation;
iii.The date that a majority of members of the Board are replaced during any twelve (12)-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election; or
iv.On the date that any one Person, or more than one Person acting as a group, acquires (or has acquired during the twelve (12)-month period ending on the date of the most recent acquisition by such person or persons) assets, directly or indirectly, from the Company that have a total gross fair market value equal to or more than fifty percent (50%) of the total gross fair market value of all of the assets owned, directly or indirectly, by the Company immediately prior to such acquisition or acquisitions. Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred under this Section 1.c.iv when there is a transfer to an entity that is controlled by the shareholders of the Company immediately after the transfer as provided in the following sentence. A transfer of assets by Company is not treated as a change in the ownership of such assets if the assets are transferred to (1) a shareholder of the Company (immediately before the asset transfer) in exchange for or with respect to its stock in the Company, (2) an entity, fifty percent (50%) or more of the total voting power of which is owned, directly or indirectly, by the Company, (3) a Person, or more than one Person acting as a group, that owns, directly or indirectly, fifty percent (50%) or more of the total voting power of all the outstanding stock of the Company, or (4) an entity, at least fifty percent (50%) of the total value or voting power of which is owned, directly or indirectly, by a person described in clause (3) of this Section 1.c.iv.
Solely to the extent necessary to avoid adverse consequences under Section 409A (including, without limitation, to comply with the anti-toggling rules of Section 409A), a Change in Control shall be limited to a “change in the ownership of the Company,” a “change in the effective control of the Company,” or a “change in the ownership of a substantial portion of the assets of the Company” as such terms are defined in Section 1.409A-3(i)(5) of the U.S. Treasury Regulations.
d.“Code” means the Internal Revenue Code of 1986, as amended, including any regulations adopted thereunder.
e.“Committee” means the Compensation Committee of the Board.
f.“Disability” means the Executive’s inability, due to physical or mental incapacity, to perform the essential functions of his job with reasonable accommodation for longer than three (3) consecutive months, or for one hundred twenty (120) days out of any three hundred sixty-five (365)-day period.
g.“Final Average Compensation” means the average of the sum of the Executive’s annual base salary and bonus over the most recent five (5) consecutive calendar years, including the calendar year in which the Termination Date occurs. For purposes of calculating the average, (i) the annual base salary for the calendar year in which the Termination Date occurs shall be the annual base salary as of such Termination Date or, if the Executive’s Qualifying Termination is for Good Reason as a result of a material reduction in his base salary, shall be the annual base salary in effect as of immediately prior to such reduction, (ii) the bonus for the calendar year in which the Termination Date occurs shall be the target annual cash incentive bonus payable to the Executive for such calendar year (or in which the Change in Control occurs, if greater), (iii) the bonus for each other calendar year shall be the annual cash incentive bonus paid with respect to performance during such calendar year, even if paid in the following calendar year, and (iv) if the Executive has been employed by the Company for less than five (5) full calendar years (counting the final calendar year of employment as a full calendar year), the Executive’s Final Average Compensation shall be based on the number of full calendar years in which the Executive was an employee of the Company (again counting the final calendar year of employment as a full calendar year).
h.“Good Reason” means, without the Executive’s express written consent, the occurrence of any of the following events:
i.a material diminution in the Executive’s authority, duties, or responsibilities with the Company as in effect immediately prior to the Change in Control (including, without limitation, a material adverse change in the Executive’s reporting relationship after the Change in Control, as a result of the Company’s stock ceasing to be publicly traded, of the Company’s becoming a subsidiary of another entity, or otherwise);
ii.a material reduction in the Executive’s rate of annual base salary as in effect immediately prior to the Change in Control or as the same may be increased from time to time thereafter (or the failure to pay such compensation);
iii.any requirement of the Company or any of its subsidiaries or affiliates that the Executive be based more than thirty-five (35) miles from the location where the Executive is based immediately before the Change in Control (excluding reasonable travel on Company business to the extent substantially consistent with the Executive’s authority, duties, or responsibilities with the Company); or
iv.the failure of the Company to obtain the assumption agreement from any successor as contemplated in Section 7.b.ii or any other material breach of this Agreement (or other material agreement between the Company and the Executive);
provided, however, that Good Reason shall not exist unless (i) the Executive provides written notice to the Company within sixty (60) days following the initial occurrence of any of the events described in clauses (i)-(iv); (ii) the Company fails to cure the event or circumstances within thirty (30) days after receipt of such notice (the “cure period”); and (iii) the Executive’s Termination Date is effective within thirty (30) days following the end of the cure period.
i.“Person” means any individual, corporation, partnership, limited liability company, association, joint-stock company, trust, unincorporated organization, government or political subdivision thereof, or other entity.
j.“Post-CIC Period” means the period beginning on (and including) the date of the consummation of a Change in Control and ending on (and including) the date that is two years following the consummation of such Change in Control.
k.“Pre-CIC Period” means the thirty (30)-day period prior to the consummation of a Change in Control.
l.“Pro Rata Bonus” means (i) the greater of the Executive’s target annual cash incentive bonus for the calendar year in which the Termination Date occurs and the annual cash incentive bonus that would be paid to the Executive with respect to the calendar year in which the Termination Date occurs based on actual performance measured against the performance metrics as of the Termination Date, multiplied by (ii) a fraction, the numerator of which is the number of days from the first day of the performance period applicable to such annual cash incentive bonus to and including the Termination Date, and the denominator of which is the total number of days in such performance period.
m.“Qualifying Termination” means (i) during the Pre-CIC Period, a termination of the Executive’s employment by the Company without Cause and (ii) during the Post-CIC Period, a termination of the Executive’s employment (A) by the Company without Cause or (B) by the Executive for Good Reason. In no event shall a Qualifying Termination include a termination of the Executive’s employment (1) by the Company for Cause, (2) by the Executive for any reason other than Good Reason, or (3) on account of death or Disability.
n.“Termination Date” means the date on which the Executive separates from service within the meaning of Section 409A of the Code.
o.“Termination Period” means both the Pre-CIC Period and the Post-CIC Period.
2.Severance Payments.
a.Accrued Obligations. If Executive’s employment is terminated for any reason during the Termination Period, then subject to Section 3, the Company shall pay or provide to the Executive (or the Executive’s beneficiary or estate), the Accrued Compensation. For purposes of this Agreement, “Accrued Compensation” shall mean all amounts that have accrued to the benefit of the Executive through the Termination Date but have not been paid as of the Termination Date including: (i) base salary, (ii) reimbursement for reasonable and necessary expenses incurred by the Executive on behalf of the Company or any of its subsidiaries or affiliates during the period ending on the Termination Date, (iii) vacation and sick leave pay (to the extent provided by Company policy or applicable law), (iv) any earned but unpaid annual bonus for the calendar year prior to the calendar year in which the Termination Date occurs, with all amounts owed to the Executive under each of (i), (ii), (iii), and (iv) payable in a single lump sum cash payment no later than the Company’s first regularly scheduled payroll date after the Termination Date (unless required to be paid earlier by applicable law), and (v) any amounts that are vested benefits or that the Executive is otherwise entitled to receive under any plan, policy, practice, or program of, or any other contract or agreement with, the Company at or subsequent to the Termination Date, payable in accordance with such plan, policy, practice, or program, contract, or agreement.
b.Change in Control Severance. If a Change in Control occurs and the Executive experiences a Qualifying Termination during the Termination Period, then subject to Sections 2.c, 3, and 4 and the Executive’s continued compliance with Section 5, in addition to the Accrued Compensation, but in lieu of any other severance or payments or benefits the Executive may be entitled to under any other agreement or arrangement:
i.The Company shall pay to the Executive a cash payment in an amount equal to one and a half (1.5), multiplied by the Executive’s Final Average Compensation;
ii.The Company shall pay to the Executive a cash payment in an amount equal to the Executive’s Pro Rata Bonus;
iii.The Company shall pay to the Executive a cash payment in an amount equal, on an after-tax basis, to the full cost of continued coverage, at the same level of coverage as in effect immediately prior to the Termination Date, for the Executive (and the Executive’s covered spouse and dependents, as applicable) pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for the eighteen (18)-month period following the Termination Date (for the avoidance of doubt, regardless of whether the Executive elects COBRA coverage); and
iv.All outstanding, unvested equity or equity-based incentive awards with respect to the equity securities of the Company or any of its subsidiaries or affiliates (including, without limitation, stock options, restricted stock, and restricted stock units) held by the Executive (A) that are subject solely to time-based vesting requirements as of the Termination Date, will vest in full as of the Termination Date (provided that if such Qualifying Termination occurs during the Pre-CIC Period, such awards shall only vest subject to, and as of immediately prior to, the consummation of the Change in Control) and (B) that are subject to performance-based vesting requirements, will vest in accordance with the award agreement governing such award.
c.Timing and Release. The Company’s obligation to pay or provide the Executive the payments and benefits set forth in Section 2.b (collectively, the “Severance Benefits”) shall be subject to, contingent upon, and in consideration of the Executive’s execution and non-revocation of a general waiver and release of claims in a form satisfactory to the Company (the “Release”) within fifty-three (53) days following the Termination Date, which Release shall, for the avoidance of doubt, include reaffirmation of the restrictive covenants set forth below. The amounts provided for in Sections 2.b.i - 2.b.iii shall be paid to the Executive in a single lump sum cash payment on the sixtieth (60th) day following the Termination Date.
d.Exclusivity of Severance Benefits. For the avoidance of doubt, if the Executive is entitled to the Severance Benefits, then the Severance Benefits shall be in lieu of and not in addition to any other severance or similar payment or benefit under any other agreement or arrangement.
3.Withholding. The Company shall have the authority and right to withhold an amount sufficient to satisfy federal, state and local taxes or other deductions required by law to be withheld with respect to any payments or benefits under this Agreement.
4.Code Section 280G. Notwithstanding any provision of this Agreement to the contrary, in the event it shall be determined that, in connection with a Change in Control, any payment, benefit, or acceleration of vesting to or for the benefit of the Executive (whether pursuant to the terms of this Agreement or otherwise) (“Potential Parachute Payments”) would be subject to the excise tax imposed by Section 4999 of the Code or any similar tax payable under any U.S. federal, state, local, foreign or other law (“Excise Taxes”), then the Potential Parachute Payments shall be reduced to an amount that is one dollar less than the largest amount that would not give rise to such excise tax (the “Reduced Amount”) if and only if such Reduced Amount would be greater than the net after-tax proceeds (taking into account both the Excise Taxes and any interest or penalties payable by the Executive with respect thereto) of the unreduced Potential Parachute Payments payable to the Executive. If any Potential Parachute Payments are required to be reduced pursuant to this Section 4, such reductions shall be applied first to the amount of lump sum cash severance payments payable under Section 2.b, and then applied to the amounts payable with respect to any equity or equity-based incentive awards, and if further reductions are necessary, such reductions shall be applied on a prorated basis to all other Potential Parachute Payments.
5.Restrictive Covenants. As a material condition of this Agreement, the Executive shall comply with the Restrictive Covenants set forth in this Section 5. The Executive acknowledges and
agrees that the covenants contained in this Section 5 are in addition to, and not in lieu of, any similar restrictions that may exist in other agreements between the Executive, on the one hand, and the Company or its subsidiaries on the other hand.
a.Non-Competition. During the period of the Executive’s employment with the Company (the “Employment Period”) and, if the Executive receives Severance Benefits pursuant to this Agreement, for a period of twelve (12) months following the Termination Date (the “Post-Termination Restricted Period”), the Executive shall not, directly or indirectly, individually or on behalf of any Person, in any jurisdiction in which the Company conducts the Business of the Company and throughout the entirety of the United States of America, (i) own any interest in any business or enterprise that engages in the Business of the Company, or (ii) carry on or engage in the Business of the Company or any part of the Business of the Company where the Executive’s engagement or involvement is the same as, or is substantially similar to, the services the Executive performed as an employee of the Company. For this purpose, “Business of the Company” means sale-leaseback, joint venture, and mortgage and mezzanine financing of need-driven and discretionary senior housing investments. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from investing in the publicly-traded equity securities of a Person engaged in the Business of the Company, so long as the Executive (A) is not a controlling person of, or a member of a group which controls, such Person, (B) does not directly or indirectly own more than one percent (1%) of any class of securities of such Person and (C) does not undertake activities involving the Business of the Company with respect to such Person and otherwise have no active participation in the business of such Person.
b.Confidentiality. The Executive acknowledges that, during the course of the Executive’s employment with the Company, the Executive will create and have access to information about the Company or its subsidiaries or affiliates and that the Executive’s employment with the Company shall bring the Executive into close contact with confidential and proprietary information of the Company and its subsidiaries or affiliates. In recognition of the foregoing, the Executive agrees, at all times during the Employment Period and at all times thereafter, to hold in confidence, and not to use, except for the benefit of the Company, or to disclose to any Person, firm, corporation, or other entity without written authorization of the Company, any Confidential Information that the Executive obtains or creates. The Executive further agrees not to make copies of such Confidential Information except as authorized by the Company. The Executive understand that “Confidential Information” means information that the Company or its subsidiaries or affiliates has or will develop, acquire, create, compile, discover, or own, that has value in or to the business of the Company or its subsidiaries or affiliates that is not generally known. The Executive understands that Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual or anticipated business and/or products, research, or development of the Company or its subsidiaries or affiliates, or to the technical data or trade secrets of the Company or its subsidiaries or affiliates, including, but not limited to, research, development or product plans, or other information regarding the products or services and markets of the Company or its subsidiaries or affiliates, and customer lists (including, but not limited to, customers of the Company or its subsidiaries or affiliates on whom the Executive called or with whom the Executive may become acquainted during the term of the Executive’s employment),
software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, acquisition strategies, marketing, finances, confidential personnel information (such as medical records), and other business information disclosed by the Company or its subsidiaries or affiliates either directly or indirectly in writing, orally, or by drawings or inspection of premises, parts, equipment, or other property of the Company. Notwithstanding the foregoing, Confidential Information shall not include (i) any of the foregoing items that have become publicly and widely known through no unauthorized disclosure by the Executive or others who were under confidentiality obligations as to the item or items involved or (ii) any information that the Executive is privileged or required to disclose to, or by, any law, governmental or judicial authority. Additionally, Confidential Information does not include information that arises solely from the Executive's general training, knowledge, skill, or experience.
c.The Executive expressly acknowledges that any breach or threatened breach of any of the terms and/or conditions set forth in this Section 5 will result in substantial, continuing, and irreparable injury to the Company. Therefore, the Executive hereby agrees that, in addition to any other remedy that may be available to the Company, the Company shall be entitled to seek injunctive relief, specific performance, or other equitable relief in the event of any breach or threatened breach of the terms of this Section 5, without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach or posting a bond. Notwithstanding any other provision to the contrary, the Executive acknowledges and agrees that the restrictive period set forth above shall be tolled during any period of violation of any of the Restrictive Covenants in this Section 5 and during any other period required for litigation during which the Company seeks to enforce such covenants against the Company if it is ultimately determined that the Executive was in breach of such covenants.
d.Each of the rights enumerated in this Section 5 shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. If, however, any of the provisions of this Section 5 or any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of this Section 5, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held to be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, the Executive agrees that the court making such determination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration, scope, and/or area permissible by law, and in its reduced form said provision shall then be enforceable.
6.Term of Agreement. This Agreement shall be effective on the Effective Date and shall terminate upon the earlier to occur of (i) the Executive’s termination of employment with the Company for any reason other than a Qualifying Termination prior to the consummation of a Change in Control and (ii) the expiration of the Termination Period with respect to the first Change in Control to occur after the Effective Date; provided, however, that if the Executive incurs a Qualifying Termination during the Termination Period, this Agreement shall continue in full force and effect until such time as all obligations of the Company hereunder have been fulfilled and all benefits required hereunder have been paid or provided to the Executive.
7.Miscellaneous.
a.Scope of Agreement. Nothing in this Agreement shall be deemed to entitle the Executive to continued employment or service with the Company or its subsidiaries or affiliates and, if the Executive’s employment with the Company or its subsidiaries or affiliates terminates at a time other than during the Termination Period, then the Executive shall have no further rights under this Agreement.
b.Successors; Binding Agreement.
i.This Agreement shall not be terminated by any merger or consolidation of the Company whereby the Company is or is not the surviving or resulting corporation or as a result of any transfer of all or substantially all of the assets of the Company. In the event of any such merger, consolidation, or transfer of assets, the provisions of this Agreement shall be binding upon the surviving or resulting corporation or the person or entity to which such assets are transferred, and all references herein to “the Company” following such merger, consolidation, or transfer of assets shall be deemed references to such surviving or resulting corporation or transferee.
ii.The Company agrees that concurrently with any merger or consolidation in which the Company is not the surviving or resulting corporation or any transfer of all or substantially all of the assets of the Company, it will cause any successor or transferee unconditionally to assume all of the obligations of the Company hereunder. Failure of the Company to obtain such assumption prior to or concurrently with the effectiveness of any such merger, consolidation, or transfer of assets shall be a breach of this Agreement.
iii.This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive shall die while any amounts would be payable to the Executive hereunder had the Executive continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to such person or persons appointed in writing by the Executive to receive such amounts or, if no person is so appointed, to the Executive’s estate.
c.Notices.
i.For purposes of this Agreement, all notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given when delivered or three (3) business days after deposit in the United States mail, certified and return receipt requested, postage prepaid, addressed:
1.if to the Executive, to the home address of the Executive maintained in the Company’s business records, and if to the Company, to 222 Robert Rose Drive, Murfreesboro, Tennessee 37129, Attention: Chairman of the Compensation Committee of the Board, or
2.to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.
ii.A written notice of the Executive’s Termination Date by the Company or the Executive, as the case may be, to the other, shall (A) indicate the specific termination provision in this Agreement relied upon, (B) to the extent applicable, set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated and (C) specify the Termination Date (which date shall be not less than fifteen (15) days after the giving of such notice). The failure by the Executive or the Company to set forth in such notice any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company hereunder or preclude the Executive or the Company from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.
d.No Mitigation; Resolution of Disputes.
i.The Company’s obligation to make any payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense, or other claim, right, or action which the Company may have against the Executive or others. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement, and such amounts shall not be reduced whether or not the Executive obtains other employment.
ii.If there shall be any dispute between the Company and the Executive in the event of any termination of the Executive’s employment, then, unless and until there is a final, nonappealable judgment by a court or arbitral tribunal of competent jurisdiction or a written agreement signed by both parties addressing such dispute, in each case declaring that such termination was for Cause, that the termination of employment by the Executive was without Good Reason, or that the Company is not otherwise obligated to pay any amount to the Executive under Section 2, the Company shall pay all amounts, and provide all benefits, to the Executive that the Company would be required to pay or provide pursuant to this Agreement as though such termination were a Qualifying Termination; provided, however, that the Company shall not be required to pay any disputed amounts pursuant to this Section 7.d.ii except upon receipt of an undertaking by or on behalf of the Executive to repay all such amounts to which the Executive is ultimately adjusted by such court not to be entitled.
e.Code Section 409A.
i.This Agreement is intended either to be exempt from or to comply with the requirements of Section 409A of the Code and shall be interpreted and construed consistently with such intent. Without limiting the foregoing, all payments and benefits provided under this Agreement are intended to be exempt from Section
409A of the Code to the maximum extent possible, under either the separation pay exemption pursuant to Treasury Regulation Section 1.409A-1(b)(9)(iii) or as short-term deferrals pursuant to Treasury Regulation Section 1.409A-1(b)(4), and for this purpose, each payment shall constitute a “separately identified” amount within the meaning of Treasury Regulation Section 1.409A-2(b)(2). In the event the terms of this Agreement would subject the Executive to taxes or penalties under Section 409A of the Code (“409A Penalties”), the Company and the Executive shall cooperate diligently to amend the terms of the Agreement to avoid such 409A Penalties, to the extent possible; provided that in no event shall the Company or any of its subsidiaries or affiliates, or any of their respective directors, officers, employees, designees, or agents be responsible for any 409A Penalties (or any related taxes, interest, penalties, costs, or damages) imposed on the Executive that arise in connection with any amounts payable under this Agreement.
ii.Notwithstanding any other provision in this Agreement, to the extent any payments hereunder constitutes nonqualified deferred compensation, within the meaning of Section 409A of the Code, then if the Executive is a “specified employee,” as defined in Section 409A of the Code, as of the Termination Date, then to the extent any amount payable under this Agreement is payable upon the Executive’s separation from service, within the meaning of Section 409A of the Code, and under the terms of this Agreement would be payable prior to the six (6)-month anniversary of the Executive’s Termination Date, such payment, without interest, shall be delayed until the earlier of (A) the date immediately following the six (6)-month anniversary of the Termination Date or (B) the date of the Executive’s death.
f.Governing Law; Validity. The interpretation, construction and performance of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Tennessee, without regard to the conflicts of law principles thereof. Each party hereby irrevocably submits to the non-exclusive jurisdiction of the state and federal courts sitting in Rutherford County, Tennessee, for the adjudication of any dispute hereunder or in connection herewith and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which other provisions shall remain in full force and effect.
g.Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and both of which together shall constitute one and the same instrument.
h.Modification; Waiver. No provision of this Agreement may be modified or waived unless such modification or waiver is agreed to in writing and signed by the Executive and by a duly authorized officer of the Company. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar
or dissimilar provisions or conditions at the same or at any prior or subsequent time. Failure by the Executive or the Company to insist upon strict compliance with any provision of this Agreement or to assert any right the Executive or the Company may have hereunder, including, without limitation, the right of the Executive to terminate employment for Good Reason, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.
i.Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, if any, understandings and arrangements, oral or written, between the parties hereto with respect to the subject matter hereof.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly authorized officer of the Company and the Executive has executed this Agreement as of the day and year first above written.
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| | NATIONAL HEALTH INVESTORS, INC. |
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| | By: | | /s/ D. Eric Mendelsohn |
| | Name: | | D. Eric Mendelsohn |
| | Title: | | President and CEO |
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| | EXECUTIVE |
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| | By: | | /s/ John L. Spaid |
| | Name: | | John L. Spaid |
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CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT (this “Agreement”) is entered into as of February 26, 2024 (the “Effective Date”), by and between National Health Investors, Inc., a Maryland corporation (the “Company”), and David L. Travis (the “Executive”).
W I T N E S S E T H
WHEREAS, the Executive currently serves as a key employee of the Company and his or her services and knowledge are valuable to the Company; and
WHEREAS, the Committee (as defined in Section 1) has determined that it is in the best interests of the Company and its stockholders to secure the Executive’s continued services and objectivity in the event of any threat or occurrence of, or negotiation or other action that could lead to, or create the possibility of, a Change in Control (as defined in Section 1) of the Company, without concern as to whether the Executive might be hindered or distracted by personal uncertainties and risks created by any such possible Change in Control, and to encourage the Executive’s full attention and dedication to the Company, and in order to further such interests, the Committee has authorized the Company to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants, representations and warranties contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1.Definitions. As used in this Agreement, the following terms shall have the respective meanings set forth below:
a.“Board” means the Board of Directors of the Company.
b.“Cause” means (i) the Executive’s willful refusal to follow a lawful order of the Board and/or the Executive’s manager, subject, however, to the Executive’s right to receive written notice of the order not followed by the Executive and the opportunity to promptly follow the order, (ii) the Executive’s willful engagement in conduct materially injurious to the business interests of the Company or any of its subsidiaries and affiliates as determined in good faith by the Board or the Committee, (iii) the Executive’s conviction (including a guilty plea or a plea of no contest) of theft, embezzlement, fraud, misappropriation, illegal use or possession of drugs or alcohol, or of any crime that discredits the Company or any of its subsidiaries or affiliates or is detrimental to the reputation or goodwill of the Company or any of its subsidiaries or affiliates as determined in good faith by the Board or the Committee, or (iv) the Executive’s commission of any act of fraud or dishonesty, or commission of an immoral or unethical act, that reflects negatively on the Company as determined in good faith by the Board or the Committee.
c.“Change in Control” means the first to occur of:
i.The date that any one Person, or more than one Person acting as a group, acquires ownership of stock of the Company that, together with stock held by such Person or group, constitutes more than fifty percent (50%) of the total voting power of the stock of the Company; provided, however, that the merger or consolidation of the Company with another entity as a result of which fifty percent (50%) or more of the outstanding voting securities of the surviving or resulting entity (or of the parent entity of such resulting or surviving entity) shall be owned in the aggregate by the shareholders of the Company immediately prior to such merger or consolidation, shall not constitute a Change in Control;
ii.The date of the merger or consolidation of the Company with another entity as a result of which less than fifty percent (50%) of the outstanding voting securities of the surviving or resulting entity (or of the parent entity of such resulting or surviving entity) shall be owned in the aggregate by the shareholders of the Company immediately prior to such merger or consolidation;
iii.The date that a majority of members of the Board are replaced during any twelve (12)-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election; or
iv.On the date that any one Person, or more than one Person acting as a group, acquires (or has acquired during the twelve (12)-month period ending on the date of the most recent acquisition by such person or persons) assets, directly or indirectly, from the Company that have a total gross fair market value equal to or more than fifty percent (50%) of the total gross fair market value of all of the assets owned, directly or indirectly, by the Company immediately prior to such acquisition or acquisitions. Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred under this Section 1.c.iv when there is a transfer to an entity that is controlled by the shareholders of the Company immediately after the transfer as provided in the following sentence. A transfer of assets by Company is not treated as a change in the ownership of such assets if the assets are transferred to (1) a shareholder of the Company (immediately before the asset transfer) in exchange for or with respect to its stock in the Company, (2) an entity, fifty percent (50%) or more of the total voting power of which is owned, directly or indirectly, by the Company, (3) a Person, or more than one Person acting as a group, that owns, directly or indirectly, fifty percent (50%) or more of the total voting power of all the outstanding stock of the Company, or (4) an entity, at least fifty percent (50%) of the total value or voting power of which is owned, directly or indirectly, by a person described in clause (3) of this Section 1.c.iv.
Solely to the extent necessary to avoid adverse consequences under Section 409A (including, without limitation, to comply with the anti-toggling rules of Section 409A), a Change in Control shall be limited to a “change in the ownership of the Company,” a “change in the effective control of the Company,” or a “change in the ownership of a substantial portion of the assets of the Company” as such terms are defined in Section 1.409A-3(i)(5) of the U.S. Treasury Regulations.
d.“Code” means the Internal Revenue Code of 1986, as amended, including any regulations adopted thereunder.
e.“Committee” means the Compensation Committee of the Board.
f.“Disability” means the Executive’s inability, due to physical or mental incapacity, to perform the essential functions of his job with reasonable accommodation for longer than three (3) consecutive months, or for one hundred twenty (120) days out of any three hundred sixty-five (365)-day period.
g.“Final Average Compensation” means the average of the sum of the Executive’s annual base salary and bonus over the most recent five (5) consecutive calendar years, including the calendar year in which the Termination Date occurs. For purposes of calculating the average, (i) the annual base salary for the calendar year in which the Termination Date occurs shall be the annual base salary as of such Termination Date or, if the Executive’s Qualifying Termination is for Good Reason as a result of a material reduction in his base salary, shall be the annual base salary in effect as of immediately prior to such reduction, (ii) the bonus for the calendar year in which the Termination Date occurs shall be the target annual cash incentive bonus payable to the Executive for such calendar year (or in which the Change in Control occurs, if greater), (iii) the bonus for each other calendar year shall be the annual cash incentive bonus paid with respect to performance during such calendar year, even if paid in the following calendar year, and (iv) if the Executive has been employed by the Company for less than five (5) full calendar years (counting the final calendar year of employment as a full calendar year), the Executive’s Final Average Compensation shall be based on the number of full calendar years in which the Executive was an employee of the Company (again counting the final calendar year of employment as a full calendar year).
h.“Good Reason” means, without the Executive’s express written consent, the occurrence of any of the following events:
i.a material diminution in the Executive’s authority, duties, or responsibilities with the Company as in effect immediately prior to the Change in Control (including, without limitation, a material adverse change in the Executive’s reporting relationship after the Change in Control, as a result of the Company’s stock ceasing to be publicly traded, of the Company’s becoming a subsidiary of another entity, or otherwise);
ii.a material reduction in the Executive’s rate of annual base salary as in effect immediately prior to the Change in Control or as the same may be increased from time to time thereafter (or the failure to pay such compensation);
iii.any requirement of the Company or any of its subsidiaries or affiliates that the Executive be based more than thirty-five (35) miles from the location where the Executive is based immediately before the Change in Control (excluding reasonable travel on Company business to the extent substantially consistent with the Executive’s authority, duties, or responsibilities with the Company); or
iv.the failure of the Company to obtain the assumption agreement from any successor as contemplated in Section 7.b.ii or any other material breach of this Agreement (or other material agreement between the Company and the Executive);
provided, however, that Good Reason shall not exist unless (i) the Executive provides written notice to the Company within sixty (60) days following the initial occurrence of any of the events described in clauses (i)-(iv); (ii) the Company fails to cure the event or circumstances within thirty (30) days after receipt of such notice (the “cure period”); and (iii) the Executive’s Termination Date is effective within thirty (30) days following the end of the cure period.
i.“Person” means any individual, corporation, partnership, limited liability company, association, joint-stock company, trust, unincorporated organization, government or political subdivision thereof, or other entity.
j.“Post-CIC Period” means the period beginning on (and including) the date of the consummation of a Change in Control and ending on (and including) the date that is two years following the consummation of such Change in Control.
k.“Pre-CIC Period” means the thirty (30)-day period prior to the consummation of a Change in Control.
l.“Pro Rata Bonus” means (i) the greater of the Executive’s target annual cash incentive bonus for the calendar year in which the Termination Date occurs and the annual cash incentive bonus that would be paid to the Executive with respect to the calendar year in which the Termination Date occurs based on actual performance measured against the performance metrics as of the Termination Date, multiplied by (ii) a fraction, the numerator of which is the number of days from the first day of the performance period applicable to such annual cash incentive bonus to and including the Termination Date, and the denominator of which is the total number of days in such performance period.
m.“Qualifying Termination” means (i) during the Pre-CIC Period, a termination of the Executive’s employment by the Company without Cause and (ii) during the Post-CIC Period, a termination of the Executive’s employment (A) by the Company without Cause or (B) by the Executive for Good Reason. In no event shall a Qualifying Termination include a termination of the Executive’s employment (1) by the Company for Cause, (2) by the Executive for any reason other than Good Reason, or (3) on account of death or Disability.
n.“Termination Date” means the date on which the Executive separates from service within the meaning of Section 409A of the Code.
o.“Termination Period” means both the Pre-CIC Period and the Post-CIC Period.
2.Severance Payments.
a.Accrued Obligations. If Executive’s employment is terminated for any reason during the Termination Period, then subject to Section 3, the Company shall pay or provide to the Executive (or the Executive’s beneficiary or estate), the Accrued Compensation. For purposes of this Agreement, “Accrued Compensation” shall mean all amounts that have accrued to the benefit of the Executive through the Termination Date but have not been paid as of the Termination Date including: (i) base salary, (ii) reimbursement for reasonable and necessary expenses incurred by the Executive on behalf of the Company or any of its subsidiaries or affiliates during the period ending on the Termination Date, (iii) vacation and sick leave pay (to the extent provided by Company policy or applicable law), (iv) any earned but unpaid annual bonus for the calendar year prior to the calendar year in which the Termination Date occurs, with all amounts owed to the Executive under each of (i), (ii), (iii), and (iv) payable in a single lump sum cash payment no later than the Company’s first regularly scheduled payroll date after the Termination Date (unless required to be paid earlier by applicable law), and (v) any amounts that are vested benefits or that the Executive is otherwise entitled to receive under any plan, policy, practice, or program of, or any other contract or agreement with, the Company at or subsequent to the Termination Date, payable in accordance with such plan, policy, practice, or program, contract, or agreement.
b.Change in Control Severance. If a Change in Control occurs and the Executive experiences a Qualifying Termination during the Termination Period, then subject to Sections 2.c, 3, and 4 and the Executive’s continued compliance with Section 5, in addition to the Accrued Compensation, but in lieu of any other severance or payments or benefits the Executive may be entitled to under any other agreement or arrangement:
i.The Company shall pay to the Executive a cash payment in an amount equal to one and a half (1.5), multiplied by the Executive’s Final Average Compensation;
ii.The Company shall pay to the Executive a cash payment in an amount equal to the Executive’s Pro Rata Bonus;
iii.The Company shall pay to the Executive a cash payment in an amount equal, on an after-tax basis, to the full cost of continued coverage, at the same level of coverage as in effect immediately prior to the Termination Date, for the Executive (and the Executive’s covered spouse and dependents, as applicable) pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for the eighteen (18)-month period following the Termination Date (for the avoidance of doubt, regardless of whether the Executive elects COBRA coverage); and
iv.All outstanding, unvested equity or equity-based incentive awards with respect to the equity securities of the Company or any of its subsidiaries or affiliates (including, without limitation, stock options, restricted stock, and restricted stock units) held by the Executive (A) that are subject solely to time-based vesting requirements as of the Termination Date, will vest in full as of the Termination Date (provided that if such Qualifying Termination occurs during the Pre-CIC Period, such awards shall only vest subject to, and as of immediately prior to, the consummation of the Change in Control) and (B) that are subject to performance-based vesting requirements, will vest in accordance with the award agreement governing such award.
c.Timing and Release. The Company’s obligation to pay or provide the Executive the payments and benefits set forth in Section 2.b (collectively, the “Severance Benefits”) shall be subject to, contingent upon, and in consideration of the Executive’s execution and non-revocation of a general waiver and release of claims in a form satisfactory to the Company (the “Release”) within fifty-three (53) days following the Termination Date, which Release shall, for the avoidance of doubt, include reaffirmation of the restrictive covenants set forth below. The amounts provided for in Sections 2.b.i - 2.b.iii shall be paid to the Executive in a single lump sum cash payment on the sixtieth (60th) day following the Termination Date.
d.Exclusivity of Severance Benefits. For the avoidance of doubt, if the Executive is entitled to the Severance Benefits, then the Severance Benefits shall be in lieu of and not in addition to any other severance or similar payment or benefit under any other agreement or arrangement.
3.Withholding. The Company shall have the authority and right to withhold an amount sufficient to satisfy federal, state and local taxes or other deductions required by law to be withheld with respect to any payments or benefits under this Agreement.
4.Code Section 280G. Notwithstanding any provision of this Agreement to the contrary, in the event it shall be determined that, in connection with a Change in Control, any payment, benefit, or acceleration of vesting to or for the benefit of the Executive (whether pursuant to the terms of this Agreement or otherwise) (“Potential Parachute Payments”) would be subject to the excise tax imposed by Section 4999 of the Code or any similar tax payable under any U.S. federal, state, local, foreign or other law (“Excise Taxes”), then the Potential Parachute Payments shall be reduced to an amount that is one dollar less than the largest amount that would not give rise to such excise tax (the “Reduced Amount”) if and only if such Reduced Amount would be greater than the net after-tax proceeds (taking into account both the Excise Taxes and any interest or penalties payable by the Executive with respect thereto) of the unreduced Potential Parachute Payments payable to the Executive. If any Potential Parachute Payments are required to be reduced pursuant to this Section 4, such reductions shall be applied first to the amount of lump sum cash severance payments payable under Section 2.b, and then applied to the amounts payable with respect to any equity or equity-based incentive awards, and if further reductions are necessary, such reductions shall be applied on a prorated basis to all other Potential Parachute Payments.
5.Restrictive Covenants. As a material condition of this Agreement, the Executive shall comply with the Restrictive Covenants set forth in this Section 5. The Executive acknowledges and
agrees that the covenants contained in this Section 5 are in addition to, and not in lieu of, any similar restrictions that may exist in other agreements between the Executive, on the one hand, and the Company or its subsidiaries on the other hand.
a.Non-Competition. During the period of the Executive’s employment with the Company (the “Employment Period”) and, if the Executive receives Severance Benefits pursuant to this Agreement, for a period of twelve (12) months following the Termination Date (the “Post-Termination Restricted Period”), the Executive shall not, directly or indirectly, individually or on behalf of any Person, in any jurisdiction in which the Company conducts the Business of the Company and throughout the entirety of the United States of America, (i) own any interest in any business or enterprise that engages in the Business of the Company, or (ii) carry on or engage in the Business of the Company or any part of the Business of the Company where the Executive’s engagement or involvement is the same as, or is substantially similar to, the services the Executive performed as an employee of the Company. For this purpose, “Business of the Company” means sale-leaseback, joint venture, and mortgage and mezzanine financing of need-driven and discretionary senior housing investments. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from investing in the publicly-traded equity securities of a Person engaged in the Business of the Company, so long as the Executive (A) is not a controlling person of, or a member of a group which controls, such Person, (B) does not directly or indirectly own more than one percent (1%) of any class of securities of such Person and (C) does not undertake activities involving the Business of the Company with respect to such Person and otherwise have no active participation in the business of such Person.
b.Confidentiality. The Executive acknowledges that, during the course of the Executive’s employment with the Company, the Executive will create and have access to information about the Company or its subsidiaries or affiliates and that the Executive’s employment with the Company shall bring the Executive into close contact with confidential and proprietary information of the Company and its subsidiaries or affiliates. In recognition of the foregoing, the Executive agrees, at all times during the Employment Period and at all times thereafter, to hold in confidence, and not to use, except for the benefit of the Company, or to disclose to any Person, firm, corporation, or other entity without written authorization of the Company, any Confidential Information that the Executive obtains or creates. The Executive further agrees not to make copies of such Confidential Information except as authorized by the Company. The Executive understand that “Confidential Information” means information that the Company or its subsidiaries or affiliates has or will develop, acquire, create, compile, discover, or own, that has value in or to the business of the Company or its subsidiaries or affiliates that is not generally known. The Executive understands that Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual or anticipated business and/or products, research, or development of the Company or its subsidiaries or affiliates, or to the technical data or trade secrets of the Company or its subsidiaries or affiliates, including, but not limited to, research, development or product plans, or other information regarding the products or services and markets of the Company or its subsidiaries or affiliates, and customer lists (including, but not limited to, customers of the Company or its subsidiaries or affiliates on whom the Executive called or with whom the Executive may become acquainted during the term of the Executive’s employment),
software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, acquisition strategies, marketing, finances, confidential personnel information (such as medical records), and other business information disclosed by the Company or its subsidiaries or affiliates either directly or indirectly in writing, orally, or by drawings or inspection of premises, parts, equipment, or other property of the Company. Notwithstanding the foregoing, Confidential Information shall not include (i) any of the foregoing items that have become publicly and widely known through no unauthorized disclosure by the Executive or others who were under confidentiality obligations as to the item or items involved or (ii) any information that the Executive is privileged or required to disclose to, or by, any law, governmental or judicial authority. Additionally, Confidential Information does not include information that arises solely from the Executive's general training, knowledge, skill, or experience.
c.The Executive expressly acknowledges that any breach or threatened breach of any of the terms and/or conditions set forth in this Section 5 will result in substantial, continuing, and irreparable injury to the Company. Therefore, the Executive hereby agrees that, in addition to any other remedy that may be available to the Company, the Company shall be entitled to seek injunctive relief, specific performance, or other equitable relief in the event of any breach or threatened breach of the terms of this Section 5, without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach or posting a bond. Notwithstanding any other provision to the contrary, the Executive acknowledges and agrees that the restrictive period set forth above shall be tolled during any period of violation of any of the Restrictive Covenants in this Section 5 and during any other period required for litigation during which the Company seeks to enforce such covenants against the Company if it is ultimately determined that the Executive was in breach of such covenants.
d.Each of the rights enumerated in this Section 5 shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. If, however, any of the provisions of this Section 5 or any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of this Section 5, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held to be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, the Executive agrees that the court making such determination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration, scope, and/or area permissible by law, and in its reduced form said provision shall then be enforceable.
6.Term of Agreement. This Agreement shall be effective on the Effective Date and shall terminate upon the earlier to occur of (i) the Executive’s termination of employment with the Company for any reason other than a Qualifying Termination prior to the consummation of a Change in Control and (ii) the expiration of the Termination Period with respect to the first Change in Control to occur after the Effective Date; provided, however, that if the Executive incurs a Qualifying Termination during the Termination Period, this Agreement shall continue in full force and effect until such time as all obligations of the Company hereunder have been fulfilled and all benefits required hereunder have been paid or provided to the Executive.
7.Miscellaneous.
a.Scope of Agreement. Nothing in this Agreement shall be deemed to entitle the Executive to continued employment or service with the Company or its subsidiaries or affiliates and, if the Executive’s employment with the Company or its subsidiaries or affiliates terminates at a time other than during the Termination Period, then the Executive shall have no further rights under this Agreement.
b.Successors; Binding Agreement.
i.This Agreement shall not be terminated by any merger or consolidation of the Company whereby the Company is or is not the surviving or resulting corporation or as a result of any transfer of all or substantially all of the assets of the Company. In the event of any such merger, consolidation, or transfer of assets, the provisions of this Agreement shall be binding upon the surviving or resulting corporation or the person or entity to which such assets are transferred, and all references herein to “the Company” following such merger, consolidation, or transfer of assets shall be deemed references to such surviving or resulting corporation or transferee.
ii.The Company agrees that concurrently with any merger or consolidation in which the Company is not the surviving or resulting corporation or any transfer of all or substantially all of the assets of the Company, it will cause any successor or transferee unconditionally to assume all of the obligations of the Company hereunder. Failure of the Company to obtain such assumption prior to or concurrently with the effectiveness of any such merger, consolidation, or transfer of assets shall be a breach of this Agreement.
iii.This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive shall die while any amounts would be payable to the Executive hereunder had the Executive continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to such person or persons appointed in writing by the Executive to receive such amounts or, if no person is so appointed, to the Executive’s estate.
c.Notices.
i.For purposes of this Agreement, all notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given when delivered or three (3) business days after deposit in the United States mail, certified and return receipt requested, postage prepaid, addressed:
1.if to the Executive, to the home address of the Executive maintained in the Company’s business records, and if to the Company, to 222 Robert Rose Drive, Murfreesboro, Tennessee 37129, Attention: Chairman of the Compensation Committee of the Board, or
2.to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.
ii.A written notice of the Executive’s Termination Date by the Company or the Executive, as the case may be, to the other, shall (A) indicate the specific termination provision in this Agreement relied upon, (B) to the extent applicable, set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated and (C) specify the Termination Date (which date shall be not less than fifteen (15) days after the giving of such notice). The failure by the Executive or the Company to set forth in such notice any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company hereunder or preclude the Executive or the Company from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.
d.No Mitigation; Resolution of Disputes.
i.The Company’s obligation to make any payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense, or other claim, right, or action which the Company may have against the Executive or others. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement, and such amounts shall not be reduced whether or not the Executive obtains other employment.
ii.If there shall be any dispute between the Company and the Executive in the event of any termination of the Executive’s employment, then, unless and until there is a final, nonappealable judgment by a court or arbitral tribunal of competent jurisdiction or a written agreement signed by both parties addressing such dispute, in each case declaring that such termination was for Cause, that the termination of employment by the Executive was without Good Reason, or that the Company is not otherwise obligated to pay any amount to the Executive under Section 2, the Company shall pay all amounts, and provide all benefits, to the Executive that the Company would be required to pay or provide pursuant to this Agreement as though such termination were a Qualifying Termination; provided, however, that the Company shall not be required to pay any disputed amounts pursuant to this Section 7.d.ii except upon receipt of an undertaking by or on behalf of the Executive to repay all such amounts to which the Executive is ultimately adjusted by such court not to be entitled.
e.Code Section 409A.
i.This Agreement is intended either to be exempt from or to comply with the requirements of Section 409A of the Code and shall be interpreted and construed consistently with such intent. Without limiting the foregoing, all payments and benefits provided under this Agreement are intended to be exempt from Section
409A of the Code to the maximum extent possible, under either the separation pay exemption pursuant to Treasury Regulation Section 1.409A-1(b)(9)(iii) or as short-term deferrals pursuant to Treasury Regulation Section 1.409A-1(b)(4), and for this purpose, each payment shall constitute a “separately identified” amount within the meaning of Treasury Regulation Section 1.409A-2(b)(2). In the event the terms of this Agreement would subject the Executive to taxes or penalties under Section 409A of the Code (“409A Penalties”), the Company and the Executive shall cooperate diligently to amend the terms of the Agreement to avoid such 409A Penalties, to the extent possible; provided that in no event shall the Company or any of its subsidiaries or affiliates, or any of their respective directors, officers, employees, designees, or agents be responsible for any 409A Penalties (or any related taxes, interest, penalties, costs, or damages) imposed on the Executive that arise in connection with any amounts payable under this Agreement.
ii.Notwithstanding any other provision in this Agreement, to the extent any payments hereunder constitutes nonqualified deferred compensation, within the meaning of Section 409A of the Code, then if the Executive is a “specified employee,” as defined in Section 409A of the Code, as of the Termination Date, then to the extent any amount payable under this Agreement is payable upon the Executive’s separation from service, within the meaning of Section 409A of the Code, and under the terms of this Agreement would be payable prior to the six (6)-month anniversary of the Executive’s Termination Date, such payment, without interest, shall be delayed until the earlier of (A) the date immediately following the six (6)-month anniversary of the Termination Date or (B) the date of the Executive’s death.
f.Governing Law; Validity. The interpretation, construction and performance of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Tennessee, without regard to the conflicts of law principles thereof. Each party hereby irrevocably submits to the non-exclusive jurisdiction of the state and federal courts sitting in Rutherford County, Tennessee, for the adjudication of any dispute hereunder or in connection herewith and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which other provisions shall remain in full force and effect.
g.Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and both of which together shall constitute one and the same instrument.
h.Modification; Waiver. No provision of this Agreement may be modified or waived unless such modification or waiver is agreed to in writing and signed by the Executive and by a duly authorized officer of the Company. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar
or dissimilar provisions or conditions at the same or at any prior or subsequent time. Failure by the Executive or the Company to insist upon strict compliance with any provision of this Agreement or to assert any right the Executive or the Company may have hereunder, including, without limitation, the right of the Executive to terminate employment for Good Reason, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.
i.Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, if any, understandings and arrangements, oral or written, between the parties hereto with respect to the subject matter hereof.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly authorized officer of the Company and the Executive has executed this Agreement as of the day and year first above written.
| | | | | | | | | | | | | | |
|
| | | | |
| | NATIONAL HEALTH INVESTORS, INC. |
| | | | |
| | By: | | /s/ D. Eric Mendelsohn |
| | Name: | | D. Eric Mendelsohn |
| | Title: | | President and CEO |
| | |
| | | | |
| | EXECUTIVE |
| | | | |
| | By: | | /s/ David L. Travis |
| | Name: | | David L. Travis |
| | | | |
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