UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
April 5, 2013 (April 5, 2013)
HCP, INC.
(Exact Name of Registrant as Specified in Charter)
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Maryland |
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001-08895 |
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33-0091377 |
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(State or other Jurisdiction |
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(Commission File No.) |
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(IRS Employer |
3760 Kilroy Airport Way
Suite 300
Long Beach, California 90806
(Address of principal executive offices, including zip code)
(562) 733-5100
(Registrant’s telephone number, including area code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o` Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(e) Compensatory Arrangements of Certain Officers.
On April 5, 2013, HCP, Inc., a Maryland corporation (the “Company”), entered into separate amendments to existing employment agreements (the “Amendments” and each an “Amendment”) with Paul F. Gallagher, the Company’s Executive Vice President – Chief Investment Officer, Timothy M. Schoen, the Company’s Executive Vice President – Chief Financial Officer, and James W. Mercer, the Company’s Executive Vice President, General Counsel and Corporate Secretary.
Each Amendment removes from the applicable employment agreement a tax gross-up provision that would have been applicable if any payment or benefit received by the executive in connection with a change in control would have constituted an “excess parachute payment” under 280G of the Internal Revenue Code, and replaces it with a provision that provides that such payments and benefits payable in connection with the change in control will either be capped as necessary to avoid the executive incurring any excess parachute payment excise tax or be paid in full (with the executive paying any excise taxes due), whichever places the executive in the best after-tax position.
The foregoing summary of the Amendments is qualified in its entirety by the text of the Amendments, copies of which are attached hereto as Exhibits 10.1 through 10.3 to this Current Report on Form 8-K and incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. The following exhibits are being filed herewith:
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No. |
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Description |
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10.1 |
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Amendment No. 1, dated as of April 5, 2013, to the Employment Agreement, dated as of January 26, 2012, by and between the Company and Paul F. Gallagher. |
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10.2 |
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Amendment No. 1, dated as of April 5, 2013, to the Employment Agreement, dated as of January 26, 2012, by and between the Company and Timothy M. Schoen. |
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10.3 |
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Amendment No. 1, dated as of April 5, 2013, to the Employment Agreement, dated October 25, 2012, by and between the Company and James W. Mercer. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Date: April 5, 2013 |
HCP, Inc. | |
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(Registrant) | |
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By: |
/s/ Timothy M. Schoen |
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Timothy M. Schoen |
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Executive Vice President — Chief Financial Officer |
EXHIBIT INDEX
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No. |
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Description |
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10.1 |
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Amendment No. 1, dated as of April 5, 2013, to the Employment Agreement, dated as of January 26, 2012, by and between the Company and Paul F. Gallagher. |
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10.2 |
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Amendment No. 1, dated as of April 5, 2013, to the Employment Agreement, dated as of January 26, 2012, by and between the Company and Timothy M. Schoen. |
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10.3 |
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Amendment No. 1, dated as of April 5, 2013, to the Employment Agreement, dated October 25, 2012, by and between the Company and James W. Mercer. |
Exhibit 10.1
AMENDMENT TO HCP, INC. EMPLOYMENT AGREEMENT
THIS AMENDMENT (the “Amendment”) is made and entered into on April 5, 2013 (the “Effective Date”), by and between HCP, Inc. (the “Company”) and Paul F. Gallagher (“Executive”).
RECITALS
WHEREAS, the Company and the Executive entered into an Employment Agreement on January 26, 2012 (the “Agreement”); and
WHEREAS, the Company and the Executive now wish to amend the Agreement as set forth below.
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned, intending to be legally bound hereby, agree as follows:
1. Unless otherwise defined in this Amendment, capitalized terms used herein shall have the meanings ascribed to such terms in the Agreement.
2. Section 5(e) of the Agreement is hereby amended and restated to read as follows:
Change in Control Plan. Notwithstanding the foregoing provisions, in the event that Executive would be entitled to severance benefits under the Company’s Change in Control Severance Plan, or any successor plan thereto (the “CIC Plan”), in connection with a termination of his employment described in Section 5(b) or Section 5(d) above, Executive will be entitled to receive the benefits provided under the CIC Plan; provided that Executive acknowledges and agrees that he shall not be entitled to receive any “Gross-Up Payment” (as defined in Exhibit C of the CIC Plan) or any other benefits set forth under Exhibit C of the CIC Plan. In no event will Executive be entitled to receive severance benefits under both the CIC Plan and this Agreement.
In the event that any of the payments and other benefits provided under this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code (“Excise Tax”), then Executive’s payments and benefits under this Agreement or otherwise shall be payable either
(A) in full (with the Executive paying any excise taxes due), or
(B) in such lesser amount which would result in no portion of such payments or benefits being subject to the Excise Tax,
whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits under this Agreement or otherwise, notwithstanding that all or some portion of such payments or benefits may be taxable under Section 4999 of the Code. Any reduction in the payments and benefits required by this Section will made in the following order: (i) reduction of cash payments; (ii) reduction of accelerated vesting of equity awards other than stock options; (iii) reduction of accelerated vesting of stock options; and (iv) reduction of other benefits paid or provided to Executive.
3. Except as modified by this Amendment, the Agreement shall remain in full force and effect.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company and the Executive have executed this Amendment, in the case of the Company by a duly authorized officer, on the day and year written below.
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HCP, INC. |
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By: /s/ James F. Flaherty III |
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Date: April 5, 2013 |
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James F. Flaherty III |
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Chairman of the Board and |
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Chief Executive Officer |
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EXECUTIVE: |
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/s/ Paul F. Gallagher |
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Date: April 5, 2013 |
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Paul F. Gallagher |
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Exhibit 10.2
AMENDMENT TO HCP, INC. EMPLOYMENT AGREEMENT
THIS AMENDMENT (the “Amendment”) is made and entered into on April 5, 2013 (the “Effective Date”), by and between HCP, Inc. (the “Company”) and Timothy M. Schoen (“Executive”).
RECITALS
WHEREAS, the Company and the Executive entered into an Employment Agreement on January 26, 2012 (the “Agreement”); and
WHEREAS, the Company and the Executive now wish to amend the Agreement as set forth below.
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned, intending to be legally bound hereby, agree as follows:
1. Unless otherwise defined in this Amendment, capitalized terms used herein shall have the meanings ascribed to such terms in the Agreement.
2. Section 5(e) of the Agreement is hereby amended and restated to read as follows:
Change in Control Plan. Notwithstanding the foregoing provisions, in the event that Executive would be entitled to severance benefits under the Company’s Change in Control Severance Plan, or any successor plan thereto (the “CIC Plan”), in connection with a termination of his employment described in Section 5(b) or Section 5(d) above, Executive will be entitled to receive the benefits provided under the CIC Plan; provided that Executive acknowledges and agrees that he shall not be entitled to receive any “Gross-Up Payment” (as defined in Exhibit C of the CIC Plan) or any other benefits set forth under Exhibit C of the CIC Plan. In no event will Executive be entitled to receive severance benefits under both the CIC Plan and this Agreement.
In the event that any of the payments and other benefits provided under this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code (“Excise Tax”), then Executive’s payments and benefits under this Agreement or otherwise shall be payable either
(A) in full (with the Executive paying any excise taxes due), or
(B) in such lesser amount which would result in no portion of such payments or benefits being subject to the Excise Tax,
whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits under this Agreement or otherwise, notwithstanding that all or some portion of such payments or benefits may be taxable under Section 4999 of the Code. Any reduction in the payments and benefits required by this Section will made in the following order: (i) reduction of cash payments; (ii) reduction of accelerated vesting of equity awards other than stock options; (iii) reduction of accelerated vesting of stock options; and (iv) reduction of other benefits paid or provided to Executive.
3. Except as modified by this Amendment, the Agreement shall remain in full force and effect.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company and the Executive have executed this Amendment, in the case of the Company by a duly authorized officer, on the day and year written below.
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HCP, INC. |
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By: /s/ James F. Flaherty III |
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Date: April 5, 2013 |
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James F. Flaherty III |
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Chairman of the Board and |
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Chief Executive Officer |
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EXECUTIVE: |
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/s/ Timothy M. Schoen |
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Date: April 5, 2013 |
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Timothy M. Schoen |
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Exhibit 10.3
AMENDMENT TO HCP, INC. EMPLOYMENT AGREEMENT
THIS AMENDMENT (the “Amendment”) is made and entered into on April 5, 2013 (the “Effective Date”), by and between HCP, Inc. (the “Company”) and James W. Mercer (“Executive”).
RECITALS
WHEREAS, the Company and the Executive entered into an Employment Agreement on October 25, 2012 (the “Agreement”); and
WHEREAS, the Company and the Executive now wish to amend the Agreement as set forth below.
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned, intending to be legally bound hereby, agree as follows:
1. Unless otherwise defined in this Amendment, capitalized terms used herein shall have the meanings ascribed to such terms in the Agreement.
2. Section 5(e) of the Agreement is hereby amended and restated to read as follows:
Change in Control Plan. Notwithstanding the foregoing provisions, in the event that Executive would be entitled to severance benefits under the Company’s Change in Control Severance Plan, or any successor plan thereto (the “CIC Plan”), in connection with a termination of his employment described in Section 5(b) or Section 5(d) above, Executive will be entitled to receive the benefits provided under the CIC Plan; provided that Executive acknowledges and agrees that he shall not be entitled to receive any “Gross-Up Payment” (as defined in Exhibit C of the CIC Plan) or any other benefits set forth under Exhibit C of the CIC Plan. In no event will Executive be entitled to receive severance benefits under both the CIC Plan and this Agreement.
In the event that any of the payments and other benefits provided under this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code (“Excise Tax”), then Executive’s payments and benefits under this Agreement or otherwise shall be payable either
(A) in full (with the Executive paying any excise taxes due), or
(B) in such lesser amount which would result in no portion of such payments or benefits being subject to the Excise Tax,
whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits under this Agreement or otherwise, notwithstanding that all or some portion of such payments or benefits may be taxable under Section 4999 of the Code. Any reduction in the payments and benefits required by this Section will made in the following order: (i) reduction of cash payments; (ii) reduction of accelerated vesting of equity awards other than stock options; (iii) reduction of accelerated vesting of stock options; and (iv) reduction of other benefits paid or provided to Executive.
3. Except as modified by this Amendment, the Agreement shall remain in full force and effect.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company and the Executive have executed this Amendment, in the case of the Company by a duly authorized officer, on the day and year written below.
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HCP, INC. |
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By: /s/ James F. Flaherty III |
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Date: April 5, 2013 |
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James F. Flaherty III |
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Chairman of the Board and |
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Chief Executive Officer |
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EXECUTIVE: |
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/s/ James W. Mercer |
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Date: April 5, 2013 |
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James W. Mercer |
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