Form 8-K

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, E+vp2XRuRqwvK99327c4MsN+lUf3938idNLqpvYQzzQDVL5kdPg9OnLrehceVtfE wgk1KUU1azDhDx6nXFZSUA== 0001193125-07-093690.txt : 20070427 0001193125-07-093690.hdr.sgml : 20070427 20070427163434 ACCESSION NUMBER: 0001193125-07-093690 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20070423 ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20070427 DATE AS OF CHANGE: 20070427 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NATIONWIDE HEALTH PROPERTIES INC CENTRAL INDEX KEY: 0000780053 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 953997619 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-09028 FILM NUMBER: 07796286 BUSINESS ADDRESS: STREET 1: 610 NEWPORT CENTER DR STREET 2: STE 1150 CITY: NEWPORT BEACH STATE: CA ZIP: 92660-6429 BUSINESS PHONE: 9497184400 MAIL ADDRESS: STREET 1: 610 NEWPORT CENTER DR STREET 2: STE 1150 CITY: NEWPORT BEACH STATE: CA ZIP: 92660-6429 FORMER COMPANY: FORMER CONFORMED NAME: BEVERLY INVESTMENT PROPERTIES INC DATE OF NAME CHANGE: 19890515 8-K 1 d8k.htm FORM 8-K Form 8-K

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 23, 2007

NATIONWIDE HEALTH PROPERTIES, INC.

(Exact Name of Registrant as Specified in its Charter)

Maryland

1-9028

95-3997619

(State or Other Jurisdiction of

Incorporation or Organization)

(Commission File Number)

(I.R.S. Employer

Identification No.)

610 Newport Center Drive, Suite 1150

Newport Beach, California

92660-6429

(Address of Principal Executive Offices)

(Zip Code)

(949) 718-4400

(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:

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 240.425)

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

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

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

ITEM 5.02

DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICERS; COMPENSATORY ARRANGEMENTS WITH CERTAIN OFFICERS

Restricted Stock Unit Awards to Abdo H. Khoury and Donald D. Bradley

On April 23, 2007, the Compensation Committee (the “Committee”) of the Board of Directors (the “Board”) of Nationwide Health Properties, Inc. (the “Company”) approved the grant of 30,807.1473 “Restricted Stock Units” to each of Abdo H. Khoury, the Company’s Senior Vice President and Chief Financial and Portfolio Officer, and Donald D. Bradley, the Company’s Senior Vice President and Chief Investment Officer.

The Restricted Stock Units that become vested will be paid, on a one-for-one basis, in shares of the Company’s common stock. Subject to Mr. Khoury’s continued employment with the Company, the Restricted Stock Units granted to Mr. Khoury will generally vest with respect to 50% of the units on July 23, 2012, with respect to an additional 20% of the units on each of January 23, 2013 and January 23, 2014, and with respect to the final 10% of the units on January 23, 2015. Subject to Mr. Bradley’s continued employment with the Company, the Restricted Stock Units granted to Mr. Bradley will generally vest with respect to 50% of the units on January 23, 2014, with the remaining 50% of the units vesting in seven substantially equal annual installments on each subsequent anniversary of such date so that the award is fully vested on January 23, 2021. The Restricted Stock Units are subject to full or partial accelerated vesting in the event of certain terminations of employment or upon certain changes in control of the Company. The Restricted Stock Units will generally be paid as they become vested although Messrs. Khoury and Bradley may elect to have the units paid on a deferred basis.

The foregoing description of the grants of Restricted Stock Units to Messrs. Khoury and Bradley is qualified in its entirety by reference to the Stock Unit Agreements that evidence such grants, copies of which are attached hereto as Exhibits 10.1 and 10.2, respectively, and incorporated herein by reference.

Amended and Restated Employment Agreement with Douglas M. Pasquale

On April 23, 2007 the Committee approved an amended and restated employment agreement with Douglas M. Pasquale (the “Pasquale Employment Agreement”), the Company’s President and Chief Executive Officer. The Pasquale Employment Agreement is effective April 23, 2007 (the “Effective Date”).

Subject to certain termination provisions, the Pasquale Employment Agreement provides for an initial term of employment extending until the third anniversary of the Effective Date; provided, however, that on the first day of each month after the Effective Date, the employment term automatically will be extended so as to terminate on the third anniversary of such date unless the Company or Mr. Pasquale gives notice that the term will not be further extended.

The Pasquale Employment Agreement provides for Mr. Pasquale to receive the following compensation and benefits during the employment term: (i) base salary at an annual rate of $538,500 (subject to annual review by the Committee); (ii) an annual bonus opportunity, ranging from 100% to 200% of Mr. Pasquale’s annual base salary, determined by the Committee based on the Company’s and Mr. Pasquale’s performance; (iii) share-based compensation at least annually in accordance with the Company’s compensation plans; and (iv) participation in the Company’s other benefit plans applicable to the Company’s senior executives.

The Pasquale Employment Agreement also provides that, if Mr. Pasquale’s employment is terminated by the Company without “Cause” (and not on account of death or total disability) or by Mr. Pasquale for “Good Reason,” then Mr. Pasquale will be entitled to receive the following separation benefits: (i) a pro-rated portion of his annual bonus for the fiscal year of separation; (ii) an amount equal to three times Mr. Pasquale’s highest annual base salary during any of the last three full fiscal years prior to separation, payable in equal monthly installments over the three-year period following separation; (iii) an amount equal to three times the average annual bonus earned by Mr. Pasquale over the last three full fiscal years prior to separation, payable in equal annual installments over the three-year period following separation; (iv) continued medical and life insurance benefits for three years following separation, on terms no less favorable in the aggregate than the most favorable of those provided to Mr. Pasquale

during the year immediately preceding the separation; (v) accelerated vesting of all outstanding share-based awards; and (vi) performance-based dividend equivalents on outstanding stock options, to the extent earned by Mr. Pasquale through the date of separation, for the three-year period following separation. (The terms “Cause” and “Good Reason” are each defined in the Pasquale Employment Agreement.)

If Mr. Pasquale’s employment with the Company terminates on account of his death or total disability, Mr. Pasquale will be entitled to (i) a pro-rated portion of his annual bonus (at not less than 100% of base salary) for the fiscal year of separation and (ii) pro-rata vesting of outstanding share-based awards.

Should Mr. Pasquale’s separation benefits (whether under the Pasquale Employment Agreement or any other plan or arrangement) be subject to the excise tax imposed under Section 280G of the Internal Revenue Code of 1986 (“Section 280G”), the Pasquale Employment Agreement provides that the Company will make an additional payment to Mr. Pasquale so that the net amount of such payment (after taxes) received by Mr. Pasquale is sufficient to pay the excise tax due.

The foregoing description of the Pasquale Employment Agreement is qualified in its entirety by reference to the Amended and Restated Employment Agreement, dated as of April 23, 2007, between Nationwide Health Properties, Inc. and Douglas M. Pasquale, a copy of which is attached hereto as Exhibit 10.3 and incorporated herein by reference.

Amended and Restated Change in Control Agreements with Other Named Executive Officers

On April 23, 2007, the Committee approved amended and restated change in control agreements with each of Mr. Khoury, Mr. Bradley and David E. Snyder, the Company’s Vice President and Controller (the “Change in Control Agreements”).

The Change in Control Agreements provide that, if within 6 months prior to or three years following a “Change in Control” of the Company the executive’s employment is terminated by the Company without “Cause” (and not on account of death or total disability) or by the executive for “Good Reason,” then the executive will be entitled to receive the following separation benefits: (i) an amount equal to three times the executive’s highest annual base salary during any of the last three full fiscal years prior to separation, payable in equal monthly installments over the three-year period following separation; (ii) an amount equal to three times the average annual bonus earned by the executive over the last three full fiscal years prior to separation (or, if the executive has not been employed for three full fiscal years or has not received three annual bonuses, the average of the last two actual bonuses received by the executive and the executive’s target bonus for the year of separation), payable in equal annual installments over the three-year period following separation; (iii) continued medical and life insurance benefits for three years following separation, on terms no less favorable in the aggregate than the most favorable of those provided to the executive during the year immediately preceding the separation; (iv) accelerated vesting of all outstanding share-based awards; and (v) performance-based dividend equivalents on outstanding stock options, to the extent earned by the executive through the date of separation, for the three-year period following separation. (The terms “Cause,” “Good Reason” and “Change in Control” are each defined in the Change in Control Agreements.)

Should an executive’s separation benefits (whether under a Change in Control Agreement or any other plan or arrangement) be subject to the excise tax imposed under Section 280G, the Change in Control Agreements provide that the Company will make an additional payment to the executive so that the net amount of such payment (after taxes) received by the executive is sufficient to pay the excise tax due.

The foregoing description of the Change in Control Agreements is qualified in its entirety by reference to the form of Change in Control Agreement, a copy of which is attached hereto as Exhibit 10.4 and incorporated herein by reference.

ITEM 5.03

AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR

The Board previously approved, subject to stockholder approval, an amendment to Section 1 of Article IV of the Company’s charter increasing the authorized number of shares of the Company’s common stock from

100,000,000 to 200,000,000 (the “Charter Amendment”). The Company’s stockholders approved the Charter Amendment at the annual meeting of stockholders held on April 24, 2007. On April 25, 2007, the Company filed Articles of Amendment with the State Department of Assessments and Taxation of Maryland effectuating the Charter Amendment.

The foregoing description of the Charter Amendment is qualified in its entirety by reference to the Articles of Amendment of the Amended and Restated Articles of Incorporation of the Company, a copy of which is attached hereto as Exhibit 3.1 and incorporated herein by reference.

ITEM 9.01

FINANCIAL STATEMENTS AND EXHIBITS.

(d) Exhibits


EXHIBIT NO.		DESCRIPTION
3.1		Articles of Amendment of the Amended and Restated Articles of Incorporation of the Company.

10.1		Stock Unit Award Agreement, dated as of April 23, 2007, between Nationwide Health Properties, Inc. and Abdo H. Khoury.

10.2		Stock Unit Award Agreement, dated as of April 23, 2007, between Nationwide Health Properties, Inc. and Donald D. Bradley.

10.3		Amended and Restated Employment Agreement, dated as of April 23, 2007, between Nationwide Health Properties, Inc. and Douglas M. Pasquale.

10.4		Form of Change in Control Agreement.

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.


		Nationwide Health Properties, Inc.
		(Registrant)

	By:	/s/ Abdo H. Khoury
Date: April 27, 2007		Abdo H. Khoury
		Senior Vice President and Chief Financial and Portfolio Officer

EX-3.1 2 dex31.htm ARTICLES OF AMENDMENT Articles of Amendment

Exhibit 3.1

NATIONWIDE HEALTH PROPERTIES, INC.

ARTICLES OF AMENDMENT

THIS IS TO CERTIFY THAT:

FIRST: The Charter of Nationwide Health Properties, Inc. (the “corporation”) is hereby amended by deleting Section 1 of Article IV of the Articles of Incorporation (as heretofore amended) and inserting in lieu thereof the following:

“Section 1: The total number of shares of capital stock which the corporation shall have authority to issue is Two Hundred Five Million (205,000,000), of which Two Hundred Million (200,000,000) shall be shares of Common Stock having a par value of $.10 per share and Five Million (5,000,000) shall be shares of Preferred Stock having a par value of $1.00 per share. The aggregate par value of all of said shares shall be Twenty-Five Million Dollars ($25,000,000).”

SECOND: The amendment to the Charter as hereinabove set forth was advised and approved by a majority of the entire Board of Directors and approved by the stockholders of the corporation as required by law.

THIRD: The total number of shares of stock of all classes which the corporation had authority to issue immediately prior to these Articles of Amendment was One Hundred Five Million shares (105,000,000), consisting of One Hundred Million (100,000,000) shares of Common Stock, having a par value of $.10 per share, and Five Million (5,000,000) shares of Preferred Stock, having a par value of $1.00 per share. The aggregate par value of all shares of stock having par value was Fifteen Million Dollars ($15,000,000).

FOURTH: The total number of shares of stock of all classes which the corporation has authority to issue pursuant to these Articles of Amendment is Two Hundred Five Million shares (205,000,000), consisting of Two Hundred Million (200,000,000) shares of Common Stock, having a par value of $.10 per share, and Five Million (5,000,000) shares of Preferred Stock, having a par value of $1.00 per share. The aggregate par value of all shares of stock having par value is Twenty-Five Million Dollars ($25,000,000). The information required by Section 2-607(b)(2)(i) of the Maryland General Corporation Law is not changed by these Articles of Amendment.

FIFTH: The undersigned President of the corporation acknowledges these Articles of Amendment to be the corporate act of the corporation and, as to all matters or facts required to be verified under oath, the undersigned President acknowledges that, to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.

IN WITNESS WHEREOF, the corporation has caused these Articles of Amendment to be signed in its name and on its behalf by its President and attested to by its Secretary on this 24th day of April, 2007.


ATTEST:	NATIONWIDE HEALTH PROPERTIES, INC.

/s/ Don M. Pearson	By:	/s/ Douglas M. Pasquale
Don M. Pearson, Secretary		Douglas M. Pasquale, President

EX-10.1 3 dex101.htm STOCK UNIT AWARD AGREEMENT BETWEEN NHP AND ABDO H. KHOURY Stock Unit Award Agreement between NHP and Abdo H. Khoury

Exhibit 10.1

NATIONWIDE HEALTH PROPERTIES, INC.

2005 PERFORMANCE INCENTIVE PLAN

STOCK UNIT AWARD AGREEMENT

THIS STOCK UNIT AWARD AGREEMENT (this “Agreement”) is dated as of April 23, 2007 by and between Nationwide Health Properties, Inc., a Maryland corporation (the “Corporation”), and Abdo H. Khoury (the “Executive”).

W I T N E S S E T H

WHEREAS, pursuant to the Nationwide Health Properties, Inc. 2005 Performance Incentive Plan (the “Plan”), the Corporation has granted to the Executive effective as of the date hereof (the “Award Date”), a credit of stock units under the Plan (the “Award”), upon the terms and conditions set forth herein and in the Plan.

NOW THEREFORE, in consideration of services rendered and to be rendered by the Executive, and the mutual promises made herein and the mutual benefits to be derived therefrom, the parties agree as follows:

1. Defined Terms. Capitalized terms used herein and not otherwise defined herein shall have the meaning assigned to such terms in the Plan.

2. Grant. Subject to the terms of this Agreement, the Corporation hereby grants to the Executive an Award with respect to an aggregate of 30,807.1473 stock units (subject to adjustment as provided in Section 7.1 of the Plan) (the “Stock Units”). As used herein, the term “stock unit” shall mean a non-voting unit of measurement which is deemed for bookkeeping purposes to be equivalent to one outstanding share of the Corporation’s Common Stock (subject to adjustment as provided in Section 7.1 of the Plan) solely for purposes of the Plan and this Agreement. The Stock Units shall be used solely as a device for the determination of the payment to eventually be made to the Executive if such Stock Units vest pursuant to Section 3 or Section 9. The Stock Units shall not be treated as property or as a trust fund of any kind.

3. Vesting. Subject to Sections 8 and 9 below, the Award shall vest and become nonforfeitable with respect to the applicable number of the total Stock Units subject to the Award (with such number subject to adjustment under Section 7.1 of the Plan) upon each date set forth in the table below (with the first such date set forth below referred to herein as the “Initial Vesting Date”):


Date		Number of Units That Vest
July 23, 2012		15,403.57365
January 23, 2013		6,161.42946
January 23, 2014		6,161.42946
January 23, 2015		3,080.71473

4. Continuance of Employment. The vesting schedule requires continued employment or service through each applicable vesting date as a condition to the vesting of the applicable installment of the Award and the rights and benefits under this Agreement. Except as expressly provided in Section 8(b), employment or service for only a portion of any vesting period, even if a substantial portion, will not entitle the Executive to any proportionate vesting or avoid or mitigate a termination of rights and benefits upon or following a termination of employment or services as provided in Section 8 below or under the Plan for such vesting period (or for any later vesting period).

Nothing contained in this Agreement or the Plan constitutes an employment or service commitment by the Corporation, affects the Executive’s status as an employee at will who is subject to termination without cause, confers upon the Executive any right to remain employed by or in service to the Corporation or any Subsidiary, interferes in any way with the right of the Corporation or any Subsidiary at any time to terminate such employment or services, or affects the right of the Corporation or any Subsidiary to increase or decrease the Executive’s other compensation or benefits. Nothing in this paragraph, however, is intended to adversely affect any independent contractual right of the Executive without his consent thereto.

5. Dividend and Voting Rights.

(a) Limitations on Rights Associated with Units. The Executive shall have no rights as a stockholder of the Corporation, no dividend rights (except as expressly provided in Sections 5(b) and 5(c) with respect to Dividend Equivalent Rights) and no voting rights, with respect to the Stock Units and any shares of Common Stock underlying or issuable in respect of such Stock Units until such shares of Common Stock are actually issued to and held of record by the Executive. No adjustments will be made for dividends or other rights of a holder for which the record date is prior to the date of issuance of the stock certificate.

(b) Dividend Equivalent Rights. In the event that the Corporation pays an ordinary cash dividend on its Common Stock and the related dividend payment record date occurs at any time after the Award Date and before all of the Stock Units subject to the Award have either been paid pursuant to Section 7 or terminated pursuant to Sections 8 or 9, the Corporation shall credit the Executive as of the last day of the calendar quarter in which such record date occurs (the “Crediting Date”) with an additional number of Stock Units equal to (i) the per-share cash dividend paid by the Corporation on its Common Stock with respect to such record date, multiplied by (ii) the total number of outstanding and unpaid Stock Units (including any dividend equivalents previously credited hereunder) (with such total number adjusted pursuant to Section 7.1 of the Plan and/or Section 10 hereof) subject to the Award as of such record date, divided by (iii) the fair market value of a share of Common Stock (as determined under the Plan) on the Crediting Date. Any Stock Units credited pursuant to the foregoing provisions of this Section 5(b) shall be subject to the same vesting, payment and other terms, conditions and restrictions as the original Stock Units to which they relate. No crediting of Stock Units shall be made pursuant to this Section 5(b) with respect to any Stock Units which, as of such record date, have either been paid pursuant to Section 7 or terminated pursuant to Sections 8 or 9. Notwithstanding the above, 68/91 (the number of days remaining in the quarter after the Award Date divided by the total number of days in the quarter) of the dividend payable June 1, 2007, shall be payable in additional stock units on and applicable to the Stock Units and shall be credited on the Crediting Date of June 30, 2007.

(c) Special Crediting Date. Notwithstanding Section 5(b), if the vesting of the Award is accelerated in whole or in part pursuant to an Acceleration Event (as defined in Section 9) as provided in Section 9, and the Corporation pays an ordinary cash dividend on its Common Stock for which the related dividend payment record date occurs during the calendar quarter in which the Acceleration Event occurs and before the occurrence of such Acceleration Event, a Crediting Date shall be deemed to have occurred on the date of such Acceleration Event (a “Special Crediting Date”), and the Corporation shall credit the Executive as of such Special Crediting Date with an additional number of Stock Units equal to (i) the per-share cash dividend paid by the Corporation on its Common Stock with respect to each such record date, multiplied by (ii) the total number of outstanding and unpaid Stock Units (including any dividend equivalents previously credited hereunder) (with such total number adjusted pursuant to Section 7.1 of the Plan and/or Section 10 hereof) subject to the Award as of such record date, divided by (iii) the fair market value of a share of Common Stock on the Special Crediting Date. Any Stock Units credited pursuant to the foregoing provisions of this Section 5(c) shall be subject to the same vesting, payment and other terms, conditions and restrictions as the original Stock Units to which they relate. No crediting of Stock Units shall be made pursuant to this Section 5(c) with respect to any Stock Units which, as of such record date, have either been paid pursuant to Section 7 or terminated pursuant to Sections 8 or 9. For purposes of clarity, the Executive will not be entitled to a credit of additional Stock Units under both Section 5(b) and this Section 5(c) with respect to any one dividend payment record date.

6. Restrictions on Transfer. Neither the Award, nor any interest therein or amount or shares payable in respect thereof may be sold, assigned, transferred, pledged or otherwise disposed of, alienated or encumbered, either voluntarily or involuntarily. The transfer restrictions in the preceding sentence shall not apply to (a) transfers to the Corporation, or (b) transfers by will or the laws of descent and distribution.

7. Timing and Manner of Payment of Stock Units. Except as provided below with respect to an Acceleration Event, on or as soon as administratively practical after the last day of any calendar quarter in which any Stock Units subject to the Award became vested, the Corporation shall deliver to the Executive a number of shares of Common Stock (either by delivering one or more certificates for such shares or by entering such shares in book entry form, as determined by the Corporation in its discretion) equal to the number of such Stock Units that vested during such calendar quarter (including any vested Stock Units credited in respect of Dividend Equivalent Rights for such calendar quarter pursuant to Section 5(b) hereof); provided, however, that the Executive may elect, on a form and in a manner prescribed by the Administrator, to defer any such payment of vested Stock Units, provided that such election must be made no less than twelve (12) months before such payment would otherwise be made, must defer such payment for a period of not less than five (5) years, and must otherwise comply with any applicable requirements of Section 409A of the Code. Notwithstanding the foregoing sentence, upon the occurrence of an Acceleration Event, the Stock Units that have vested as of the date of such Acceleration Event (after giving effect to any accelerated vesting in connection with such event pursuant to Section 9 and the crediting of any Dividend Equivalent Rights pursuant to Section 5(c) hereof) shall be paid promptly after such Acceleration Event. The

Corporation’s obligation to deliver shares of Common Stock or otherwise make payment with respect to vested Stock Units is subject to the condition precedent that the Executive or other person entitled under the Plan to receive any shares with respect to the vested Stock Units deliver to the Corporation any representations or other documents or assurances required pursuant to Section 8.1 of the Plan. The Executive shall have no further rights with respect to any Stock Units that are paid pursuant to this Section 7 or that terminate pursuant to Sections 8 or 9.

8. Effect of Termination of Employment.

(a) General. Subject to Section 8(b), the Executive’s Stock Units shall terminate to the extent such units have not become vested prior to the first date the Executive is no longer employed by the Corporation or one of its Subsidiaries, regardless of the reason for the termination of the Executive’s employment with the Corporation or a Subsidiary, whether with or without cause, voluntarily or involuntarily. If any unvested Stock Units are terminated hereunder, such Stock Units shall automatically terminate and be cancelled as of the applicable termination date without payment of any consideration by the Corporation and without any other action by the Executive, or the Executive’s beneficiary or personal representative, as the case may be.

(b) Death or Disability. Notwithstanding Section 8(a) or any other provisions of this Agreement or the Plan, in the event that the Executive’s employment with the Corporation and its Subsidiaries terminates due to the Executive’s death or Disability (as defined below):

•

at any time prior to the Initial Vesting Date, the Award shall vest and become nonforfeitable with respect to 1.5151% of the total number of Stock Units (subject to adjustment under Section 7.1 of the Plan) for each month of Executive’s employment with the Corporation (measured with reference to monthly anniversaries of the Award Date) after the Award Date and ending with the date of such termination of the Executive’s employment (rounded up to the nearest whole share); and

•

at any time on or after the Initial Vesting Date, the Award shall become fully vested and nonforfeitable as of the date of such termination of the Executive’s employment.

For purposes of this Section 8(b), the term “Disability” shall have the meaning ascribed to such term in that certain Change in Control Agreement dated April 23, 2007 by and between the Corporation and the Executive (as it may be amended from time to time, the “Change in Control Agreement”). Any Stock Units subject to the Award that are not vested after giving effect to the foregoing provisions of this Section 8(b) shall terminate as of the date of termination of the Executive’s employment. If any unvested Stock Units are terminated hereunder, such Stock Units shall automatically terminate and be cancelled as of the applicable termination date without payment of any consideration by the Corporation and without any other action by the Executive, or the Executive’s beneficiary or personal representative, as the case may be.

9. Effect of Change in Control Event. Notwithstanding anything to the contrary in Section 3 of this Agreement or Section 7.2 of the Plan, in the event of the dissolution of the Corporation or other event described in Section 7.1 of the Plan (which generally covers mergers or similar reorganizations) that the Corporation does not survive (or does not survive as a public company in respect of its Common Stock) or a Change in Control Event (an “Acceleration Event”), the Award shall be deemed vested as of the effective date of the Acceleration Event with respect to the applicable number of the total Stock Units subject to the Award (with such number subject to adjustment under Section 7.1 of the Plan) set forth in the table below based upon the year following the Award Date (measured with reference to anniversaries of the Award Date) in which such Acceleration Event occurs:


Year Following Award Date		Number of Units Deemed Vest
1st		9,242.14419
2nd		12,322.85892
3rd		15,403.57365
4th		18,484.28838
5th		21,565.00311
6th		24,645.71784
7th		27,726.43257
8th		30,807.14730

Any Stock Units subject to the Award that are not vested after giving effect to the foregoing provisions of this Section 9 shall terminate as of the effective date of the Acceleration Event, unless provision has been expressly made by the Administrator, through a plan of reorganization or otherwise, for the survival, substitution, assumption or exchange of the Award in connection with the Acceleration Event. If any unvested Stock Units are terminated hereunder, such Stock Units shall automatically terminate and be cancelled as of the applicable termination date without payment of any consideration by the Corporation and without any other action by the Executive, or the Executive’s beneficiary or personal representative, as the case may be.

10. Adjustments Upon Specified Events. The Administrator may accelerate payment and vesting of the Stock Units in such circumstances as it, in its sole discretion, may determine. In addition, upon the occurrence of certain events relating to the Corporation’s stock contemplated by Section 7.1 of the Plan (including, without limitation, an extraordinary cash dividend on such stock), the Administrator shall make adjustments in accordance with such section in the number of Stock Units then outstanding and the number and kind of securities that may be issued in respect of the Award. No such adjustment shall be made with respect to any ordinary cash dividend for which dividend equivalents are credited pursuant to Sections 5(b) or 5(c).

11. Tax Withholding. Subject to Section 8.1 of the Plan and such rules and procedures as the Administrator may impose, upon any distribution of shares of Common Stock in respect of

the Stock Units, the Corporation shall automatically reduce the number of shares to be delivered by (or otherwise reacquire) the appropriate number of whole shares, valued at their then fair market value (with the “fair market value” of such shares determined in accordance with the applicable provisions of the Plan), to satisfy any withholding obligations of the Corporation or its Subsidiaries with respect to such distribution of shares at the minimum applicable withholding rates. In the event that the Corporation cannot legally satisfy such withholding obligations by such reduction of shares, or in the event of a cash payment or any other withholding event in respect of the Stock Units, the Corporation (or a Subsidiary) shall be entitled to require a cash payment by or on behalf of the Executive and/or to deduct from other compensation payable to the Executive any sums required by federal, state or local tax law to be withheld with respect to such distribution or payment.

12. Notices. Any notice to be given under the terms of this Agreement shall be in writing and addressed to the Corporation at its principal office to the attention of the Secretary, and to the Executive at the Executive’s last address reflected on the Corporation’s records, or at such other address as either party may hereafter designate in writing to the other. Any such notice shall be given only when received, but if the Executive is no longer an employee of the Corporation, shall be deemed to have been duly given by the Corporation when enclosed in a properly sealed envelope addressed as aforesaid, registered or certified, and deposited (postage and registry or certification fee prepaid) in a post office or branch post office regularly maintained by the United States Government.

13. Plan. The Award and all rights of the Executive under this Agreement are subject to the terms and conditions of the provisions of the Plan, incorporated herein by reference. The Executive agrees to be bound by the terms of the Plan and this Agreement. The Executive acknowledges having read and understanding the Plan, the Prospectus for the Plan, and this Agreement. Unless otherwise expressly provided in other sections of this Agreement, provisions of the Plan that confer discretionary authority on the Board or the Administrator do not (and shall not be deemed to) create any rights in the Executive unless such rights are expressly set forth herein or are otherwise in the sole discretion of the Board or the Administrator so conferred by appropriate action of the Board or the Administrator under the Plan after the date hereof.

14. Construction; Section 409A. It is intended that the terms of the Award will not result in the imposition of any tax liability pursuant to Section 409A of the Code. This Agreement shall be construed and interpreted consistent with that intent. Notwithstanding any provision of this Agreement to the contrary, if the Executive is a “specified employee” as defined in Code Section 409A and, as a result of that status, any portion of the payments under this Agreement would otherwise be subject to taxation pursuant to Code Section 409A, the Executive shall not be entitled to any payments upon a termination of his employment until the earlier of (i) the date which is six (6) months after his termination of employment for any reason other than death, or (ii) the date of the Executive’s death; provided the first such payment thereafter shall include all amounts that would have been paid earlier but for such six (6) month delay. The Corporation and the Executive agree to act reasonably and to cooperate to amend or modify this Agreement to the extent reasonably necessary to avoid the imposition of the tax under Code Section 409A.

15. Entire Agreement; Applicability of Other Agreements. This Agreement and the Plan together constitute the entire agreement and supersede all prior understandings and agreements,

written or oral, of the parties hereto with respect to the subject matter hereof. The Plan and this Agreement may be amended pursuant to Section 8.6 of the Plan. Such amendment must be in writing and signed by the Corporation. The Corporation may, however, unilaterally waive any provision hereof in writing to the extent such waiver does not adversely affect the interests of the Executive hereunder, but no such waiver shall operate as or be construed to be a subsequent waiver of the same provision or a waiver of any other provision hereof. Notwithstanding the foregoing, if the Executive is subject to a written employment, change in control or similar agreement with the Corporation that is in effect as of the date of termination of the Executive’s employment with the Corporation and its Subsidiaries and the Executive would be entitled under the express provisions of such agreement to greater rights with respect to accelerated vesting of the Award in connection with the termination of the Executive’s employment in the circumstances, the provisions of such agreement shall control with respect to such vesting rights, and the corresponding provisions of this Agreement shall not apply.

16. Limitation on Executive’s Rights. Participation in the Plan confers no rights or interests other than as herein provided. This Agreement creates only a contractual obligation on the part of the Corporation as to amounts payable and shall not be construed as creating a trust. Neither the Plan nor any underlying program, in and of itself, has any assets. The Executive shall have only the rights of a general unsecured creditor of the Corporation with respect to amounts credited and benefits payable, if any, with respect to the Stock Units, and rights no greater than the right to receive the Common Stock as a general unsecured creditor with respect to Stock Units, as and when payable hereunder.

17. Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

18. Section Headings. The section headings of this Agreement are for convenience of reference only and shall not be deemed to alter or affect any provision hereof.

19. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Maryland without regard to conflict of law principles thereunder.

[Remainder of page intentionally left blank]

IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed on its behalf by a duly authorized officer and the Executive has hereunto set his hand as of the date and year first above written.


NATIONWIDE HEALTH PROPERTIES, INC.						EXECUTIVE

A Maryland corporation

By:						Signature

Print Name:
						Print Name
Its:

CONSENT OF SPOUSE

In consideration of the execution of the foregoing Stock Unit Award Agreement by Nationwide Health Properties, Inc., I, , the spouse of the Executive therein named, do hereby join with my spouse in executing the foregoing Stock Unit Award Agreement and do hereby agree to be bound by all of the terms and provisions thereof and of the Plan.

Dated: , 2007



Signature of Spouse


Print Name

EX-10.2 4 dex102.htm STOCK UNIT AWARD AGREEMENT BETWEEN NHP AND DONALD D. BRADLEY Stock Unit Award Agreement between NHP and Donald D. Bradley

Exhibit 10.2

NATIONWIDE HEALTH PROPERTIES, INC.

2005 PERFORMANCE INCENTIVE PLAN

STOCK UNIT AWARD AGREEMENT

W I T N E S S E T H

1. Defined Terms. Capitalized terms used herein and not otherwise defined herein shall have the meaning assigned to such terms in the Plan.


Date		Number of Units That Vest
January 23, 2014		15,403.57365
January 23, 2015		2,200.51052
January 23, 2016		2,200.51052
January 23, 2017		2,200.51052
January 23, 2018		2,200.51052
January 23, 2019		2,200.51052
January 23, 2020		2,200.51052
January 23, 2021		2,200.51053

5. Dividend and Voting Rights.

the per-share cash dividend paid by the Corporation on its Common Stock with respect to such record date, multiplied by (ii) the total number of outstanding and unpaid Stock Units (including any dividend equivalents previously credited hereunder) (with such total number adjusted pursuant to Section 7.1 of the Plan and/or Section 10 hereof) subject to the Award as of such record date, divided by (iii) the fair market value of a share of Common Stock (as determined under the Plan) on the Crediting Date. Any Stock Units credited pursuant to the foregoing provisions of this Section 5(b) shall be subject to the same vesting, payment and other terms, conditions and restrictions as the original Stock Units to which they relate. No crediting of Stock Units shall be made pursuant to this Section 5(b) with respect to any Stock Units which, as of such record date, have either been paid pursuant to Section 7 or terminated pursuant to Sections 8 or 9. Notwithstanding the above, 68/91 (the number of days remaining in the quarter after the Award Date divided by the total number of days in the quarter) of the dividend payable June 1, 2007, shall be payable in additional stock units on and applicable to the Stock Units and shall be credited on the Crediting Date of June 30, 2007.

as determined by the Corporation in its discretion) equal to the number of such Stock Units that vested during such calendar quarter (including any vested Stock Units credited in respect of Dividend Equivalent Rights for such calendar quarter pursuant to Section 5(b) hereof); provided, however, that the Executive may elect, on a form and in a manner prescribed by the Administrator, to defer any such payment of vested Stock Units, provided that such election must be made no less than twelve (12) months before such payment would otherwise be made, must defer such payment for a period of not less than five (5) years, and must otherwise comply with any applicable requirements of Section 409A of the Code. Notwithstanding the foregoing sentence, upon the occurrence of an Acceleration Event, the Stock Units that have vested as of the date of such Acceleration Event (after giving effect to any accelerated vesting in connection with such event pursuant to Section 9 and the crediting of any Dividend Equivalent Rights pursuant to Section 5(c) hereof) shall be paid promptly after such Acceleration Event. The Corporation’s obligation to deliver shares of Common Stock or otherwise make payment with respect to vested Stock Units is subject to the condition precedent that the Executive or other person entitled under the Plan to receive any shares with respect to the vested Stock Units deliver to the Corporation any representations or other documents or assurances required pursuant to Section 8.1 of the Plan. The Executive shall have no further rights with respect to any Stock Units that are paid pursuant to this Section 7 or that terminate pursuant to Sections 8 or 9.

8. Effect of Termination of Employment.

•

at any time prior to the Initial Vesting Date, the Award shall vest and become nonforfeitable with respect to 1.1905% of the total number of Stock Units (subject to adjustment under Section 7.1 of the Plan) for each month of Executive’s employment with the Corporation (measured with reference to monthly anniversaries of the Award Date) after the Award Date and ending with the date of such termination of the Executive’s employment (rounded up to the nearest whole share); and

•

at any time on or after the Initial Vesting Date, the Award shall become fully vested and nonforfeitable as of the date of such termination of the Executive’s employment.

9. Effect of Change in Control Event. Notwithstanding anything to the contrary in Section 3 of this Agreement or Section 7.2 of the Plan, in the event of the dissolution of the Corporation or other event described in Section 7.1 of the Plan (which generally covers mergers or similar reorganizations) that the Corporation does not survive (or does not survive as a public company in respect of its Common Stock) or a Change in Control Event (an “Acceleration Event”), the Award shall be deemed vested as of the effective date of the Acceleration Event with respect to the applicable number of the total Stock Units subject to the Award (with such number subject to adjustment under Section 7.1 of the Plan) set forth in the table below based upon the year following the Award Date (measured with reference to anniversaries of the Award Date) in which such Acceleration Event occurs:


Year Following Award Date		Number of Units Deemed Vest
1st		9,242.14419
2nd		10,905.73014
3rd		12,569.31610
4th		14,232.90205
5th		15,896.48800
6th		17,560.07396
7th		19,223.65992
8th		20,887.24587
9th		22,550.83182
10th		24,214.41778
11th		25,878.00373
12th		27,541.58969
13th		29,205.17564
14th		30,807.14730

hereunder, such Stock Units shall automatically terminate and be cancelled as of the applicable termination date without payment of any consideration by the Corporation and without any other action by the Executive, or the Executive’s beneficiary or personal representative, as the case may be.

11. Tax Withholding. Subject to Section 8.1 of the Plan and such rules and procedures as the Administrator may impose, upon any distribution of shares of Common Stock in respect of the Stock Units, the Corporation shall automatically reduce the number of shares to be delivered by (or otherwise reacquire) the appropriate number of whole shares, valued at their then fair market value (with the “fair market value” of such shares determined in accordance with the applicable provisions of the Plan), to satisfy any withholding obligations of the Corporation or its Subsidiaries with respect to such distribution of shares at the minimum applicable withholding rates. In the event that the Corporation cannot legally satisfy such withholding obligations by such reduction of shares, or in the event of a cash payment or any other withholding event in respect of the Stock Units, the Corporation (or a Subsidiary) shall be entitled to require a cash payment by or on behalf of the Executive and/or to deduct from other compensation payable to the Executive any sums required by federal, state or local tax law to be withheld with respect to such distribution or payment.

15. Entire Agreement; Applicability of Other Agreements. This Agreement and the Plan together constitute the entire agreement and supersede all prior understandings and agreements, written or oral, of the parties hereto with respect to the subject matter hereof. The Plan and this Agreement may be amended pursuant to Section 8.6 of the Plan. Such amendment must be in writing and signed by the Corporation. The Corporation may, however, unilaterally waive any provision hereof in writing to the extent such waiver does not adversely affect the interests of the Executive hereunder, but no such waiver shall operate as or be construed to be a subsequent waiver of the same provision or a waiver of any other provision hereof. Notwithstanding the foregoing, if the Executive is subject to a written employment, change in control or similar agreement with the Corporation that is in effect as of the date of termination of the Executive’s employment with the Corporation and its Subsidiaries and the Executive would be entitled under the express provisions of such agreement to greater rights with respect to accelerated vesting of the Award in connection with the termination of the Executive’s employment in the circumstances, the provisions of such agreement shall control with respect to such vesting rights, and the corresponding provisions of this Agreement shall not apply.

18. Section Headings. The section headings of this Agreement are for convenience of reference only and shall not be deemed to alter or affect any provision hereof.

19. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Maryland without regard to conflict of law principles thereunder.

[Remainder of page intentionally left blank]


NATIONWIDE HEALTH PROPERTIES, INC. A Maryland corporation						EXECUTIVE


By:						Signature

Print Name:
						Print Name
Its:

CONSENT OF SPOUSE

Dated: , 2007



Signature of Spouse


Print Name

EX-10.3 5 dex103.htm AMENDED AND RESTATED EMPLOYMENT AGREEMENT BETWEEN NHP AND DOUGLAS M. PASQUALE Amended and Restated Employment Agreement between NHP and Douglas M. Pasquale

Exhibit 10.3

AMENDED AND RESTATED

EMPLOYMENT AGREEMENT

(Douglas M. Pasquale)

This AMENDED AND RESTATED EMPLOYMENT AGREEMENT is entered into this 23rd day of April, 2007, by and between Nationwide Health Properties, Inc., a Maryland corporation (the “Company”), and Douglas M. Pasquale (the “Executive”).

The Board of Directors of the Company has determined that it is in the best interests of the Company and its shareholders to enter into this Amended and Restated Employment Agreement with Executive to assure that the Company will continue to have the service and dedication of Executive. Except for any stock unit awards, restricted stock awards, stock appreciation rights awards, performance share awards or other similar equity grants, including Stock Options, this Amended and Restated Employment Agreement contains the entire agreement between the parties with respect to the matters specified herein, and supersedes any prior oral and written employment agreements, understandings and commitments between the Company and Executive, and any severance or employment security policy of the Company which may cover Executive.

NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:

I.	Definitions.

is materially and demonstrably injurious to the Company. For purposes of this definition, no act or failure to act on the part of Executive shall be considered “willful” unless it is done, or omitted to be done, by Executive in bad faith or without reasonable belief that Executive’s action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or a committee thereof or based on the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by Executive in good faith and in the best interests of the Company.

(2) “Disability” shall mean the absence of Executive from his duties with the Company on a full-time basis for a period of (a) ninety (90) consecutive calendar days or (b) an aggregate of one hundred fifty (150) or more calendar days in any fiscal year, as a result of mental or physical illness which is determined to be total and permanent by a physician selected by the Company or its insurers and acceptable to Executive.

(3) “Effective Date” shall mean January 1, 2007.

(4) “Employment Period” shall mean the period commencing on November 1, 2003 and ending on the third anniversary thereof; provided, however, that commencing on December 1, 2003 and on the first day of each month thereafter (the most recent of such dates is hereinafter referred to as the “Renewal Date”), the Employment Period shall be automatically extended so as to terminate on the third anniversary of such Renewal Date, unless the Company or Executive shall give notice to the other that the Employment Period shall not be further extended prior to any such Renewal Date.

(5) “Stock Options” means only stock options issued pursuant to Nationwide Health Properties, Inc. 1989 Stock Option Plan as Amended and Restated April 20, 2001, and as it may be further amended, or any other stock option plan of the Company approved by the shareholders.

II. Conditions of Employment.

(1) Position and Duties. Executive is to be employed as President and Chief Executive Officer of the Company. During the Employment Period, (a) Executive’s position (including titles), authority, duties and responsibilities shall be at least commensurate with the most significant of those held, exercised and assigned to Executive at any time, and (b) Executive’s services shall be performed at the location where Executive was employed at the commencement of the Employment Period or any office or location within ten (10) miles from such location. During the Employment Period, and excluding any periods of vacation and sick leave to which Executive is entitled, Executive agrees to devote reasonable attention and time during normal business hours to the business and affairs of the Company, and, to the extent necessary to discharge the responsibilities assigned to Executive hereunder, to use Executive’s reasonable best efforts to perform faithfully and efficiently such responsibilities. During the Employment Period, it shall not be a violation of this Agreement for Executive to serve on corporate, civic or charitable boards or committees so long as such activities do not interfere with the performance of Executive’s responsibilities as an employee of the Company in accordance with this Agreement.

(2) Compensation

(a) Base Salary. As of the Effective Date, Executive shall receive an annual salary base salary (the “Annual Base Salary”) of $538,500, payable in twice monthly installments (except if deferred by Executive under a Company-sponsored deferral plan). Executive’s Annual Base Salary shall be reviewed by the Compensation Committee of the Board (the “Committee”) each January during the Employment Period. Any increase in Annual Base Salary approved by the Committee shall not serve to limit or reduce any other obligation to Executive under this Agreement.

(b) Annual Bonus. In addition to Annual Base Salary, Executive shall be eligible to receive, for each fiscal year ending during the Employment Period, an annual bonus (the “Annual Bonus”), with the specific amount determined by the Committee

based on its assessment of the Company’s and Executive’s performance for the fiscal year. Such Annual Bonus shall range from 0% to 200%, with a target of 100%, of the Annual Base Salary earned by Executive in such fiscal year. In assessing such performance, the Committee shall take into account the growth and income of the Company relative to its annual financial plan, the quality of the Company’s assets, Executive’s performance in terms of implementing the Company’s business strategy, and other considerations deemed by the Committee to be relevant to the current and future success of the Company. The Annual Bonus earned by Executive shall be paid to Executive no later than the 15^th day of the third month following the end of the fiscal year to which the Annual Bonus applies, unless such Annual Bonus is voluntarily deferred by Executive in accordance with a Company sponsored deferral program.

(c) Share–Based Compensation. In addition to Annual Base Salary and Annual Bonus, Executive shall be eligible to receive share-based compensation at least annually in accordance with the Company’s compensation plan.

The specific share-based compensation awards granted to Executive, the specific performance objectives associated with earning the share-based compensation, and any vesting restrictions placed on the share-based compensation shall be determined by the Committee.

(d) Benefit Plans. During the Employment Period, Executive and/or Executive’s beneficiaries, as the case may be, shall participate in and shall receive all benefits under Company-sponsored retirement plans, savings plans, deferral plans, medical plans (including dental, vision and drug prescription plans), life insurance plans, disability plans, and accidental death and travel accident insurance plans provided to Executive as of the Effective Date or as otherwise agreed to by Executive.

(e) Fringe Benefits. During the Employment Period, Executive shall be entitled to annual paid vacation time of five (5) weeks per calendar year. In addition, Executive shall be entitled to receive any fringe benefits or perquisites, or substantial

equivalents thereof, including club memberships, existing or subsequently introduced by the Company during the Employment Period for the President and Chief Executive Officer.

(f) Expenses. Upon presentment of verifiable invoices to the Company’s Controller or Chief Financial Officer (the “Authorized Officer”) and other documentation as may be requested by the Company, and subject to the Company’s expense reimbursement policies, the Company shall reimburse Executive for the reasonable costs and expenses which he incurs in connection with the performance of his duties and obligations under this Agreement. In addition, the Company shall reimburse Executive for all legal expenses incurred by Executive in the preparation, negotiation and execution of this Agreement.

III.

Termination of Employment

(1) Death or Disability. Executive’s employment with the Company shall terminate automatically upon Executive’s death during the Employment Period. In the event of Executive’s Disability during the Employment Period (pursuant to the definition of Disability set forth in Section I (2) of this Agreement), the Company may, at the discretion of the Board, give Executive written notice in accordance with Section IX (2) of this Agreement of its intention to terminate Executive’s employment with the Company. In such event, Executive’s employment with the Company shall terminate effective on the 30^th day after receipt of such notice by Executive (the “Effective Disability Date”), provided that, within the thirty (30) days after such receipt, Executive shall not have returned to full-time performance of his duties; provided that if Executive has returned to full-time performance of his duties, the Company may not terminate Executive due to a Disability until such time limits have again been met.

(2) Cause. The Company may terminate Executive’s employment during the Employment Period for Cause. The termination of employment of Executive shall not be

deemed to be for Cause unless and until there shall have been delivered to Executive a notice that Executive is guilty of the conduct described in Section I (1) specifying the particulars thereof in reasonable detail.

(3) Good Reason. Executive’s employment with the Company may be terminated by Executive during the Employment Period for Good Reason. For purposes of this Agreement, “Good Reason” shall mean (a) without the express written consent of Executive, the assignment to Executive of any duties or any other action by the Board which results in a material diminution in Executive’s position (including titles), authority, duties or responsibilities from those contemplated in Section II (1) of this Agreement, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Board promptly after receipt of notice thereof given by Executive; (b) any failure by the Company to comply with any of the provisions of Section II (2) of this Agreement, other than an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by Executive; (c) a requirement by the Board that the primary business location of Executive be relocated more than ten (10) miles from the location where Executive was employed at the commencement of the Employment Period; (d) any purported termination by the Company of Executive’s employment other than as expressly permitted by this Agreement; or (e) any Change of Control of the Company. “Change of Control” shall mean a change in control of the Company of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A, Regulation 240.14a-101, promulgated under the Securities Exchange Act of 1934 as in effect on the Effective Date or, if Item 6(e) is no longer in effect, any regulation issued by the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934 which serves similar purposes; provided that, without limitation, a Change of Control shall be deemed to have occurred if and when (a) any “person” (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) is or

becomes a beneficial owner, directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company’s then outstanding securities, or (b) individuals who are members of the Board immediately prior to a meeting of the shareholders of the Company involving the election of directors shall not constitute a majority of the Board following such election.

(4) Notice of Termination. Any termination of employment of Executive during the Employment Period by the Company for Cause, or by Executive for Good Reason, shall be communicated to the other party hereto in accordance with Section IX (2) of this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice which (a) indicates the specific termination provision in this Agreement relied upon, (b) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment with the Company under the provision so indicated, and (c) if the Date of Termination (as defined below) is other than the date of receipt of such notice, specifies the termination date (which date shall not be more than thirty (30) days after giving of such notice). The failure by Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of Executive or the Company, respectively, hereunder or preclude Executive or the Company, respectively, from asserting such fact or circumstance in enforcing Executive’s or the Company’s rights hereunder.

(5) Date of Termination. “Date of Termination” means (a) if Executive’s employment is terminated by the Company for Cause, or by Executive for Good Reason, the date of receipt of the Notice of Termination or any later date specified therein, as the case may be, (b) if Executive’s employment is terminated by the Company other than for Cause, death or Disability, the date on which the Company notifies Executive of such termination, and (c) if Executive’s employment is terminated by reason of death or Disability, the date of death of Executive or the Effective Disability Date, as the case may be.

IV.

Obligations of the Company upon Termination of Executive’s Employment.

(1) Termination by Executive for Good Reason or by Company Other than for Cause, Death or Disability. If during the Employment Period, Executive shall terminate his employment with the Company for Good Reason or the Company shall terminate Executive’s employment other than for Cause, death or Disability, the Company shall pay to Executive (i) any Annual Base Salary owed to Executive through the Date of Termination to the extent not previously paid, (ii) a pro-rated portion of the Annual Bonus, (iii) an amount equal to three (3) times Executive’s highest Annual Base Salary during any of the last three full fiscal years prior to the Date of Termination, and (iv) an amount equal to three (3) times the average Annual Bonus earned by Executive over the last three full fiscal years prior to the Date of Termination.

In addition to the payments described in subparagraphs (i), (ii), (iii), and (iv) above, the Company also shall (A) arrange to provide to Executive for a period of three years from the Date of Termination, medical insurance (including dental, vision and prescription drug coverage) and life insurance with terms no less favorable, in the aggregate, than the most favorable of those provided to Executive during the year immediately preceding the Date of Termination, and continue all other benefits in place as of the Date of Termination, (B) immediately vest all previously unvested shares of restricted stock, stock options (including Stock Options), restricted stock units, stock appreciation rights, performance shares, and any and all other stock-based compensation awards received and held by Executive (which shall occur automatically without any action on the part of the Company), (C) provide Executive with any Performance-Based Dividend Equivalents (to the extent earned by the Executive though the Date of Termination, as determined by the Company’s Compensation Committee) for the three

years following the Date of Termination, and (D) pay any compensation previously deferred by Executive in accordance with the provisions of the plan under which such compensation was deferred.

Payments pursuant to subparagraph (i) above shall be made within thirty (30) days following the Date of Termination. Payments pursuant to subparagraph (ii) above shall be made in equal monthly installments over the three-year period following the Date of Termination. Payments pursuant to subparagraph (iii) above shall be made in equal annual installments over the three-year period following the Date of Termination on each anniversary following the Date of Termination. Payments pursuant to subparagraph (C) above shall be made at the time such payments would have been made had Executive remained in the employment of the Company.

If Executive should die while receiving payments pursuant to this Article IV, the remaining payments which would have been made to Executive if he had lived shall be paid to the beneficiary designated in writing by Executive, or if there is no effective written designation, then to his spouse, or if there is neither an effective written designation nor a surviving spouse, then to Executive’s estate. Designation of a beneficiary or beneficiaries to receive the balance of any such payments shall be made by written notice to the Company, and Executive may revoke or change any such designation of beneficiary at any time by a later written notice to the Company.

(2) Death. If Executive’s employment with the Company is terminated by reason of Executive’s death during the Employment Period, this Agreement shall terminate without further obligations to Executive’s legal representatives under this Agreement, other than for (a) payment of any Base Salary previously earned by Executive but as yet unpaid, (b) payment of any Annual Bonus previously awarded to Executive for a fiscal year completed prior to the Date of Termination but as yet unpaid, (c) a pro-rated portion of the Annual Bonus, and (d) the continuation of any existing rights Executive may have following death under the provisions of any benefit, stock option, deferral or

compensation plan provided to Executive by the Company; provided, that, all stock-based compensation awards of any kind shall at a minimum vest pro rata on the Date of Termination automatically without any action on the part of the Company.

(3) Disability. If Executive’s employment with the Company is terminated by reason of Executive’s Disability during the Employment Period in accordance with Section III (1) of this Agreement, this Agreement shall terminate without further obligations to Executive other than for (a) payment of any Base Salary previously earned by Executive but as yet unpaid, (b) payment of any Annual Bonus previously awarded to Executive for a fiscal year completed prior to the Date of Termination but as yet unpaid, (c) a pro-rated portion of the Annual Bonus, and (d) the continuation of any existing rights Executive may have following Disability under the provisions of any benefit, stock option, deferral or compensation plan provided to Executive by the Company; provided, that, all stock-based compensation awards of any kind shall at a minimum vest pro rata on the Date of Termination automatically without any action on the part of the Company.

(4) Cause; Other than for Good Reason. If, during the Employment Period, Executive’s employment shall be terminated for Cause or if Executive voluntarily terminates his employment with the Company other than for Good Reason, this Agreement shall terminate without further obligations to Executive other than for (a) payment of any Base Salary previously earned by Executive but as yet unpaid, (b) payment of any Annual Bonus previously awarded to Executive for a fiscal year completed prior to the Date of Termination but as yet unpaid, (c) payment of any earned vacation pay (or payment for vacation time earned but not taken), and (d) the continuation of any existing rights Executive may have following termination for Cause or voluntary termination other than for Good Reason under any benefit, stock option, deferral or compensation plan provided to Executive by the Company.

(5) If any portion of the payments set forth in Sections IV (1)-(4) above (the “Termination Payments”), together with any and all other amounts due and payable to

Executive as a result of such transaction (including any amounts payable with respect to any Stock Options or any other stock-based awards held by Executive), shall be deemed to be an “excess parachute payment” under Section 280G of the Internal Revenue Code, the amount of such payments shall be increased so that after the payment of (A) the excise tax payable under Section 4999 of the Internal Revenue Code by Executive on the Termination Payments and increased amounts payable hereunder, and (B) any and all federal and state income, excise and other tax payable by Executive on the increased amounts payable hereunder, the amount received by Executive is equal to the Termination Payments.

(6) If, at the time of Executive’s termination of employment, Executive is a specified employee (as defined in Section 416(i) of the Internal Revenue Code) and the Company’s stock is publicly traded, any payments or benefits due to Executive under Section IV (1) in excess of the payments and benefits due to Executive had he continued to be employed by the Company (the “Severance Package”) shall be payable not earlier than six (6) months after the Date of Termination. As soon as practicable following the date that is six (6) months after the Date of Termination, Executive shall receive the entire portion of the Severance Package he would have received as of such date without the application of this Section IV (6) and thereafter shall receive the remaining Severance Package as provided in Section IV (1).

(7) The Company and the Executive intend that no part of the Severance Package or any other payment or benefit to Executive under this Agreement or any other compensation plan or arrangement shall be subject to the tax imposed under Section 409A of the Internal Revenue Code. The Company and the Executive further agree to act reasonably and to cooperate to amend or modify this Agreement or any other such compensation arrangement to the extent reasonably necessary to avoid the imposition of tax under Section 409A of the Internal Revenue Code.

V.	Non-Exclusivity of Rights; Controlling Agreement.

Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any plan, program, policy or practice provided by the Company for which Executive may qualify, nor shall anything herein limit or otherwise affect such rights as Executive may have under any contract or agreement with the Company. Amounts which are vested or which Executive is otherwise entitled to receive under any plan, policy, practice or program of, or any contract or agreement (other than this Agreement) with the Company at or subsequent to the Date of Termination shall be payable in accordance with such plan, policy, practice or program or contract or agreement except as explicitly modified by this Agreement. Executive shall not be covered by any prior employment agreement, security policy or understanding thereof after the Effective Date of this Agreement and shall not be covered by any severance policy, practice or program of the Company. Notwithstanding any other provision of any plan, policy, award agreement, practice or program in which Executive participates, in the event there is any conflict between the terms of such plan, policy, award agreement practice or program with the rights that Executive has under this Amended and Restated Employment Agreement with regard to payments, vesting or any other matter, this Amended and Restated Employment Agreement shall control; provided, however, that the Company shall use its best efforts to provide Executive with written notice of any plan, policy, award agreement, practice or program that would provide terms more favorable to Executive than terms under this Agreement, to allow Executive to request that such new terms apply under this Agreement.

VI.

Full Settlement; Offsets.

The Company’s obligations to make payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, defense or other claim, right or action which the Company may have against Executive or others.

Executive shall not be obligated to seek other employment or to take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement, and in the event Executive does seek other employment, the terms of such employment (including any compensation received in conjunction therewith) shall not modify, mitigate or offset the amounts payable to Executive under any of the provisions of this Agreement.

VII.

Confidential Information.

Executive shall hold in a fiduciary capacity for the benefit of the Company all secret or confidential business information and knowledge or data relating to the Company and its business which shall have been obtained during Executive’s employment by the Company and which shall not be or become public knowledge (other than by acts of Executive or representatives of Executive in violation of this Agreement) or be information already known to Executive prior to the Employment Period. After termination of Executive’s employment with the Company, Executive shall not, without the prior written consent of the Board, or as may otherwise be required by law or legal process, communicate or divulge any such information, knowledge or data to anyone other than the Company or those designated by it. Upon Executive’s violation of the provisions of this Section VII, the Company shall be relieved of all future obligations to Executive under this Agreement. However, in no event shall an asserted or alleged violation of the provisions of this Section VII constitute a basis for deferring or withholding any amounts otherwise payable to Executive until such asserted or alleged violation is determined pursuant to an arbitration proceeding pursuant to Section X.

VIII.

Successors.

(1) This Agreement is personal to Executive and without the prior written consent of the Board shall not be assignable by Executive otherwise than by will or by the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by Executive’s legal representatives.

(2) This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.

IX.

Miscellaneous.

(1) This Agreement shall be governed by and construed in accordance with the laws of the State of California. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement may not be amended or modified otherwise than by a written agreement executed by the parties hereto or their respective successors and legal representatives.

(2) All notices and other communications hereunder shall be in writing and shall be given by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:

If to Executive:

Douglas M. Pasquale, President and Chief Executive Officer

610 Newport Center Drive Suite 1150

Newport Beach, CA 92660

With a copy to:

Douglas M. Pasquale

8 Knowles

Irvine, CA 92612

If to the Company:

Nationwide Health Properties, Inc.

610 Newport Center Drive, Suite 1150

Newport Beach, CA 92660

Attention: Chairman

With a copy to:

Mr. Charles D. Miller, Chairman

150 North Orange Grove Boulevard

Pasadena, CA 91103

or to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be effective when actually received by the addressee.

(3) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.

(4) The Company may withhold from any amounts payable under this Agreement such Federal, state, local or foreign taxes as shall be required to be withheld pursuant to any applicable law or regulation.

(5) Any failure by Executive or the Company to insist upon strict compliance with any provision hereof or any other provision of this Agreement, or the failure to assert any right Executive or the Company may have hereunder, including, without limitation, the right of Executive to terminate employment with the Company 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.

(6) The Company shall provide Executive with a Directors and Officers Indemnity Agreement to be mutually agreed upon between Executive and the Board but no less favorable than those for other executives or Directors of the Company, and shall obtain or have obtained Directors and Officers Insurance which includes coverage for Executive.

X.	Arbitration.

(1) The parties agree that any disputes, controversies or claims which arise out of or are related to this Agreement, Executive’s employment or termination of employment, including, but not limited to, any claim relating to the purported validity, interpretation, enforceability or breach of this Agreement, and/or any other claim or controversy arising

out of the relationship between Executive and the Company (or the nature of the relationship) or the continuation or termination of that relationship, including, but not limited to, claims that a termination was for Cause or for Good Reason, claims for breach of covenant, breach of an implied covenant of good faith and fair dealing, wrongful termination, breach of contract, intentional infliction of emotional distress, defamation, breach of right of privacy, interference with advantageous or contractual relations, fraud, conspiracy or other tort or property claims of any kind, which are not settled between the parties, shall be settled by arbitration in accordance with the then-current Rules of Practice and Procedure for Employment Arbitration (the “Rules”) of the Judicial Arbitration and Mediation Services, Inc. (“JAMS”).

(2) The arbitration shall be before a single arbitrator selected in accordance with the JAMS Rules or otherwise by mutual agreement of the parties. The Arbitration shall take place in Orange County, California, unless the parties mutually agree to hold the arbitration at another location. Depositions and other discovery shall be allowed in accordance with the JAMS Rules. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of the State of California or Federal law, or both, as applicable to the claim(s) asserted.

(3) In consideration of the parties’ agreement to submit to arbitration all disputes with regard to this Agreement and/or with regard to any alleged contract, or any other claim arising out of their conduct, the relationship existing hereunder or the continuation or termination of that relationship, and in further consideration of the anticipated expedition and the minimizing of expense of this arbitration remedy, the arbitration provisions of this Agreement shall provide the exclusive remedy, and each party expressly waives any right he or it may have to seek redress in another forum. The arbitrator, and not any Federal, state, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement, including but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitration shall be final and binding upon the parties.

(4) Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement and to enforce an arbitration award. Except as otherwise provided for in this Agreement, both the Company and Executive agree that neither of them shall initiate or prosecute any lawsuit or administrative action in any way related to any claim covered by this Agreement.

(5) Any claim which either party has against the other party that could be submitted for resolution pursuant to this Section X must be presented in writing by the claiming party to the other party within one year of the date the claiming party knew or should have known of the facts giving rise to the claim, except that claims arising out of or related to the termination of Executive’s employment must be presented by Executive within one year of the Date of Termination (not including any claims related to payouts or other obligations of the Company after the Date of Termination, for which the one year time period after “Executive knew or should have known” will apply). Unless the party against whom any claim is asserted waives the time limits set forth above, any claim not brought within the time periods specified herein shall be waived and forever barred, even if there is a Federal or state statute of limitations which would have given more time to pursue the claim.

(6) The Company shall advance the costs and expenses of the arbitrator. In any arbitration to enforce any of the provisions or rights under this Agreement, the unsuccessful party in such arbitration, as determined by the arbitrator, shall pay to the successful party all costs, expenses and reasonable attorneys’ fees incurred therein by such party (including without limitation such costs, expenses and fees on any appeals), and if such successful party shall recover an award in any such arbitration proceeding, such costs, expenses and attorneys’ fees shall be included as part of such award. Notwithstanding the foregoing provision, in no event shall the successful party be entitled

to recover an amount from the unsuccessful party for costs, expenses and attorneys’ fees that exceeds the unsuccessful party’s costs, expenses and attorneys’ fees incurred in connection with the action or proceeding.

(7) Any decision and award or order of the arbitrator shall be final and binding upon the parties hereto and judgment thereon may be entered in the Superior Court of the State of California or any other court having jurisdiction.

(8) Each of the above terms and conditions shall have separate validity, and the invalidity of any part thereof shall not affect the remaining parts.

(9) Any decision and award or order of the arbitrator shall be final and binding between the parties as to all claims which were or could have been raised in connection with the dispute to the full extent permitted by law. In all other cases the parties agree that the decision of the arbitrator shall be a condition precedent to the institution or maintenance of any legal, equitable, administrative, or other formal proceeding by Executive or the Company in connection with the dispute, and that the decision and opinion of the arbitrator may be presented in any other forum on the merits of the dispute.

IN WITNESS WHEREOF, Executive has hereunto set Executive’s hand, and pursuant to the authorization from the Board, the Company has caused this Amended and Restated Employment Agreement of Douglas M. Pasquale to be executed in its name on its behalf, all as of the day and year first above written.


Nationwide Health Properties, Inc.

By:

Executive


Douglas M. Pasquale

EX-10.4 6 dex104.htm FORM OF CHANGE IN CONTROL AGREEMENT Form of Change in Control Agreement

Exhibit 10.4

CHANGE IN CONTROL AGREEMENT

This CHANGE IN CONTROL AGREEMENT (the “Agreement”) is entered into this day of , 2007, by and between Nationwide Health Properties, Inc., a Maryland corporation (the “Company”), and (the “Executive”). This Agreement shall amend and restate the prior Change in Control Agreement between the Company and the Executive, dated as of [ , 200 ] (the “Prior Agreement”).

The Company has determined that it is in the best interests of the Company and its shareholders that Executive be encouraged to remain with the Company and continue to devote full attention to the Company’s business notwithstanding the possibility, threat or occurrence of a Change in Control (as defined below) involving the Company. The Company believes that it is in the best interest of the Company and its shareholders to reinforce and encourage the continued attention and dedication of Executive and to diminish inevitable distractions arising from the possibility of a Change in Control. Accordingly, to assure the Company that it will have Executive’s undivided attention and services notwithstanding the possibility, threat or occurrence of a Change in Control, and to induce Executive to remain in the employ of the Company, and for other good and valuable consideration, the Company has, at the recommendation of its Compensation Committee, caused the Company to enter into this Agreement. This Agreement contains the entire agreement between the parties with respect to the matters specified herein, and supersedes any prior oral and written agreements, understandings and commitments between the Company and Executive with respect to any change in control policy of the Company which may cover Executive (including, without limitation, the Prior Agreement).

NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:

Definitions.

(1) “Cause” shall mean (a) the willful and continued failure of Executive to perform substantially his duties with the Company (other than any such failure resulting from incapacity due to physical or mental illness) which is not remedied promptly by Executive after a written demand for substantial performance is delivered to Executive by the Chief Executive Officer or by the Board or the Compensation Committee which specifically identifies the manner in which the Chief Executive Officer or the Board or the Compensation Committee believes that Executive has not substantially performed his duties, or (b) the willful engaging by Executive in illegal conduct as determined by a court of law or gross misconduct, which is materially and demonstrably injurious to the Company. For purposes of this definition, no act or failure to act on the part of Executive shall be considered “willful” unless it is done, or omitted to be done, by Executive in bad faith or without reasonable belief that Executive’s action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or a Committee thereof or based on the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by Executive in good faith and in the best interests of the Company.

(2) “Change in Control” shall mean a change in control of the Company of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A, Regulation 240.14a-101, promulgated under the Securities Exchange Act of 1934, or, if Item 6(e) is no longer in effect, any regulation issued by the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934 which serves similar purposes; provided that, without limitation, a Change in Control shall be deemed to have occurred if and when (a) any “person” (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) is or becomes a beneficial owner, directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company’s then outstanding securities, or (b) individuals who are members of the Board immediately prior to a meeting of the shareholders of the Company involving the election of directors shall not constitute a majority of the Board following such election.

(3) “Date of Termination” means if Executive’s employment is terminated as a Change in Control Termination, the date of receipt of a written notice of termination or any later date specified therein, as the case may be.

(4) “Disability” shall mean the absence of Executive from his duties with the Company on a full-time basis for a period of (a) ninety (90) consecutive calendar days or (b) an aggregate of one hundred fifty (150) or more calendar days in any fiscal year, as a result of mental or physical illness which is determined to be total and permanent by a physician selected by the Company or its insurers and acceptable to Executive.

(5) “Effective Date” shall mean the date of Executive’s commencing employment with the Company.

II.

Termination of Employment in Connection With a Change in Control

If within six months prior to or three years following a Change in Control, Executive’s employment with the Company is terminated by Executive for Good Reason or is terminated for any other reason other than death or Disability or by the Company for Cause, such termination of employment shall be deemed to be a “Change in Control Termination.” For purposes of this Agreement, “Good Reason” shall mean (a) without the express written consent of Executive, the assignment to Executive of any duties or any other action by the Board or the Compensation Committee or the Chief Executive Officer, which results in a material diminution in Executive’s position (including titles), authority, duties, responsibilities, compensation or benefits from the most significant of those held, exercised, assigned and/or awarded to Executive at any time, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied promptly after receipt of notice thereof given by Executive; or (b) a requirement by the Board that the primary business location of Executive be relocated more than ten (10) miles from the location where Executive was employed on the date of the Change in Control.

III.

Obligations of the Company Upon a Change in Control Termination.

(1) Change in Control Termination Benefits. In the event of a Change in Control Termination, the Company shall pay to Executive (i) any annual base salary owed to Executive through the Date of Termination to the extent not previously paid, (ii) an amount equal to three (3) times Executive’s highest annual base salary during any of the last three full fiscal years prior to the Date of Termination, and (iii) an amount equal to three (3) times either (A) if Executive has been employed by the Company for at least three full fiscal years and has received three annual bonuses, the average annual bonus earned by Executive over the last three full fiscal years prior to the Date of Termination, or (B) if Executive has not been employed by the Company for at least three full fiscal years or has not received three annual bonuses, the average of (a) the last two actual bonuses received plus (b) the target bonus for the current year.

In addition to the payments described in subparagraphs (i), (ii), and (iii) above, the Company also shall (A) arrange to provide to Executive for a period of three years from the Date of Termination, medical (including dental, vision and prescription drug coverage) and life insurance with terms no less favorable, in the aggregate, than the most favorable of those provided to Executive during the year immediately preceding the Date of Termination, (B) immediately vest all previously unvested shares of restricted stock, stock options, restricted stock units, stock appreciation rights, performance shares, and any and all other stock-based compensation awards received and held by Executive (which shall occur automatically without any action on the part of the Company), (C) provide Executive with any Performance-Based Dividend Equivalents, if any (to the extent earned by the Executive though the Date of Termination, as determined by the Company’s Compensation Committee) for the three years following the Date of Termination, and (D) pay any compensation previously deferred by Executive in accordance with the provisions of the plan under which such compensation was deferred.

(2) Payments. Payments pursuant to subparagraph III (1)(i) above shall be made within thirty (30) days following the Date of Termination. Payments pursuant to subparagraph III (1)(ii) above shall be made in equal monthly installments over the three-year period following the Date of Termination. Payment pursuant to III (1)(iii) shall be made in three equal annual installments over the three-year period following the Date of Termination on each anniversary following the Date of Termination. Any payments pursuant to subparagraph (C) above shall be made at the time such payments would have been made had Executive remained in the employment of the Company.

If Executive should die while receiving payments pursuant to this Article III, the remaining payments which would have been made to Executive if he had lived shall be paid to the beneficiary designated in writing by Executive, or if there is no effective written designation, then to his spouse, or if there is neither an effective written designation nor a surviving spouse, then to Executive’s estate. Designation of a beneficiary or beneficiaries to receive the balance of any such payments shall be made by written notice to the Company, and Executive may revoke or change any such designation of beneficiary at any time by a later written notice to the Company.

If any portion of the payments set forth in above paragraphs (the “Termination Payments”), together with any and all other amounts due and payable to Executive as a result of such transaction (including any amounts payable with respect to any Stock Options or any stock-based awards held by Executive), shall be deemed to be an “excess parachute payment” under Section 280G of the Internal Revenue Code, the amount of such payments shall be increased so that after the payment of (A) the excise tax payable under Section 4999 of the Internal Revenue Code by Executive on the Termination Payments and increased amounts payable hereunder, and (B) any and all federal and state income, excise and other tax payable by Executive on the increased amounts payable hereunder, the amount received by Executive is equal to the Termination Payments.

If, at the time of Executive’s termination of employment, Executive is a specified employee (as defined in Section 416(i) of the Internal Revenue Code) and the Company’s stock is publicly traded, any payments or benefits due to Executive under Section III in excess of the payments and benefits due to Executive had he continued to be employed by the Company (the “Severance Package”) shall be payable not earlier than six (6) months after the Date of Termination. As soon as practicable following the date that is six (6) months after the Date of Termination, Executive shall receive the entire portion of the Severance Package he would have received as of such date without the application of this section and thereafter shall receive the remaining Severance Package as provided in Section III.

The Company and the Executive intend that no part of the Severance Package or any other payment or benefit to Executive under this Agreement or any other compensation plan or arrangement shall be subject to the tax imposed under Section 409A of the Internal Revenue Code. The Company and the Executive further agree to act reasonably and to cooperate to amend or modify this Agreement or any other such compensation arrangement to the extent reasonably necessary to avoid the imposition of tax under Section 409A of the Internal Revenue Code.

IV.

Non-Exclusivity of Rights; Controlling Agreement.

practice or program or contract or agreement except as explicitly modified by this Agreement. Executive shall not be covered by any prior Change in Control agreement (including, without limitation, the Prior Agreement), policy or understanding thereof after the date of this Agreement and shall not be covered by any Change in Control severance policy, practice or program of the Company other than this Agreement. Notwithstanding any other provision of any plan, policy, award agreement, practice or program in which Executive participates, in the event there is any conflict between the terms of such plan, policy, award agreement practice or program with the rights that Executive has under this Change in Control Agreement with regard to payments, vesting or any other matter, this Change in Control Agreement shall control; provided, however, that the Company shall use its best efforts to provide Executive with written notice of any plan, policy, award agreement, practice or program that would provide terms more favorable to Executive than terms under this Agreement, to allow Executive to request that such new terms apply under this Agreement.

Full Settlement; Offsets.

VI.

Confidential Information.

Executive shall hold in a fiduciary capacity for the benefit of the Company all secret or confidential business information and knowledge or data relating to the Company and its

business which shall have been obtained during Executive’s employment by the Company and which shall not be or become public knowledge (other than by acts of Executive or representatives of Executive in violation of this Agreement) or be information already known to Executive prior to the Effective Date. After a Change in Control termination, Executive shall not, without the prior written consent of the Board, or as may otherwise be required by law or legal process, communicate or divulge any such information, knowledge or data to anyone other than the Company or those designated by it. Upon Executive’s violation of the provisions of this Article VI, the Company shall be relieved of all future obligations to Executive under this Agreement. However, in no event shall an asserted or alleged violation of the provisions of this Article VI constitute a basis for deferring or withholding any amounts otherwise payable to Executive until such asserted or alleged violation is determined pursuant to an arbitration proceeding pursuant to Section X.

VII.

Successors.

(1) This Agreement is personal to Executive and shall not be assignable by Executive otherwise than by will or by the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by Executive’s legal representatives.

(2) This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.

VIII.

Miscellaneous.

(2) All notices and other communications hereunder shall be in writing and shall be given by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:

If to Executive:

[Name]

610 Newport Center Drive, Suite 1150

Newport Beach, CA 92660

With a copy to:

[Name]

[Address]

[City, State, Zip]

If to the Company:

Nationwide Health Properties, Inc.

610 Newport Center Drive, Suite 1150

Newport Beach, CA 92660

Attention: Chief Executive Officer

With a copy to:

Mr. Charles D. Miller, Chairman

Nationwide Health Properties, Inc.

150 North Orange Grove Boulevard

Pasadena, CA 91103

or to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be effective when actually received by the addressee.

(3) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.

(5) Any failure by Executive or the Company to insist upon strict compliance with any provision of this Agreement, or the failure to assert any right Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.

IX.

Arbitration.

(1) The parties agree that any disputes, controversies or claims which arise out of or are related to this Agreement, including, but not limited to, any claim relating to the purported validity, interpretation, enforceability or breach of this Agreement, including, but not limited to, claims that a Change in Control Termination was for Cause or for Good Reason, which are not settled between the parties, shall be settled by arbitration in accordance with the then-current Rules of Practice and Procedure for Employment Arbitration (the “Rules”) of the Judicial Arbitration and Mediation Services, Inc. (“JAMS”).

(3) In consideration of the parties’ agreement to submit to arbitration all disputes with regard to this Agreement, and in further consideration of the anticipated expedition and the minimizing of expense of this arbitration remedy, the arbitration provisions of this Agreement shall provide the exclusive remedy, and each party expressly waives any right he or it may have to seek redress in another forum. The arbitrator, and not any Federal, state, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement, including but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitration shall be final and binding upon the parties.

(5) Any claim which either party has against the other party that could be submitted for resolution pursuant to this Section must be presented in writing by the claiming party to the other party within one year of the date the claiming party knew or should have known of the facts giving rise to the claim. Unless the party against whom any claim is asserted waives the time limits set forth above, any claim not brought within the time periods specified herein shall be waived and forever barred, even if there is a Federal or state statute of limitations which would have given more time to pursue the claim.

(6) The Company shall advance the costs and expenses of the arbitrator. In any arbitration to enforce any of the provisions or rights under this Agreement, if the Company is the unsuccessful party in such arbitration, as determined by the arbitrator, the Company shall pay to the Executive all costs, expenses and reasonable attorneys’ fees incurred therein by Executive (including without limitation such costs, expenses and fees on any appeals), and if Executive shall recover an award in any such arbitration proceeding, such costs, expenses and attorneys’ fees shall be included as part of such award.

(8) Each of the above terms and conditions shall have separate validity, and the invalidity of any part thereof shall not affect the remaining parts.

(9) Any decision and award or order of the arbitrator shall be final and binding between the parties as to all claims which were or could have been raised in connection with the dispute

to the full extent permitted by law. In all other cases the parties agree that the decision of the arbitrator shall be a condition precedent to the institution or maintenance of any legal, equitable, administrative, or other formal proceeding by Executive or the Company in connection with the dispute, and that the decision and opinion of the arbitrator may be presented in any other forum on the merits of the dispute.

IN WITNESS WHEREOF, Executive has hereunto set Executive’s hand, and the Company has caused this Agreement to be executed in its name on its behalf, all as of the day and year first above written.


Nationwide Health Properties, Inc.

By:
		Douglas M. Pasquale
		President and Chief Executive Officer

Executive


[Name]

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