This CONSULTING AGREEMENT (this “Agreement”), is entered into by
and between Health Care REIT, Inc., a Delaware corporation (the “Company”), on
the one hand, and Charles J. Herman, Jr. (“Consultant”), on the other hand,
effective as of July 1, 2015.
WHEREAS, Consultant has been employed by the Company subject to an
employment contract dated December 29, 2008;
WHEREAS, the Consultant and the Company have agreed that the Consultant
will retire from employment with the Company effective July 1, 2015 (the
“Retirement Date”); and
WHEREAS, the Company has determined that it is in its best interests for
the Consultant to provide his continued services and expertise to the Company
in a consulting capacity following his retirement.
NOW THEREFORE, in consideration of the mutual promises
set forth herein, the Company and Consultant desire to enter into this
Agreement setting forth the terms and conditions of Consultant’s continued
service with the Company following the Retirement Date.
AGREEMENT FOR SERVICES. Subject to Consultant’s
execution of and continued compliance with that certain Executive Retirement
Agreement (the “Retirement Agreement”), for a period commencing on the
Retirement Date and continuing through December 31, 2015, unless amended or
terminated earlier pursuant to the terms hereof (the “Consulting Term”),
Consultant agrees to provide consulting and advisory services to the Company as
described in Section 4.
CONSULTING FEE. During the Consulting Term,
Consultant shall receive $25,000 per month (the “Fee”). The Fee shall be paid
in a single lump sum on a monthly basis during the Consulting Term; provided,
however, that no Fee shall become payable prior to the effectiveness of the
Retirement Agreement. The foregoing Fee (to which Consultant would not
otherwise be entitled) to be paid during the Consulting Term constitutes
additional consideration for Consultant’s execution and delivery of this
Agreement and the Retirement Agreement, and the latter becoming effective and
irrevocable in accordance with its terms, and is subject to Consultant’s
compliance with the covenants and other obligations set forth therein and
herein, all of which must be satisfied in full in order for the Fee to be
TERMINATION OF CONSULTING TERM. In the
event of Consultant’s material breach of this Agreement and/or the Retirement
Agreement, the Company may terminate the Consulting Term, and upon termination,
the Company shall have no further obligations hereunder. Notwithstanding any
provision of this Agreement to the contrary, the Consultant may, upon 15 days
prior notice, terminate the Consulting Term and shall thereafter have no
further obligations hereunder. Thereafter, the Company shall have no further
obligation to pay the Fee.
CONSULTING SERVICES. During the Consulting
Period, Consultant shall render consulting and advisory services, including
working with industry trade associations, as reasonably requested by the
Company’s Chief Executive Officer or Chief Operating Officer at mutually convenient
times. Consultant’s time rendering those services shall not exceed forty
(40) hours per month. Neither party expects that Consultant will provide
services to the Company in the future at a level that exceeds the level set
forth in this Section 4 and it is the parties' intent that Consultant will have
experienced a "separation from service" as defined in Section 409A of
the Internal Revenue Code of 1986, as amended, no later than the Retirement
INDEPENDENT CONTRACTOR. Consultant shall perform
his obligations hereunder as an independent contractor and shall not be deemed
an employee of the Company or any of its subsidiaries or affiliates. The
Company understands and agrees that that the Company has no right to direct or
control the manner in which Consultant performs Consultant’s consulting
services hereunder. Accordingly, the Consultant will not be entitled to
receive any fringes, perquisites or retirement or welfare benefits from the
Company for his services as a Consultant under this Agreement except as
expressly provided herein or in the Retirement
The Company will not withhold federal or state income, social security, or
other taxes from the Fee paid under the terms of this Agreement, unless
otherwise required by law. Consultant agrees that Consultant will be fully and
solely responsible for any income or other tax liability imposed on Consultant
in his capacity as an “independent contractor.” It is further understood and
agreed that nothing herein shall be deemed to create a partnership, joint
venture, employment or agency relationship between Consultant and the Company
or any of its subsidiaries or affiliates at any time following the Retirement
Date. While performing consulting services under this Agreement, Consultant will
have no authority or power to bind the Company or to represent the Company in
relation to third parties or to represent to third parties that Consultant has
authority or power to bind the Company or to represent the Company.
ASSIGNMENT AND TRANSFER. Consultant’s rights and
obligations under this Agreement shall not be transferable by assignment or
otherwise, and any purported assignment, transfer or delegation thereof shall
be void. This Agreement shall inure to the benefit of, and be enforceable by,
any purchaser of all or substantially all of the Company’s assets, any
successor to the Company’s business, or any assignee of either of the
Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Ohio.
Agreement. This Agreement and the Retirement Agreement contain the entire
agreement and understanding between the parties hereto and supersede any prior
or contemporaneous written or oral agreements between them respecting the
subject matter hereof. Notwithstanding any provision of this Agreement to the
contrary, the Company acknowledges and agrees that: (i) it has previously
entered into that certain indemnification agreement with the Consultant,
effective February 14, 2005 (the “Indemnification Agreement”); and (ii) the
Company’s indemnification obligations under the Indemnification Agreement shall
extend to and cover the Consultant’s services provided to, or on behalf of, the
Company under this Agreement.
7.3 Amendment. This
Agreement may be amended only by a writing signed by Consultant and the Chief
Executive Officer or the Chief Operating Officer of the Company.
7.4 Severability. If
any term, provision, covenant or condition of this Agreement, or the
application thereof to any person, place or circumstance, shall be held to be
invalid, unenforceable or void, the remainder of this Agreement and such term,
provision, covenant or condition as applied to other persons, places and
circumstances shall remain in full force and effect.
7.5 Construction. The
headings and captions of this Agreement are provided for convenience only and
are intended to have no effect in construing or interpreting this Agreement.
The language in all parts of this Agreement shall be in all cases construed according
to its fair meaning and not strictly for or against the Company or Consultant.
Cumulative. The rights and remedies provided by this Agreement are
cumulative, and the exercise of any right or remedy by either party hereto (or
by its successor), whether pursuant to this Agreement, to any other agreement,
or to law, shall not preclude or waive its right to exercise any or all other
rights and remedies.
7.7 Nonwaiver. No
failure or neglect of either party hereto in any instance to exercise any
right, power or privilege hereunder or under law shall constitute a waiver of
any other right, power or privilege or of the same right, power or privilege in
any other instance. All waivers by either party hereto must be contained in a
written instrument signed by the party to be charged and, in the case of the
Company, by an executive officer of the Company.
7.8 Notices. Any
notice, request, consent or approval required or permitted to be given under
this Agreement or pursuant to law shall be sufficient if in writing, and if and
when sent by certified or registered mail, with postage prepaid, to:
Care REIT, Inc.
4500 Dorr Street
Toledo, OH 43615-4040
Attention: Chief Operating Officer
If to Consultant:
J. Herman, Jr.
2540 Falmouth Road
Ottawa Hills, OH 43615
[Signature Page Follows]
IN WITNESS WHEREOF, the
parties hereto have duly executed this Agreement effective as of the first date
set forth above.
Health Care REIT, Inc.
By: /s/ Thomas J. DeRosa
Name: Thomas J. DeRosa
Title: Chief Executive Officer
/s/ Charles J. Herman, Jr.
Charles J. Herman, Jr.