Release Agreement for Thomas M. Herzog, dated October 6, 2022

Contract Categories: Business Finance - Release Agreements
EX-10.1 2 d335330dex101.htm EX-10.1 EX-10.1

Exhibit 10.1


This Release Agreement (this “Release Agreement”) is entered into this 6th day of October 2022, by and between Thomas M. Herzog, an individual (“Executive”), and Healthpeak Properties, Inc., a Maryland corporation (the “Company”).

WHEREAS, Executive has been employed by the Company; and

WHEREAS, Executive’s employment by the Company has terminated effective as of October 6, 2022 (the “Separation Date”) and, as a condition to Executive’s receipt of certain severance benefits under the Company’s Executive Severance Plan (as amended, the “Plan”), the Company and Executive desire to enter into this Release Agreement upon the terms set forth herein.

NOW, THEREFORE, in consideration of the covenants undertaken and the release contained in this Release Agreement, and in consideration of the obligations of the Company (or one of its subsidiaries) to pay severance benefits (subject to and conditioned upon Executive’s timely execution and non-revocation of this Release Agreement and compliance with the other terms and conditions contained herein) under and pursuant to the Plan, Executive and the Company agree as follows:

1. Separation Date. Effective as of the Separation Date, Executive’s status as the Company’s Chief Executive Officer, as a member of the Company’s board of directors and as an employee, officer and director of the Company and its affiliates terminated. Executive shall, at the Company’s request, execute and deliver to the Company Executive’s resignation from all such directorships.

2. Release. Executive, on behalf of himself, his descendants, dependents, heirs, executors, administrators, assigns, and successors, and each of them, hereby acknowledges full and complete satisfaction of and covenants not to sue and fully releases and discharges the Company and each of its parents, subsidiaries and affiliates, past and present, as well as its and their trustees, directors, officers, members, managers, partners, agents, attorneys, insurers, employees, stockholders, representatives, assigns, and successors, past and present, and each of them, hereinafter together and collectively referred to as the “Releasees,” with respect to and from any and all claims, wages, demands, rights, liens, agreements or contracts (written or oral), covenants, actions, suits, causes of action, obligations, debts, costs, expenses, attorneys’ fees, damages, judgments, orders and liabilities of whatever kind or nature in law, equity or otherwise, whether now known or unknown, suspected or unsuspected, and whether or not concealed or hidden (each, a “Claim”), which he now owns or holds or he has at any time heretofore owned or held or may in the future hold as against any of said Releasees (including, without limitation, any Claim arising out of or in any way connected with Executive’s service as an officer, director, employee, member, stockholder or manager of any Releasee, Executive’s separation from his position as an officer, director, employee, manager, stockholder and/or member, as applicable, of any Releasee, or any other transactions, occurrences, acts or omissions or any loss, damage or injury whatever), whether known or unknown, suspected or unsuspected, resulting from any act or omission by or on the part of said Releasees, or any of them, committed or omitted prior to the date on which Executive signs this Release Agreement, including, without limiting the generality

of the foregoing, any Claim under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act, the Family and Medical Leave Act of 1993, the California Fair Employment and Housing Act; the California Family Rights Act, the California Labor Code, California Wage Orders, California Business & Professions Code Section 17200, the Colorado Anti-Discrimination Act (CADA), the Colorado Lawful Off-Duty Activities Statute (LODA), the Colorado Personnel Files Employee Inspection Right Statute, the Colorado Labor Peace Act, the Colorado Labor Relations Act, the Colorado Equal Pay Act, the Colorado Minimum Wage Order, the Colorado Genetic Information Non-Disclosure Act, or any other federal, state or local law, regulation, or ordinance, or any Claim for severance pay, bonus, sick leave, holiday pay, vacation pay, life insurance, health or medical insurance or any other fringe benefit, workers’ compensation or disability; provided however, that the foregoing release shall not apply to: (a) Executive’s right to receive the Severance Benefits (as defined below), which Severance Benefits (among other things) are good and valuable consideration for this Release Agreement (subject to Section 4 hereof); (b) any rights Executive has in Executive’s capacity as a holder of any equity-based awards previously granted by the Company to Executive, to the extent that such awards continue after the termination of Executive’s employment with the Company in accordance with the terms and conditions of the Plan (subject to Section 4 hereof); (c) any right to indemnification that Executive may have pursuant to the Sixth Amended and Restated Bylaws of the Company, its corporate charter or under any written indemnification agreement with the Company (or any corresponding provision of any subsidiary or affiliate of the Company) with respect to any loss, damages or expenses (including but not limited to attorneys’ fees to the extent otherwise provided) that Executive may in the future incur with respect to his service as an employee, officer or director of the Company or any of its subsidiaries or affiliates; (d) any rights that Executive may have to insurance coverage for losses, damages or expenses described under the foregoing clause (c) under any Company (or subsidiary or affiliate) directors and officers liability insurance policy; (e) any rights to continued medical or dental coverage that Executive may have under COBRA; (f) any rights to payment of benefits that Executive may have under a retirement plan sponsored or maintained by the Company that is intended to qualify under Section 401(a) of the Internal Revenue Code of 1986, as amended; or (g) any vested deferred compensation or supplemental retirement benefits that Executive may be entitled to under a nonqualified deferred compensation or supplemental retirement plan of the Company. In addition, this release does not cover any Claim that cannot be so released as a matter of applicable law. Executive acknowledges and agrees that he has received any and all leave and other benefits that he has been and is entitled to pursuant to the Family and Medical Leave Act of 1993.

3. Acknowledgment of Payment of Wages; Severance. Except for accrued vacation (which the parties agree totals approximately 228 hours of pay) and salary for the pay period in which the Separation Date occurred, Executive acknowledges that he has received all amounts owed for his or her regular and usual salary (including, but not limited to, any bonus or other wages) and usual benefits through the date of this Release Agreement. Provided Executive timely executes this Release Agreement and does not revoke the release of Claims set forth in this Release Agreement, such that this Release Agreement becomes effective and irrevocable on the eighth (8th) day after Executive executes this Release Agreement, and subject to Section 4 hereof, the Company shall pay or provide (as applicable) to Executive the payments and benefits provided for under Section 5 of the Plan (the “Severance Benefits”), subject to the terms and conditions of the Plan.



4. Clawback. In the event that (a) Executive breaches any of Executive’s obligations, agreements or covenants under this Release Agreement or otherwise imposed by law, or (b) the Company determines, following the Separation Date, that circumstances existed on or prior to the Separation Date that would have constituted “Cause” (as defined in the Plan) under clauses (iv), (v) or (vi) thereof for the Company to terminate Executive’s employment (subject to Section 16 below in the event of any dispute between the Company and Executive as to whether “Cause” existed), the Company will be entitled to (i) cease paying any then-unpaid Severance Benefits, and (ii) recover any previously-paid Severance Benefits from Executive, including, without limitation, the proceeds received from the sale of any shares of Company common stock acquired by Executive in connection with the acceleration or continued vesting of Executive’s equity awards under the Plan in connection with his termination of employment with the Company, and the Company will be entitled to obtain all other relief provided by law or equity. Executive agrees to promptly repay to the Company, within ten (10) days after written demand therefor, any Severance Benefits that the Company is entitled to recover pursuant to the preceding sentence. Further, any Severance Benefits which are subject to recovery under any law, government regulation, order or stock exchange listing requirement, or under any policy of the Company adopted from time to time, will be subject to such deductions and clawback (recovery) as may be required to be made pursuant to such law, government regulation, order, stock exchange listing requirement or policy of the Company. Executive specifically authorizes the Company to withhold from future wages or future payments of Severance Benefits any amounts that may become due under this Section 4.

5. Waiver of Unknown and Unsuspected Claims. It is the intention of Executive in executing this Release Agreement that the same shall be effective as a bar to each and every Claim hereinabove specified. In furtherance of this intention, Executive hereby expressly waives any and all rights and benefits conferred upon him or her by the provisions of Section 1542 of the California Civil Code (“Section 1542”), as well as any other similar statute or common law doctrine that may apply, and expressly consents that this Release Agreement shall be given full force and effect according to each and all of its express terms and provisions, including those related to unknown and unsuspected Claims, if any, as well as those relating to any other Claims hereinabove specified. Section 1542 provides:


Executive acknowledges that he may hereafter discover Claims or facts in addition to or different from those which Executive now knows or believes to exist with respect to the subject matter of this Release Agreement and which, if known or suspected at the time of executing this Release Agreement, may have materially affected this settlement. Nevertheless, Executive hereby waives any right, Claim or cause of action that might arise as a result of such different or additional Claims or facts. Executive acknowledges that he understands the significance and consequences of such release and such specific waiver of Section 1542 and any similar applicable statute or doctrine of law.



6. ADEA Waiver. Executive expressly acknowledges and agrees that by entering into this Release Agreement, Executive is waiving any and all rights or Claims that he may have arising under the Age Discrimination in Employment Act of 1967, as amended (the “ADEA”), which have arisen on or before the date of execution of this Release Agreement. Executive further expressly acknowledges and agrees that:

(a) In return for this Release Agreement, Executive will receive consideration beyond that which Executive was already entitled to receive before entering into this Release Agreement;

(b) Executive is hereby advised in writing by this Release Agreement that Executive has the right to and should consult with an attorney before signing this Release Agreement;

(c) Executive has voluntarily chosen to enter into this Release Agreement and has not been forced or pressured in any way to sign it;

(d) Executive was given a copy of this Release Agreement on October 6, 2022 and informed that he had 21 days within which to consider this Release Agreement and that if he wished to execute this Release Agreement prior to expiration of such 21-day period, he should execute the Endorsement attached hereto;

(e) Executive was informed that he had seven days following the date of his execution of this Release Agreement in which to revoke this Release Agreement, and this Release Agreement will become null and void if Executive revokes this Release Agreement during that time. Any revocation must be in writing and must be received by the Company during the seven-day revocation period. In the event that Executive exercises his right of revocation, neither the Company nor Executive will have any obligations under this Release Agreement and Executive will not become entitled to the Severance Benefits;

(f) Executive understands that this Release Agreement shall become effective, irrevocable, and binding upon Executive on the eighth (8th) day after his execution of it, so long as Executive has not revoked it within the time period and in the manner specified in clause (e) above;

(g) Nothing in this Release Agreement prevents or precludes Executive from challenging or seeking a determination in good faith of the validity of this waiver under the ADEA, nor does it impose any condition precedent, penalties or costs from doing so, unless specifically authorized by federal law.

7. No Transferred Claims; No Admission of Liability. Executive warrants and represents that Executive has not heretofore assigned or transferred to any person not a party to this Release Agreement any released matter or any part or portion thereof and he shall defend, indemnify and hold the Releasees harmless from and against any claim (including the payment of attorneys’ fees and costs actually incurred whether or not litigation is commenced) based on or in connection with or arising out of any such assignment or transfer made, purported or claimed. It is the intention of the parties that this indemnity does not require payment as a condition precedent to recovery by the Releasees against Executive under this indemnity. Executive understands that neither the payment of any sum of money nor the execution of this Release Agreement shall constitute or be construed as an admission of any liability whatsoever by the Releasees, or any of them, who have consistently taken the position that they have no liability whatsoever to Executive.



8. Covenants. Executive by executing this Release Agreement expressly agrees to each of the following provisions of this Section 8:

(a) Confidentiality. Executive shall not at any time directly or indirectly, disclose or make available to any person, firm, corporation, association or other entity for any reason or purpose whatsoever, any Confidential Information (as defined below); provided, however, that this Section 8(a) shall not apply when (i) disclosure is required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with apparent jurisdiction to order Executive to disclose or make available such information (provided, however, that Executive shall promptly notify the Company in writing upon receiving a request for such information), or (ii) with respect to any other litigation, arbitration or mediation involving this Release Agreement, including but not limited to enforcement of this Release Agreement. As of the date of this Release Agreement, all Confidential Information in Executive’s possession that is in written, digital or other tangible form (together with all copies or duplicates thereof, including computer files) has been returned to the Company and has not been retained by Executive or furnished to any third party, in any form except as provided herein; provided, however, that Executive shall not be obligated to treat as confidential, or return to the Company copies of any Confidential Information that (x) was publicly known at the time it was disclosed to Executive, (y) becomes publicly known or available thereafter other than by any means in violation of the Plan or any other duty owed to the Company by any person or entity, or (z) is lawfully disclosed to Executive by a third party. As used in this Release Agreement, the term “Confidential Information” means: information disclosed to Executive or known by Executive as a consequence of or through Executive’s relationship with the Company, about the suppliers, customers, employees, business methods, public relations methods, organization, procedures or finances, including, without limitation, information of or relating to supplier lists or customer lists, of the Company and its affiliates (collectively, the “Company Group”). Notwithstanding anything set forth in this Release Agreement to the contrary, Executive shall not be prohibited from reporting possible violations of federal or state law or regulation to any governmental agency or entity or making other disclosures that are protected under the whistleblower provisions of federal or state law or regulation, nor is Executive required to notify the Company regarding any such reporting, disclosure or cooperation with the government.

(b) Noncompetition. Executive acknowledges that the nature of the Company Group’s business and Executive’s position with the Company is such that if Executive were to become employed by, or substantially involved in, the business of a competitor of the Company Group during the 12 months following the termination of Executive’s employment with the Company, it would not be possible, or would be very difficult, for Executive not to rely on or use the Company Group’s trade secrets and Confidential Information. Thus, to avoid the inevitable disclosure of the Company Group’s trade secrets and Confidential Information, and to protect such trade secrets and Confidential Information and the Company Group’s relationships and goodwill with customers, for a period of 12 months after the termination date (the “Restricted Period”), Executive will not directly or indirectly engage in (whether as an employee, consultant, agent, proprietor, principal, partner, stockholder, corporate officer, director or otherwise), nor have any ownership interest in, or participate in the financing, operation, management or control of, any



person, firm, corporation or business anywhere in the United States and Mexico (the “Restricted Area”) that competes with any member of the Company Group in the healthcare real estate acquisition, development, leasing, management, investment or financing industry (a “Competing Business”); provided, that Executive may purchase and hold only for investment purposes less than two percent of the shares of any corporation in competition with the Company Group whose shares are regularly traded on a national securities exchange. Notwithstanding the preceding sentence, in the event Executive accepts employment with or provides services to a business (the “Service Recipient”) that is affiliated with another business that engages in a Competing Business or which derives a de minimis portion of its gross revenues from Competing Businesses, Executive’s employment by or service to the Service Recipient shall not constitute a breach by Executive of his or her obligations pursuant to this Section 6(b) so long as each of the following conditions is satisfied at all times during the Restricted Period and while Executive is employed by or providing service to the Service Recipient: (i) no more than 10% of the gross revenues of the Service Recipient are derived from Competing Businesses; (ii) no more than 10% of the gross revenues of the Service Recipient and those entities that (directly or through one or more intermediaries) are controlled by, control, or are under common control with such Service Recipient, together on a consolidated basis, are derived from Competing Businesses; and (iii) in the course of Executive’s services for the Service Recipient, a material portion (no more than 10%) of Executive’s services are not directly involved in or responsible for any Competing Business. The foregoing covenants in this Section 8(b) shall continue in effect through the entire Restricted Period regardless of whether Executive is then entitled to receive any Severance Benefits from the Company.

(c) Non-Solicitation of Employees. During the Restricted Period, Executive shall not directly or indirectly solicit, induce, attempt to hire, recruit, encourage, take away, or hire any employee or independent contractor of the Company Group whose annual rate of compensation is then $50,000 or more or cause any such Company Group employee or contractor to leave his or her employment or engagement with the Company Group either for employment with Executive or for any other entity or person. The foregoing covenants in this Section 8(c) shall continue in effect through the entire Restricted Period regardless of whether Executive is then entitled to receive any Severance Benefits from the Company.

(d) Non-Solicitation of Customers. During the Restricted Period, Executive shall not directly or indirectly influence or attempt to influence customers, vendors, suppliers, licensors, lessors, joint venturers, associates, consultants, agents, or partners of the Company Group to divert their business away from the Company Group to any Competing Business, and Executive agrees not to otherwise interfere with, disrupt or attempt to disrupt the business relationships, contractual or otherwise, between any member of the Company Group and any of its customers, suppliers, vendors, lessors, licensors, joint venturers, associates, officers, employees, consultants, managers, partners, members or investors. The foregoing covenants in this Section 8(d) shall continue in effect through the entire Restricted Period regardless of whether Executive is then entitled to receive any Severance Payments from the Company.

(e) Non-Disparagement. During Executive’s employment with the Company Group and thereafter, Executive shall not make any statement, publicly or privately, that would or would be reasonably expected to disparage the Company or its affiliates or subsidiaries, or any of their respective officers, directors, employees, or agents. Nothing in this Agreement or otherwise prevents Executive from making any truthful statement (a) to the extent required or protected by law or legal process or (b) to a governmental agency or any judicial, arbitral or self-regulatory forum.



(f) Disclosures. The Company agrees that, with respect to any statements or communications relating to Executive’s service as (or departure as) an employee and/or Chief Executive Officer of the Company and/or a member of the Company’s Board of Directors that are intended for mass distribution to the Company’s employees and/or the public, the Company will provide Executive with a reasonable opportunity to review and comment on such statements and communications prior to their distribution; provided, that this Section 8(f) shall not prohibit the Company from making statements or communications (including filings with the Securities and Exchange Commission) that legal counsel advises the Company are required or protected by applicable law or legal process.

(g) Understanding of Covenants. Executive, by signing this Release Agreement, represents as follows: Executive (i) is familiar with the foregoing covenants set forth in this Section 8, (ii) is fully aware of Executive’s obligations hereunder, (iii) agrees to the reasonableness of the length of time, scope and geographic coverage of the foregoing covenants set forth in this Section 8, (iv) agrees that the Company Group currently conducts business throughout the Restricted Area and (v) agrees that such covenants are necessary to protect the Company Group’s confidential and proprietary information, goodwill, stable workforce, and customer relations.

(h) Right to Injunctive and Equitable Relief. Executive’s obligations not to disclose or use Confidential Information and to refrain from the solicitations described in this Section 8 are of a special and unique character, which gives them a peculiar value. The Company cannot be reasonably or adequately compensated in damages in an action at law in the event Executive breaches such obligations, and the breach of such obligations would cause irreparable harm to the Company. Therefore, the Company shall be entitled to injunctive and other equitable relief without bond or other security in the event of such breach in addition to any other rights or remedies which the Company may possess. Furthermore, Executive’s obligations and the rights and remedies of the Company under this Section 8 are cumulative and in addition to, and not in lieu of, any obligations, rights, or remedies created by applicable law relating to misappropriation or theft of trade secrets or confidential information.

(i) Cooperation. Executive shall respond to all reasonable inquiries of the Company about any matters concerning the Company or its affairs that occurred or arose during Executive’s employment by the Company, and Executive shall reasonably cooperate with the Company in investigating, prosecuting and defending any charges, claims, demands, liabilities, causes of action, lawsuits or other proceedings by, against or involving the Company relating to the period during which Executive was employed by the Company or relating to matters of which Executive had or should have had knowledge or information. Further, except as required by law, Executive will at no time voluntarily serve as a witness or offer written or oral testimony against the Company in conjunction with any complaints, charges or lawsuits brought against the Company by or on behalf of any current or former employees, or any governmental or administrative agencies related to Executive’s period of employment and will provide the Company with notice of any subpoena or other request for such information or testimony.



9. Certain Exceptions; Defend Trade Secrets Act Notice of Immunity Rights. Nothing herein shall be construed to prohibit Executive from communicating directly with, cooperating with, or providing information to, any government regulator, including, but not limited to, the U.S. Securities and Exchange Commission, the U.S. Commodity Futures Trading Commission, or the U.S. Department of Justice. Executive acknowledges that the Company has provided Executive with the following notice of immunity rights in compliance with the requirements of the Defend Trade Secrets Act: (i) Executive shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of proprietary information that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law, (ii) Executive shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of proprietary information that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal, and (iii) if Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Employee may disclose the proprietary information to his or her attorney and use the proprietary information in the court proceeding, if Executive files any document containing the proprietary information under seal, and does not disclose the proprietary information, except pursuant to court order.

10. Severability. It is the desire and intent of the parties hereto that the provisions of this Release Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Release Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable under any present or future law, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Release Agreement or affecting the validity or enforceability of such provision in any other jurisdiction; furthermore, in lieu of such invalid or unenforceable provision there will be added automatically as a part of this Release Agreement, a legal, valid and enforceable provision as similar in terms to such invalid or unenforceable provision as may be possible. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Release Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

11. Counterparts. This Release Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.




13. Amendment and Waiver. The provisions of this Release Agreement may be amended and waived only with the prior written consent of the Company and Executive, and no course of conduct or failure or delay in enforcing the provisions of this Release Agreement shall be construed as a waiver of such provisions or affect the validity, binding effect or enforceability of this Release Agreement or any provision hereof.

14. Descriptive Headings. The descriptive headings of this Release Agreement are inserted for convenience only and do not constitute a part of this Release Agreement.

15. Construction. Where specific language is used to clarify by example a general statement contained herein, such specific language shall not be deemed to modify, limit or restrict in any manner the construction of the general statement to which it relates. The language used in this Release Agreement shall be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction shall be applied against any party.

16. Arbitration. Any claim or controversy arising out of or relating to this Release Agreement shall be submitted to arbitration in accordance with the arbitration provision set forth in the Plan.

17. Nouns and Pronouns. Whenever the context may require, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural and vice-versa.

18. Legal Counsel. Each party recognizes that this is a legally binding contract. Executive acknowledges and agrees that he has read and understands this Release Agreement completely, is entering into it freely and voluntarily, and has been advised to seek legal counsel of his own choice prior to entering into this Release Agreement and he has had ample opportunity to do so.


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The undersigned have read and understood the consequences of this Release Agreement and have voluntarily signed it. The undersigned declare under penalty of perjury under the laws of the State of Colorado that the foregoing is true and correct.

EXECUTED this 6th day of October 2022.



/s/ Thomas M. Herzog

Thomas M. Herzog



a Maryland corporation

By: /s/ Peter A. Scott

Name: Peter A. Scott
Title: Chief Financial Officer


I, Thomas M. Herzog, hereby acknowledge that I was given 21 days to consider the foregoing Release Agreement and voluntarily chose to sign the Release Agreement prior to the expiration of the 21-day period.

I declare under penalty of perjury under the laws of the United States and the State of Colorado that the foregoing is true and correct.

EXECUTED this 6th day of October 2022, at                         ,                         .


/s/ Thomas M. Herzog

Thomas M. Herzog