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EXHIBIT 10.8
AGREEMENT REGARDING CHANGE OF CONTROL
This Agreement Regarding Change of Control ("Agreement") is made and
entered into as of June 17, 1998 by and between TRINET CORPORATE REALTY TRUST,
INC., a Maryland corporation (the "Company") and __________________, an
individual (the "Executive").
RECITALS
A. The Executive is currently serving as __________________________
_______________ of the Company and, in that capacity, is a valuable member of
the Company's management and a key participant in the Company's short-term and
long-term decision-making processes.
B. It is in the best interests of the Company and its stockholders to
encourage the Executive to continue to provide management services as an
employee of the Company.
C. The Company recognizes that circumstances may arise in which a
change of control of the Company may occur, through acquisition, merger, sale of
assets or otherwise, thereby causing uncertainty regarding the continuity of the
employment relationship, without regard to the competence or past contributions
of the Executive, and that such uncertainty may result in the loss of valuable
services of the Executive.
D. In order to induce the Executive to continue to serve the Company,
the Company wishes to provide reasonable security to the Executive against
changes in the employment relationship in the event of any such change of
control.
E. In consideration of the covenants and agreements of the Company
under this Agreement, the Executive is willing to agree to the restrictive
covenants set forth herein, including without limitation the non-solicitation
covenant set forth in Section 7 hereof.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements hereinafter contained, the parties agree as follows:
1. Definitions. For purposes of this Agreement, the following
definitions shall apply:
"CHANGE OF CONTROL" shall mean the occurrence of any one of the
following events:
(a) any "person," as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934 (the "Act") (other than the
Company, any of its subsidiaries, or any trustee, fiduciary or other person or
entity holding securities under
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any employee benefit plan or trust of the Company or any of its subsidiaries),
together with all "affiliates" and "associates" of such person (as such terms
are defined in Rule 12b-2 under the Act), shall become the "beneficial owner"
(as such term is defined in Rule 13d-3 under the Act), directly or indirectly,
of securities of the Company representing 40% or more of either (1) the combined
voting power of the Company's then outstanding securities having the right to
vote in an election of the Company's Board of Directors ("Voting Securities") or
(2) the then outstanding shares of Stock of the Company (in either such case
other than as a result of an acquisition of securities directly from the
Company); or
(b) persons who, as of the effective date of this Agreement,
constitute the Company's Board of Directors (the "Incumbent Directors") cease
for any reason, including, without limitation, as a result of a tender offer,
proxy contest, merger or similar transaction, to constitute at least a majority
of the Board; provided, however, that any person becoming a director of the
Company subsequent to the effective date of this Agreement whose election or
nomination for election was approved by a vote of at least a majority of the
Incumbent Directors shall, for purposes of this Plan, be considered an Incumbent
Director; or
(c) the stockholders of the Company shall approve (1) any
consolidation or merger of the Company or any subsidiary where the shareholders
of the Company, immediately prior to the consolidation or merger, would not,
immediately after the consolidation or merger, beneficially own (as such term is
defined in Rule 13d-3 under the Act), directly or indirectly, shares
representing in the aggregate 50% or more of the voting shares of the
corporation issuing cash or securities in the consolidation or merger (or of its
ultimate parent corporation, if any), (2) any sale, lease, exchange or other
transfer (in one transaction or a series of transactions contemplated or
arranged by any party as a single plan) of all or substantially all of the
assets of the Company or (3) any plan or proposal for the liquidation or
dissolution of the Company.
Notwithstanding the foregoing, a "Change of Control" shall not be
deemed to have occurred for purposes of the foregoing clause (a) solely as the
result of an acquisition of securities by the Company which, by reducing the
number of shares of Stock or other Voting Securities outstanding, increases (i)
the proportionate number of shares of Stock beneficially owned by any person to
40% or more of the shares of Stock then outstanding or (ii) the proportionate
voting power represented by the Voting Securities beneficially owned by any
person to 40% or more of the combined voting power of all then outstanding
Voting Securities; provided, however, that if any person referred to in clause
(i) or (ii) of this sentence shall thereafter become the beneficial owner of any
additional shares of Stock or other Voting Securities (other than pursuant to a
stock split, stock dividend, or similar transaction), then a "Change of Control"
shall be deemed to have occurred for purposes of the foregoing clause (a).
Further notwithstanding the foregoing, it is the parties' intention
that this Agreement be construed so that a "Change of Control" shall not be
deemed to have
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occurred as a result of a transaction unless and until the management of the
Company immediately prior to such transaction no longer controls the management
and operations of the Company.
"CONSTRUCTIVE TERMINATION" shall mean, with respect to the Executive,
the termination by the Executive of employment with the Company following the
occurrence of any one of the following events:
(a) The Executive no longer retains, is not re-elected to, or
is removed from, the office(s) held by the Executive immediately prior to the
Change of Control, other than as a result of the Executive's election or
appointment to position(s) of equal or superior scope and responsibility; or
(b) The Company materially diminishes the scope and
responsibility of the Executive's current office(s), so that the powers,
authority and support services normally attendant to the Executive's current
office(s) are no longer vested in the Executive, as determined by the Executive
in his or her reasonable discretion, including without limitation changes in the
individuals, groups, positions or divisions which report to the Executive or the
person or position to whom the Executive directly reports, provided, however,
that the Company shall have the right to dispute the "reasonableness" of the
Executive's determination or the "materiality" of the change, in which case the
sole and exclusive method for resolving such dispute shall be the alternative
dispute resolution procedure set forth in Section 8(a) of this Agreement; or
(c) The Executive's compensation (including, without
limitation, base salary, bonus eligibility, stock options, other incentive
awards, employee benefits coverage or retirement benefits) is reduced by more
than a de minimis amount; or
(d) The Company notifies the Executive that the Executive's
employment will be terminated or materially adversely modified in the future or
that Constructive Termination of the Executive will occur in the future; or
(e) The Company changes the primary employment location of the
Executive to a place that is more than fifty (50) miles from the primary
employment location of the Executive as of the effective date of this Agreement;
or
(f) The Company otherwise commits a material breach of its
obligations under this Agreement.
No such event described herein shall constitute Constructive Termination unless
the Executive has given written notice to the Company specifying the event
relied upon for such termination within six (6) months after the Executive has
actual notice of the occurrence of such event and the Company has not remedied
such within thirty (30) days of such notice.
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"COVERAGE PERIOD" shall mean the period during which the Executive
shall be entitled to receive various benefits pursuant to the terms of this
Agreement, commencing on the date the Termination Event (as defined in Section
2) occurs and ending at the end of the period set forth on Exhibit A attached
hereto.
"TERMINATION DATE" shall mean the date that a Termination Event occurs.
"TERMINATION EVENT" shall mean termination of the Executive's
employment by the Company or Constructive Termination of the Executive.
"VALUATION MULTIPLE" shall mean the amount by which the Executive's
annual compensation is multiplied for purposes of calculating certain benefits
paid under this Agreement, as set forth on Exhibit A attached hereto.
2. Benefits Upon Termination of Employment Due to Change of Control.
If, upon a Change of Control or within twenty-four (24) months thereafter, a
Termination Event occurs, the Executive shall be entitled to the following
benefits:
(a) Multiple of Annual Compensation. Within five (5) business
days after the Termination Date, the Executive shall be paid a lump sum by the
Company equal to the amount determined by multiplying the Valuation Multiple by
the greater of the following:
(1) the sum of the Executive's annualized base salary as of the
Termination Date, plus the largest amount of annual incentive
bonus paid by the Company to the Executive during the preceding
five (5) fiscal years; or
(2) the largest amount of annual cash compensation (including
salary and incentive bonus) and other income, from all
sources, paid by the Company to the Executive over the
preceding five (5) fiscal years, as reported by the Company in
Box 5 of Form W-2 and/or Form 1099 furnished to the Executive.
(b) Unpaid Annual Incentive Bonus. Within five (5) business
days after the Termination Date, but only as a result of termination of the
Executive's employment by the Company and not as a result of Constructive
Termination, the Executive shall be paid a lump sum in respect of unpaid
incentive bonus, calculated as follows:
(1) If the Termination Date occurs prior to the date incentive
bonuses are paid by the Company to eligible employees with
respect to services performed in the preceding fiscal year,
the Executive shall be paid an amount equal to the largest
amount of the annual incentive bonus paid to the Executive by
the Company over the preceding five (5) fiscal years,
multiplied by a fraction, the numerator of which is the number
of days which have elapsed
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from the first day of the preceding fiscal year to the
Termination Date and the denominator of which is three hundred
sixty five (365); and
(2) If the Termination Date occurs after the date incentive
bonuses have been paid by the Company to eligible employees
with respect to services performed in the preceding fiscal
year, then (a) if the Company has achieved in the current
fiscal year, on a prorated basis, at least 85% of the
quantifiable annual performance goals previously established
by the Company for determination of incentive bonuses, the
Executive shall be paid an amount equal to the largest amount
of the annual incentive bonus paid to the Executive by the
Company over the preceding five (5) fiscal years, multiplied
by a fraction, the numerator of which is the number of days
which have elapsed from the first day of the current fiscal
year to the Termination Date and the denominator of which is
three hundred sixty five (365), and (b) if the Company has not
achieved in the current fiscal year, on a prorated basis, at
least 85% of the quantifiable annual performance goals
previously established by the Company for determination of
incentive bonuses, the Executive shall be paid an amount equal
to 75% of the average incentive bonus paid to the Executive
over the preceding three (3) fiscal years, multiplied by a
fraction, the numerator of which is the number of days which
have elapsed from the first day of the current fiscal year to
the Termination Date and the denominator of which is three
hundred sixty five (365).
(c) Continuation of Benefits Coverage. The Executive (and the
Executive's dependents) shall receive coverage under the Company's health and
employee benefit plans then in effect, to the extent permitted by such plans, at
the Company's cost, during the Coverage Period (provided that substantially the
same or equivalent benefits are not available to the Executive by reason of
employment obtained following such termination);
(d) Immediate Vesting of Stock Incentive Awards and DERs;
Extension of Option Exercise Period. Notwithstanding any vesting schedule
otherwise applicable or any other provisions to the contrary in the Company's
stock incentive plans, any outstanding stock options and dividend equivalent
rights awards previously granted to Executive shall immediately be fully vested
and the Executive shall be entitled, for a period of twelve (12) months
following such termination of employment, to exercise any such stock options;
(e) Future DER Payments. The Executive shall be paid, at the
Executive's election, either (i) within five (5) business days after the
Termination Date, a lump sum equal to the aggregate amount of the annual
dividend equivalent rights payments payable to the Executive during the
remaining term of any dividend equivalent rights awards previously granted to
the Executive, based on the assumption that the Company's then-current quarterly
dividend payments continue during the remaining term
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of such awards, or (ii) annual payments during the remaining term of any
dividend equivalent rights awards granted to the Executive, in accordance with
the terms of such awards;
(f) Future 401(k) Contributions. Within five (5) business days
after the Termination Date, the Executive shall be paid a lump sum equal to the
aggregate amount of the Company's maximum contributions that would have been
made under the Company's Savings and Retirement Plan ("401(k) Plan") during the
Coverage Period if the Executive had continued to be employed and participated
in the 401(k) Plan during the Coverage Period;
(g) Forfeitures Under 401(k) Plan. Within five (5) business
days after the Termination Date, the Executive shall be paid an amount equal to
the portion, if any, of the contributions made by the Company for the
Executive's account under the 401(k) Plan which are forfeited as a result of
termination of the Executive's employment;
(h) Future Retirement Benefits. Within five (5) business days
after the Termination Date, the Executive shall be paid a lump sum equal to the
aggregate amount of the benefits, if any, under any special pension benefit or
deferred compensation plans (calculated assuming the Executive will begin
receiving benefits at the earliest retirement date under such plans) which may
subsequently be adopted by the Company, which are operational on the Termination
Date and which explicitly provide for such payments to be made in the event of a
Change of Control.
3. Excess Parachute Payments. If it is determined, by the Company's
independent public accountants in consultation with the Company's independent
legal counsel, that any amount payable to the Executive by the Company under
this Agreement, or any other plan or agreement under which the Executive
participates or is a party, would constitute an "Excess Parachute Payment"
within the meaning of Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code") and be subject to the excise tax imposed by Section 4999 of
the Code, the Company shall pay to the Executive a "grossing-up" amount equal to
the amount of such excise tax and all federal and state income or other taxes
with respect to payment of such excise tax, including all taxes with respect to
such grossing-up amount. The highest marginal tax rate applicable to individuals
at the time of payment of such amounts shall be used for purposes of determining
the federal and state income and other taxes with respect thereto. The Company
shall withhold from any amounts paid under this Agreement the amount of any such
excise tax or other federal, state or local taxes then required to be withheld.
4. Intercompany Transfers. If the Executive is transferred voluntarily
to an affiliate or subsidiary of the Company, such transfer shall not be deemed
to terminate or modify this Agreement and the employing corporation to which the
Executive shall have been transferred shall, for all purposes of this Agreement,
be deemed to stand in the place of the Company as of the date of such transfer.
The Company shall be secondarily liable
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to the Executive for the obligations hereunder in case the affiliate or
subsidiary of the Company cannot or chooses not to perform such obligations.
5. Source of Payments. All payments provided for under this Agreement
shall be paid in cash from the general funds of the Company; provided, however,
that such payments shall be reduced by the amount of any payments made to the
Executive or his or her dependents, beneficiaries or estate from any trust or
special or separate fund which may be established by the Company to assure such
payments. The Company shall not be required to establish a special or separate
fund or other segregation of assets to assure such payments and the Executive
shall have no right, title or interest whatever in or to any investments which
the Company may make to assist it in meeting its obligations hereunder, except
as may otherwise be expressly provided in a separate written instrument relating
to any such investments. Nothing contained in this Agreement, and no action
taken pursuant to its provisions, shall create or be construed to create a trust
of any kind or a fiduciary relationship between the Company and the Executive or
any other person. To the extent that any person acquires rights to receive
payments from the Company, such right shall be no greater than the right of an
unsecured creditor of the Company.
6. Confidential Information. The Executive acknowledges that, during
the course of his or her employment with the Company, the Executive may
heretofore or hereafter produce, receive or have access to various materials,
records, data, trade secrets, proprietary information and other information not
generally known or available to the public (collectively, "Confidential
Information") regarding the business, properties, services, strategic plans,
business methods or practices of the Company, its subsidiaries or affiliates.
For purposes of this Agreement, "Confidential Information" shall include, but
not be limited to, purchase and sale agreements, leases, lease abstracts,
management agreements, loan and financing agreements, listing and brokerage
agreements, employment contracts, other contracts and commitments, appraisals,
title reports and policies, surveys, market analyses and evaluations,
environmental assessments, consultants' reports, strategic plans, Company policy
and procedure manuals and other information not generally known or available to
the public. During the course of employment and subsequent thereto, the
Executive shall hold in confidence and not directly or indirectly disclose, copy
or otherwise use any Confidential Information, except to the extent that such
information is or thereafter becomes lawfully available from public sources, or
such disclosure or use is authorized in writing by the Company, is required by
law or by any competent judicial or administrative authority, or otherwise is
reasonably necessary and appropriate in connection with the performance of the
Executive's duties to the Company. All records, files, documents, computer
disks, computer programs and other computer-generated material, as well as all
other materials or copies thereof relating to the Company and its business,
shall be and remain the sole property of the Company and shall be promptly
returned to the Company upon any termination of the Executive's employment
hereunder.
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7. Non-Solicitation. As a material inducement to the Company to enter
into this Agreement, the Executive agrees that, for a period of twelve (12)
months following a Termination Event resulting in the payment of benefits
hereunder to the Executive, the Executive will not directly or indirectly
solicit or induce, or attempt to solicit or induce, or otherwise participate in
an attempt to solicit or induce, any person who is an employee of the Company on
the date of the Termination Event to terminate employment with the Company in
order to join an enterprise with which the Executive is then employed or
affiliated which operates a business similar to that of the Company. For
purposes of this Section 7, a business shall be considered "similar" to that of
the Company if it is engaged in the acquisition, development, ownership or
management of office or industrial property in any geographic market or
territory in which the Company owns properties as of the Termination Date, or in
any market or territory in which the company has an acquisition pending as of
the Termination Date, or in any target market or territory which has been
publicly identified by the Company as of the Termination Date.
8. General Provisions.
(a) Alternative Dispute Resolution. Any dispute or controversy
arising under or in connection with this Agreement, or any breach thereof, shall
be resolved and settled exclusively by arbitration, conducted by a single
arbitrator sitting in San Francisco, California, in accordance with the
commercial arbitration rules of the American Arbitration Association ("AAA")
pertaining to expedited procedures. The arbitrator shall be selected by the
parties from a list of six (6) potential arbitrators provided by the AAA,
provided that no potential arbitrator shall be related to or affiliated with
either of the parties. If the parties are unable to agree on a single arbitrator
within ten (10) days after the AAA's list of potential arbitrators has been
received by the parties, the AAA shall select from the list an arbitrator who
shall arbitrate the dispute. Each party shall be entitled, but shall not be
obligated, to submit a written arbitration statement setting forth the amount
claimed, if any, and the relief sought. The arbitration hearing shall be
conducted within forty-five (45) days following the selection of the arbitrator
and the arbitrator shall render an award within twenty (20) days from the close
of the arbitration hearing. The Company shall bear the costs of the arbitration
proceeding, including the costs of counsel, experts or other representatives
retained by the parties and the fees, costs and expenses imposed or incurred by
he arbitrator. Judgment on the award entered by the arbitrator may be entered in
any court having jurisdiction thereof.
(b) Release by Executive. Notwithstanding any provision hereof
to the contrary, the Company shall not have any obligation to pay any amount or
provide any benefit, as the case may be, under this Agreement, unless and until
the Executive executes and delivers a release of the Company, its affiliates and
related parties, in such form as the Company may reasonably require, of all
claims against the Company, its affiliates and related parties relating in any
way to the Executive's employment and termination thereof, other than claims for
amounts remaining to be paid or benefits remaining to be provided pursuant to
the terms of this Agreement.
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(c) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Executive, the company and his or her and
its respective personal representatives, successors and assigns. The Company
shall require any successor to all or substantially all of the business and/or
assets of the Company, whether directly or indirectly, by purchase, merger,
consolidation, stock acquisition, or otherwise, by an agreement in form and
substance satisfactory to the Executive, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent as the Company
would be required to perform if no such succession had occurred.
(d) Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior negotiations, undertakings, agreements and arrangements
with respect thereto, whether written or oral. Except as otherwise explicitly
provided herein, this Agreement may not be amended or modified except by written
agreement signed by the Executive and the Company.
(e) Severability; Governing Law. If any of the provisions of
this Agreement shall be declared invalid or unenforceable by a court of
competent jurisdiction, the validity and enforceability of the remaining
provisions shall not be affected thereby. This Agreement shall be construed and
the rights of the parties hereto shall be determined in accordance with the laws
of the State of Maryland, without reference to the law regarding conflicts of
laws.
(f) Notices. Notices given pursuant to this Agreement shall be
in writing and shall be deemed given when received and, if mailed, shall be
mailed by United States registered or certified mail, return receipt requested,
postage prepaid, sent to the following addresses (or to such other addresses as
the party to be notified shall have given to the other party in accordance with
this provision):
If to the Company:
TriNet Corporate Realty Trust, Inc.
Xxx Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
ATTN: Vice President, Administration and General Counsel
If to the Executive:
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
THE COMPANY:
TRINET CORPORATE REALTY TRUST, INC.
a Maryland corporation
By: _________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Vice President, Administration and General Counsel
THE EXECUTIVE:
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EXHIBIT A
NAME OF EXECUTIVE VALUATION MULTIPLE COVERAGE PERIOD
______________ ___ (_) __ months
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