EXHIBIT 10.39
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is made and entered into as of
November 18, 1997 by and between BRE PROPERTIES, INC., a Maryland corporation
(the "COMPANY"), and Xxxxx Xxxx (the "EXECUTIVE").
BACKGROUND
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WHEREAS, the Company desires to employ Executive, and Executive desires to
be employed by the Company, on the terms and subject to the conditions of this
Agreement.
NOW, THEREFORE, in consideration of the covenants, duties, terms, and
conditions set forth in this Agreement, the parties agree as follows:
1. Term. Executive shall commence the rendering of personal services
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under this Agreement on the date of this Agreement set forth above (the "START
DATE"). The term of this Agreement is for three years from the Start Date
unless earlier terminated pursuant to Section 7 (the "TERM").
2. Duties. Executive shall be employed by the Company as its Executive
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Vice-President of Development and Acquisitions and as President of BRE Builders,
Inc., a wholly-owned subsidiary of the Company. Executive shall report to the
Company's Chief Operating Officer and perform such duties, consistent with
duties customarily accorded an Executive Vice-President, that the Chief
Operating Officer or the Chief Executive Officer may from time to time direct.
Executive shall devote his full business time and best efforts to the Company.
Executive shall not, except for incidental management of his personal financial
affairs, engage in any other business, nor shall he serve in any position with
any other corporation or entity, without the prior written consent of the Board
of Directors of the Company (the "Board").
3. Compensation. During the Term, Executive shall be entitled to receive
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compensation in accordance with this Section 3.
3.1 Base Salary. Commencing on the Start Date, Executive shall
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receive an annual base salary ("BASE SALARY") of $225,000. The Base Salary
shall be payable by the Company to the Executive in equal installments on the
dates payments of salary are regularly made by the Company to its executive
employees. As part of the review of all Company executives, such base salary
will be reviewed annually based on Executive's performance with any adjustments
to base salary subject to approval of the Board or its Compensation Committee
(the "Compensation Committee").
3.2 Annual Incentive Bonus . Executive shall be eligible to receive
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an annual incentive bonus (the "ANNUAL BONUS") targeted at 40% of Base Salary
for each fiscal year of the Company during the Term. The amount of the Annual
Bonus shall be based on the achievement of predefined operating or performance
and other criteria established by the Chief Operating Officer or the Chief
Executive Officer (the "ANNUAL CRITERIA"), with the actual amount of the Annual
Bonus subject to approval of the Board or its Compensation Committee. The
Annual Bonus with respect to any fiscal year for which the Executive is not
employed for the entire year will be prorated. Except as otherwise specified in
this Agreement, Executive shall earn the Annual Bonus only at the end of each of
the
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Company's fiscal years during the Term. The Annual Bonus, if earned, shall
be paid within 90 days after the end of each fiscal year.
3.3 Long Term Incentive Awards. Effective on the Start Date, the
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Executive shall receive incentive stock options to purchase 25,000 shares of the
Company's common stock (the "Options") pursuant to the Amended and Restated 1992
Employee Stock Plan (the "1992 Plan"). The Options will have an exercise price
equal to Fair Market Value (as defined in the 1992 Plan) on the date of grant,
will vest 20% per year at the end of each year of employment served and will
have such other terms and conditions as may be specified pursuant to the 1992
Plan. During the second and third years of the Term, the Executive shall be
entitled to receive such additional stock option awards, or other form of long
term incentive compensation, as may be approved by the Board or its Compensation
Committee consistent with the Company's policies applicable to senior
executives.
4. Benefits. During the Term, Executive shall be entitled to receive
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such other benefits and to participate in such benefit plans as are generally
provided by the Company to its executive employees, including 401(k) and health
and life insurance plans. The Company will also pay Executive's annual dues for
membership in the Young Presidents' Association and the Urban Land Institute
during the Term. Executive shall be entitled to four weeks vacation for each
full twelve months of employment hereunder.
5. Expenses. The Company shall pay or reimburse Executive for all
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reasonable travel and other expenses incurred by Executive in performing his
duties under this Agreement in accordance with Company policy. In addition,
Executive shall be entitled to receive a $500 per month automobile allowance,
and reimbursement for the cost of monthly parking at the Company's offices in
San Francisco, for each month during the Term.
6. Housing Allowance/Relocation Expense. Executive shall be reimbursed
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by the Company (upon presentation of appropriate documentation) for the
following reasonable out-of-pocket expenses related to relocating to the San
Francisco Bay Area: moving expenses for household goods, travel for Executive
and his family to and from the San Francisco Bay Area, trips for locating
housing, and temporary housing for a period of up to one year. The total amount
payable to Executive on account of the foregoing expenses shall not exceed
$50,000. In addition, Executive shall be reimbursed, upon presentation of
appropriate documentation and up to the maximum amount of $30,000, for customary
commissions on the sale of his existing residence and Executive's share of any
reasonable title, closing and other transactional costs customarily paid by a
seller in the jurisdiction in which the residence is located as set forth in
Executive's closing escrow statement.
7. Termination of Employment.
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7.1 Termination Due to Death or Disability; Voluntary Termination.
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If at any time during the Term, Executive shall die, suffer any Disability which
is deemed to be permanent (as defined below), or voluntarily terminate his
employment by the Company, then, in any such event, his employment under this
Agreement shall automatically terminate on the date of death, upon any
Disability, or the date of voluntary termination, as the case may be. As used
herein, the term "DISABILITY" shall mean the inability of Executive to perform
his normal duties for Company for a period of ninety (90) calendar days, or for
one hundred twenty (120) days during any period of one hundred eighty (180)
calendar days, whether or not consecutive. An additional determination of
permanent disability may be made at any time by a physician chosen by a majority
of the Board, which physician shall opine as to the physical condition of
Executive.
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7.2 Termination by the Company for Good Cause. The Company may
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terminate this Agreement and Executive's employment at any time for Good Cause.
In such event, this Agreement shall terminate on such date as shall be specified
in writing by the Company. As used herein, the term "GOOD CAUSE" shall mean (i)
any act or omission of gross negligence, willful misconduct, dishonesty, or
fraud by Executive in the performance of his duties hereunder, (ii) the failure
or refusal of Executive after the receipt of written notice by the Executive to
perform the duties or to render the services assigned to him from time to time
in accordance with this Agreement, (iii) the charging or indictment of Executive
in connection with a felony or any misdemeanor involving dishonesty or moral
turpitude, (iv) the material breach by Executive of this Agreement or the breach
of Executive's fiduciary duty or duty of trust to the Company provided that, if
such breach is curable, Executive first receives notice of the breach and seven
(7) days to cure such breach; or (v) any other act or omission by Executive
either in disregard of the Company's policies or conduct which may cause
material loss, damage or injury to the Company, its property, reputation or
employees.
7.3 Termination by the Company Other Than for Good Cause. During the
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Term, the Company may terminate this Agreement and Executive's employment for
any reason other than for Good Cause. In such event, this Agreement shall
terminate on the 30th day following written notice of such termination by the
Company.
8. Compensation upon Termination.
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8.1 Termination Other Than in Connection With a Change in Control.
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(a) In the event of termination of Executive's employment pursuant to
Section 7.1 due to death or Disability, Executive or his estate shall receive,
within 30 days after such death or Disability, a lump-sum payment equal to the
Annual Bonus that the Executive would have earned for the fiscal year in
question (based on 40% of the Executive's then current Base Salary).
(b) In the event of termination of Executive's employment pursuant to
Section 7.1 based on voluntary termination by the Executive or pursuant to
Section 7.2 (Termination by the Company for Good Cause), the Company shall not
be obligated, from and after the date of termination, to provide to Executive,
and Executive shall not be entitled to receive from the Company, any
compensation (including any payments of Base Salary, Annual Bonus, or other
awards) or other benefits.
(c) In the event of termination of Executive's employment other than
for Good Cause pursuant to Section 7.3, Executive shall be entitled to receive a
lump-sum payment from the Company within 30 days of termination equal to his
then Base Salary plus an amount equal to the Annual Bonus that the Executive
would have earned for the fiscal year in question (based on 40% of the
Executive's then current Base Salary).
8.2 Termination Following a Change in Control. The following
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provisions shall apply in lieu of Section 8.1 if, and only if, the termination
of Executive's employment occurs within 12 months following a Change in Control
(as defined in Section 8.2(d)):
(a) In the event of termination of Executive's employment pursuant to
Section 7.1 due to death or Disability, the provisions of Section 8.1(a) apply.
In the event of termination of Executive's employment pursuant to Section 7.2
(Termination by the Company with Good Cause), the provisions of Section 8.1(b)
apply.
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(b) In the event of termination of Executive's employment due to
voluntary termination by Executive without Good Reason (as defined below),
Executive shall be entitled to receive a lump-sum payment from the Company
within 30 days of termination equal to the amount computed under Section 8.1(c).
As used herein, the term "GOOD REASON" means (i) a material change in
Executive's duties, responsibilities, or authority, or (ii) the Company's
relocation of the Executive, without the Executive's consent, to a location
outside of the San Francisco metropolitan area.
(c) In the event of termination of Executive's employment due to
voluntary termination by Executive with Good Reason, or pursuant to Section 7.3
(Termination by the Company other than for Good Cause), the Company shall
provide Executive with the following compensation within 30 days after such
termination: (i) Executive shall be entitled to receive a lump-sum payment from
the Company equal to two times his then Base Salary plus an amount equal two
times the Annual Bonus the Executive would have earned for the fiscal year in
question (based on 40% of the Executive's then current Base Salary), and (ii)
all unvested stock options held by Executive at the date of termination, if any,
would vest and become fully exercisable for a period of three months from the
date of termination.
(d) As used herein, a "CHANGE IN CONTROL" shall be deemed to have
occurred when any of the following events occur:
(i) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934 (the "EXCHANGE ACT"), as in effect on the
date hereof, (a "PERSON")) acquiring "beneficial ownership" (as defined in Rule
13D-3 under the Exchange Act), of securities of the Company representing 50% or
more of the combined voting power of the Company's then outstanding securities;
or
(ii) a change in the Board that is the result of a proxy
solicitation(s) or other action(s) to influence voting at a shareholders'
meeting of the Company (other than by voting one's own stock) by a Person or
group of Persons who has Beneficial Ownership of 5% or more of the combined
voting power of the securities of the Company and which causes the Continuing
Directors (as defined below) to cease to constitute a majority of the Board;
provided, however, that neither of the events described in (i) or (ii) of this
Section 8.2(d) shall be deemed to be a Change in Control if the event(s) or
election(s) causing such change shall have been approved specifically for
purposes of this Agreement by the affirmative vote of at least a majority of the
members of the Continuing Directors. For these purposes, a "CONTINUING
DIRECTOR" shall mean a member of the Board (i) who is a member of the Board on
the date of this Agreement, or (ii) who subsequently becomes a member of the
Board and who either (x) is appointed or recommended for election with the
affirmative vote of a majority of the Directors then in office who are Directors
on the date hereof, or (y) is appointed or recommended for election with the
affirmative vote of a majority of the Directors then in office who are described
in clauses (i) and (ii) (including clause (ii)(y)), as applicable.
(e) Notwithstanding anything to the contrary in this Section 8.2, if
any of the payments or other compensation to be made to Executive pursuant to
this Section 8.2 are determined to be "parachute payments" as defined in Section
280G of the Internal Revenue Code of 1986, as amended (the "CODE"), then the
amount of such payments or other compensation shall be reduced to the largest
amount which would not constitute "parachute payments" as so defined.
9. Confidentiality and Restrictive Covenants.
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(a) It is specifically understood and agreed that some of the
Company's business activities are secret in nature and constitute trade secrets,
including but not limited to the Company's "know-how," methods of business and
operations, and property and financial analyses and reports (all such
information, "PROPRIETARY INFORMATION"). All of the Company's Proprietary
Information is and shall be the property of the Company for its own exclusive
use and benefit, and Executive agrees that he will hold all of the Company's
Proprietary Information in strictest confidence and will not at any time, either
during or after his employment by the Company, use or permit the use of the same
for his own benefit or for the benefit of others unless authorized to do so by
the Company's written consent or by a contract or agreement to which the Company
is a party or by which it is bound. The provisions of this Section 9 shall
perpetually survive the termination of the Agreement.
(b) For a period of two (2) years following any termination of this
Agreement, the Executive shall not recruit, attempt to hire, direct, assist
others in recruiting or hiring, or encourage any employee of the Company to
terminate his employment with the Company or to accept employment with any
subsequent employer or business with whom the Executive is affiliated or
receiving compensation in any way.
(c) For a period of one (1) year after any termination of this
Agreement pursuant to Section 7.1 based on voluntary termination by the
Executive or pursuant to Section 7.2 (Termination by the Company for Good
Cause), the Executive shall not perform services of any kind, whether as an
employee, consultant, independent contractor, officer, director or otherwise, or
directly or indirectly engage in any other activity (for his own account or for
the account of others), which involves the development, ownership or management
of multifamily apartment properties in those states in which the Company owned
or operated multifamily apartment properties on the date of such termination.
The Executive acknowledges that the foregoing covenant is intended to protect
the value of the goodwill and other consideration the Company has acquired
pursuant to the terms of the Contribution Agreement dated as of September 29,
1997 (the "Acquisition") between the Company, BRE Property Investors LLC and the
TCR' Signatories identified therein and that the Company would not have pursued
the Acquisition but for Executive's covenants set forth in this Section 9. The
Executive agrees to fully perform such covenant in exchange for, among other
things, the consideration he has received from the Company, the contributing
entities and their affiliates pursuant to the terms of the Acquisition and the
transactions contemplated thereby and the covenants of the Company set forth in
this Agreement.
(d) The Executive acknowledges and agrees that it will be impossible
to measure in money the damages that would be suffered by the Company if the
Executive fails to comply with any of the covenants and obligations set forth in
this Section 9 and that, in the event of any such failure, the Company will be
irreparably damaged and shall not have an adequate remedy at law. Therefore, in
addition to any other remedies or rights it may have, the Company will be
entitled to injunctive relief, including specific performance, to enforce such
covenants and obligations. If any action should be brought in equity to enforce
any of the provisions of this Section 9, the Executive agrees not to raise the
defense that there is an adequate remedy at law.
10. Arbitration. Except as specifically set forth in paragraph (d) of
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Section 9, any controversy, dispute, or claim of whatever nature arising out of,
in connection with, or in relation to the interpretation, performance, or breach
of this Agreement, including any claim based on contract, tort, or statute,
shall be resolved at the request of any party to this Agreement through a two-
step dispute resolution process administered by Judicial Arbitration & Mediation
Services, Inc. ("JAMS"), or a comparable organization agreeable to the parties
if JAMS is not then in existence, involving first mediation before a retired
judge or justice from the JAMS panel followed, if necessary, by final and
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binding arbitration conducted at a location determined by the arbitrator in San
Francisco, California, administered by and in accordance with the then-existing
Rules of Practice and Procedure of JAMS, and judgment upon any award rendered by
the arbitrator may be entered by any state or federal court having jurisdiction
thereof.
11. Taxes; Withholdings. All compensation payable by the Company to the
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Executive under this Agreement which is or may become subject to withholding
under the Code or other pertinent provisions of laws or regulation shall be
reduced for all applicable income and/or employment taxes required to be
withheld.
12. Miscellaneous.
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12.1 All notices and any other communications permitted or required
under this Agreement must be in writing and shall be effective (a) on the first
business day after delivery in person, or (b) on the first business day after
deposit with a commercial courier or delivery service for overnight delivery.
All notices must be properly addressed and delivered to the parties at the
addresses set forth below:
If to Company
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BRE Properties, Inc.
One Xxxxxxxxxx Street, Suite 0000
Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx XxXxxxxx
With Copy to:
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Xxxxxxx, Xxxxx & Xxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
If to Executive
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Xxxxx Xxxx
2422 Montebello
Xxxxxxx, XX 00000
or at such other addresses as either party may subsequently designate by written
notice given in the manner provided in this section.
12.2 This Agreement, contains the full and complete understanding of
the parties and supersedes all prior representations, promises, agreements, and
warranties, whether oral or written.
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12.3 This Agreement shall be governed by and interpreted according to
the laws of the State of California.
12.4 With respect to the Company, this Agreement shall inure to the
benefit of and be binding upon any successors or assigns of Company. With
respect to Executive, this Agreement shall not be assignable but shall inure to
the benefit of estate of Executive or his legal successor upon death or
disability.
12.5 The captions of the various sections of this Agreement are
inserted only for convenience and shall not be considered in construing this
Agreement.
12.6 This Agreement can be modified, amended, or any of its terms
waived only by a writing signed by both parties.
12.7 If any provision of this Agreement shall be held invalid,
illegal, or unenforceable, the remaining provisions of the Agreement shall
remain in full force and effect, and the invalid, illegal, or unenforceable
provision shall be limited or eliminated only to the extent necessary to remove
such invalidity, illegality, or unenforceability in accordance with the
applicable law at that time.
12.8 No remedy made available to Company by any of the provisions of
this Agreement is intended to be exclusive of any other remedy. Each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder as well as those remedies existing at law, in equity, by statute, or
otherwise.
12.9 This Agreement may be executed in one or more counterparts. Any
copy of this Agreement with the original signatures of all parties approved
shall constitute an original.
12.10 Without limiting the provisions of Section 10, if either party
institutes arbitration proceedings pursuant to Section 10 or an action to
enforce the terms of this Agreement, the prevailing party in such proceeding or
action shall be entitled to recover reasonable attorneys' fees, costs, and
expenses.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date
specified in the first paragraph.
COMPANY: BRE PROPERTIES, INC.
By: /s/ Xxxxx X. XxXxxxxx
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Title: Chief Executive Officer
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EXECUTIVE: Xxxxx Xxxx
/s/ Xxxxx X. Xxxx
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