Exhibit 10.14
EMPLOYMENT AGREEMENT
XXXXXX X. XXXXXX
This Employment Agreement (this "Agreement"), is made and entered into as
of the 20 day of October, 1997 (the "Effective Date"), by and between
Corporate Office Properties, L.P., a Delaware limited partnership (the
"Employer"), and Xxxxxx X. Xxxxxx (the "Executive").
RECITALS
A. The Employer desires to employ the Executive as an officer of the Employer
for a specified term, and the Executive is willing to accept such
employment upon the terms and conditions hereinafter set forth.
B. The Employer recognizes that circumstances may arise in which a change of
control of the Employer, through acquisition or otherwise, may occur,
thereby causing uncertainty of employment 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. Accordingly, the
Employer and the Executive wish to provide reasonable security to the
Executive in the event of any such change of control.
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements hereinafter contained, it is covenanted and agreed by
and between the parties hereto as follows:
AGREEMENTS
1. POSITION AND DUTIES. The Employer hereby employs the Executive as the Vice
President - Finance of the Employer, or in such other capacity as shall be
mutually agreed between the Employer and the Executive. During the period of
the Executive's employment hereunder, the Executive shall devote his best
efforts and full business time, energy, skills and attention to the business and
affairs of the Employer. The Executive's duties and authority shall consist of
and include all duties and authority customarily performed and held by persons
holding equivalent positions with business organizations similar in nature and
size to the Employer, as such duties and authority are reasonably defined,
modified and delegated from time to time by the Board of Directors of the
Employer (the "Board"). The Executive shall have the powers necessary to
perform the duties assigned to him, and shall be provided such supporting
services, staff, secretarial and other assistance, office space and
accouterments as shall be reasonably necessary and appropriate in the light of
such assigned duties.
2. COMPENSATION. As compensation for the services to be provided by the
Executive hereunder, the Executive shall receive the following compensation and
other benefits:
(a) BASE SALARY. The Executive shall receive an aggregate annual
minimum "Base Salary" at the rate of Ninety Thousand dollars ($90,000) per
annum, payable in periodic installments in accordance with the regular
payroll practices of the Employer. Such Base Salary shall be subject to
review annually by the Compensation Committee of the Board during the term
hereof, in accordance with the Employer's established compensation
policies.
(b) PERFORMANCE BONUS. The Executive shall receive an annual cash
"Performance Bonus," payable within ninety (90) days after the end of the
fiscal year of the Employer, which shall be based upon company-wide and
individual performance criteria mutually agreed upon from time to time by
the Executive
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and the Board, and which shall be determined by the Board based upon the
recommendation of the Compensation Committee thereof.
(c) BENEFITS. The Executive shall be entitled to all perquisites
extended to similarly situated executives, as such are stated in the
Employer's Executive Perquisite Policy (the "Perquisite Policy")
promulgated for the Board by the Compensation Committee of the Board, and
which Perquisite Policy is hereby incorporated by reference, as amended
from time to time. In addition, the Executive shall be entitled to
participate in all plans and benefits generally, from time to time,
accorded to employees of the Employer ("Benefit Plans"), all as determined
by the Board from time to time based upon the input of its Compensation
Committee. In addition, Company agrees that Employee shall be eligible to
participate in any stock option plan effected after the date of this
agreement.
(d) WITHHOLDING. The Employer shall be entitled to withhold, from
amounts payable to the Executive hereunder, any federal, state or local
withholding or other taxes or charges which it is from time to time
required to withhold. The Employer shall be entitled to rely upon the
opinion of its independent accountants, with regard to any question
concerning the amount or requirement of any such withholding.
3. TERM AND TERMINATION.
(a) BASIC TERM. The Executive's employment hereunder shall be for a
continuous three (3) year term, commencing as of the Effective Date, unless
terminated by either party, with or without cause, effective as of the
first (1st) business day after written notice to that effect is delivered
to the other party.
(b) PREMATURE TERMINATION.
(i) In the event of the termination of the employment of the Executive
under this Agreement by the Employer for any reason other than expiration
of the term hereof or a "for-cause" termination in accordance with the
provisions of paragraph (d) of this Section 3, then notwithstanding any
actual or allegedly available alternative employment or other mitigation of
damages by or available to the Executive, the Executive shall be entitled
to a "Lump Sum Payment" equal to one-half the annualized Base Salary plus
one-half most recent annual Performance Bonus that the Executive received.
For purposes of calculating the Lump Sum Payment amount due, the
Executive's employment with the Employer shall be agreed to have commenced
on October 14, 1997. In the event of a termination governed by this
subparagraph (b)(i) of Section 3, the Employer shall also: (y)
notwithstanding the vesting schedule otherwise applicable, fully vest all
of Executive's options outstanding under any option or stock incentive plan
established by Employer or its Parent or General Partner ("Option Plan")
and allow a period of eighteen (18) months following the termination of
employment for the Executive to exercise any such options; and (z) continue
for the Executive (provided that such items are not available to him by
virtue of other employment secured after termination) the perquisites,
plans and benefits provided under the Employer's Perquisite Policy and
Benefit Plans as of and after the date of termination, [all items in (z)
being collectively referred to as "Post-Termination Perquisites and
Benefits"], for six (6) months following such termination. The payments
and benefits provided under (w), (x), (y) and (z) above by the Employer
shall not be offset against or diminish any other compensation or benefits
accrued as of the date of termination.
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(ii) Payment to the Executive under this Section 3(b) will be made
monthly over six (6) months.
(c) CONSTRUCTIVE TERMINATION. If at any time during the term of this
Agreement, except in connection with a "for-cause" termination pursuant to
paragraph (d) of this Section 3, the Executive is Constructively Discharged
(as hereinafter defined), then the Executive shall have the right, by
written notice to the Employer given within sixty (60) days of such
Constructive Discharge, to terminate his services hereunder, effective as
of thirty (30) days after such notice, and the Executive shall have no
rights or obligations under this Agreement other than as provided in
Section 5 hereof. The Executive shall in such event be entitled to a Lump
Sum Payment of Base Salary and Performance Bonus compensation as well as
all of the Post-Termination Prerequisites and Benefits, as if such
termination of his employment had been effectuated pursuant to paragraph
(b) of this Section 3.
For purposes of this Agreement, the Executive shall be deemed to have
been "Constructively Discharged" upon the occurrence of any one of the
following events:
(i) The Executive is not re-elected to, or is removed from, the position
with the Employer set forth in Section 1 hereof, other than as a result of
the Executive's election or appointment to positions of equal or superior
scope and responsibility; or
(ii) The Executive shall fail to be vested by the Employer with the
material powers, authority and support services normally attendant to any
of said offices; or
(iii) The Employer shall notify the Executive that the employment of the
Executive will be terminated or materially modified in the future and
during the term hereof or that the Executive will be Constructively
Discharged in the future; or
(iv) The Employer changes the primary employment location of the
Executive to a place that is more than fifty (50) miles from the primary
employment location as of the Effective Date of this Agreement; or
(v) The Employer otherwise commits a material breach of its obligations
under this Agreement.
(d) TERMINATION FOR CAUSE. The employment of the Executive and this
Agreement may be terminated "for-cause" as hereinafter defined.
Termination "for-cause" shall mean the termination of employment on the
basis or as a result of: (i) the Executive's death or his permanent
disability, which latter term shall mean the Executive's inability, as a
result of physical or mental incapacity, substantially to perform his
duties hereunder for a period of either six (6) consecutive months, or one
hundred and twenty (120) business days within a consecutive twelve (12)
month period; (ii) a material violation by the Executive of any applicable
material law or regulation respecting the business of the Employer; (iii)
the Executive being found guilty of, or being publicly associated with, to
the Employer's detriment, a felony or an act of dishonesty in connection
with the performance of his duties as an officer of the Employer, or the
Executive's commission of an act which disqualifies the Executive from
serving as an officer or director of the Employer; or (iv) the willful or
negligent failure of the Executive to perform his duties hereunder in any
material respect. The Executive shall be entitled to at least thirty (30)
days' prior written notice of the
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Employer's intention to terminate his employment for any cause (except the
Executive's death), specifying the grounds for such termination, affording
the Executive a reasonable opportunity to cure any conduct or act (if
curable) alleged as grounds for such termination, and a reasonable
opportunity to present to the Board his position regarding any dispute
relating to the existence of such cause.
(e) TERMINATION UPON DEATH. In the event payments are due and owing
under this Agreement at the death of the Executive, such payments shall be
made to such beneficiary, designee or fiduciary as Executive may have
designated in writing, or failing such designation, to the executor or
administrator of his estate, in full settlement and satisfaction of all
claims and demands on behalf of the Executive. Such payments shall be in
addition to any other death benefits of the Employer made available for the
benefit of the Executive, and in full settlement and satisfaction of all
payments provided for in this Agreement.
(f) TERMINATION UPON DISABILITY. The Employer may terminate the
executive's employment after the Executive is determined to be disabled
under the current Employer program or by a physician engaged by the
Employer. In the event of a dispute regarding the Executive's
"disability," such dispute shall be resolved through arbitration as
provided in paragraph (d) of Section 9 hereof, except that the arbitrator
appointed by the American Arbitration Association shall be a duly licensed
medical doctor. The Executive shall be entitled to the compensation and
benefits provided for under this Agreement during any period of
incapacitation occurring during the term of this Agreement, and occurring
prior to the establishment of the Executive's "disability" during which the
Executive is unable to work due to a physical or mental infirmity.
Notwithstanding anything contained in this Agreement to the contrary, until
the date specified in a notice of termination relating to the Executive's
disability, the Executive shall be entitled to return to his positions with
the Employer as set forth in this Agreement, in which event no disability
of the Executive will be deemed to have occurred.
(g) TERMINATION UPON CHANGE OF CONTROL.
(i) In the event of a Change in Control during the term of this
agreement (as defined below) of the Employer and the termination of
the Executive's employment by the Employer under either 1 or 2
below, the Executive shall, be entitled to a Lump Sum Payment equal
to the sum of: (w) his monthly Base Salary then payable, multiplied
by the lesser of the number of full months the Executive has
theretofore been employed by the Employer or twenty four (24); plus
(x) two (2) times the average of the two (2) most recent annual
Performance Bonuses that the Executive received; provided, however,
that if the Executive has been employed by the Employer for fewer
than two (2) years, then the amount set forth in (x) above shall be
equal to two(2) times the annual Performance Bonus that the
Executive has theretofore received from the Employer. The Employer
shall also: (y) notwithstanding the vesting schedule otherwise
applicable, fully vest all of Executive's options outstanding under
any Option Plan and allow a period of eighteen (18) months following
the termination of employment of the Executive for the Executive's
exercise of such options; and (z) continue for the Executive
(provided that such items are not available to him by virtue of
other employment secured after termination) all of the perquisites,
plans and benefits provided under paragraph (c) of Section 2, for
the lesser of the number of full months the Executive has been
employed by the Employer or twenty-four (24) months following such
termination. The payments and benefits provided under (w), (x), (y)
and (z) above by the Employer shall not be offset against or
diminish any other compensation or benefits accrued as of the date
of termination.
The following shall constitute termination under this
paragraph:
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1. The Executive terminates his employment under this
Agreement pursuant to a written notice to that effect
delivered to the Board within three (3) months after the
occurrence of the Change in Control.
2. Executive's employment is terminated, including
Constructively Discharged, by the Employer or its successor
either in contemplation of or after Change in Control, other
than on a for-cause basis.
(ii) For purposes of this paragraph, the term "Change in Control" shall
mean the following occurring after the date of this Agreement:
1. The consummation of the acquisition by any person (as such
term is defined in Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the "1934 Act")) of
beneficial ownership (within the meaning of Rule 13d-3
promulgated under the 0000 Xxx) of fifty percent (50%) or more
of the combined voting power embodied in the then-outstanding
voting securities of the Employer; or
2. Approval by the stockholders of the Employer of: (1) a
merger or consolidation of the Employer, if the stockholders of
the Employer immediately before such merger or consolidation do
not, as a result of such merger or consolidation, own, directly
or indirectly, more than fifty percent (50%) of the combined
voting power of the then outstanding voting securities of the
entity resulting from such merger or consolidation in
substantially the same proportion as was represented by their
ownership of the combined voting power of the voting securities
of the Employer outstanding immediately before such merger or
consolidation; or (2) a complete or substantial liquidation or
dissolution, or an agreement for the sale or other disposition,
of all or substantially all of the assets of the Employer.
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because fifty percent (50%) or more of the combined
voting then-outstanding securities is acquired by: (1) a trustee or
other fiduciary holding securities under one or more employee benefit
plans maintained for employees of the entity; or (2) any corporation
or other entity which, immediately prior to such acquisition, is owned
directly or indirectly by the stockholders of the Employer in the same
proportion as their ownership of stock in the Employer immediately
prior to such acquisition.
(iii) If it is determined, in the opinion of the Employer's independent
accountants, in consultation with the Employer's independent counsel, that
any amount payable to the Executive by the Employer 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 "Excise Tax"), the Employer 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 payment of the amount of such
Excise Tax, including all such taxes with respect to any such grossing-up
amount. If at a later date, the Internal Revenue Service assesses a
deficiency against the Executive for the Excise Tax which is greater than
that which was determined at the time such amounts were paid, the Employer
shall pay to the Executive the amount of such unreimbursed Excise Tax plus
any interest, penalties and professional fees or expenses, incurred by the
Executive as a result of such assessment, including all such taxes with
respect to any such additional amount. The highest marginal tax rate
applicable to individuals at the time of payment of such amounts will be
used for purposes of determining the federal and state income and other
taxes with respect thereto. The Employer shall
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withhold from any amounts paid under this Agreement the amount of any
Excise Tax or other federal, state or local taxes then required to be
withheld. Computations of the amount of any grossing-up supplemental
compensation paid under this subparagraph shall be made by the Employer's
independent accountants, in consultation with the Employer's independent
legal counsel. The Employer shall pay all accountant and legal counsel
fees and expenses.
4. CONFIDENTIALITY AND LOYALTY. The Executive acknowledges that heretofore or
hereafter during the course of his employment he has produced and received, and
may hereafter produce, receive and otherwise have access to various materials,
records, data, trade secrets and information not generally available to the
public (collectively, "Confidential Information") regarding the Employer and its
subsidiaries and affiliates. Accordingly, during and subsequent to termination
of this Agreement, the Executive shall hold in confidence and not directly or
indirectly disclose, use, copy or make lists of any such Confidential
Information, except to the extent that such information is or thereafter becomes
lawfully available from public sources, or such disclosure is authorized in
writing by the Employer, required by law or by any competent administrative
agency or judicial authority, or otherwise as reasonably necessary or
appropriate in connection with the performance by the Executive of his duties
hereunder. All records, files, documents, computer diskettes, computer programs
and other computer-generated material, as well as all other materials or copies
thereof relating to the Employer's business, which the Executive shall prepare
or use, shall be and remain the sole property of the Employer, shall not be
removed from the Employer's premises without its written consent, and shall be
promptly returned to the Employer upon termination of the Executive's employment
hereunder. The Executive agrees to abide by the Employer's reasonable policies,
as in effect from time to time, respecting confidentiality and the avoidance of
interests conflicting with those of the Employer.
5. NON-COMPETITION COVENANT.
(a) RESTRICTIVE COVENANT. The Employer and the Executive have jointly
reviewed the tenant lists, property submittals, logs, broker lists, and
operations of the Employer, and have agreed that as an essential ingredient
of and in consideration of this Agreement and the payment of the amounts
described in Sections 2 and 3 hereof, the Executive hereby agrees that,
except with the express prior written consent of the Employer, for a period
equal to the lesser of the number of full months the Executive has at any
time been employed by the Employer or three (3) months after the
termination of the Executive's employment with the Employer (the
"Restrictive Period"), he will not directly or indirectly compete with the
business of the Employer, including, but not by way of limitation, by
directly or indirectly owning, managing, operating, controlling, financing,
or by directly or indirectly serving as an employee, officer or director of
or consultant to, or by soliciting or inducing, or attempting to solicit or
induce, any employee or agent of Employer to terminate employment with
Employer and become employed by any person, firm, partnership, corporation,
trust or other entity which owns or operates a business similar to that of
the Employer (the "Restrictive Covenant"). For purposes of this
subparagraph (a), a business shall be considered "similar" to that of the
Employer if it is engaged in the acquisition, development, ownership,
operation, management or leasing of office property (i) in any geographic
market or territory in which the Employer owns properties either as of the
date hereof or as of the date of termination of the Executive's employment;
or (ii) in any market in which an acquisition is pending at the time of the
termination of the Executive's employment. If the Executive violates the
Restrictive Covenant and the Employer brings legal action for injunctive or
other relief, the Employer shall not, as a result of the time involved in
obtaining such relief, be deprived of the benefit of the full period of the
Restrictive Covenant. Accordingly, the Restrictive Covenant shall be
deemed to have the duration specified in this paragraph (a) computed from
the date the relief is granted but reduced by the time between the period
when the Restrictive Period began to run and the date of the first
violation of the Restrictive Covenant by the Executive. In the event that
a successor of the Employer assumes and agrees to perform this Agreement or
otherwise acquires the Employer, this Restrictive Covenant shall continue
to apply only to the primary service area of the Employer as it existed
immediately before such assumption or acquisition and shall not apply to
any of the successor's other offices or markets. The foregoing Restrictive
Covenant shall not prohibit the Executive from owning, directly or
indirectly,
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capital stock or similar securities which are listed on a securities
exchange or quoted on the National Association of Securities Dealers
Automated Quotation System which do not represent more than five percent
(5%) of the outstanding capital stock of any corporation.
(b) REMEDIES FOR BREACH OF RESTRICTIVE COVENANT. The Executive
acknowledges that the restrictions contained in Sections 4 and 5 of this
Agreement are reasonable and necessary for the protection of the legitimate
proprietary business interests of the Employer; that any violation of these
restrictions would cause substantial injury to the Employer and such
interests; that the Employer would not have entered into this Agreement
with the Executive without receiving the additional consideration offered
by the Executive in binding himself to these restrictions; and that such
restrictions were a material inducement to the Employer to enter into this
Agreement. In the event of any violation or threatened violation of these
restrictions, the Employer shall be relieved of any further obligations
under this Agreement, shall be entitled to any rights, remedies or damages
available at law, in equity or otherwise under this Agreement, and shall be
entitled to preliminary and temporary injunctive relief granted by a court
of competent jurisdiction to prevent or restrain any such violation by the
Executive and any and all persons directly or indirectly acting for or with
him, as the case may be, while awaiting the decision of the arbitrator
selected in accordance with paragraph (d) of Section 9 of this Agreement,
which decision, if rendered adverse to the Executive, may include permanent
injunctive relief to be granted by the court.
6. INTERCORPORATE TRANSFERS. If the Executive shall be voluntarily
transferred to an affiliate of the Employer, 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 construed as standing in the same place and stead as the Employer
as of the date of such transfer. For purposes hereof, an affiliate of the
Employer shall mean any corporation or other entity directly or indirectly
controlling, controlled by, or under common control with the Employer. The
Employer shall be secondarily liable to the Executive for the obligations
hereunder in the event the affiliate of the Employer cannot or refuses to honor
such obligations. For all relevant purposes hereof, the tenure of the Executive
shall be deemed to include the aggregate term of his employment by the Employer
or its affiliate.
7. INTEREST IN ASSETS. Neither the Executive nor his estate shall acquire
hereunder any rights in funds or assets of the Employer, otherwise than by and
through the actual payment of amounts payable hereunder; nor shall the Executive
or his estate have any power to transfer, assign, anticipate, hypothecate or
otherwise encumber in advance any of said payments; nor shall any of such
payments be subject to seizure for the payment of any debt, judgment, alimony,
separate maintenance or be transferable by operation of law in the event of
bankruptcy, insolvency or otherwise of the Executive.
8. INDEMNIFICATION.
(a) The Employer shall provide the Executive (including his heirs,
personal representatives, executors and administrators), during the term of
this Agreement and thereafter throughout all applicable limitations
periods, with coverage under the Employer's then-current directors' and
officers' liability insurance policy, at the Employer's expense.
(b) In addition to the insurance coverage provided for in paragraph (a)
of this Section 8, the Employer shall defend, hold harmless and indemnify
the Executive (and his heirs, executors and administrators) to the fullest
extent permitted under applicable law, and subject to the requirements,
limitations and specifications set forth in the Bylaws and other
organizational documents of the Employer, against all expenses and
liabilities reasonably incurred by him in connection with or arising out of
any action, suit or proceeding in which he may be involved by reason of his
having been an officer of the Employer (whether or not he
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continues to be an officer at the time of incurring such expenses or
liabilities), such expenses and liabilities to include, but not be limited
to, judgments, court costs and attorneys' fees and the cost of reasonable
settlements.
(c) In the event the Executive becomes a party, or is threatened to be
made a party, to any action, suit or proceeding for which the Employer has
agreed to provide insurance coverage or indemnification under this Section
8, the Employer shall, to the full extent permitted under applicable law,
advance all expenses (including the reasonable attorneys' fees of the
attorneys selected by Employer and approved by Executive for the
representation of the Executive), judgments, fines and amounts paid in
settlement (collectively "Expenses") incurred by the Executive in
connection with the investigation, defense, settlement, or appeal of any
threatened, pending or completed action, suit or proceeding, subject to
receipt by the Employer of a written undertaking from the Executive
covenanting: (i) to reimburse the Employer for all Expenses actually paid
by the Employer to or on behalf of the Executive in the event it shall be
ultimately determined that the Executive is not entitled to indemnification
by the Employer for such Expenses; and (ii) to assign to the Employer all
rights of the Executive to insurance proceeds, under any policy of
directors' and officers' liability insurance or otherwise, to the extent of
the amount of Expenses actually paid by the Employer to or on behalf of the
Executive.
9. GENERAL PROVISIONS.
(a) SUCCESSORS; ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Executive, the Employer and his and its
respective personal representatives, successors and assigns, and any
successor or assign of the Employer shall be deemed the "Employer"
hereunder. The Employer shall require any successor to all or
substantially all of the business and/or assets of the Employer, whether
directly or indirectly, by purchase, merger, consolidation, acquisition of
stock, 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 Employer would be required to
perform if no such succession had taken place.
(b) ENTIRE AGREEMENT; MODIFICATIONS. This Agreement constitutes the
entire agreement between the parties respecting 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
Employer.
(c) ENFORCEMENT AND GOVERNING LAW. The provisions of this Agreement
shall be regarded as divisible and separate; if any of said provisions
should 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
legal relations of the parties hereto shall be determined in accordance
with the laws of the State of Pennsylvania as it constitutes the situs of
the corporation and the employment hereunder, without reference to the law
regarding conflicts of law.
(d) ARBITRATION. Except as provided in paragraph (b) of Section 5, any
dispute or controversy arising under or in connection with this Agreement
or the Executive's employment by the Employer shall be settled exclusively
by arbitration, conducted by a single arbitrator sitting in Philadelphia,
Pennsylvania in accordance with the rules of the American Arbitration
Association (the "AAA") then in effect. The arbitrator shall be selected
by the parties from a list of eleven (11) arbitrators provided by the AAA,
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provided that no arbitrator shall be related to or affiliated with either
of the parties. No later than ten (10) days after the list of proposed
arbitrators is received by the parties, the parties, or their respective
representatives, shall meet at a mutually convenient location in
Philadelphia, Pennsylvania, or telephonically. At that meeting, the party
who sought arbitration shall eliminate one (1) proposed arbitrator and then
the other party shall eliminate one (1) proposed arbitrator. The parties
shall continue to alternatively eliminate names from the list of proposed
arbitrators in this manner until each party has eliminated five (5)
proposed arbitrators. The remaining arbitrator shall arbitrate the
dispute. Each party shall submit, in writing, the specific requested
action or decision it wishes to take, or make, with respect to the matter
in dispute, and the arbitrator shall be obligated to choose one (1) party's
specific requested action or decision, without being permitted to
effectuate any compromise or "new" position; provided, however, that the
arbitrator is authorized to award amounts not in dispute during the
pendency of any dispute or controversy arising under or in connection with
this Agreement. The Employer shall bear the cost of all counsel, experts or
other representatives that are retained by both parties, together with all
costs of the arbitration proceeding, including, without limitation, the
fees, costs and expenses imposed or incurred by the arbitrator. Judgment
may be entered on the arbitrator's award in any court having jurisdiction;
including, if applicable, entry of a permanent injunction under paragraph
(b) of Section 5.
(e) PRESS RELEASES AND PUBLIC DISCLOSURE. Any press release or other
public communication by either the Executive or the Employer with any other
person concerning the terms, conditions or circumstances of Executive's
employment, or the termination of such employment, shall be subject to
prior written approval of both the Executive and the Employer, subject to
the proviso that the Employer shall be entitled to make requisite and
appropriate public disclosure of the terms of this Agreement, without the
Executive's consent or approval, as required under applicable statutes, and
the rules and regulations of the Securities and Exchange Commission and the
Stock Exchange on which the shares of Employer may from time to time be
listed.
(f) WAIVER. No waiver by either party at any time of any breach by the
other party of, or compliance with, any condition or provision of this
Agreement to be performed by the other party, shall be deemed a waiver of
any similar or dissimilar provisions or conditions at the same time or any
prior or subsequent time.
(g) 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 or a nationally recognized overnight courier
service. Notices to the Employer shall be addressed to the principal
headquarters of the Employer, Attention: Chairman. Notices to the
Executive shall be sent to the address set forth below the Executive's
signature on this Agreement, or to such other address as the party to be
notified shall have given to the other.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Corporate Office Properties, L.P., XXXXXX X. XXXXXX
a Delaware limited partnership
by its general partner, Corporate Office
Properties Trust, Inc.
By: /s/ Xxxx X. Xxxxxx III /s/ Xxxxxx X. Xxxxxx
-------------------------------- -----------------------------------
Xxxx X. Xxxxxx III Xxxxxx X. Xxxxxx
President
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