Exhibit 10.29
TO: Xxxxxxx Xxxxxxxxxx
FROM: Xxxxxx X. Xxxxxx
DATE: December 12, 2001
SUBJECT: Memorandum of Understanding regarding Employment
This Memorandum of Understanding ("Memorandum") sets forth the terms of
your employment with Catellus Development Corporation (the "Company") or its
subsidiary. This Memorandum supersedes, in their entirety, all previous
agreements and understandings concerning your employment.
Effective upon your execution of this Memorandum, the following provisions
shall govern your employment with the Company or a subsidiary:
1. Hire Date; Title; Responsibilities and Duties. Effective December 12, 2001
(your "Hire Date"), you shall be a full-time, regular employee of the Company
and you shall report to the Company's offices to serve as an officer of the
Company no later than January 14, 2001 (your "Start Date"). Effective as of your
Start Date, you shall have the title of Senior Vice President and General
Counsel of the Company. You shall be expected to handle such responsibilities
and perform such duties as I shall assign.
2. At-Will Employment. You acknowledge and agree that your employment is
at-will and that either the Company or you, at any time, with or without cause,
may terminate the employment relationship, including all compensation and
benefits. However, should your employment terminate, Section 10 below shall
apply.
3. Salary. Effective as of your Hire Date, you shall be paid a monthly salary
at the rate of Twenty Thousand Eight Hundred and Thirty-Three dollars and
Thirty-Four cents ($20,833.34); provided that, any salary payable prior to your
Start Date shall be deferred and paid on February 28, 2002. Your salary shall be
payable in accordance with the Company's normal payroll practices and subject to
all applicable tax withholding requirements. Your salary shall be reviewed in
the first quarter of each year starting in 2003 and, if appropriate, it shall be
increased retroactive to January 1 of that year. Your salary, as it may be
increased from time to time in the sole discretion of the Company, shall be
referred to as your "Base Salary."
4. Bonuses. The Company shall pay you a signing bonus of One Hundred and
Thirty Thousand Dollars ($130,000), payable within one hundred and twenty days
(120) days after your Start Date.
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Memorandum of Understanding Regarding Employment
December 12, 2001
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You shall be eligible to receive an annual maximum cash bonus for each
calendar year of employment of up to one hundred percent (100%) of your Base
Salary, subject to satisfaction of target performance criteria determined each
year by the Company and prorated for actual months of service. The performance
criteria may relate to individual goals, Company or division goals, or a
combination thereof and shall be established and communicated to you within the
first 90 days after the start of each calendar year. Such bonuses shall be paid
no later than March 31 of the following year and are subject to all applicable
tax withholding requirements. Except as provided in Section 10, no bonus shall
be payable if your employment terminates or you resign prior to the close of the
calendar year to which such bonus relates.
5. Stock Options. On your Hire Date, the Company shall grant you a
non-qualified stock option for 100,000 shares of the Company's Common Stock s in
accordance with the Company's "2000 Performance Award Plan". The grant date of
such option shall be your Hire Date and the per share exercise price of such
option shall be the closing price of the Company's Common Stock on your Hire
Date.
6. Benefits. You shall be entitled to receive paid vacation, medical coverage,
disability income replacement coverage, and other employee benefits, all to the
same extent that the Company provides these benefits to the Company's other
senior management employees.
7. Expenses. You shall be entitled to reimbursement for reasonable and
properly documented expenses you incur in the conduct of the Company's business,
including a health club membership not to exceed $125.00 per month, and a
monthly automobile allowance in accordance with the Company's Automobile
Allowance Policy as well as payment or reimbursement for cellular phone
expenses.
8. Indemnity. The Company shall indemnify you, and the Company shall maintain
in full force and effect directors' and officers' liability insurance for you in
reasonable amounts from established and reputable insurers. To the same extent,
the Company shall pay and advance all expenses, including, without limitation,
attorneys' fees, disbursements and retainers, accounting and witness fees,
travel and deposition costs, expenses of investigations, judicial or
administrative proceedings and appeals, amounts paid in settlement by you or on
your behalf, actually incurred by you in connection with any threatened, pending
or completed claim, action, suit or proceeding, formal or informal, whether
brought in the right of the Company or otherwise and whether of a civil,
criminal, administrative or investigative nature, by reason of the fact that you
were a director, officer, employee or agent of the Company or were serving at
the Company's request as a director, officer, employee, or agent of another
corporation, limited liability company, partnership, joint venture, trust, or
other enterprise.
9. Employee Handbook; Confidential Information. As a condition of employment,
you acknowledge that you will review the Company's current Employee Handbook,
execute the Handbook's Receipt and Acknowledgment (which is the last page of the
Handbook), and return such Receipt and Acknowledgment and a completed W4 form to
Xxxxx Xxxxxxxxxx.
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Memorandum of Understanding Regarding Employment
December 12, 2001
Page 3 of 8
You agree that during the term of your employment and thereafter for a
period of three years, you shall abide by the confidentiality provisions of the
current Employee Handbook. You also agree that in connection with your
employment with the Company, you may receive confidential or proprietary
information from the Company or other employees or agents. You hereby agree,
during the term of your employment and after termination hereof, to hold such
information confidential, to use such information only for the purpose of the
work to be conducted hereunder and for no other purpose or use whatsoever,
except as required by law. You agree to take all measures necessary to safeguard
such information, to preserve its confidentiality, and to return to the Company,
its employees or agents (including, without limitation, any copies, summaries,
records and descriptions thereof made by you) upon request of the Company or on
the termination of your employment.
10. Termination of Employment. For definitions of capitalized terms used in
this Section 10, see Appendix A attached to this Memorandum which is hereby
incorporated by reference.
10.1 Right to Terminate. The Company or you may terminate your employment
hereunder at any time by giving the other party prior written notice; provided,
that upon your death, your employment hereunder shall terminate automatically.
Immediately upon the termination of your employment hereunder for any reason,
you shall return promptly to the Company any property (including documents) in
your possession which is owned by the Company.
10.2 Benefits upon Termination.
(a) Basic Payments upon Termination. If your employment terminates for
any reason, the Company shall pay you your unpaid Base Salary for the period
through the Date of Termination and your unpaid salary with respect to any
vacation days accrued but not taken as of the Date of Termination (based upon
your Base Salary in effect at that time). You shall also be entitled to other
payments or benefits to the extent provided in the Company's employee benefit
plans or arrangements.
(b) Termination Other than for Cause. If you cease to be an employee
of the Company on account of the Company's termination of your employment other
than for Cause or you resign your employment with the Company after giving the
Company notice of the occurrence of one or more events that constitute Good
Reason within a reasonable period (but not more than 90 days after such
occurrence) and the Company fails to correct such occurrence within a reasonable
time (but not more than 60 days) and your resignation occurs within 10 days
after the expiration of that cure period, then in addition to the amounts
payable under Section 10.2(a), the Company shall pay you an amount equal to the
sum of (i) one (1) year's Base Salary at the rate in effect on the Date of
Termination and (ii) one hundred percent (100%) of your targeted annual bonus
for the calendar year in which the Date of Termination occurs, prorated for
actual months of service during such year. In addition all of your unvested
stock options for Company Common Stock shall become fully vested as of the Date
of Termination. You shall not
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Memorandum of Understanding Regarding Employment
December 12, 2001
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be required to mitigate the amount of any payment provided for in this Section
10.2(b) by seeking other employment.
(c) Termination for Cause; Resignation. If you cease to be an employee
for any reason other than as set forth in Section 10.2(b), then the Company
shall have no obligation to make any payments to you for periods after the Date
of Termination, your unvested stock options shall terminate, and your vested
options must be exercised, if at all, within the time periods after the Date of
Termination specified in your stock option agreement(s).
10.3 Change of Control Payments. In the event that a Change of Control
occurs while you are employed by the Company pursuant to the terms of this
Memorandum, and within 12 months after the occurrence of the Change of Control,
your employment by the Company or the Company's successor is terminated by the
Company other than for Cause or you resign for one or more events that
constitute Good Reason, then you shall be entitled to receive from the Company
or such successor, in lieu of, and not in addition to, the amounts otherwise
payable to you pursuant to Section 10.2(b) hereof, the benefits provided below:
(a) the Company shall pay to you (A) your Base Salary, when due,
through the Date of Termination at the rate in effect at the time the applicable
Notice of Termination is given, (B) the unpaid portion, if any, of any annual
bonus which has been earned by you but which has not been paid as of the Date of
Termination, and (C) all other amounts to which you are entitled under any
compensation plan of the Company at the time such payments are due, and (D) any
unpaid salary with respect to any vacation days accrued but not taken as of the
Date of Termination (based upon your rate of Base Salary in effect at the time
the applicable Notice of Termination is given); and
(b) all stock options or other equity awards held by you with respect
to the Company's Common Stock shall become fully vested; and
(c) in lieu of any further salary payments to you for periods
subsequent to the Date of Termination, the Company shall pay you an amount equal
to the sum of (i) one (1) year's Base Salary at the rate in effect on the Date
of Termination and (ii) one hundred percent (100%) of your targeted annual bonus
for the calendar year in which the Date of Termination occurs, prorated for
actual months of service during such year..
11. Severability. In case any one or more provisions of this Memorandum
shall be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall not be in any way
be affected or impaired.
12. Arbitration. To the fullest extent allowed by law, any controversy, claim
or dispute between you and the Company and/or any of its affiliated
organizations, owners, directors, officers, employees, volunteers or agents,
relating to or arising out of your employment or the cessation of that
employment will be submitted to final and binding arbitration in the county in
which you worked for determination in accordance with the American Arbitration
Association's
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Memorandum of Understanding Regarding Employment
December 12, 2001
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("AAA") National Rules for the Resolution of Employment Disputes, as the
exclusive remedy for such controversy, claim or dispute. In any such
arbitration, the parties may conduct discovery to the same extent as would be
permitted in a court of law. The arbitrator shall issue a written decision, and
shall have full authority to award all remedies which would be available in
court. The Company shall pay the arbitrator's fees and any AAA administrative
expenses. Any judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. Possible disputes covered by
the above include (but are not limited to) unpaid wages, breach of contract,
torts, violation of public policy, discrimination, harassment, or any other
employment-related claims under laws including, but not limited to, Title VII of
the Civil Rights Act of 1964, the Americans With Disabilities Act, the Age
Discrimination in Employment Act, the California Fair Employment and Housing
Act, the California Labor Code, and any other statutes or laws relating to an
employee's relationship with his/her employer. However, claims for workers'
compensation benefits and unemployment insurance (or any other claims where
mandatory arbitration is prohibited by law) are not covered by this arbitration
agreement, and such claims may be presented by you to the appropriate court or
government agency. By agreeing to this binding arbitration provision, both you
and the Company give up all rights to trial by jury. This arbitration agreement
is to be construed as broadly as is permissible under applicable law.
13. Amendments. No amendments to this Memorandum may be made except by writing
signed by you and the Company.
14. Governing Law. This Memorandum shall be governed by the internal laws of
the State of California.
CATELLUS DEVELOPMENT CORPORATION
By /s/ Xxxxxx X. Rising
--------------------------------
Xxxxxx X. Rising
Chairman of the Board and
Chief Executive Officer
ACCEPTED AND AGREED:
/s/ Xxxxxxx Xxxxxxxxxx
--------------------------------
Xxxxxxx Xxxxxxxxxx
Date signed: April 2, 2002
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Memorandum of Understanding Regarding Employment
December 12, 2001
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Appendix A
Definitions
For purposes of this Memorandum, the following definitions are set forth
below:
(i) "Cause" means that the Company provides you with a Notice of
Termination for either of the following reasons: (a) the willful and continued
failure by you substantially to perform your material duties (other than any
such failure resulting from your incapacity due to physical or mental illness)
after written demand for substantial performance of such duties is delivered to
you by the Board of Directors, which demand identifies the manner in which the
Board of Directors believes that you have not substantially performed your
duties and you have been given a reasonable period of time (but in no event more
than 60 days) to correct your deficient performance; or (b) your engaging in
egregious misconduct involving serious moral turpitude to such an extent that,
in the reasonable judgment of the Board of Directors, such misconduct
substantially impairs your ability to perform your duties with the Company. For
purposes of clause (a) of this definition, no act, or failure to act, on your
part shall be deemed "willful" unless done, or omitted to be done, by you
without reasonable belief that your action or omission was in the best interest
of the Company.
(ii) A "Change of Control" shall be deemed to have occurred upon the
happening of any of the following events:
(a) the acquisition or holding of the Company, by any individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) (an
"Acquiror") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 25% or more of the combined voting power
of the then outstanding shares of Common Stock and other stock of the Company
entitled to vote generally in the election of directors (the "Outstanding
Company Voting Securities"), but excluding for this purpose any such acquisition
(or holding) by (i) the Company or any corporation controlled by the Company;
(ii) any employee benefit plan (or related trust) of the Company or any
corporation controlled by the Company; (iii) any acquisition or ownership by an
Acquiror of 25% of the Outstanding Company Voting Securities as a result of an
acquisition of common stock or voting securities by the Company which, by
reducing the number of shares of the Company's common stock or voting securities
outstanding, increases the proportionate number of shares beneficially owned by
such Acquiror to 25% or more of the Outstanding Company Voting Securities;
provided, however, that if an Acquiror shall become the beneficial owner of 25%
or more of the Outstanding Company Voting Securities by reason of a share
acquisition by the Company as described above and shall, after such share
acquisition by the Company, become the beneficial owner of any additional shares
of common stock or voting securities of the Company, then such acquisition shall
constitute a Change of Control; or (iv) any corporation with respect to which,
following such acquisition, more than 50% of, respectively, the then outstanding
shares of Common Stock of such corporation and the
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Memorandum of Understanding Regarding Employment
December 12, 2001
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combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Voting Securities immediately prior to such acquisition in
substantially the same proportion as their ownership, immediately prior to such
acquisition, of the then Outstanding Company Voting Securities;
(b) individuals who, as of the date hereof, constitute the Board
of Directors (the "Continuing Directors") cease for any reason to constitute at
least a majority of the Board, provided that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by the
stockholders of Company, was approved by a vote of at least a majority of the
persons then comprising the Continuing Directors shall be considered a
Continuing Director, but excluding, for this purpose, any such individual whose
initial election as a member of the Board is in connection with an actual or
threatened "election contest" relating to the election of the directors of the
Company (as such term is used in Rule 14a-11 of Regulation 14A promulgated under
the Exchange Act); or
(c) consummation by the Company of (1) a reorganization, merger
or consolidation of the Company, with respect to which in each case all or
substantially all of the individuals and entities who were the respective
beneficial owners of the Outstanding Company Voting Securities immediately prior
to such reorganization, merger or consolidation do not, following such
reorganization, merger or consolidation, beneficially own, directly and
indirectly, more than 50% of, respectively, the then outstanding shares of
Common Stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors of the
corporation or other entity resulting from such reorganization, merger or
consolidation, or (2) a complete liquidation or dissolution of the Company, or
(3) the sale or other disposition of all or substantially all of the assets of
the Company.
(iii) "Date of Termination" means the effective date specified in the
Notice of Termination as of which your employment terminates or, in the event of
termination of employment other than for Cause, the date as of which your
employment is to terminate pursuant to the provisions of Section 10.1 of this
Memorandum.
(iv) "Disability" means that (i) you have a physical or mental
condition that renders you incapable, after reasonable accommodation, of
performing your duties; (ii) such condition is reasonably determined by the
Chief Executive Officer to be of a long-term nature; and (iii) you are eligible
for income replacement benefits under the Company's long-term disability plan
during such period of disability.
(v) "Notice of Termination" means a notice of a proposed termination
by the Company with a written explanation to you of the grounds for such
proposed termination.
(vi) "Good Reason" exists if, without your express written consent,
any of the following occurs:
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Memorandum of Understanding Regarding Employment
December 12, 2001
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(A) the Company reduces your Base Salary as in effect from time
to time; or
(B) an assigning of duties to you that are a reduction in any
substantial respect from your position, authority, or responsibilities as of
September 30, 2000; or
(C) the Company's failure to fulfill the Company's obligations
under this Memorandum; or
(D) the Company's intentional failure, without your consent, to
pay to you any portion of your Base Salary, earned bonus, or other current
compensation (if any), or to pay to you any portion of any installment of
deferred compensation under any deferred compensation program within ten
business days of the date such compensation is due or to issue shares of the
Company's Common Stock in accordance with the terms of stock options granted to
you upon valid exercise thereof; or
(E) a relocation of your current place of employment or
requirement for you to be based anywhere other than the City of San Francisco;
or
(F) the Company does not allow you to devote reasonable time to
activities other than those required under this Memorandum, including
supervision of personal investments and activities involving professional,
charitable, educational, political, religious and similar types of
organizations, speaking engagements, memberships of boards of directors of other
organizations and similar activities, provided that you shall not serve on the
board of directors of any other business or hold any other position with any
business without the consent of the Chief Executive Officer; or
(G) the failure of any successor entity in a Change of Control
to continue this Memorandum in effect and assume the Company's obligations and
responsibilities hereunder.
