FIRST AMENDMENT TO THE EMPLOYMENT AGREEMENT
EXHIBIT 10.70
FIRST AMENDMENT TO THE EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO THE EMPLOYMENT AGREEMENT (“Amendment”) is entered into this
31st day of December, 2008, by and between Xxxxx X. Xxxxxxx (“Executive”), Prime Group
Realty Trust (“PGRT”) and Prime Group Realty, L.P. (“Prime”) (PGRT and Prime are collectively
referred to herein as “Employer”) and provides as follows:
WHEREAS, on May 31, 2005, Executive and Prime Office Company, LLC (“Parent”) entered into an
employment agreement (the “Employment Agreement”), which Employment Agreement was later assumed by
Employer, who agreed to perform the obligations of Employer thereunder;
WHEREAS, the parties desire to amend the Employment Agreement to comply with Section 409A of
the Internal Revenue Code of 1986, as amended, as set forth in this Amendment.
NOW, THEREFORE, in consideration of these premises and intending to be legally bound, the
parties agree as follows:
| 1. | By replacing Section 4(a)(i) with the following: |
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“Without Cause. Employer may terminate this Agreement and
Executive’s employment at any time (other than for Cause, as that term is
defined in Section 4(a)(ii) hereof) upon thirty (30) days’ prior written
notice to Executive. In connection with the termination of Executive’s
employment pursuant to this Section 4(a)(i), (A) Employer shall pay to
Executive Executive’s Base Compensation in accordance with Section 3(a)
hereof up to the effective date of such termination, (B) Employer shall pay
to Executive on the effective date of such termination a pro rata portion of
any Bonus Compensation otherwise payable to Executive for or with respect to
the calendar year in which such termination occurs in accordance with
Section 3(b) hereof up to the effective date of such termination and, to the
extent not previously paid, all Bonus Compensation payable to Executive in
accordance with Section 3(b) hereof for or with respect to any calendar
years prior to the calendar year in which such termination occurs, (C)
Employer shall provide to Executive the benefits set forth in Sections 3(c),
3(d) and 3(e) hereof up to the effective date of such termination and (D)
Employer shall pay to Executive the Termination Compensation specified in,
at the time set forth in, Section 4(d) hereof. For purposes of this
Agreement, the ‘effective date of termination’ shall mean the last day on
which Executive is employed with Employer which may be later than the date
of the delivery of any applicable notice of termination.” |
| 2. | By replacing Section 4(a)(iii) with the following: |
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“Disability. If due to illness, physical or mental disability, or
other incapacity, Executive shall fail during any four (4) consecutive
months to perform the duties required by this Agreement, Employer may, upon
thirty (30) days’ written notice to Executive, terminate this Agreement and
Executive’s employment. In the event of any such termination, (A) Employer
shall pay to Executive Executive’s Base Compensation in accordance with
Section 3(a) hereof up to the effective date of such termination, (B)
Employer shall pay to Executive on the effective date of such termination a
pro rata portion of any Bonus Compensation otherwise payable to Executive
for or with respect to the calendar year in which such termination occurs in
accordance with Section 3(b) hereof up to the first day of such four (4)
month period and, to the extent not previously paid, all Bonus Compensation
payable to Executive in accordance with Section 3(b) hereof for or with
respect to any calendar years prior to the calendar year in which such
termination occurs,
(C) Employer shall provide to Executive the benefits set forth in Sections
3(c) (or the after-tax cash equivalent), 3(d) and 3(e) hereof up to the
effective date of such termination and (D) Employer shall pay to Executive
the Termination Compensation specified in, at the time set forth in, Section
4(d) hereof. This Section 4(a)(iii) shall not limit the entitlement of
Executive, Executive’s estate or beneficiaries to any disability or other
benefits available to Executive under any disability insurance or other
benefits plan or policy which is maintained by Employer for Executive’s
benefit (as opposed to Employer’s benefit). For purposes of this Agreement,
the ‘date of disability’ shall mean the first day of the consecutive period
during which Executive fails to perform the duties required by this
Agreement due to illness, physical or mental disability or other
incapacity.” |
| 3. | By replacing the first two paragraphs of Section 4(b)(i) with the following two
paragraphs: |
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“After Change of Control. Executive may terminate this Agreement
following any ‘change of control’ (as defined below) of Employer which
occurs after the Effective Date and (i) a resulting ‘diminution event’ (as
defined below) or (ii) a resulting relocation of Executive’s office to a
location more than twenty-five (25) miles from 00 Xxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx, but in no event later than one year after the change of
control event. In such case, Executive shall provide written notice of
termination to Employer specifying in reasonable detail the nature of the
diminution event or office relocation within ninety (90) days after its
occurrence and must provide Employer with a period of thirty (30) days after
receipt of notice by Employer during which it may reverse the diminution
event or office relocation without giving rise to liability under this
Section 4(b)(i). Executive shall continue to perform, at the election of
Employer, Executive’s duties under this Agreement during the foregoing
thirty (30) day period; provided, that |
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Employer complies with, and provides
the compensation and benefits provided for, in this Agreement. In the event
of such termination, (A) Employer shall pay to Executive Executive’s Base
Compensation up to the effective date of such termination, (B) Employer
shall pay to Executive on the effective date of such termination a pro rata
portion of any Bonus Compensation otherwise payable to Executive for or with
respect to the calendar year in which such termination occurs in accordance
with Section 3(b) hereof up to the effective date of such termination and,
to the extent not previously paid, all Bonus Compensation payable to
Executive in accordance with Section 3(b) hereof for or with respect to any
calendar years prior to the calendar year in which such termination occurs,
(C) Employer shall provide to Executive the benefits set forth in Sections
3(c), 3(d) and 3(e) hereof up to the effective date of such termination and
(D) Employer shall pay to Executive the Termination Compensation specified
in, at the time set forth in, Section 4(d) hereof. For purposes of this
Agreement, in the event Employer materially defaults in its obligation under
Section 8 hereof, Executive may deliver written notice of termination,
describing the circumstances in reasonable detail, to Employer within ninety
(90) days
after such default. If Employer fails to remedy the default within thirty
(30) days of receipt after such notice, Executive may terminate employment
with Employer (or Employer’s successor or assign), and such termination
shall be deemed to be a termination under this Section 4(b)(i). |
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For purposes of this Section 4(b)(i), (A) a ‘change of control’ of Employer
shall be deemed to have occurred if after the Effective Date: (1) any person
(as such term is used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the ‘Exchange Act’)), including a ‘group’ as
defined in Section 13(d)(3) of the Exchange Act (but excluding a trustee or
other fiduciary holding securities under an employee benefit plan of
Employer), directly or indirectly, becomes the beneficial owner of shares of
beneficial interests or limited partnership interests, as applicable, of
Employer having at least fifty percent (50%) of the total number of votes
that may be cast for the election of trustees of Employer; (2) the merger or
other business combination of Employer, sale of all or substantially all of
Employer’s assets or combination of the foregoing transactions (a
‘Transaction’), other than a Transaction immediately following which the
shareholders of Employer immediately prior to the Transaction continue to
have a majority of the voting power in the resulting entity (excluding for
this purpose any shareholder owning directly or indirectly more than ten
percent (10%) of the shares of the other company involved in the
Transaction); or (3) within any twenty-four (24) month period beginning on
or after the Effective Date, the persons who were trustees of Employer at
the beginning of such period (the ‘Incumbent Directors’) shall cease to
constitute at least a majority of the Board or a majority of the board of
trustees of any successor to Employer, provided that, any trustee who was
not a trustee as of the date immediately following the Effective Date shall
be deemed to be an Incumbent Director if such |
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trustee was elected to the
Board by, or on the recommendation of or with the approval of, at least
two-thirds of the trustees who then qualified as Incumbent Directors either
actually or by prior operation of this provision, unless such election,
recommendation or approval was the result of an actual or threatened
election contest of the type contemplated by Regulation 14a-11 promulgated
under the Exchange Act or any successor provision; and (B) a ‘diminution
event’ shall mean any material diminution in (1) the duties and
responsibilities of Executive (including a change of reporting relationships
causing Executive to be supervised by an individual or group with a lower
level of authority, duties or responsibilities than Executive’s
supervisor(s) as of the Effective Date)= or (2) the base compensation of
Executive.” |
| 4. | By replacing Section 4(b)(iii) of the Employment Agreement with the following: |
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“For Good Reason. Executive may terminate this Agreement for Good
Reason (as defined below). In connection with the termination of
Executive’s employment pursuant
to this Section 4(b)(iii), (A) Employer shall pay to Executive Executive’s
Base Compensation in accordance with Section 3(a) hereof up to the effective
date of such termination, (B) Employer shall pay to Executive on the
effective date of such termination a pro rata portion of any Bonus
Compensation otherwise payable to Executive for or with respect to the
calendar year in which such termination occurs in accordance with Section
3(b) hereof up to the effective date of such termination and, to the extent
not previously paid, all Bonus Compensation payable to Executive in
accordance with Section 3(b) hereof for or with respect to any calendar
years prior to the calendar year in which such termination occurs, (C)
Employer shall provide to Executive the benefits set forth in Sections 3(c),
3(d) and 3(e) hereof up to the effective date of such termination and (D)
Employer shall pay to Executive the Termination Compensation specified in,
at the time set forth in, Section 4(d) hereof. For purposes of calculating
Executive’s pro rata portion of any Bonus Compensation pursuant to any
section of this Agreement, if the termination takes place prior to receipt
by Executive of any Bonus Compensation, the Bonus Compensation, a pro rata
(based on the number of days in the year) portion of which Executive shall
be entitled to receive, shall be deemed to be 50% of Executive’s then
current annual Base Compensation. For purposes of this Section 4(b)(iii),
‘Good Reason’ shall mean (1) any material breach by Employer of the terms of
this Agreement which is not cured within thirty (30) days after receipt by
Employer of a written notice from Executive specifying in reasonable detail
the nature of the breach, or (2) any relocation of Executive’s office to a
location more than twenty-five (25) miles from 00 Xxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx, or (3) sixty (60) days have elapsed since delivery to
Executive by the Employer of a notice of non-renewal pursuant to Section 2,
provided that Executive is willing and able to renew the Agreement with
terms and conditions substantially similar to the existing terms and
conditions, and |
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to continue to provide services described in the Agreement.
In order to be deemed to terminate this Agreement for Good Reason, Executive
must provide written notice to Employer, specifying in reasonable detail the
nature of the circumstances giving rise to Good Reason, within ninety (90)
days after the initial existence of such circumstances. Executive’s
termination for Good Reason will be effective only if Employer fails to
remedy such circumstances within thirty (30) days after receipt of the
notice.” |
| 5. | By replacing Section 4(c) of the Employment Agreement with the following: |
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“Death. Notwithstanding any other provision of this Agreement, this
Agreement shall terminate on the date of Executive’s death. In such event,
(A) Employer shall pay to Executive Executive’s Base Compensation in
accordance with Section 3(a) hereof up to the date of such death, (B)
Employer shall pay to Executive’s estate as soon as possible after such
death a pro rata portion of any Bonus Compensation otherwise payable to
Executive for or with respect to the calendar year in which such death
occurs in accordance with Section 3(b) hereof up to the effective date of
such death and, to the extent not previously paid, Executive shall be
entitled to all Bonus Compensation payable to Executive in accordance with
Section 3(b) hereof for or with respect to any calendar years prior to the
calendar year in which such death occurs, (C) Employer shall provide to
Executive the benefits set forth in Sections 3(c) (or the after-tax cash
equivalent), 3(d) and 3(e) hereof up to the date of such death and (D)
Employer shall pay to Executive’s estate the Termination Compensation
specified in, at the time set forth in, Section 4(d) hereof. This Section
4(c) shall not limit the entitlement of Executive, Executive’s estate or
beneficiaries under any insurance or other benefits plan or policy which is
maintained by Employer for Executive’s benefit (as opposed to Employer’s
benefit).” |
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| 6. | By replacing Section 4(d) of the Employment Agreement with the following: |
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“Termination Compensation. In the event of a termination of this
Agreement pursuant to Section 4(a)(i) (by Employer without cause), 4(a)(iii)
(disability), 4(b)(i) (change of control), 4(b)(iii) (by Executive for good
reason) or 4(c) (death) hereof, Employer shall pay to Executive, within
thirty (30) days of termination, an amount in one lump sum (‘Termination
Compensation’) equal to the aggregate Base Compensation payable to Executive
over the remainder of the Employment Term as in effect immediately prior to
the effective date of termination, determined without regard to such
termination.” |
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| 7. | By adding the following new Section 4(e) to the Employment Agreement: |
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“Time of Payment. The parties intend that any amount payable to Executive
under Section 4 of this Agreement will be a ‘short term |
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deferral’ and will
not be ‘deferred compensation,’ as those terms are described in Section
1.409A-1(b) of the Treasury Regulations. Notwithstanding any provision
herein to the contrary, if (i) Executive is a ‘specified employee’ and (ii)
Employer is ‘publicly traded’ (as defined in Code Section 409A and the
Treasury Regulations), any amount payable to Executive upon termination of
employment that is not excluded from Code Section 409A under the short-term
deferral exclusion or any exemption for separation pay plans,
reimbursements, in-kind distributions, or any otherwise applicable exemption
will be transferred by Employer to a rabbi trust established by Employer for
this purpose upon Executive’s termination of employment and will be paid to
Executive immediately following the six month anniversary of Executive’s
date of termination or, if earlier, upon Executive’s death.” |
| 8. | By replacing Section 8 of the Employment Agreement with the following: |
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“Successor to Employer. Employer will require any successor or
assign (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all the business and/or assets of
Employer, as the case may be, by agreement in form and substance reasonably
satisfactory to Executive, expressly, absolutely and unconditionally to
assume and agree to perform this Agreement in the same manner and to the
same extent that Employer would be required to perform it if no such
succession or assignment had taken place. Any failure of Employer to obtain
such agreement prior to the effectiveness of any such succession or
assignment shall be a material breach of this Agreement giving Executive the
right to terminate this Agreement and, subject to the notice and remedy
periods described in Section 4(b)(i), Executive shall be entitled to
terminate employment and receive the compensation specified in that section.
This Agreement shall inure to the benefit of and be enforceable by
Executive’s personal and legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive should
die while any amounts are still payable to Executive hereunder, all such
amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this
Agreement to Executive’s devisee, legatee or other designee or, if there be
no such designee, to Executive’s estate.” |
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| 9. | By adding the following new Section 14 to the Employment Agreement: |
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“Code Section 409A. This Agreement is intended to comply with Code
Section 409A and the IRS interpretative guidance thereunder, including the
short-term deferral exclusion and exemptions for separation pay plans,
reimbursements, and in-kind distributions, and shall be administered
accordingly. The Agreement shall be construed and interpreted with such
intent. If any provision of this Agreement needs to be revised to satisfy
the requirements of Code Section 409A, then such provision shall be modified
or restricted to the extent and in the manner necessary to be in compliance
with such requirements of the Code. All amounts payable to Executive
pursuant to the third paragraph of Section 4(b)(i) shall be paid in
accordance with the timing requirements set forth in Code Section 409A and
the Treasury Regulations issued thereunder.” |
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Employment
Agreement as of the date first written above.
| EMPLOYER: | ||||||
| PRIME GROUP REALTY TRUST | ||||||
| By: | [s] Xxxxxxx X. Xxxxxxxxx |
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| Name: | Xxxxxxx X. Xxxxxxxxx | |||||
| Title: | President and Chief Executive Officer | |||||
| PRIME GROUP REALTY, L.P. | ||||||
| By: PRIME GROUP REALTY TRUST | ||||||
| Its: General Partner | ||||||
| By: | [s] Xxxxxxx X. Xxxxxxxxx |
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| Name: | Xxxxxxx X. Xxxxxxxxx | |||||
| Title: | President and Chief Executive Officer | |||||
| EXECUTIVE: | ||||||
| [s] Xxxxx X. Xxxxxxx | ||||||
| Xxxxx X. Xxxxxxx | ||||||
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