Maguire Properties, Inc. Santa Monica, California 90401 January 17, 2008
Exhibit 99.3
Xxxxxxx
Properties, Inc.
0000
Xxxxx Xxx., Xxxxx 000
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
January
17, 2008
Xx. Xxxxx
Xxxxxxxxxx
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Re: Amended
and Restated Employment Terms
Dear
Shant:
Effective as of January 17, 2008 (the
“Effective Date”), this letter shall amend and restate in its entirety that
certain employment letter agreement (the “Original Agreement”), dated July 27,
2004, between you and Xxxxxxx Properties, Inc. (the “REIT”) and Xxxxxxx
Properties, L.P. (the “Operating Partnership” and together with the REIT, the
“Company”). From and after the Effective Date, you and the Company
agree that the Company will employ you on the following terms:
1. Position,
Duties and Responsibilities. You will be employed as the
Senior Vice President, _______________ of the Company. In the
capacity of Senior Vice President, _____________________, you will have such
duties and responsibilities as are normally associated with such
position. Your duties may be changed from time to time by the
Company, consistent with your position. You will report to the Chief
Financial Officer of the Company, and will work at our principal offices located
in Santa Monica, California (or the Company’s principal offices located in
downtown Los Angeles or such other location in the Los Angeles area as the
Company may determine), except for travel to other locations as may be necessary
to fulfill your responsibilities. At the Company’s request, you will
serve the Company and/or its subsidiaries and affiliates in other offices and
capacities in addition to the foregoing. In the event that you serve
in any one or more of such additional capacities, your compensation will not be
increased beyond that specified in this letter. In addition, in the
event your service in one or more of such additional capacities is terminated,
your compensation, as specified in this letter, will not be diminished or
reduced in any manner as a result of such termination for so long as you
otherwise remain employed under the terms of this letter.
2. Base
Compensation. During your employment with the Company, the
Company will pay you a base salary of $225,000 per year, less payroll deductions
and all required withholdings, payable in accordance with the Company’s normal
payroll practices and prorated for any partial month of
employment. Your base salary may be subject to adjustment pursuant to
the Company’s policies as in effect from time to time.
4. Restricted
Stock Award. Subject to approval by the Compensation Committee
of the Board, the REIT shall, on or as soon as practicable after the Effective
Date, grant you 17,644 shares of the REIT’s common stock (the “Restricted
Stock”). The Restricted Stock shall be granted to you under the
Second Amended and Restated 2003 Incentive Award Plan of Xxxxxxx Properties,
Inc., Xxxxxxx Properties Services, Inc. and Xxxxxxx Properties, L.P. (as amended
to date, the “Incentive Plan”) at a purchase price of $0.01 per
share. Subject to your continued employment with the Company, the
Restricted Stock shall vest in five equal annual installments on September 5,
2008, 2009, 2010, 2011 and 2012. The terms and conditions of the
Restricted Stock are set forth in a Restricted Stock Agreement, dated as of the
Effective Date, between you and the REIT (the “Restricted Stock
Agreement”).
5. Additional
Payment. You and the Company acknowledge that the Company paid
you a lump-sum cash payment of $15,000 in connection with your Original
Agreement.
6. Benefits
and Vacation. You will be eligible to participate in all
incentive, savings and retirement plans, practices, policies and programs
maintained or sponsored by the Company from time to time which are applicable to
other similarly situated employees of the Company, subject to the terms and
conditions thereof. You will also be eligible for standard benefits,
such as medical insurance, sick leave, vacations and holidays to the extent
applicable generally to other similarly situated employees of the
Company.
7. Compensation Gross-Up. The
amount of compensation payable to you pursuant to Sections 2, 3, 4 and 5 above
will be “grossed up” as necessary (on an after-tax basis) to compensate for any
additional social security withholding taxes due as a result of your shared
employment by the Operating Partnership, the REIT and, if applicable, any
subsidiary and/or affiliate thereof. If any amounts become payable to
you pursuant to this Section 7, then such amounts shall be paid to you promptly
following your remittance of such taxes to the appropriate taxing authority, but
in no event later than the end of the calendar year following that in which you
make any such remittance.
8. Confidential
and Proprietary Information. As a condition of your employment
with the Company, you agree that during the term of such employment and any time
thereafter, you will not directly or indirectly disclose or appropriate to your
own use, or the use of any third party, any trade secret or confidential
information concerning the REIT, the Operating Partnership, Xxxxxxx Services,
Inc., a Maryland corporation, their respective subsidiaries or affiliates
(collectively, the “Xxxxxxx Group”) or their businesses, whether or not
developed by you, except as it is required in connection with your services
rendered for the Company. You further agree that, upon termination of
your employment, you will not receive or
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remove
from the files or offices of the Xxxxxxx Group any originals or copies of
documents or other materials maintained in the ordinary course of business of
the Xxxxxxx Group, and that you will return any such documents or materials
otherwise in your possession. You further agree that, upon
termination of your employment, you will maintain in strict confidence the
projects in which any member of the Xxxxxxx Group is involved or
contemplating. You hereby acknowledge that irreparable injury will
result to the Company in the event of a breach by you of your obligations under
this Section 8 or Section 9 below, that monetary damages for such breach would
not be readily calculable, and that the Company would not have an adequate
remedy at law therefor. You further acknowledge, consent and agree
that in the event of such breach, or the threat thereof, the Company shall be
entitled, in addition to any other legal remedies and damages available, to
specific performance thereof and to temporary and permanent injunctive relief
(without the necessity of posting a bond) to restrain the violation or
threatened violation of such obligations by you.
9. Non-Solicitation. You
further agree that during the term of such employment and for six months after
your employment is terminated, you will not directly or indirectly solicit,
induce, or encourage any employee, consultant, agent, customer, vendor, or other
parties doing business with any member of the Xxxxxxx Group to terminate their
employment, agency, or other relationship with the Xxxxxxx Group or such member
or to render services for or transfer their business from the Xxxxxxx Group or
such member and you will not initiate discussion with any such person for any
such purpose or authorize or knowingly cooperate with the taking of any such
actions by any other individual or entity.
10. At-Will
Employment. Your employment with the Company is “at-will,” and
either you or the Company may terminate your employment for any reason
whatsoever (or for no reason) by giving 30 days prior written notice of such
termination to the other party. This at-will employment relationship
cannot be changed except in a writing signed by you and an authorized
representative of the Company.
11. Non-Cause
Termination.
(a) Severance
Payment. In the event that you incur a “separation from
service” (within the meaning of Section 409A(a)(2)(A)(i) of the Internal Revenue
Code of 1986, as amended (the “Code”), and Treasury Regulation Section
1.409A-1(h)) (“Separation from Service”) by the Company without cause, then, in
addition to any other amounts payable to you through the date of such Separation
from Service (the “Termination Date”), subject to Section 11(b) below and your
execution and non-revocation of a general release of claims in a form prescribed
by the Company, the Company will pay you severance payments in the form of (x)
continuation of your base salary (at the rate in effect immediately prior to
your Separation from Service) for a period of twelve months following your
Separation from Service, payable in regular installments in accordance with the
Company’s payroll practices and less appropriate payroll deductions, and (y) 50%
of your target annual bonus (assuming that you had remained employed) for the
year in which the termination of employment occurs; provided, however, that in no
event shall you or your estate or beneficiaries be entitled to any such payments
hereunder upon any termination of your employment by reason of your total and
permanent disability or your death. For purposes of this letter,
“cause” shall mean
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(i) your
willful and continued failure to substantially perform your duties with the
Company (other than any such failure resulting from your incapacity due to
physical or mental illness), after a written demand for substantial performance
is delivered to you by the Company, which demand specifically identifies the
manner in which the Company believes that you have not substantially performed
your duties;
(ii) your
willful commission of an act of fraud or dishonesty resulting in economic or
financial injury to the Company or its subsidiaries or affiliates;
(iii) your
conviction of, or entry by you of a guilty or no contest plea to, the commission
of a felony or a crime involving moral turpitude;
(iv) a
willful breach by you of your fiduciary duty to the Company which results in
economic or other injury to the Company or its subsidiaries or affiliates;
or
(v) your
willful and material breach of your covenants set forth in Section 8 or 9
above.
For
purposes of this provision, no act or failure to act on your part will be
considered “willful” unless it is done, or omitted to be done, by you in bad
faith or without reasonable belief that your action or omission was in the best
interests of the Company.
Your
right to receive the severance payments set forth herein is conditioned on and
subject to your execution and non-revocation of a general release of claims
against the Xxxxxxx Group, in a form reasonably acceptable to the
Company.
(b) Six Month
Delay. Notwithstanding anything to the contrary in this
letter, no compensation or benefits, including without limitation any severance
payments or benefits payable under this Section 11, shall be paid to you during
the 6-month period following your Separation from Service if you are a
“specified employee” of the Company immediately prior to such Separation from
Service (as determined by the Company in accordance with Section 409A of the
Code) and the Company determines that paying such amounts at the time or times
indicated in this letter would cause you to incur additional taxes under Section
409A of the Code. If the payment of any such amounts is delayed as a
result of the previous sentence, then on the first day following the end of such
6-month period, the Company shall pay you a lump-sum amount equal to the
cumulative amount that would have otherwise been payable to you during such
6-month period.
12. Company
Rules and Regulations. As an employee of the Company, you
agree to abide by Company rules and regulations as set forth in the Company’s
Employee Handbook or as otherwise promulgated.
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14. Arbitration. Except
as set forth in Section 8 above, any disagreement, dispute, controversy or claim
arising out of or relating to this letter or the interpretation of this letter
or any arrangements relating to this letter or contemplated in this letter or
the breach, termination or invalidity thereof shall be settled by final and
binding arbitration administered by JAMS/Endispute in Los Angeles, California in
accordance with the then existing JAMS/Endispute Arbitration Rules and
Procedures for Employment Disputes. In the event of such an
arbitration proceeding, you and the Company shall select a mutually acceptable
neutral arbitrator from among the JAMS/Endispute panel of
arbitrators. In the event you and the Company cannot agree on an
arbitrator, the Administrator of JAMS/Endispute will appoint an
arbitrator. Neither you nor the Company nor the arbitrator shall
disclose the existence, content, or results of any arbitration hereunder without
the prior written consent of all parties. Except as provided herein,
the Federal Arbitration Act shall govern the interpretation, enforcement and all
proceedings. The arbitrator shall apply the substantive law (and the
law of remedies, if applicable) of the state of California, or federal law, or
both, as applicable, and the arbitrator is without jurisdiction to apply any
different substantive law. The arbitrator shall have the authority to
entertain a motion to dismiss and/or a motion for summary judgment by any party
and shall apply the standards governing such motions under the Federal Rules of
Civil Procedure. The arbitrator shall render an award and a written,
reasoned opinion in support thereof. Judgment upon the award may be
entered in any court having jurisdiction thereof.
15. Withholding. The
Company may withhold from any amounts payable under this letter such federal,
state, local or foreign taxes as shall be required to be withheld pursuant to
any applicable law or regulation.
16. Entire
Agreement. As of the Effective Date, this letter and the
employment terms set forth herein, together with the Restricted Stock Agreement,
comprise the final, complete and exclusive agreement between you and the Company
with respect to the subject matter hereof and replace and supersede any and all
other agreements, offers or promises, whether oral or written, made to you by
any member of the Xxxxxxx Group, including without limitation, the Original
Agreement. You agree that any such agreement, offer or promise
between you and any member of the Xxxxxxx Group (or any representative thereof),
including without limitation, the Original Agreement, is hereby terminated and
will be of no further force or effect, and you acknowledge and agree that upon
your execution of this letter, you will have no right or interest in or with
respect to any such agreement, offer or promise.
16. Proof
of Right to Work. As required by law, this offer of employment
is subject to satisfactory proof of your right to work in the United
States.
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[SIGNATURE PAGE
FOLLOWS]
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Please confirm your agreement to the
foregoing by signing and dating the enclosed duplicate original of this letter
in the space provided below for your signature and returning it to Xxxxxx X.
Xxxxxxxxx. Please retain one fully-executed original for your
files.
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Sincerely,
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Xxxxxxx
Properties, Inc.,
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a
Maryland corporation
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By:
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/s/
XXXXXX X. XXXXXXXXX
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Name:
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Xxxxxx
X. Xxxxxxxxx
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Title:
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Executive Vice President & CFO | |
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Xxxxxxx
Properties, L.P.,
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a
Maryland limited partnership
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By:
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Xxxxxxx
Properties, Inc.
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Its:
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General
Partner
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By:
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/s/
XXXXXX X. XXXXXXXXX
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Name:
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Xxxxxx
X. Xxxxxxxxx
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Title:
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Executive Vice President & CFO |
Accepted
and Agreed,
This 17th
day of January, 2008.
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By:
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/s/
XXXXX XXXXXXXXXX
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Xxxxx
Xxxxxxxxxx
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