Exhibit 10.123
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the
"Agreement") is made as of February 11, 1998 and amends and restates in its
entirety the Employment Agreement made and entered into as of January 2, 1998
by and between Xxxxxx X. Xxxxxxx ("Employee") and Brandywine Realty Trust, a
Maryland real estate investment trust (the "Company").
BACKGROUND
The Company desires to employ Employee, and Employee desires
to enter into the employ of the Company, on the terms and conditions contained
in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Employment. The Company hereby employs Employee, and
Employee hereby accepts employment by the Company, for the period and upon the
terms and conditions contained in this Agreement.
2. Office and Duties.
(a) Employee shall be employed by the Company as its
President and Chief Executive Officer and will serve as a member of the Board
of Trustees of the Company (the "Board") and member of the Executive Committee
of the Board, and shall perform such duties and shall have such authority as
may from time to time be specified by the Board. Employee shall report
directly to the Board.
(b) Without further consideration, Employee shall, as
directed by the Board, serve as a director or officer of, or perform such
other duties and services as may be requested for and with respect to, any of
the Company's Subsidiaries, including, without limitation, Brandywine Realty
Services Corporation. As used in this Agreement, the terms "Subsidiary" and
"Subsidiaries" shall mean, with respect to any entity, any corporation,
partnership, limited liability company or other business entity in which the
subject entity has the power (whether by contract, through securities
ownership, or otherwise and whether directly or indirectly through control of
one or more intermediate Subsidiaries) to elect a majority of board of
directors or other governing body, including, in the case of a partnership, a
majority of the board of directors or other governing body of the general
partner.
(c) Employee shall devote his full working time, energy,
skill and best efforts to the performance of his duties hereunder, in a manner
which will faithfully and diligently further the business interests of the
Company and its Subsidiaries.
3. Term. Unless sooner terminated as hereinafter provided,
the term of Employee's employment shall be for a period of five (5) years (the
"Term") commencing on the date hereof. The Term shall automatically renew for
additional one-year periods at the expiration of the then current Term unless
either party shall give notice of his or its election to terminate Employee's
employment at least one year prior to the end of the then-current Term, unless
earlier terminated as hereinafter provided.
4. Base Salary. For all of the services rendered by Employee
to the Company and its Subsidiaries, Employee shall receive an aggregate base
salary of $300,000 per annum during the term of his employment hereunder. Such
salary may be paid, at the election of the Company, either by the Company or
by one or more of its Subsidiaries, in such relative proportions as the
Company may determine, as earned in periodic installments in accordance with
the Company's normal payment policies for executive officers. In the event
that the Employee is also employed during any period by a Subsidiary of the
Company, the amount of the base salary payable by the Company during such
period shall be reduced by the amount of salary received by Employee during such
period from such Subsidiary. Employee's base salary shall be subject to review
by the Board not less frequently than annually, and Employee shall receive such
salary increases as the Board may from time to time approve.
5. Bonus. Employee shall receive, during the term of his
employment hereunder, such annual bonus as the Board, in its sole discretion,
may determine from time to time. Any such bonus may be based on Employee's
annual performance goals as established by the Board from time to time.
6. Participation in Incentive Plans. In addition to
Employee's eligibility to receive annual bonuses pursuant to Section 5,
Employee shall be entitled to participate in short-term and long-term
incentive plans as shall be maintained by the Company from time to time on
such terms and conditions as shall be established by the Board.
7. Prior Option and Warrants. Nothing in this Agreement
shall affect the terms and conditions of options and warrants granted by the
Company to Employee before the date of this Agreement. Such options and
warrants shall continue in force as in effect immediately before the date of
this Agreement. Without limiting the generality of the foregoing, the options
granted to Employee under his employment agreement executed on August 8, 1994
(the "1994 Agreement") shall remain in effect, and those provisions of the
1994 Agreement which govern Employee's entitlement to exercise such options
shall continue in effect as if such 1994 Agreement had not been terminated. In
furtherance of the foregoing, references in Section 4.1(b)(v) of the 1994
Agreement to "the Company" shall hereafter be construed as references to the
Company and its Subsidiaries.
8. Fringe Benefits. Throughout the term of his employment
and as long as they are kept in force by the Company, Employee shall be
entitled to participate in and receive the benefits of any profit sharing
plan, retirement plan, health or other employee benefit plan made available to
other executive officers of the Company, but in no event shall such benefits
be less favorable to Employee than the benefits listed on Schedule A hereto.
9. Automobile Allowance. Employee shall receive, during the
term of his employment hereunder, an automobile allowance of $833 per month.
10. Expenses. The Company shall reimburse Employee for all
reasonable, ordinary and necessary business expenses incurred by Employee in
connection with the performance of Employee's duties hereunder upon receipt of
vouchers therefor and in accordance with the Company's regular reimbursement
procedures and practices in effect from time to time.
11. Vacation. Employee shall be entitled to a vacation of
four (4) weeks during each twelve (12) month period of his employment
hereunder, during which time Employee's compensation hereunder shall be paid
in full. Employee shall be permitted to carry over unused vacation during each
twelve (12) month period during the term and use such unused vacation in any
subsequent twelve (12) month period during the term.
12. Disability. If the Board determines in good faith by a
vote of a majority of its members (other than Employee) that Employee is
unable to perform his duties hereunder due to partial or total disability or
incapacity resulting from a mental or physical illness or injury or any
similar cause for a period of one hundred and twenty (120) consecutive days or
for a cumulative period of one hundred and eighty (180) days during any twelve
(12) month period, the Company shall have the right to terminate Employee's
employment at any time thereafter.
13. Death. Employee's employment shall terminate at the time
of his death.
14. Termination of Employment for Cause. The Company may
discharge Employee at any time for Cause. Cause shall mean: (i) habitual
intoxication; (ii) drug addiction; (iii) intentional and willful violation of
any express direction of the Board; (iv) theft, misappropriation or
embezzlement of the Company's funds; (v) conviction of a felony; or (vi)
repeated and consistent failure of Employee to be present at work during
regular hours without valid reason therefor.
15. Termination of Employment Without Cause. The Board, in
its sole discretion, may terminate Employee's employment hereunder without
Cause upon 30 days' prior written notice to Employee at any time.
16. Resignation For Good Reason. Employee's resignation
shall be treated as a "Resignation for Good Reason" if Employee resigns within
six (6) months after any of the following circumstances, unless in the case of
the circumstances set forth in paragraphs (b), (c) or (d) below, such
circumstances are fully corrected within 30 days of Employee's delivery of
notice to the Company:
(a) A reduction in Employee's annual rate of base salary;
(b) A failure of the Company to make the payments
required by Section 4 hereof;
(c) A significant adverse alteration in the nature or
status of Employee's responsibilities;
(d) Any other material breach by the Company of this
Agreement;
(e) Relocation (without the written consent of Employee)
of the Company's executive offices to a location more than 30 miles from its
current location; or
(f) Upon a Change of Control (as defined in Section 17).
17. Change of Control. For purpose of this Agreement, a
"Change of Control" means:
(a) A "Change of Control" within the meaning of Section
1(d) of the Brandywine Realty Trust 1997 Long-Term Incentive Plan, as
currently in effect; or
(b) The purchase of any common shares of beneficial
interest of the Company pursuant to a tender or exchange offer other than an
offer by the Company.
18. Payments Upon or After Termination of Employment.
(a) Voluntary Resignation Other than for Good Reason;
Termination for Cause; Non-Renewal of Employment Agreement. If Employee's
employment hereunder is terminated before the expiration of the Term because
of Employee's voluntary resignation (other than a Resignation for Good Reason)
or because of the Company's termination of Employee's employment for Cause, or
if Employee's employment is terminated at the expiration of the Term following
an election by either the Company or Employee not to renew the Term pursuant
to Section 3, the Company, or at its direction, its Subsidiaries shall pay to
Employee or, as appropriate, his legal representatives, heirs or estate all
amounts payable under Sections 4 and 8 accrued through the applicable date of
termination (the "Accrued Amount") within 30 days after such date of
termination. If Employee's employment is terminated by the Company for Cause
or by the Employee voluntarily (unless such termination of employment is a
Resignation for Good Reason), or if Employee's employment is terminated at the
expiration of the Term following an election by either the Company or Employee
not to renew the Term pursuant to Section 3, the Company shall have no
obligation or liability hereunder after the date of discharge or termination
to pay or provide base salary, bonus compensation, fringe benefits, or any
other form of compensation hereunder other than to pay the Accrued Amount.
(b) Termination of Employment Because of Death. If
Employee's employment is terminated as a result of the Employee's death before
the expiration of the Term, the Company shall pay Employee's legal
representatives the Accrued Amount as of the date of Employee's death, and, in
addition, the product of three (3) times the greater of (1) the sum of the
amounts paid or payable to Employee pursuant to Sections 4 and 5 hereunder
(and the short-term portion of any bonus amounts paid or payable pursuant to
Section 6 hereunder) for the calendar year preceding the calendar year in
which the death occurs or (2) the sum of the amounts paid or payable to
Employee pursuant to Sections 4 and 5 hereunder (and the short-term portion of
any bonus amounts paid or payable pursuant to Section 6 hereunder) during the
one-year period ending on the date of such death, provided that if such date
of death occurs before the first anniversary of the date hereof, the cash lump
sum payment shall be equal to the product of three (3) times the sum of (x)
Employee's annualized base salary pay rate in effect as of such date of death
and (y) the maximum bonus that would have been payable for the year that
includes such date of death if all of the conditions for the payment of such
maximum bonus had been satisfied, less the proceeds receivable by Employee's
heirs and legal representatives from any life insurance policy provided by the
Company.
(c) Termination of Employment Because of Disability. If
Employee's employment is terminated by the Company for disability before the
expiration of the Term, the Company shall pay Employee the Accrued Amount as
of the such date of termination, and, in addition, the consideration described
in Sections 4 and 8 hereof, at the rate in effect at the date of termination,
until one year after Employee becomes eligible to receive benefits pursuant to
the disability insurance policy provided by the Company, at the rate in effect
at such date of termination, less the amount of disability insurance proceeds
receivable by Employee, provided that such period shall not exceed two years
in the aggregate. In addition, Employee shall be entitled to receive an amount
equal to the product that results from multiplying the amount of the bonus
paid to him pursuant to Section 5 hereof for the calendar year prior to the
year in which Employee's employment is terminated for disability multiplied by
a fraction, the numerator of which is the number of days that elapsed prior to
the termination during the year in which the termination occurs and the
denominator of which is 365.
(d) Termination of Employment by Company Without Cause;
Resignation for Good Reason. If Employee's employment is terminated by the
Company without Cause, or Employee Resigns for Good Reason, within 30 days
following the date of such termination of employment, the Company shall pay
Employee the Accrued Amount as of the date of such termination, and in
addition:
(i) Subject to Section 18(d)(ii), the Company shall
make a cash lump sum payment to Employee equal to the greater of:
(A) the product of three (3) times the greater of
(1) the sum of the amounts paid or payable to Employee pursuant to Sections 4
and 5 hereunder (and the short-term portion of any bonus amounts paid or
payable pursuant to Section 6 hereunder) for the calendar year preceding the
calendar year in which such termination of employment occurs or (2) the sum of
the amounts paid or payable to Employee pursuant to Sections 4 and 5 hereunder
(and the short-term portion of any bonus amounts paid or payable pursuant to
Section 6 hereunder) during the one-year period ending on the date of such
termination, provided that if such date of termination occurs before the first
anniversary of the date hereof, the cash lump sum payment shall be equal to
the product of three (3) times the sum of (x) Employee's annualized base
salary pay rate in effect as of such date of termination and (y) the maximum
bonus that would have been payable for the year that includes such date of
termination if all of the conditions for the payment of such maximum bonus had
been satisfied; or
(B) The amount payable pursuant to Section 4
hereunder for the remainder of the Term at a rate equal to his base salary in
effect at the time of the date of such termination.
(ii) Employee may, in his sole discretion, elect in
writing to decline to receive part or all of the amount otherwise payable
pursuant to Section 18(d)(i). In addition, if, following payment of part or
all of the amount payable pursuant to Section 18(d)(i), Employee determines
that Employee would be in a better net after-tax position than he would be in
if he retained such amount, Employee may elect in writing to repay the Company
the amount, plus interest payable from the date of payment to the date of
repayment at the "applicable federal rate" as determined pursuant to section
1274 of the Code, and upon such repayment and to the extent thereof, the
original payment shall be treated as a loan between the Company and Employee.
(e) In the event that Employee is employed by a
Subsidiary of the Company at the time of termination of employment, any
amounts payable to the Employee pursuant to this Section 18 shall be reduced
by the amounts paid to Employee by any such Subsidiary.
(f) Upon the payment of the amounts payable under this
Section 18, neither the Company nor any of its Subsidiaries shall have any
further obligations hereunder to Employee (or to his estate, heirs,
beneficiaries, or legal representatives, as appropriate, or otherwise) to pay
or provide any base salary, bonus compensation, or fringe benefits, provided
that if Employee Resigns for Good Reason or the Company terminates Employee's
employment without Cause, Company shall, at its own expense, for a thirty-six
(36) month period after the date of termination of employment, arrange to
provide Employee with life, disability, accident and health insurance benefits
substantially similar to those which Employee was entitled to receive
immediately prior to such date of termination.
19. Prior Agreement. This Agreement is the successor to the
Employment Agreement between Employee and the Company dated as of July 31,
1996 (which Agreement was assigned to the Company as of October 31, 1996).
Employee represents to the Company that (a) there are no other agreements or
understandings with the Company to which Employee is a party relating to
employment, benefits or retirement, (b) there are no restrictions, agreements
or understandings whatsoever to which Employee is a party which would prevent
or make unlawful his execution of this Agreement or his employment hereunder,
(c) his execution of this Agreement and his employment hereunder shall not
constitute a breach of any contract, agreement or understanding, oral or
written, to which he is a party or by which he is bound, and (d) he is free
and able to execute this Agreement and to continue in the employment of the
Company.
20. Key Man Insurance. The Company shall have the right at
its expense to purchase insurance on the life of Employee in such amounts as
it shall from time to time determine, of which the Company shall be the
beneficiary. Employee shall submit to such physical examinations as may be
required, and shall otherwise cooperate with the Company, in connection with
the Company obtaining such insurance.
21. Miscellaneous.
(a) Controlling Law. This Agreement, and all questions
relating to its validity, interpretation, performance and enforcement, shall
be governed by and construed in accordance with the laws of the Commonwealth
of Pennsylvania.
(b) Notices. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received when delivered
in person against receipt, or when sent by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as set
forth below:
(i) If to Employee:
Xxxxxx X. Xxxxxxx
0 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
(ii) If to the Company:
Brandywine Realty Trust
00 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
Attention: General Counsel
In addition, notice by mail shall be by air mail if posted
outside of the continental United States.
Any party may alter the address to which communications or
copies are to be sent by giving notice of such change of address in conformity
with the provisions of this paragraph for the giving of notice.
(c) Binding Nature of Agreement. This Agreement shall be
binding upon and inure to the benefit of the Company and its successors and
assigns and shall be binding upon Employee, his heirs and legal
representatives.
(d) Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original as against any party who executes the same, and all of which shall
constitute one and the same instrument. This Agreement shall become binding
when one or more counterparts hereof, individually or taken together, shall
bear the signatures of all of the parties reflected hereon as the signatories.
(e) Provisions Separable. The provisions of this
Agreement are independent of and separable from each other, and no provision
shall be affected or rendered invalid or unenforceable by virtue of the fact
that for any reason any other or others of them may be invalid or
unenforceable in whole or in part.
(f) Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings, inducements or
conditions, express or implied, oral or written, except as herein contained.
The express terms hereof control and supersede any course of performance
and/or usage of the trade inconsistent with any of the terms hereof. This
Agreement may not be modified or amended other than by an agreement in
writing.
(g) Section and Paragraph Headings. The section and
paragraph headings in this Agreement are for convenience only; they form no
part of this Agreement and shall not affect its interpretation.
(h) Gender, Etc. Words used herein, regardless of the
number and gender specifically used, shall be deemed and construed to include
any other number, singular or plural, and any other gender, masculine,
feminine or neuter, as the context requires.
(i) Number of Days. In computing the number of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays; provided, however, that if the final day of any time
period falls on a Saturday, Sunday or holiday, then the final day shall be
deemed to be the next day which is not a Saturday, Sunday or holiday.
(j) Survival. The provisions of Sections 7, 12, 13, 14,
15, 16, 17, 18 and 19 shall survive the expiration or termination of the term
of Employee's employment hereunder.
(k) Assignability. This Agreement is not assignable by
Employee. It is assignable by the Company only (i) to any subsidiary of the
Company so long as the Company agrees to guarantee such subsidiary's
obligations hereunder, or (ii) subject to Sections 16 and 18 and only upon
Employee's prior written consent, to a person which is a successor in interest
to the Company in the business operated by it or which acquires all or
substantially all of its assets.
(l) Liability of Trustees, etc. No recourse shall be had
for any obligation of the Company hereunder, or for any claim based thereon or
otherwise in respect thereof, against any past, present or future trustee,
shareholder, officer or employee of the Company, whether by virtue of any
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being expressly waived and released by each
party hereto.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered on the date first above-written.
BRANDYWINE REALTY TRUST
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
--------------------------------------
EMPLOYEE
/s/ Xxxxxx X. Xxxxxxx
----------------------------
Xxxxxx X. Xxxxxxx
GUARANTEE
In the event that the Company fails to perform its
obligations under the foregoing Employment Agreement, Brandywine Operating
Partnership, L.P. shall promptly perform the obligations of the Company
arising thereunder which have not been performed in strict accordance with the
terms and conditions thereof.
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: BRANDYWINE REALTY TRUST, its general
partner
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx, President and Chief
Executive Officer
