EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered
into as of the 17th day of June, 1997, by and between Price Enterprises,
Inc., a Delaware corporation ("Employer"), and Xxxxxx X. Xxxxxx ("Executive").
RECITALS
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A. Employer currently employs Executive as Executive Vice
President, Chief Financial Officer and Secretary of Employer, however, no
employment agreement has been memorialized.
B. Employer and Executive now desire to enter into a formal
employment agreement upon the terms and subject to the conditions herein
provided.
TERMS AND CONDITIONS
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NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants and conditions hereinafter set forth, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
EMPLOYMENT AND DUTIES
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1.1 POSITION AND DUTIES. Executive shall serve as Executive Vice
President, Chief Financial Officer and Secretary of Employer. Executive
shall have such duties and authority as are customary for, and commensurate
with, such position, and such other related duties and authority as may from
time to time be delegated or assigned to him by the Chief Executive Officer
or the Board of Directors of Employer. Executive shall discharge his duties
in a diligent and professional manner.
1.2 OUTSIDE BUSINESS ACTIVITIES PRECLUDED. During his employment,
Executive shall devote his full energies, interest, abilities and productive
time to the performance of this Agreement. Executive shall not, without the
prior written consent of Employer, perform other services of any kind or
engage in any other business activity, with or without compensation,
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that would interfere with the performance of his duties under this Agreement.
Executive shall not, without the prior written consent of Employer, engage
in any activity adverse to Employer's interests.
1.3 PLACE OF EMPLOYMENT. Unless the parties agree otherwise in
writing, during the Employment Term (as defined in Section 3.1 below)
Executive shall perform the services he is required to perform under this
Agreement at Employer's offices located in San Diego, California; provided,
however, that Employer may from time to time require Executive to travel
temporarily to other locations on Employer's business.
ARTICLE II
COMPENSATION
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2.1 SALARY. For Executive's services hereunder, Employer shall pay as
base salary to Executive the amount of $182,000 during each year of the
Employment Term. Said salary shall be payable in equal installments in
conformity with Employer's normal payroll period. Executive's salary shall
be reviewed by Employer's Board of Directors from time to time at its
discretion, and Executive shall receive such salary increases, if any, as
Employer's Board of Directors, in its sole discretion, shall determine.
2.2 BONUS. In addition to the salary set forth in Section 2.1 above,
during the Employment Term Executive shall participate in Employer's bonus
plan for executive management personnel. All decisions regarding said bonus
plan shall be made in the sole discretion of Employer's Board of Directors,
or the Compensation Committee thereof.
2.3 OTHER BENEFITS. Executive shall be entitled to participate in and
receive benefits under Employer's standard company benefits practices and
plans for officers of Employer, including medical insurance, long-term
disability, life insurance, profit sharing and retirement plan, and
Employer's other plans, subject to and on a basis consistent with the terms,
conditions and overall administration of such practices and plans. Executive
shall be entitled to a paid vacation each year, which will accrue and be paid
out in conformity with Employer's
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normal vacation pay practices. Employer may in its sole discretion grant
such additional compensation or benefits to Executive from time to time as
Employer deems proper and desirable.
2.4 EXPENSES. During the term of his employment hereunder, Executive
shall be entitled to receive prompt reimbursement for all reasonable
business-related expenses incurred by him, in accordance with the policies
and procedures from time to time adopted by Employer, provided that Executive
properly accounts for such business expenses in accordance with Employer
policy.
2.5 STOCK OPTION PLAN. Employer has adopted The Price Enterprises 1995
Combined Stock Grant and Stock Option Plan (the "Stock Plan"), pursuant to
which Executive was granted, on January 11, 1995, options to purchase 75,000
shares of Employer's Common Stock, with such options vesting at the rate of
twenty percent (20%) per year over a period of five (5) years and expiring
six (6) years from the date of grant. Such grant of options was and remains
subject to all other terms, conditions and restrictions set forth in the
Stock Plan.
2.6 DEDUCTIONS AND WITHHOLDINGS. All amounts payable or which become
payable under any provision of this Agreement shall be subject to any
deductions authorized by Executive and any deductions and withholdings
required by law.
ARTICLE III
TERM OF EMPLOYMENT
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3.1 TERM. The term of Executive's employment hereunder shall be deemed
to have commenced on April 2, 1997 and shall continue until October 16, 1998
unless sooner terminated or extended as hereinafter provided (the "Employment
Term").
3.2 EXTENSION OF TERM. The Employment Term may be extended by written
amendment to this Agreement signed by both parties.
3.3 EARLY TERMINATION BY EXECUTIVE. Executive may terminate this
Agreement at any time by giving Employer written notice of his resignation
ninety (90) days in advance; provided,
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however, that the Board of Directors may determine upon receipt of such
notice that the effective date of such resignation shall be immediate or some
time prior to the expiration of the ninety-day notice period. Executive's
employment shall terminate as of the effective date of his resignation as
determined by the Board of Directors.
3.4 TERMINATION FOR CAUSE. Prior to the expiration of the Employment
Term, Executive's employment may be terminated for Cause by the Board of
Directors of Employer, immediately upon delivery of notice thereof. For
these purposes, termination for "Cause" shall mean termination because of
Executive's (a) repeated and habitual failure to perform his duties or
obligations hereunder; (b) engaging in any act that has a direct, substantial
and adverse effect on Employer's interests; (c) personal dishonesty, willful
misconduct, or breach of fiduciary duty involving personal profit; (d)
intentional failure to perform his stated duties; (e) willful violation of
any law, rule or regulation which materially adversely affects his ability to
discharge his duties or has a direct, substantial and adverse effect on
Employer's interests; (f) any material breach of this contract by Executive;
or (g) conduct authorizing termination under Cal. Labor Code Section 2924.
3.5 TERMINATION DUE TO DEATH OR DISABILITY. Executive's employment
hereunder shall terminate immediately upon his death. In the event that by
reason of injury, illness or other physical or mental impairment Executive
shall be: (a) completely unable to perform his services hereunder for more
than three (3) consecutive months, or (b) unable to perform his services
hereunder for fifty percent (50%) or more of the normal working days
throughout six (6) consecutive months, then Employer may terminate
Executive's employment hereunder immediately upon delivery of notice thereof.
Executive's beneficiaries, estate, heirs, representatives, or assigns, as
appropriate, shall be entitled to the proceeds, if any, due under any
Employer-paid life insurance policy held by Executive, as determined by and
in accordance with the terms of any such policy, as well as any vested
benefits and accrued vacation benefits.
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ARTICLE IV
BENEFITS AFTER TERMINATION OF EMPLOYMENT
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4.1 BENEFITS UPON TERMINATION. Upon termination of this Agreement
under Section 3.3 (Early Termination by Executive), Section 3.4 (Termination
for Cause) or Section 3.5 (Termination Due to Death or Disability), all
salary and benefits of Executive hereunder shall cease immediately. Upon
termination of this Agreement by Employer for any reason other than those set
forth in Section 3.4 or Section 3.5, Executive shall be entitled to the
continuation of Executive's base salary for the remainder of the Employment
Term, payable in equal installments in conformity with Employer's normal
payroll period. During the period of this severance pay, Executive shall
cooperate with Employer in providing for the orderly transition of
Executive's duties and responsibilities to other individuals, as reasonably
requested by Employer.
4.2 RIGHTS AGAINST EMPLOYER. The benefits payable under this Article
IV are exclusive, and no amount shall become payable to any person (including
the Executive) by reason of termination of employment for any reason, with or
without Cause, except as provided in this Article IV. Employer shall not be
obligated to segregate any of its assets or procure any investment in order
to fund the benefits payable under this Article IV.
ARTICLE V
CONFIDENTIAL INFORMATION
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5.1 Executive acknowledges that Employer holds as confidential, and
Executive may have access to during the Employment Term, certain information
and knowledge respecting the intimate and confidential affairs of Employer in
the various phases of its business, including, but not limited to, trade
secrets, data and know-how, improvements, inventions, techniques, marketing
plans, strategies, forecasts, pricing information, and customer lists.
During his employment by Employer and thereafter, Executive shall not
directly or indirectly disclose such information to any person or use any
such information, except as
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required in the course of his employment during the Employment Term. All
records, files, keys, documents, and the like relating to Employer's
business, which Executive shall prepare, copy or use, or come into contact
with, shall be and remain Employer's sole property, shall not be removed from
Employer's premises without its written consent, and shall be returned to
Employer upon the termination of this Agreement.
ARTICLE VI
GENERAL PROVISIONS
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6.1 ENTIRE AGREEMENT. This Agreement contains the entire understanding
and sole and entire agreement between the parties with respect to the subject
matter hereof, and supersedes any and all prior agreements, negotiations and
discussions between the parties hereto with respect to the subject matter
covered hereby. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, oral or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are
not embodied herein, and that no other agreement, statement or promise not
contained in this Agreement shall be valid or binding. This Agreement may
not be modified or amended by oral agreement, but rather only by an agreement
in writing signed by Employer and by Executive which specifically states the
intent of the parties to amend this Agreement.
6.2 ASSIGNMENT AND BINDING EFFECT. Neither this Agreement nor the
rights or obligations hereunder shall be assignable by the Executive.
Employer may assign this Agreement to any successor or affiliate of Employer,
and upon such assignment any such successor or affiliate shall be deemed
substituted for Employer upon the terms and subject to the conditions hereof.
In the event of any merger of Employer or the transfer of all (or
substantially all) of Employer's assets, the provisions of this Agreement
shall be binding upon, and inure to the benefit of, the surviving business
entity or the business entity to which such assets shall be transferred.
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6.3 ARBITRATION. The parties hereto agree that any and all disputes
(contract, tort, or statutory, whether under federal, state or local law)
between Executive and Employer (including Employer's employees, officers,
directors, stockholders, members, managers and representatives) arising out
of Executive's employment with Employer, the termination of that employment,
or this Agreement, shall be submitted to final and binding arbitration. Such
arbitration shall take place in the County of San Diego, and may be compelled
and enforced according to the California Arbitration Act (Code of Civil
Procedure SectionSection 1280 ET SEQ.). Unless the parties mutually agree
otherwise, such arbitration shall be conducted before the American
Arbitration Association, according to its Commercial Arbitration Rules.
Judgment on the award the arbitrator renders may be entered in any court
having jurisdiction over the parties. Arbitration shall be initiated in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association.
6.4 NO WAIVER. No waiver of any term, provision or condition of this
Agreement, whether by conduct or otherwise, in any one or more instances
shall be deemed or be construed as a further or continuing waiver of any such
term, provision or condition, or as a waiver of any other term, provision or
condition of this Agreement.
6.5 GOVERNING LAW; RULES OF CONSTRUCTION. This Agreement has been
negotiated and executed in, and shall be governed by and construed in
accordance with the laws of, the State of California. Captions of the
several Articles and Sections of this Agreement are for convenience of
reference only, and shall not be considered or referred to in resolving
questions of interpretation with respect to this Agreement.
6.6 NOTICES. Any notice, request, demand or other communication
required or permitted hereunder shall be deemed to be properly given when
personally served in writing, or when deposited in the United States mail,
postage pre-paid, addressed to Employer or Executive at his last known
address. Each party may change its address by written notice in accordance
with this Section.
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Address for Employer:
Price Enterprises, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxx Xxxxx, XX. 00000
Address for Executive:
Price Enterprises, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxx Xxxxx, XX. 00000
6.7 SEVERABILITY. The provisions of this Agreement are severable. If
any provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions or
enforceable parts hereof shall not be affected thereby and shall be enforced
to the fullest extent permitted by law.
6.8 ATTORNEYS' FEES. In the event of any arbitration or litigation
brought to enforce or interpret any part of this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees, as well as all
other litigation costs and expenses as an element of damages.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto as of the date first above written.
EXECUTIVE EMPLOYER
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Xxxxxx X. Xxxxxx PRICE ENTERPRISES, INC.
/s/ XXXXXX X. XXXXXX By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX
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Title: PRESIDENT
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