EXHIBIT 10.55
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made
and entered into as of May 27, 1999, by and between ARDEN REALTY LIMITED
PARTNERSHIP, a Maryland limited partnership (the "Company") and XXXXX XXXXXX
("Executive").
1. EMPLOYMENT
The Company hereby employs Executive and Executive hereby accepts employment
upon the terms and conditions set forth below.
2. TERM AND RENEWAL
2.1 Term. The term of this Agreement shall commence on May 27, 1999 (the
"Effective Date"), and shall continue to December 31, 2000 (the
"Original Employment Term"), on the terms and conditions set forth
below, unless sooner terminated as provided in Section 5.
2.2 Extension. Following the expiration of the Original Employment Term and
provided that this Agreement has not been terminated pursuant to
Section 5, and every year thereafter, the Agreement shall be
automatically renewed for an additional 12-month period, effective on
January 1, 2001 and each anniversary thereof; provided, that if a
Change in Control (as defined in Section 5.6), occurs during the
original or extended term of this Agreement, this Agreement shall
continue in effect for a period not less than twelve (12) months beyond
the month in which such Change in Control occurred.
3. COMPENSATION
3.1. Base Compensation. For the services to be rendered by Executive under
this Agreement, Executive shall be entitled to receive, commencing as
of the Effective Date, an annual base compensation ("Base
Compensation") of $125,000 payable in substantially equal semi-monthly
installments. The Base Compensation shall be reviewed and adjusted
annually as determined by the Compensation Committee (the "Compensation
Committee") of the Board of Directors (the "Board") of the Company.
3.2. Bonus Compensation. The Compensation Committee shall review Executive's
performance at least annually during each year of the Original
Employment Term and cause the Company to award Executive a cash bonus
which the Compensation Committee determines in its sole and absolute
discretion.
3.3. "Gross-Up" of Compensation.
(a) 280G "Gross-Up".
(i) Anything in this Agreement to the contrary
notwithstanding, if it shall be determined that any
payment or distribution to Executive or for his
benefit (whether paid or payable or distributed or
distributable) pursuant to the terms of this
Agreement or otherwise (the "Payment") would be
subject to the excise tax imposed by section 4999 of
the Internal Revenue Code of 1986, as amended (the
"Code") (the "Excise Tax"), then Executive shall be
entitled to receive from the Company an additional
payment (the "Gross-Up Payment") in an amount such
that the net amount of the Payment and the Gross-Up
Payment retained by Executive after the calculation
and deduction of all Excise Taxes (including any
interest or penalties imposed with respect to such
taxes) on the Payment and all federal, state and
local income tax, employment tax and Excise Tax
(including any interest or penalties imposed with
respect to such taxes) on the Gross-Up Payment
provided for in this Section 3.3(a) and taking into
account any lost or reduced tax deductions on account
of the Gross-Up Payment, shall be equal to the
Payment;
(ii) All determinations required to be made under this
Section 3.3(a), including
whether and when the Gross-Up Payment is required and
the amount of such Gross-Up Payment, and the
assumptions to be used in arriving at such
determinations shall be made by the Accountants (as
defined below) which shall provide Executive and the
Company with detailed supporting calculations with
respect to such Gross-Up Payment within fifteen (15)
business days of the receipt of notice from Executive
or the Company that Executive has received or will
receive a Payment. For the purposes of this Section
3.3(a), the "Accountants" shall mean the Company's
independent certified public accountants serving
immediately prior to the Change in Control (as
defined in Section 5.6). In the event that the
Accountants are also serving as accountant or auditor
for the individual, entity or group effecting the
Change in Control, Executive shall appoint another
nationally recognized public accounting firm to make
the determinations required hereunder (which
accounting firm shall then be referred to as the
Accountants hereunder). All fees and expenses of the
Accountants shall be borne solely by the Company. For
the purposes of determining whether any of the
Payments will be subject to the Excise Tax and the
amount of such Excise Tax, such Payments will be
treated as "parachute payments" within the meaning of
section 280G of the Code, and all "parachute
payments" in excess of the "base amount" (as defined
under section 280G(b)(3) of the Code) shall be
treated as subject to the Excise Tax, unless and
except to the extent that in the opinion of the
Accountants such Payments (in whole or in part)
either do not constitute "parachute payments" or
represent reasonable compensation for services
actually rendered (within the meaning of section
280G(b)(4) of the Code) in excess of the "base
amount," or such "parachute payments" are otherwise
not subject to such Excise Tax. For purposes of
determining the amount of the Gross-Up Payment,
Executive shall be deemed to pay Federal income taxes
at the highest applicable marginal rate of federal
income taxation for the calendar year in which the
Gross-Up Payment is to be made and to pay any
applicable state and local income taxes at the
highest applicable marginal rate of taxation for the
calendar year in which the Gross-Up Payment is to be
made, net of the maximum reduction in federal income
taxes which could be obtained from the deduction of
such state or local taxes if paid in such year
(determined without regard to limitations on
deductions based upon the amount of Executive's
adjusted gross income), and to have otherwise
allowable deductions for federal, state and local
income tax purposes at least equal to those
disallowed because of the inclusion of the Gross-Up
Payment in Executive's adjusted gross income. To the
extent practicable, any Gross-Up Payment with respect
to any Payment shall be paid by the Company at the
time Executive is entitled to receive the Payment and
in no event will any Gross-Up Payment be paid later
than five days after the receipt by Executive of the
Accountant's determination. Any determination by the
Accountants shall be binding upon the Company and
Executive. As a result of uncertainty in the
application of section 4999 of the Code at the time
of the initial determination by the Accountants
hereunder, it is possible that the Gross-Up Payment
made will have been an amount less than the Company
should have paid pursuant to this Section 3.3(a) (the
"Underpayment"). In the event that the Company
exhausts its remedies pursuant to Section 3.3(a)(ii)
and Executive is required to make a payment of any
Excise Tax, the Underpayment shall be promptly paid
by the Company to or for Executive's benefit; and
(iii) Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if
successful, would require the payment by the Company
of the Gross-Up Payment. Such notification shall be
given as soon as practicable after Executive is
informed in writing of such claim and shall apprise
the Company of the nature of such claim and the date
on which such claim is requested to be paid.
Executive shall not pay such claim prior to the
expiration of the 30-day period following the date on
which Executive gives such notice to the Company (or
such shorter period ending on the date that any
payment of taxes, interest and/or penalties with
respect to such claim is due). If the Company
notifies Executive in writing prior to the expiration
of such period that it desires to contest such claim,
Executive shall:
(A) give the Company any information reasonably
requested by the Company relating to such claim;
(B) take such action in connection with contesting
such claim as the Company shall reasonably request in
writing from time to time, including, without
limitation, accepting legal representation with
respect to such claim by an attorney reasonably
selected by the Company;
(C) cooperate with the Company in good faith in order
to effectively contest such claim; and
(D) permit the Company to participate in any
proceedings relating to such claims; provided,
however, that the Company shall bear and pay directly
all costs and expenses (including additional interest
and penalties) incurred in connection with such
contest and shall indemnify Executive for and hold
Executive harmless from, on an after-tax basis, any
Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result
of such representation and payment of all related
costs and expenses. Without limiting the foregoing
provisions of this Section 3.3(a), the Company shall
control all proceedings taken in connection with such
contest and, at its sole option, may pursue or forgo
any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option,
either direct Executive to pay the tax claimed and
xxx for a refund or contest the claim in any
permissible manner, and Executive agrees to prosecute
such contest to a determination before any
administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as
the Company shall determine; provided, however, that
if the Company directs Executive to pay such claim
and xxx for a refund, the Company shall advance the
amount of such payment to Executive, on an
interest-free basis, and shall indemnify Executive
for and hold Executive harmless from, on an after-tax
basis, any Excise Tax or income tax (including
interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any
imputed income with respect to such advance
(including as a result of any forgiveness by the
Company of such advance); provided, further, that any
extension of the statute of limitations relating to
the payment of taxes for the taxable year of
Executive with respect to which such contested amount
is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control
of the contest shall be limited to issues with
respect to which a Gross-Up Payment would be payable
hereunder and Executive shall be entitled to settle
or contest, as the case may be, any other issue
raised by the Internal Revenue Service or any other
taxing authority.
3.4. Benefits.
(a) Medical Insurance. The Company shall provide to Executive,
Executive's spouse and children, at its sole cost, such
health, dental and optical insurance as the Company may from
time to time make available to its other executive employees.
(b) Life and Disability Insurance. The Company shall provide
Executive such disability and/or life insurance as the Company
in its sole discretion may from time to time make available to
its other executive employees.
(c) Pension Plans, Etc. The Executive shall be entitled to
participate in all pension, 401(k) and other employee plans
and benefits established by the Company on at least the same
terms as the Company's other executive employees.
(d) Method of Payment. The monetary compensation payable and any
benefits due to Executive hereunder may be paid or provided in
whole or in part, from time to time, by the Company and/or its
respective subsidiaries and affiliates, but shall at all times
remain the responsibility of the Company.
4. POSITION AND DUTIES
4.1 Position. Executive shall serve as Associate General Counsel or such
other position or positions to which the Company, in its sole and
absolute discretion, assigns Executive.
4.2 Devotion of Time and Effort. Executive shall use Executive's good faith
best efforts and judgment in performing Executive's duties as required
hereunder and to act in the best interests of the Company. Executive
shall devote such time, attention and energies to the business of the
Company as are reasonably necessary to satisfy Executive's required
responsibilities and duties hereunder.
4.3 Other Activities. Executive may engage in other activities for
Executive's own account while employed hereunder, including without
limitation charitable, community and other business activities,
provided that such other activities do not materially interfere with
the performance of Executive's duties hereunder.
4.4 Vacation. It is understood and agreed that Executive shall be entitled
to three (3) weeks vacation per year. During such vacation periods,
Executive shall not be relieved of Executive's duties under this
Agreement and there will be no abatement or reduction of Executive's
compensation hereunder.
4.5 Business Expenses. The Company shall promptly, but in no event later
than thirty days after submission of a claim of expenditure, reimburse
Executive for all reasonable business expenses including, without
limitation, business seminar fees, professional association dues, bar
dues and other reasonable entertainment expenses which have been given
approval in advance and are incurred by Executive in connection with
the business of the Company and/or its respective subsidiaries and
affiliates, upon presentation to the Company of written receipts for
such expenses. Such reimbursement shall also include, but not be
limited to, reimbursement for all reasonable travel expenses, including
all airfare, hotel and rental car expenses, incurred by Executive in
traveling in connection with the business of the Company.
4.6 Company's Obligations. The Company shall provide Executive with any and
all necessary or appropriate current financial information and access
to current information and records regarding all material transactions
involving the Company and/or its representative subsidiaries and
affiliates, including but not limited to acquisition of assets,
personnel contracts, dispositions of assets, service agreements and
registration statements or other state or federal filings or
disclosures, reasonably necessary for Executive to carry out
Executive's duties and responsibilities hereunder. In addition, the
Company agrees to provide Executive, as a condition to Executive's
services hereunder, such staff, equipment and office space as is
reasonably necessary for Executive to perform Executive's duties
hereunder.
5. TERMINATION
5.1 By the Company Without Cause. The Company may terminate this Agreement
without "cause" (as hereinafter defined) at any time following the
Effective Date, provided that the Company first delivers to Executive
the Company's written election to terminate this Agreement at least 90
days prior to the effective date of termination.
5.2 Severance Payment.
(a) Amount. In the event the Company terminates Executive's
services hereunder pursuant to Section 5.1, or Executive
terminates his employment hereunder pursuant to Section 5.4 or
5.6, Executive shall continue to render services to the
Company pursuant to this Agreement until the date of
termination and shall continue to receive compensation, as
provided hereunder, through the termination date. In addition
to other compensation payable to Executive for services
rendered through the termination date, the Company shall pay
Executive no later than the date of such termination, as a
single severance payment, an amount equal to the sum of: (i)
three times Executive's average annual Base Compensation, paid
hereunder for the preceding twenty-four month period (or, if
Executive has been employed less than twenty-four months, the
average annual Base Compensation for the period employed) plus
(ii) an amount equal to three times Executive's highest annual
bonus received by Executive during the preceding twenty-four
month period (collectively, the "Severance Amount"). In
addition to payment of the Severance Amount, any unvested
stock options or restricted stock held by Executive shall
become fully vested as of the date of termination.
(b) Benefits. In the event Executive's employment hereunder is
terminated by the Company without cause pursuant to Section
5.1 or by Executive pursuant to Section 5.4 or 5.6, then in
addition to paying Executive the Severance Amount and
providing for the full vesting of unvested stock options or
restricted stock held by Executive, the Company shall pay the
COBRA premium for health care coverage for Executive and
Executive's spouse and children, as applicable and to the
extent eligible, for the lesser 18 months commencing on the
date of such termination (the "Severance Benefits") or the
date on which Executive becomes eligible for health care
coverage under the plan of any other employer.
(c) To be eligible to receive any payments under this Section 5.2,
Executive must execute and deliver (and not revoke, if
revocation period is required by law) a release of claims in a
form acceptable to the Company.
5.3 By The Company For Cause. The Company may terminate Executive for cause
at any time, upon written notice to Executive. For purposes of this
Agreement, "cause" shall mean:
(a) Executive's conviction for commission of a felony or a crime
involving moral turpitude;
(b) Executive's willful commission of any act of theft,
embezzlement or misappropriation against the Company which, in
any such case, is materially and demonstrably injurious to the
Company;
(c) Executive's willful and continued failure to substantially
perform Executive's duties hereunder (other than such failure
resulting from Executive's incapacity due to physical or
mental illness), which failure is not remedied within a
reasonable time after written demand for substantial
performance is delivered by the Company which specifically
identifies the manner in which the Company believes that
Executive has not substantially performed Executive's duties;
or
(d) Executive's death or Disability (as hereinafter defined).
For purposes of this Section 5.3, no act, or failure to act, on
Executive's part shall be deemed "willful" unless done, or omitted to be done,
by Executive not in good faith.
In the event Executive is terminated for cause pursuant to this Section
5.3, Executive shall have the right to receive Executive's compensation as
otherwise provided under this Agreement through the effective date of
termination. Executive shall have no further right to receive compensation or
other consideration from the Company, or have any other remedy whatsoever
against the Company, as a result of this Agreement or the termination of
Executive pursuant to this Section 5.3, except as set forth below with respect
to a termination due to Executive's Disability.
In the event Executive is terminated by reason of Executive's death or
Disability, the Company shall immediately pay Executive (or his estate) the
Severance Amount and shall pay the COBRA premium for health care coverage for
Executive's spouse and children, as applicable and to the extent eligible, for a
period of 18 months commencing on the date of such termination. Said payments
shall be in addition to any disability insurance payments to which Executive is
otherwise entitled and any other compensation earned by Executive hereunder. In
addition, any unvested stock options or restricted stock held by Executive shall
become fully vested as of the date of termination. For purposes of this
Agreement, the term "Disability" shall mean a physical or mental incapacity as a
result of which Executive becomes unable to continue the proper performance of
Executive's duties hereunder for six consecutive calendar months or for shorter
periods aggregating 180 business days in any 12 month period, but only to the
extent that such definition does not violate the Americans with Disabilities
Act.
5.4 By Executive For Good Reason. Executive may terminate this Agreement
for good reason upon at least 10 days prior written notice to the
Company. For purposes of this Agreement, "good reason" shall mean:
(a) the Company's material breach of any of its respective
obligations hereunder and either such breach is incurable or,
if curable, has not been cured within fifteen (15) days
following receipt of written notice by Executive to the
Company of such breach by the Company;
In the event that Executive terminates this Agreement for good reason
pursuant to this Section 5.4, Executive shall have the right to receive
Executive's compensation as provided hereunder through the effective date of
termination and shall also have the same rights and remedies against the Company
as Executive would have had if the Company had terminated Executive's employment
without cause pursuant to Section 5.1
(including the right to receive the Severance Amount payable and the Severance
Benefits to be provided under Section 5.2).
5.5 Executive's Voluntary Termination. Executive may, at any time,
terminate this Agreement without good reason upon written notice
delivered to the Company at least ninety (90) days prior to the
effective date of termination. In the event of such voluntary
termination of this Agreement by Executive: (i) Executive shall have
the right to receive Executive's compensation as provided hereunder
through the effective date of termination, and (ii) the Company, on the
one hand, and Executive, on the other hand, shall not have any further
right or remedy against one another except as provided in Sections 6
and 7 hereof which shall remain in full force and effect.
5.6 Change in Control. Executive may terminate this Agreement, upon at
least ten (10) days' prior written notice to the Company, at any time
within twelve (12) months after a "change in control" (as hereinafter
defined) of the Company. In the event Executive terminates this
Agreement within twelve (12) months after a change in control pursuant
to this Section 5.6, (i) Executive shall continue to render services
pursuant hereto and shall continue to receive compensation, as provided
hereunder, through the termination date, (ii) the Company shall pay
Executive no later than the date of such termination, as a single
severance payment, an amount equal to the Severance Amount, and (iii)
following such termination, the Company shall provide the Severance
Benefits as required by Section 5.2. For purposes of this Agreement, a
"change in control" shall mean the occurrence of any of the following
events:
(a) the individuals constituting the Board as of the Effective
Date (the "Incumbent Board") cease for any reason to
constitute at least two-thirds (2/3rds) of the Board;
provided, however, that if the election, or nomination for
election by the Company's stockholders, of any new director
was approved by a vote of at least two-thirds (2/3rds) of the
Incumbent Board, such new director shall be considered a
member of the Incumbent Board;
(b) an acquisition of any voting securities of the Company (the
"Voting Securities") by any "person" (as the term "person" is
used for purposes of Section 13(d) or Section 14(d) of the
Securities Exchange Act of 1934, as amended (the "1934 Act"))
immediately after which such person has "beneficial ownership"
(within the meaning of Rule 13d-3 promulgated under the 0000
Xxx) ("Beneficial Ownership") of 20% or more of the combined
voting power of the Company's then outstanding Voting
Securities; or
(c) approval by the stockholders of the Company of:
(i) a merger, consolidation, share exchange or
reorganization involving the Company, unless:
(A) the stockholders of the Company, immediately
before such merger, consolidation, share
exchange or reorganization, own, directly or
indirectly immediately following such
merger, consolidation, share exchange or
reorganization, at least 80% of the combined
voting power of the outstanding voting
securities of the corporation that is the
successor in such merger, consolidation,
share exchange or reorganization; and
(B) (the "Surviving Company") in substantially
the same proportion as their ownership of
the Voting Securities immediately before
such merger, consolidation, share exchange
or reorganization; and the individuals who
were members of the Incumbent Board
immediately prior to the execution of the
agreement providing for such merger,
consolidation, share exchange or
reorganization constitute at least
two-thirds (2/3rds) of the members of the
board of directors of the Surviving Company;
(ii) a complete liquidation or dissolution of the Company;
or
(iii) an agreement for the sale or other disposition of all
or substantially all of the assets of the Company.
(d) any Person is or becomes the Beneficial Owner of securities of
the Company representing ten percent (10%) or more of the
combined voting power of the Company's then outstanding
securities and (A) the identity of the Chief Executive Officer
of the Company is changed during the period beginning sixty
(60) days before the attainment of the ten percent (10%)
beneficial ownership and ending two (2) years thereafter, or
(B) individuals constituting at least one-third (1/3) of the
members of the Board at the beginning of such period shall
leave the
Board during the period beginning sixty (60) days before the
attainment of the ten percent (10%) beneficial ownership and
ending two (2) years thereafter.
6. CONFIDENTIALITY
During the term of Executive's employment under this Agreement,
Executive will have access to and become acquainted with various information
relating to the Company's business operations, marketing data, business plans,
strategies, employees, contracts, financial records and accounts, projections
and budgets, and similar information. Executive agrees that to the extent such
information is not generally available to the public and gives the Company an
advantage over competitors who do not know of or use such information, such
information and documents constitute "trade secrets" of the Company. Executive
further agrees that all such information and documents relating to the business
of the Company, whether they are prepared by Executive or come into Executive's
possession in any other way, are owned by the Company and shall remain the
exclusive property of the Company. Executive shall not misuse, misappropriate or
disclose any trade secrets of the Company, directly or indirectly, or use them
for Executive's own benefit, either during the term of this Agreement or at any
time thereafter, except as may be necessary or appropriate in the course of
Executive's employment with the Company, unless such action is either previously
agreed to in writing by the Company or required by law.
7. NON-SOLICITATION
For a period of one (1) year following the date Executive's employment
hereunder is terminated, Executive shall not solicit or induce any of the
Company's employees, agents or independent contractors to end their relationship
with the Company, or recruit, hire or otherwise induce any such person to
perform services for Executive, or any other person, firm or company.
8. ARBITRATION AGREEMENT
8.1. In the event of any issue or dispute arising between Executive and
the Company, its officers, directors, managers, supervisors and/or
employees (except for claims for workers' compensation,
unemployment insurance, and any matter within the jurisdiction of
the California Labor Commissioner), the matter shall be submitted
to and resolved by final and binding arbitration as provided for
by the California Arbitration Act, California Code of Civil
Procedure, Section 1280, et. seq. Mandatory arbitration will not
preclude Executive from filing an administrative charge or
complaint of discrimination or harassment with either the Equal
Employment Opportunity Commission or the California Department of
Fair Employment and Housing. Except as provided in this section,
arbitration shall be the exclusive method for resolving any
employment related dispute, and both the Company, and the
Executive are giving up any right that they might otherwise have
to have a judge or jury decide any such employment related
dispute; provided, however, that either the Executive or the
Company, may request equitable relief, including but not limited
to injunctive relief, from a court of competent jurisdiction.
8.2. The claims which are to be arbitrated under this Agreement
include, but are not limited to, tort claims, bad faith claims,
contract claims, wage claims, benefit claims, demands,
liabilities, debts, accounts, obligations, damages, compensatory
damages, punitive damages, liquidated damages, costs, expenses,
actions and causes of action arising out of or in connection with
the employment relationship with the Company, the termination of
that relationship, and/or post-employment retaliation and
defamation (including but not limited to any claims for wrongful
discharge or breach of the covenant of good faith and fair
dealing), any and all federal and state civil rights laws,
ordinances, regulations or orders, based on charges of
discrimination or harassment on account of race, color, religion,
sex, sexual orientation, age, citizenship, national origin, mental
or physical disability, medical condition, marital status,
pregnancy or any other discrimination prohibited by such laws,
ordinances, regulations or orders (including but not limited to
Title VII of the Civil Rights Act of 1964, as amended, 42 USC
Section 2000, et seq.; Americans with Disabilities Act; Civil
Rights Act of 1866, and Civil Rights Act of 1991; 42 USC Section
1981, et seq.; Age Discrimination in Employment Act, as amended,
29 USC Section 621, et seq.; Equal Pay Act, as amended, 29 USC
Section 206(d); regulations of the Office of Federal Contract
Compliance, 41 CFR Section 60, et seq.; and the California Fair
Employment and Housing Act, California Government Code Section
12940, et seq.).
8.3. If the Executive or the Company does not make a written request
for arbitration within the limitations period applicable to a
claim under applicable federal or state law, that party will have
waived its right to raise that claim, in any forum, arising out of
that issue or dispute.
8.4. The Executive and the Company will select an arbitrator by mutual
agreement. If the Executive and the Company are unable to agree on
a neutral arbitrator, either party may elect to obtain a list of
arbitrators from the Alternative Dispute Resolution Service. The
Executive and the Company will alternately strike names from the
list, with the Executive striking the first name, until only one
name remains. The remaining person shall be the arbitrator.
8.5. Arbitration proceedings will be held in California at a location
mutually convenient to the Executive and the Company.
8.6. The parties retain the rights to conduct all discovery as provided
for in the California Code of Civil Procedure, and the arbitrator
shall have the power to decide any discovery disputes between the
parties.
8.7. The arbitrator shall entertain motions by either party for summary
disposition as provided for by applicable state law.
8.8. The arbitrator shall conduct a hearing in a manner to be mutually
agreed upon by the Executive and the Company, or by the arbitrator
if the parties cannot agree, provided, however, that the parties
shall have the opportunity to call witnesses under oath, and to
examine and cross examine all witnesses who appear at the hearing.
8.9. Within thirty (30) days following the hearing and the submission
of the matter to the arbitrator, the arbitrator shall issue a
written opinion and award which shall be signed and dated. The
arbitrator's award shall decide all issues submitted by the
parties, and the arbitrator may not decide any issue not
submitted. The arbitrator shall be permitted to award only those
remedies in law or equity which are requested by the parties and
allowed by law.
8.10. The cost of the arbitrator and other incidental costs of
arbitration, including the cost of a court reporter, shall be
equally shared between the Executive and the Company, unless the
arbitrator determines that this would cause an undue hardship to
the Executive, in which case the entire cost shall be borne by the
Company. The Executive and the Company shall each bear their own
costs for legal representation in any arbitration proceeding,
provided however, that the arbitrator shall have the authority to
require either party to pay the fee for the other party's
representation during the arbitration, as is otherwise permitted
under federal or state law, as a part of any remedy that may be
ordered.
9. INDEMNIFICATION
To the fullest extent permitted under applicable law, the Company shall
indemnify, defend and hold Executive harmless from and against any and all
causes of action, claims, demands, liabilities, damages, costs and expenses of
any nature whatsoever (collectively, "Damages") directly or indirectly arising
out of or relating to Executive discharging Executive's duties hereunder on
behalf of the Company and/or its respective subsidiaries and affiliates, so long
as Executive acted in good faith within the course and scope of Executive's
duties with respect to the matter giving rise to the claim or Damages for which
Executive seeks indemnification.
10. GENERAL PROVISIONS
10.1. Assignment; Binding Effect. Neither the Company or Executive may
assign, delegate or otherwise transfer this Agreement or any of
their respective rights or obligations hereunder without the
prior written consent of the other party. Any attempted
prohibited assignment or delegation shall be void. This Agreement
shall be binding upon and inure to the benefit of any permitted
successors or assigns of the parties and the heirs, executors,
administrators and/or personal representatives of Executive.
10.2. Notices. All notices, requests, demands and other communications
that are required or may be given under this Agreement shall be
in writing and shall be deemed to have been duly given when
received if personally delivered; when transmitted if transmitted
by telecopy, electronic or digital transmission method with
electronic confirmation of receipt; the day after it is sent, if
sent for next-day delivery to a domestic address by recognized
overnight delivery service (e.g., FedEx); and upon receipt, if
sent by certified or registered mail, return receipt requested.
In each case notice shall be sent to:
If to the Company: Arden Realty Limited Partnership
c/o Arden Realty, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: President
Facsimile:(000) 000-0000
If to Executive: Xxxxx Xxxxxx
c/o Arden Realty, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000-0000
Facsimile:(000) 000-0000
Any party may change its address for the purpose of this Section 10.2 by giving
the other party written notice of its new address in the manner set forth above.
10.3 Entire Agreement. This Agreement constitutes the entire agreement
of the parties, and supersedes all prior agreements including
without limitation, the Agreement between the Company and
Executive dated as of January 1, 1999 which provided for a one
year term of employment.
10.4 Amendments; Waivers. This Agreement may be amended or modified,
and any of the terms and covenants may be waived, only by a
written instrument executed by the parties hereto, or, in the case
of a waiver, by the party waiving compliance. Any waiver by any
party in any one or more instances of any term or covenant
contained in this Agreement shall neither be deemed to be nor
construed as a further or continuing waiver of any such term or
covenant of this Agreement.
10.5 Provisions Severable. In case any one or more provisions of this
Agreement shall be invalid, illegal or unenforceable, in any
respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not, in any way, be
affected or impaired thereby. If any provision hereof is
determined by any court of competent jurisdiction to be invalid or
unenforceable by reason of such provision extending the covenants
and agreements contained herein for too great a period of time or
over too great a geographical area, or being too extensive in any
other respect, such provision shall be interpreted to extend only
over the maximum period of time and geographical area, and to the
maximum extent in all other respects, as to which it is valid and
enforceable, all as determined by such court in such action.
10.6 Attorney's Fees. If any legal action, arbitration or other
proceeding, is brought for the enforcement of this Agreement, or
because of an alleged dispute, breach or default in connection
with any of the provisions of this Agreement, each of the parties
hereto shall be responsible for payment of any attorneys' fees and
other costs incurred by them in that action or proceeding, without
regard to whomever is the prevailing party in such action or
proceeding.
10.7 Governing Law. This Agreement shall be construed, performed and
enforced in accordance with, and governed by the laws of the State
of California without giving effect to the principles of conflict
of laws thereof.
10.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all
of which shall constitute the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the date first written above.
THE COMPANY:
ARDEN REALTY LIMITED PARTNERSHIP, a
Maryland Limited Partnership
By: ARDEN REALTY, INC.,
a Maryland corporation
Its: Sole General Partner
By:
/s/ Xxxxxx X. Xxxxxxx May 27, 1999
------------------------ -------------
Xxxxxx X. Xxxxxxx Date
Its: President and COO
EXECUTIVE:
/s/ Xxxxx Xxxxxx May 27, 1999
---------------- --------------
Xxxxx Xxxxxx Date
