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EXHIBIT 10.28
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made and
entered into as of August 4, 1998, by and between ARDEN REALTY, INC., a Maryland
corporation (the "Company") and XXXXXX X. XXXXX ("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 January 1,
1998 (the "Effective Date"), and shall continue for three years from the
Effective Date (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 each anniversary date of
the Effective Date; 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 twenty-four (24)
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 initial annual base compensation ("Base Compensation") of
$187,500, 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 during any periods of automatic extension of this Agreement
pursuant to Section 2.2 and cause the Company to award Executive a cash bonus
which the Compensation Committee shall reasonably determine as fairly
compensating and rewarding Executive for services rendered to the Company and/or
as an incentive for continued service to the Company. The amount of such cash
bonus shall be determined in the sole and absolute discretion of the
Compensation Committee and shall be dependent on, among other things, the
achievement of certain per share performance levels by the Company, including,
without limitation, growth in funds from operations, and Executive's performance
and contribution to increasing the funds from operations.
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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
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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
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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. Loan. Subject to approval of the Shareholders of the Company of
an increase in the number of shares available through The 1996 Stock Option and
Incentive Plan of Arden Realty, Inc. and Arden Realty Limited Partnership, in an
amount sufficient to provide Executive with shares equal in value to $1,000,000
without reducing the number of shares available through the Plan for any other
purpose, the Company shall lend to Executive $1,000,000, which Executive may use
solely for the purpose of acquiring restricted stock of the Company through The
1996 Stock Option and Incentive Plan of Arden Realty, Inc. and Arden Realty
Limited Partnership, pursuant to the terms of the note attached hereto as
Exhibit "A" (the "Loan"). The stock acquired with the proceeds of this loan
shall be pledged as security for the Loan in accordance with the terms of the
Pledge Agreement attached hereto as Exhibit "B."
3.5. 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.
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(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.
3.6. 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 Executive Vice President and
Director of Property Operations. The Company agrees that the duties that may be
assigned Executive shall be the usual and customary duties of the offices of
Executive Vice President and Director of Leasing. Executive shall have such
Executive power and authority as shall reasonably be required to enable
Executive to discharge the duties of such offices. Executive may, at Executive's
discretion, serve the Company and/or its respective subsidiaries and affiliates
in other offices and capacities in addition to the foregoing, but shall not be
required to do so. In the event the Company and Executive mutually agree that
Executive shall terminate Executive's service in any one or more of the
aforementioned capacities, or Executive's service in one or more of the
aforementioned capacities is terminated, Executive's compensation, as specified
in this Agreement, shall not be diminished or reduced in any manner.
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.
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4.5. Business Expenses. The Company shall promptly, but in no event
later than ten 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, country club
membership fees and other reasonable entertainment expenses 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, 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 thirty-six month period (or, if
Executive has been employed less than thirty-six months, the average annual Base
Compensation for the period employed) plus (ii) an amount equal to three times
the highest annual bonus received by Executive during the preceding thirty-six
month period (or during the period Executive has been employed hereunder if
shorter than thirty-six months) (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.
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(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 continue to
provide to Executive and Executive's spouse and children, as applicable, all of
the benefits described in Section 3.3 for a period of three years commencing on
the date of such termination (the "Severance Benefits").
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 the Severance Amount and
shall continue to provide to provide to Executive's spouse and children, as
applicable, all of the benefits described in Section 3.1 for a period of three
years commencing on the date of such termination. Said payment 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
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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;
(b) any removal of Executive from one or more of the offices
specified in the first sentence of Section 4.1 without cause and without
Executive's prior written consent; or
(c) any material decrease in Executive's authority or
responsibilities hereunder without Executive's prior written consent.
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, 7 and 8 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
two (2) years after a "change in control" (as hereinafter defined) of the
Company. In the event Executive terminates this Agreement within two (2) years
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, (iii)
following such termination, the Company shall provide the
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Severance Benefits as required by Section 5.2, and (iv) any outstanding balance
on the Loan shall be forgiven in its entirety. 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 date 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 (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
(B) 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 or 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
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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. The
restrictions set forth in this Section 7 shall not apply if Executive's
employment is terminated pursuant to Section 5.1, 5.4 or 5.6.
8. NON-COMPETITION AFTER TERMINATION
For a period of one (1) year following the date Executive's employment
hereunder is terminated, Executive shall not engage in the acquisition,
renovation, management or leasing of any office properties in the Los Angeles,
Orange and San Diego counties of Southern California. In addition, Executive
shall not engage in any active or passive investment in or reasonably relating
to the acquisition, renovation, management or leasing of office properties in
the Los Angeles, Orange and San Diego counties of Southern California for a
period of one (1) year following the date of termination, with the exception of
the ownership of up to one percent (1%) of the securities of any publicly-traded
companies involved in such activities. Nothing herein shall relieve or limit
Executive's obligation to comply with Sections 6 and 7. The restrictions set
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forth in this Section 8 shall not apply if Executive's employment is terminated
pursuant to Section 5.1, 5.4 or 5.6.
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, Inc.
or Arden: 00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: President
Facsimile:(000) 000-0000
If to Executive: Xxxxxx X. Xxxxx
c/o Arden Realty, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000-0000
Facsimile:(000) 000-0000
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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.
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.
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THE COMPANY:
ARDEN REALTY, INC.,
a Maryland corporation
By:
----------------------
Xxxxxx X. Xxxxxxx
President
EXECUTIVE:
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Xxxxxx X. Xxxxx
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