AMENDED AND RESTATED EMPLOYMENT AND
NONCOMPETITION AGREEMENT
THIS EMPLOYMENT AGREEMENT dated March 1, 1996, as amended and restated
on April -, 1997 (the "Agreement"), is made by and among BRI OP Limited
Partnership ("BRI OP"), its General Partner, Berkshire Realty Company, Inc., a
Delaware corporation (the "Company"), and Xxxxxxxx Xxxxxxxxx, an individual
("Employee").
WITNESSETH THAT:
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WHEREAS, the General Partner manages BRI OP;
WHEREAS, the General Partner is managed by its Board of Directors;
WHEREAS, the Compensation Committee of the Board of Directors is
responsible for negotiating employment contracts with senior management and
staff of the General Partner subject to approval by the Board;
WHEREAS, the General Partner and BRI OP should for management, business
and accountability reasons have the same senior executives;
WHEREAS, BRI OP and the General Partner shall be referred to herein
collectively as the "Company";
WHEREAS, all payments and health and welfare benefits payable hereunder
to Employee will be paid for or provided by BRI OP;
WHEREAS, the Company's principal business is the ownership and
operation of high quality multi-family properties and community and regional
shopping centers;
WHEREAS, BRI OP and the General Partner desire to retain the Employee
as Senior Vice President, Chief Financial Officer and Treasurer of BRI OP and
the General Partner, respectively, on the terms hereinafter set forth; and
WHEREAS, the Employee wishes to be employed by BRI OP and the General
Partner as their Senior Vice President, Chief Financial Officer and Treasurer on
the terms hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and promises
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, BRI OP, the General Partner and
the Employee hereby agree as follows:
1. Employment. The Company will employ Employee, and Employee will
accept such employment, upon the terms and subject to the conditions set forth
in this Agreement.
2. Capacity and Duties. Employee shall serve the Company as its Senior
Vice President, Chief Financial Officer and Treasurer, and her duties and
responsibilities shall be those consistent with this position, subject to the
direction and control of the Board of Directors of the Company (the "Board of
Directors"). Employee shall report directly to the Chief Operating Officer or
such other individual as may be designated from time to time by the Board of
Directors.
3. Obligations of Employee. During the term of her employment under
this Agreement:
(a) Employee shall devote all of her business time and efforts to the
business of the Company and use faithful and diligent efforts to promote the
business interests of the Company and its subsidiaries and affiliates over which
Employee has management responsibility.
(b) Employee shall not, without the prior written consent of the Board
of Directors in each instance, whether as an employee, consultant, independent
contractor or otherwise, be engaged in any other business activities on behalf
of any other person, firm, corporation, partnership, proprietorship or other
entity.
4. Term of Employment; Termination. The term of Employee's employment
hereunder shall commence on March 1, 1996 ("Commencement Date"), and shall
continue until December 31, 1998 unless terminated prior thereto by the first to
occur of the following (the "Employment Termination Date"):
(a) the delivery by the Company to Employee of written notice of
termination without "cause" (as defined in subsection (b) below). Any
termination of this Agreement within two years of a Change in Control of the
Company (as herein defined) also shall be deemed a termination by the Company.
For purposes of this Agreement, a "Change in Control" of the Company shall mean
(i) the acquisition by any person (other than the Employee), corporation,
partnership or other person or entity of 10% or more beneficial ownership (as
defined in Rule 13d in effect as of such date under the Securities Exchange Act
of 1934) of the outstanding voting stock of the Company; (ii) the merger or
consolidation of the Company and any other corporation or entity; or (iii) the
sale of all or substantially all of the assets of the Company;
(b) the delivery by the Company to Employee of written notice of
termination for "cause". The term "cause" means any termination by the Company
by reason of (i) persistent and willful neglect of material duties by Employee
after written notice and an opportunity to immediately cure such neglect to the
satisfaction of the Board of Directors; (ii) the entry against Employee of a
guilty plea, or a conviction, judgment or order in any proceeding of which
Employee had notice and the opportunity to defend herself before any court
relating to (y) a willful violation of any material law, rule or regulation
applicable to the business of the Company or its subsidiaries or affiliates,
unless such breach arises out of and is consistent with the express written
direction of the Board of Directors or is undertaken with the express prior
written consent of the Board of Directors, or (z) a violation of any law
involving fraud, deceit or criminal misrepresentation; (iii) the entry against
Employee of a guilty plea, or a conviction or judgment in any proceeding of
which Employee had notice and the opportunity to defend herself before any court
relating to any charge which would constitute a felony
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(other than negligent vehicular homicide) if convicted; (iv) Employee engaging
in any act involving moral turpitude, which act is, or could reasonably be
expected to be, injurious to the financial interests or reputation of the
Company or any of its subsidiaries or affiliates in any material respect; (v)
Employee willfully misappropriating substantial assets of the Company or any of
its subsidiaries or affiliates; (vi) Employee engaging in gross misconduct which
is, or which could reasonably be expected to be, injurious to the Company or any
of its subsidiaries or affiliates in any material respect; or (vii) Employee
breaching any provisions of this Agreement and such breach has a material
adverse effect on the Company after written notice and an opportunity to
immediately cure such breach to the satisfaction of the Board of Directors,
unless such breach arises out of and is consistent with the express written
direction of the Board of Directors or is undertaken with the express prior
written consent of the Board of Directors;
(c) the date one month after the date of the delivery by Employee to
the Company of written notice of termination; provided, however, that if the
Company receives such notice from Employee, the Company shall have the right,
exercisable by written notice to Employee, to accelerate the Employment
Termination Date to such date on or after the date of the Company's notice to
Employee as the Company shall determine in its discretion;
(d) the death of Employee;
(e) the delivery to Employee of written notice of termination by the
Company if Employee shall suffer a physical or mental disability which renders
Employee, (i) in the reasonable judgment of the carrier if a long-term
disability policy covering the Employee provided by the Company is in force or,
(ii) if no such policy is in force, in the reasonable judgment of the Board of
Directors, unable to perform her duties and obligations under this Agreement for
90 consecutive days or 120 days in any period of 180 consecutive days;
provided, however, that no termination of Employee's employment under this
Agreement shall diminish or affect in any way Employee's rights to payments
provided for hereunder which have accrued to and including the Employment
Termination Date, and provided further, that no termination of Employee's
employment under this Agreement for cause or otherwise (whether such termination
is voluntary or involuntary) shall diminish or affect the Company's obligations
to Employee, or Employee's obligations to the Company, under Section 9 hereof
with respect to non-disclosure, Section 10 hereof with respect to the return of
Company property, or Section 11 hereof with respect to Noncompetition.
5. Base Salary; Bonus; Severance Compensation. From the Commencement
Date through the Employment Termination Date, the Company shall pay Employee a
base salary (the "Base Salary") at an annual rate of not less than $157,000
payable in equal bi-weekly payments. During the term hereof the Base Salary may
be increased by the Board of Directors in its sole discretion based upon its
review of the performance of both Employee and the Company.
During the term of this Agreement Employee shall participate
in a bonus plan comparable to the Annual Threshold Target Maximum Bonus Plan
under her prior employment. The terms and conditions of the Bonus Plan and
payments thereunder, if any, are at the sole discretion of the Board of
Directors. In the event of the termination of Employee's employment pursuant to
subsection 4(a), 4(d) or 4(e) hereof, the Board of
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Directors will consider whether in their sole discretion to make a bonus award
to Employee on a pro rata basis for the period of the calendar year prior to the
Employment Termination Date. For calendar year 1996 the Employee's bonus earned
will be prorated with her prior employer, and the Company will be responsible
for the payment of Employee's bonus, if any, prorated from March 1, 1996 to year
end.
If Employee's employment hereunder is terminated pursuant to
subsection 4(a) hereof, the Company shall pay Employee severance compensation in
nine monthly payments at the same rate as the Base Salary in effect at the
Employment Termination Date, provided, however, if such termination is as a
result of a Change of Control (as defined in subsection 4(a)), the Company shall
pay Employee severance compensation for fifteen months.
The Company shall deduct from payments of the Base Salary and
bonus amounts sufficient to cover applicable federal, state and local income tax
withholdings, social security and any other amounts which the Company is
required to withhold by applicable law.
6. Stock Options. The Company, as an inducement to Employee to enter
into this Agreement at the Commencement Date shall grant Employee the option to
purchase 40,000 shares of the Company's common stock exercisable no later than
ten years following the Commencement Date all as set forth in the Berkshire
Realty Company, Inc. Stock Option Agreement and Non-Qualified Stock Option
Agreement both dated March 1, 1996 (collectively, the "Option Agreement").
Should Employee's employment be terminated for "cause" or for "misconduct" as
those terms are used in the Option Agreement, said Option Agreement provides
that the option must be exercised within thirty days of the Employment
Termination Date. Should Employee's termination occur for other reasons, under
the terms of the Option Agreement, said Option may be exercisable on Employee's
behalf for a period of one year from the Employment Termination Date.
In addition, Employee will be eligible to participate in the
Berkshire Realty Company, Inc. 1996 Stock Option Plan to the extent determined
by the Board of Directors in its discretion.
7. Employee Benefits. From the Commencement Date through the Employment
Termination Date, the Company shall provide health and welfare benefits
including group life insurance, group health and accident insurance, group
long-term disability insurance and a Section 401(k) retirement plan
substantially similar to those received by Employee pursuant to her employment
prior to the Commencement Date. In addition, Employee shall be entitled to a
continuation of health insurance benefits under the Company's group health
insurance program or COBRA, as the case may be, until any severance payments due
Employee hereunder have been paid or the Employee is eligible to participate in
a group health insurance plan with another employer, whichever comes first.
8. Expense Reimbursement. Employee shall be entitled to reimbursement
from the Company for the reasonable business costs and expenses which she incurs
in connection with the performance of her duties and obligations under this
Agreement provided that the nature and amount of such expenses are incurred and
approved in accordance with the Company's business expense reimbursement policy
in effect from time to time as approved by the Board of Directors. Reimbursement
shall be conditioned upon presentation of expense
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statements or vouchers or such other supporting information as the Company may
from time to time require.
9. Non-Disclosure. Employee acknowledges that as a result of Employee's
employment by the Company, Employee has and will become informed of, and have
access to, valuable and confidential information of the Company or information
which is not generally known to those outside of the Company (the "Confidential
Information"), including but not limited to trade secrets, ways of business,
technical information, know-how, plans, projections, business opportunities,
proposed acquisitions, proposed dispositions, specifications, and the identity
of partners and stockholders and that this Confidential Information, even though
it may be contributed, developed or acquired by Employee, is the exclusive
property of the Company to be held by Employee in trust and solely for the
Company's benefit. Accordingly, Employee shall not at any time during or
subsequent to her employment by the Company reveal, report, publish, transfer or
otherwise disclose to any person, corporation or other entity, any of the
Confidential Information without the prior written consent of the Board of
Directors, except to responsible officers and employees of the Company and other
responsible persons whom the Board of Directors agrees in writing are in a
contractual or fiduciary relationship with the Company or who have a need for
this information for purposes that are in the best interests of the Company.
These provisions shall not prohibit Employee from disclosing information which
legally is or becomes of general public knowledge from authorized sources other
than Employee.
10. Return of Company Property. Upon the termination of this Agreement,
Employee shall promptly deliver to the Company all property of the Company
including, without limitation, lists, drawings, manuals, letters, notes,
notebooks, reports and copies thereof and all other materials, including those
of a secret or confidential nature, relating to the Company's business that are
in Employee's possession or control. Employee agrees that, upon the request of
the Company, she will represent to the Company that she has complied with the
provisions of this Section at the time she ceases to be an employee of the
Company.
11. Noncompetition.
(a) Employee agrees that during the term of this Agreement and
for nine (9) months after the Employment Termination Date (except that in the
event of termination due to a Change of Control, as defined in subsection 4(a)
hereof, this Section 11 shall not apply to Employee), Employee shall not (i)
directly or indirectly solicit any person (natural or otherwise) to purchase or
sell any multifamily or retail real estate or a mortgage loan financing such
type of real estate if the person being solicited is or had been a purchaser
from or seller to the Company of such type of property during the twelve (12)
months prior to the Employment Termination Date or (ii) recruit or otherwise
solicit or induce any person who is at the time an employee or consultant of the
Company to terminate his or her employment with, or otherwise cease his or her
relationship with, the Company, or hire any such employee or consultant who has
left the employ of the Company within one year after termination of such
employee's employment or consultant's relationship with the Company, provided,
however, that Employee may recruit any former employee of the Company whose
employment has been terminated by the Company and, provided further, that if
Employee has terminated her employment of her own volition, this restriction
upon recruiting employees or consultants shall run for two (2) years after the
Employment Termination Date.
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(b) During any period that Employee is entitled to receive and
is paid severance compensation in accordance with Section 5 hereof, if Employee
shall become an employee, officer, director, shareholder, principal, agent,
partner or consultant or otherwise be engaged in or have a financial or other
interest in any business which competes with the Company, or its subsidiaries or
affiliates or providers under contract of property management or administrative
services, equipment or facilities (which activity by the Employee is not
prohibited by this Agreement), any base salary received from such activities
shall be set off against any severance pay which she is entitled to receive from
the Company. Notwithstanding the foregoing, Employee may make personal
investments in the equity securities of any publicly traded company provided
that any such investment does not exceed one percent (1%) of the market
capitalization of the class of securities of the company in which her investment
is made.
(c) The restrictions against activities set forth in Section
11(a) and (b) above are considered by the parties to be reasonable for the
purposes of protecting the business of the Company. If any restriction is found
by a court of competent jurisdiction to be unenforceable because it extends for
too long a period of time, over too broad a range of activities or in too large
a geographic area, that restriction shall be interpreted to extend only over the
maximum period of time, range of activities or geographic area as to which it
may be enforceable.
12. Remedies. Employee acknowledges that the Company would not have an
adequate remedy at law for money damages if the covenants contained in Sections
9, 10 or 11 were not complied with in accordance with their terms, and that any
breach or threatened breach thereof would result in immediate and irreparable
injury to the Company. Therefore, Employee agrees that in the event of a
threatened or anticipated breach or actual breach by Employee of any of the
provisions of Section 9, 10 or 11, the Company shall be entitled (a) to inform
in writing all potential or new employers, partners, shareholders, officers,
directors or borrowers of Employee of the terms of this Agreement and (b) to an
injunction restraining Employee from violating Sections 9, 10 or 11. Employee
covenants and agrees that if she violates any of the covenants and agreements in
Section 9, 10 or 11, the Company shall be entitled to an accounting and
repayment of all profits, compensation, commissions, remuneration or benefits
which Employee directly or indirectly realizes or may realize as a result of or
in connection with any such violation. In addition to any remedies set forth in
this Section, the Company may pursue all other legal or equitable remedies that
may be available to it for a breach or threatened breach, including the recovery
of damages.
13. Successors and Assigns. The Agreement shall be binding on and inure
to the benefit of the parties hereto and their respective successors and
assigns; provided, that Employee's duties and obligations hereunder may not be
delegated or assigned by her in any manner.
14. Counterparts. This Agreement may be executed in two or more
counterparts, all of which, when taken together, shall constitute one and the
same Agreement.
15. Governing Law. This Agreement, and the validity and interpretation
hereof and the performance by the parties hereto of their respective duties and
obligations hereunder, shall be governed by the laws of The Commonwealth of
Massachusetts without regard to
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principles of conflicts of laws. Jurisdiction and venue over any legal action by
either party under this Agreement shall be Boston, Massachusetts.
16. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to make the provision valid and
enforceable under the applicable law, but if any provision of this Agreement
shall be or become invalid or prohibited under any applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity
only, without thereby invalidating the remainder of such provisions or the
remaining provisions of this Agreement.
17. Amendments and Modifications. No modification, extension, or waiver
of any provisions hereof or any release of any right hereunder shall be valid,
unless the same is in writing and is consented to by all parties hereto.
18. Entire Agreement. This Agreement embodies the entire understanding
and agreement of the parties hereto relating to the subject matter hereof.
19. Notice. All notices, demands or other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered in
person, by United States mail, certified or registered, with return receipt
requested, or by telefax, telegram or telex:
(a) If to the Employee, to:
Xxxxxxxx Xxxxxxxxx
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telefax number: (000) 000-0000
(b) If to the Company, to:
BRI OP Limited Partnership
Berkshire Realty Company, Inc.
Harbor Plaza
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Telefax number: (000) 000-0000
With a copy to:
Peabody & Xxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxxxxx X. Xxxxxx, Esq.
Telefax number: (000) 000-0000
or to such other addresses or telefax numbers as the parties may have furnished
to each other by notice pursuant to the provisions of this Section. Any such
notice, demand or other
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communication shall be deemed to have been given on the date actually delivered
to the address to which it is directed.
20. Captions. Captions and paragraph headings used herein are for
convenience only and are not a part of this Agreement and shall not be used in
construing or interpreting any provision contained herein.
21. Gender. Whenever the singular is used herein and where required by
the context, the same shall include the plural, and the neuter gender shall
include the masculine and feminine genders.
22. Survival. The provisions of Sections 5, 6, 7 and 8 insofar as they
provide for payments to be made to Employee after termination of this Agreement
and Sections 9 through 12 hereof shall survive the termination of this Agreement
by Employee or the Company, whether voluntary of involuntary, or with or without
cause.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal effective on the date first above set forth.
BRI OP LIMITED PARTNERSHIP BERKSHIRE REALTY COMPANY, INC.
By: Berkshire Realty Company, Inc.
Its General Partner
By: /s/ J. Xxxx Xxxxxxxx
_____________________________
Its: Chairman of the
Compensation Committee
By: /s/ J. Xxxx Xxxxxxxx
_______________________________
Its: Chairman of the
Compensation Committee
Employee:
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XXXXXXXX XXXXXXXXX
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