Exhibit 10.1
EMPLOYMENT AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 21st day of December, 2000.
BETWEEN:
XXXXXXXXXXX XXXXXXXXX
of the City of London, England,
(hereinafter referred to as the "Executive"),
OF THE FIRST PART,
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TRIZECHAHN CORPORATION,
a corporation existing under the laws
of the Province of Ontario,
(hereinafter referred to as "TrizecHahn"),
OF THE SECOND PART.
WHEREAS the Executive has agreed to become the Chief Executive Officer
and Deputy Chairman of TrizecHahn effective as of January 1, 2001 on the terms
and conditions set out herein;
AND WHEREAS the Executive and TrizecHahn have agreed to enter into this
Agreement in order to provide for the terms and conditions upon which the
Executive shall be employed by TrizecHahn;
NOW THEREFORE in consideration of the respective covenants hereinafter
set forth, and in consideration of $1.00 paid by each party to the other and for
other good and valuable consideration (the receipt and sufficiency of which are
hereby acknowledged), the parties hereto agree as follows:
1. Definitions
In this Agreement:
(a) "Agreement" means this Agreement, as amended from time to time
hereafter;
(b) "Annual Salary" has the meaning ascribed thereto in Section 5.1(a)
hereof;
(c) "business day" means any day other than a Saturday or Sunday upon which
banks are open for business in Toronto, Ontario;
(d) "Effective Date" means January 1, 2001;
(e) "Permanent Incapacity" means the inability of the Executive by reason
of illness, disease, mental or physical disability or incapacity or
otherwise to perform his duties under this Agreement (A) for a period
of 120 business days in the aggregate during any period of 145
consecutive business days unless, at the end of such 120 business days
there are reasonable grounds for expecting that the Executive will be
capable of resuming and willing to resume his duties on a full-time
basis within a further period of 120 business days, or (B) for a period
of 210 business days in the aggregate during any period of 290
consecutive business days; and
(f) "person" includes an individual, body corporate, partnership,
unincorporated syndicate, unincorporated organization, trust, trustee,
executor, administrator or other legal representative.
2. Employment and Acceptance
On and subject to the terms and conditions of this Agreement,
TrizecHahn shall employ the Executive on the terms and conditions set forth
herein and the Executive hereby accepts such employment.
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3. Term of Employment
The initial term of employment of the Executive hereunder shall be for
a period of three years, commencing on the Effective Date. The Executive's
employment with TrizecHahn will continue beyond December 31, 2003 if the parties
mutually agree to same in writing prior to that date. If they so agree, the
parties will negotiate at that time mutually acceptable employment arrangements
in respect of the period subsequent to December 31, 2003, and such arrangements
will be reflected either in a written amendment to this Agreement or in a new
written employment agreement that will replace and supersede this Agreement. The
parties agree that not later than July 1, 2003 they will discuss the intentions
of each party with respect to the renewal or non-renewal of the Executive's
employment with TrizecHahn, so as to allow each party adequate time to make
alternative arrangements in the event that it is apparent that such employment
will not be renewed effective January 1, 2004.
4. Responsibilities
(a) Duties. The Executive shall serve as the Chief Executive Officer and
Deputy Chairman of TrizecHahn during the term of his employment hereunder,
unless the Executive and TrizecHahn otherwise mutually agree. The Executive
shall perform such duties and exercise such powers as may from time to time be
prescribed by the Board of Directors of TrizecHahn; provided that the duties and
powers prescribed by the Board of Directors shall be commensurate in all
respects with those customarily associated with and incident to the positions of
Chief Executive Officer and Deputy Chairman of corporations of a size comparable
to that of TrizecHahn.
(b) Reporting. The Executive shall report directly to the Board of
Directors of TrizecHahn.
(c) Performance of Duties. In the performance of his duties, the Executive
shall act honestly, in good faith and in the best interests of TrizecHahn and
shall exercise the degree of diligence and responsibility that a person holding
the position of Chief Executive Officer and Deputy Chairman of TrizecHahn would
reasonably be expected to exercise in comparable circumstances, subject always
to the instructions, control and direction of the Chairman or the Board of
Directors of TrizecHahn; provided, however, that notwithstanding the foregoing,
the Executive shall be allowed to spend a reasonable amount of time during
business hours dealing with his personal investments, so long as doing so does
not materially interfere with the performance of his duties hereunder. The
Executive shall devote the whole of his time, attention and ability during
business
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hours to serving TrizecHahn on an exclusive and full-time basis as aforesaid,
except during holidays, in case of illness or accident, or as may be otherwise
approved from time to time by the Chairman or the Board of Directors of
TrizecHahn; provided, however, that notwithstanding the foregoing, the Executive
shall be allowed to spend a reasonable amount of time during business hours
dealing with his personal investments, so long as doing so does not materially
interfere with the performance of his duties hereunder. The Executive shall be
bound by and shall faithfully observe and abide by all of the rules, regulations
and corporate policies of TrizecHahn from time to time in force which are
brought to the attention of the Executive or of which he should reasonably be
aware.
(d) Office Location. The Executive shall be provided with an office in the
executive offices of TrizecHahn.
5. Compensation
(a) Annual Salary. TrizecHahn shall pay the Executive an annual salary (the
"Annual Salary") of U.S.$1.95 million, payable in U.S. dollars not less
frequently than monthly in accordance with the usual practices of TrizecHahn
less such deductions as are required to be withheld by applicable law and
regulation. The Annual Salary payable to the Executive by TrizecHahn will be
reviewed annually by the Board of Directors or by a committee of the Board of
Directors of TrizecHahn in accordance with the policies and procedures that
apply to other senior officers of TrizecHahn in order to determine whether any
change to the Annual Salary is warranted; provided, however, that under no
circumstances will the Annual Salary paid to the Executive be less than
U.S.$1.95 million.
(b) Annual Bonuses. The Executive shall be paid an annual bonus by
TrizecHahn in such amount as shall be determined by the Board of Directors or by
a committee of the Board of Directors of TrizecHahn in accordance with the
policies and procedures established by the Board of Directors or such committee
from time to time, in order to award the Executive for his performance and the
performance of TrizecHahn during the applicable year. The annual bonus payable
to the Executive during each of the three years of the Executive's employment
hereunder will be a minimum of U.S. $1,425,000 and will be a maximum of 150% of
his Annual Salary during the applicable year.
6. Stock Options
In order to induce the Executive to accept employment with TrizecHahn
on the basis contemplated herein, the Board of Directors has granted the
Executive non-assignable options to
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purchase 1.5 million subordinate voting shares at a strike price of
U.S.$14.87 per share, being the closing price of such shares on the New York
Stock Exchange on the trading day prior to the December 14, 2000 date of grant
of those options, subject to the receipt of all necessary regulatory approvals.
On and after each of the first three anniversaries of January 1, 2001, the
Executive shall acquire the right to purchase one-third of the shares subject to
such stock options. All of such stock options shall expire seven years from the
date on which they were granted to the Executive; provided, however, that in the
event that the Executive's employment hereunder is terminated, the right of the
Executive to thereafter exercise such options shall be as set forth in Section
10(h) below. All other terms and conditions of such stock options shall be as
set forth in the stock option plan of TrizecHahn presently in effect. The
Executive acknowledges having received a copy of such stock option plan.
7. Expenses
(a) Within five business days following the Effective Date, TrizecHahn
shall pay to the Executive the sum of U.S.$300,000 in order to pre-find travel
and accommodation expenses expected to be incurred by the Executive in order to
work from the Toronto offices of TrizecHahn during the six month period
following January 1, 2001 as well as all reasonable relocation expenses incurred
by the Executive in order to relocate to the executive offices of TrizecHahn at
or prior to the end of that six month period. The Executive agrees to complete
such relocation at or prior to the end of such period. Any excess remaining
after the expenses referred to above have been satisfied by the Executive (if
any) may be retained by the Executive as additional compensation hereunder.
(b) Subject to such policies as may from time to time be established by the
Board of Directors or a committee of the Board of Directors of TrizecHahn from
time to time, TrizecHahn shall pay or reimburse the Executive for all reasonable
authorized travel and other out-of-pocket expenses actually incurred by the
Executive in the performance of the Executive's duties under this Agreement upon
presentation of such expense statements or vouchers or such other supporting
information as TrizecHahn may require.
8. Benefits
The Executive will be entitled to fully participate in the benefit
plans generally available to the senior officers of TrizecHahn from time to
time.
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9. Vacation
The Executive will be entitled to four weeks of paid vacation per
calendar year.
10. Termination of Employment
The following terms and provisions shall apply to the termination of
the Executive's employment hereunder:
(a) Termination For Cause. TrizecHahn may terminate the Executive's
employment at any time for cause without payment of any compensation of any
nature or kind including, without limitation, by way of anticipated earnings,
damages or payment in lieu of notice. Notwithstanding the foregoing, in the
event that any portion of the Executive's Annual Salary has been earned but not
paid or any expenses referred to in Section 7 have been incurred by the
Executive but not reimbursed, in each case to the date of termination of his
employment, such amounts shall be paid to the Executive within 15 business days
following such date of termination. In the event that TrizecHahn believes that
it has cause to terminate the Executive's employment, it shall provide the
Executive with a notice in writing outlining in reasonable detail the conduct or
circumstances which TrizecHahn believes provides it with such cause for
termination. The Executive shall be provided with an opportunity to meet with
and speak to the Board of Directors of TrizecHahn not more than 10 days
thereafter to discuss that notice. The Executive's employment will not be
terminated until the Executive has had the opportunity to be so heard by the
Board of Directors.
(b) Death. If the Executive's employment is terminated by reason of the
Executive's death, the Executive's estate will be entitled to receive and
TrizecHahn shall pay or cause to be paid to them or it, as the case may be, the
amounts specified in the benefit and insurance plans of TrizecHahn as being
payable on the death of the Executive, such sums to be paid in accordance with
the provisions of those plans as then in effect. In addition, in the event that
any portion of the Executive's Annual Salary has been earned but not paid or any
expenses referred to in Section 7 have been incurred by the Executive but not
reimbursed, in each case to the date of death, such amounts shall be paid to the
Executive's estate within 15 business days thereafter.
(c) Permanent Incapacity. In the event of the Permanent Incapacity of the
Executive, his employment may thereupon be terminated by TrizecHahn and, in such
event, TrizecHahn shall pay or cause to be paid to the Executive the amounts
specified in the benefit and insurance plans of TrizecHahn as being payable in
the event of the permanent incapacity or disability of the Executive, such sums
to be paid in accordance with the provisions of those plans as then in effect.
In addition,
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in the event that any portion of the Executive's Annual Salary has been earned
but not paid or any expenses referred to in Section 7 have been incurred by the
Executive but not reimbursed, in each case to the date of termination of his
employment, such amounts shall be paid to the Executive within 15 business days
following such date of termination.
(d) Termination by Executive. The Executive may terminate his employment
with TrizecHahn upon giving one month's written notice, or such shorter period
of notice as TrizecHahn may accept. In the event that any portion of the
Executive's Annual Salary has been earned but not paid or any expenses referred
to in Section 7 have been incurred by the Executive but not reimbursed, in each
case to the date of termination of his employment, such amounts shall be paid to
the Executive within 15 business days following such date of termination.
(e) Other Termination Events. As indicated in Section 3 above, unless the
parties mutually agree to extend the term of the Executive's employment beyond
December 31, 2003, the Executive's employment hereunder will not continue beyond
that date. TrizecHahn also may terminate the Executive's employment at any time
for any reason other than as contemplated above in this section 10 by providing
written notice to the Executive to that effect, in which event the termination
shall take effect as at such time when such notice is received by the Executive.
(f) Compensation Payable if Employment Not Continued. In the event that the
Executive's employment with TrizecHahn does not continue beyond the end of the
initial three year term hereunder as contemplated in Section 3 above pursuant to
a written amendment to this Agreement or a new written employment agreement,
TrizecHahn shall pay to the Executive by lump sum payment within 15 business
days following the Executive's termination of employment on or after December
31, 2003 the following amounts:
(i) if not theretofore paid, the Executive's Annual Salary to and
including the date of termination, the bonus payable to the
Executive in respect of the year ended December 31, 2003 and any
expenses referred to in Section 7 that have been incurred by the
Executive but not been reimbursed; and
(ii) an amount equal to the aggregate of (x) the Executive's Annual
Salary as at the date of termination, (y) the bonus paid to the
Executive in respect of the year ended December 31, 2003, and (z)
an amount equal to the present cash value to the Executive
determined on an annual basis of all benefits provided to the
Executive immediately prior to the termination of his employment,
as determined
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in good faith by the Board of Directors or a committee of the
Board of Directors of TrizecHahn.
(g) Compensation Payable if Employment Otherwise Terminated. In the event
that the Executive's employment is terminated by TrizecHahn as contemplated in
the last sentence of Section 10(c) above or is terminated by the Executive
following a Change in Control of TrizecHahn as contemplated in Schedule B
hereto, TrizecHahn shall pay to the Executive by lump sum payment within 15
business days thereafter the following amounts:
(i) if not theretofore paid, the Executive's Annual Salary to and
including the date of termination together with any expenses
referred to in Section 7 that have been incurred by the Executive
but not reimbursed;
(ii) if the Executive's employment is terminated as contemplated in
this Section 10(g) on or prior to December 31, 2001, an amount
equal to the aggregate of (x) the Annual Salary that would have
been paid to the Executive had he continued to be employed to
December 31, 2003, using the Annual Salary in effect at the time
of termination of employment, (y) two times the bonus paid to the
Executive in respect of the year ended December 31, 2001 or, if
the termination of the Executive's employment occurs before that
bonus has been determined by the Board of Directors or a
committee of the Board of Directors and paid to the Executive,
three times the minimum bonus payable to the Executive in respect
of the year ended December 31, 2001 as contemplated in Section
5(b) above, and (z) an amount equal to the present cash value to
the Executive determined over the period between the date of
termination of his employment and December 31, 2003 of all
benefits provided to the Executive immediately prior to the
termination of his employment, as determined in good faith by the
Board of Directors or a committee of the Board of Directors of
TrizecHahn;
(iii) if the Executive's employment is terminated as contemplated in
this Section 10(g) after December 31, 2001 and on or prior to
December 31, 2002, an amount equal to the aggregate of (x) the
Annual Salary that would have been paid to the Executive had he
continued to be employed to December 31, 2003 using the Annual
Salary in effect at the time of the termination of employment,
(y) the bonus paid to the Executive in respect of the year ended
December 31, 2002 or, if the termination of the Executive's
employment
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occurs before that bonus has been determined by the Board of
Directors or a committee of the board of Directors and paid to
the Executive, two times the bonus paid to the Executive in
respect of the year ended December 31, 2001 as contemplated in
Section 5(b) above, and (z) an amount equal to the present cash
value to the Executive determined over the period between the
date of termination of his employment and December 31, 2003 of
all benefits provided to the Executive immediately prior to the
termination of his employment, as determined in good faith by
the Board of Directors or a committee of the Board of Directors
of TrizecHahn; and
(iv) if the Executive's employment is terminated as contemplated to
this Section 10(g) at any time on or after January 1, 2003, an
amount equal to the aggregate of (x) the Annual Salary in effect
on the date of termination of his employment, (y) the bonus paid
to the Executive in respect of the year ended December 31, 2002,
and (z) an amount equal to the present cash value to the
Executive determined on an annual basis of all benefits provided
to the Executive immediately prior to the termination of his
employment, as determined in good faith by the Board of Directors
or a committee of the Board of Directors of TrizecHahn.
(h) Stock Options.
(i) In the event that the Executive's employment with TrizecHahn is
terminated as contemplated in Sections 10(a), (b),(c) or (d)
above, the right of the Executive or his estate, as the case may
be, to retain and exercise his vested or unvested stock options
shall be as set forth in Schedule A annexed hereto.
(ii) In the event that the Executive's employment with TrizecHahn is
terminated as contemplated in Section 10(f) above, the Executive
shall be entitled to retain and exercise the stock options
referred to in Section 6 above until December 31, 2005.
(iii) In the event that the Executive's employment with TrizecHahn is
terminated prior to December 31, 2003 as contemplated in Section
10(g) above, the Executive shall be entitled to retain all of the
stock options referred to in Section 6 above until December 31,
2005 and to exercise such options at any
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time after they have vested as contemplated in that Section up
to December 31, 2005.
(iv) Any stock options that are not exercised for any reason
whatsoever on or prior to the date on which the Executive is
thereafter precluded from exercising same as provided above or as
provided in Schedule A annexed hereto shall thereupon be
terminated without any further act required by either TrizecHahn
or the Executive and the Executive shall not be entitled to any
compensation of any nature or kind in respect thereof.
(i) Statutory Deductions. All payments required to be made to the Executive
or his estate under this Section 10 shall be made net of all deductions required
to be withheld by applicable law and regulation.
(j) Fair and Reasonable, etc. The parties acknowledge and agree that the
payment and stock option provisions contained in above in this Section are fair
and reasonable and the Executive acknowledges and agrees that such payments and
stock option entitlements are inclusive of any notice or pay in lieu of notice,
severance pay or damages to which he would otherwise be entitled to under
statute, pursuant to common law or otherwise in the event that his employment is
terminated pursuant to or as contemplated in such Section. The parties further
agree that upon any termination of the employment of the Executive and the
payment to the Executive or his estate, as the case may be, of the amounts
contemplated above in this Section, as well as any expenses which the Executive
is entitled to have reimbursed as contemplated in Section 7 above, other than
the stock option rights of the Executive set forth in Section 10(h) above, the
Executive shall have no action, cause of action, claim or demand of any nature
or kind whatsoever against TrizecHahn or against any other person as a
consequence of, in respect of or in connection with this Agreement or such
termination of the Executive's employment.
(k) Return of Property. Upon any termination of the employment of the
Executive by the Executive or by TrizecHahn as contemplated herein, the
Executive or the Executive's estate shall at once deliver or cause to be
delivered to TrizecHahn all books, documents, effects, money, securities, credit
cards or other property belonging to TrizecHahn or for which TrizecHahn is
liable to others, which are in the possession, charge, control or custody of the
Executive.
(l) Deemed Resignation as Director. In the event that the Executive's
employment with TrizecHahn terminates as contemplated above in this Section 10,
the Executive shall thereupon be
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deemed for all purposes to have resigned as a director of TrizecHahn without any
further act being required by either party.
11. Confidentiality
The Executive shall not (either during the term of his employment by
TrizecHahn or at any time thereafter) disclose any information relating to the
private or confidential affairs of TrizecHahn or relating to any secrets of
TrizecHahn to any person other than for the purposes of TrizecHahn or use any
such information for any purpose whatsoever other than for the purposes of
TrizecHahn; provided, however, that the Executive may disclose such information
to his personal lawyers, accountants and other professional advisors where it is
necessary to do so in order to obtain their professional advice and assistance
from time to time and further provided that the Executive may make any
disclosures required under applicable laws.
12. Arbitration
(a) In the event of any dispute arising out of or relating to the rights
and obligations of the parties under this Agreement, the parties shall use their
respective best efforts to settle such dispute. To this effect, they shall
consult and negotiate with each other in good faith to reach a just and
equitable solution satisfactory to both parties. If they do not reach such
solution within 30 days, then upon notice by one party to the other, the dispute
shall be finally settled by arbitration pursuant to the provisions of the
Arbitrations Act, 1991 (Ontario), as that statute may be amended, supplemented
or replaced from time to time before or after the date of this Agreement.
(b) The arbitration tribunal shall consist of one arbitrator appointed by
the mutual agreement of the parties or, in the event of failure to so agree
within 30 days of notice by either party pursuant to Section 12(a), either party
may apply to a judge of the Ontario Superior Court of Justice to appoint an
arbitrator. The arbitrator shall be qualified by education, training and
experience to pass upon the particular matter to be decided. Any arbitrators
appointed under this Section shall be current, former or retired judges of the
Ontario Superior Court of Justice (inclusive of antecedent courts) or of the
Federal or Supreme Court of Canada.
(c) The arbitrator shall be instructed that time is of the essence in
proceeding with his determination of any dispute.
(d) The arbitration shall be conducted in Xxxxxxx, Xxxxxxx, on such
procedural basis as the arbitrator may determine.
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(e) The arbitration award shall be given in writing, shall be final and
binding on the parties and not subject to review or appeal for any reason
whatsoever and shall deal with the question of costs of the arbitration and all
matters relating thereto.
13. Miscellaneous
(a) Notices. Any notice required or permitted to be given hereunder shall
be sufficiently given if delivered personally or mailed by pre-paid registered
mail addressed to TrizecHahn at BCE Place, 000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx X0X 0X0, Attention: General Counsel, or to the Executive at the
principal office of TrizecHahn in the City of Toronto or at his last place of
residence contained in the records of TrizecHahn, with a copy to Debevoise &
Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxx X.
Xxxxx. Any such notice, if delivered, shall be deemed to have been given upon
its delivery and, if mailed as aforesaid, shall be deemed to have been given on
the fourth business day following the date of mailing. Any party hereto may
change its address for notice by notice given to each party hereto in accordance
with the foregoing.
(b) Time of Essence. Time shall be of the essence of this Agreement and of
every provision hereof.
(c) Divisions and Headings. The division of this Agreement into Articles,
Sections and clauses and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation hereof.
(d) Gender and Number. In this Agreement, unless the context otherwise
requires, words importing the singular include the plural and vice versa and
words importing gender include all genders.
(e) Severability. The invalidity or unenforceability of any provision or
part of any provision of this Agreement shall not affect the validity or
enforceability of any other provision or part thereof and any such invalid or
unenforceable provision or part thereof shall be deemed to be severable, and no
provision or part thereof shall be deemed dependent upon any other provision or
part thereof unless expressly provided for herein.
(f) Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof and
supersedes all prior discussions, understandings and arrangements between the
parties in respect thereof. No amendment, waiver or
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termination of this Agreement shall be binding unless executed in writing by
each party to be bound thereby. No waiver of any provision of this Agreement
shall be deemed to or shall constitute a waiver of any other provision and no
such waiver shall constitute a continuing waiver unless otherwise expressly
provided.
(g) Successors and Assigns. This Agreement shall not be assignable by any
of the parties hereto without the prior written consent of each other party, but
subject thereto shall enure to the benefit of and be binding upon the parties
hereto and their respective legal personal representatives, successors and
assigns.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
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(i) Costs of Executive. TrizecHahn agrees to reimburse the Executive for
reasonable legal fees and disbursements incurred by him in order to obtain
independent legal advice in respect of this Agreement, to a maximum of
U.S.$10,000.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first above written.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
) /s/ Xxxxxxxxxxx Xxxxxxxxx
) --------------------------
) XXXXXXXXXXX XXXXXXXXX
TRIZECHAHN CORPORATION
by
------------------------
(i) Costs of Executive. TrizecHahn agrees to reimburse the Executive for
reasonable legal fees and disbursements incurred by him in order to obtain
independent legal advice in respect of this Agreement, to a maximum of
U.S.$10,000.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first above written.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
) XXXXXXXXXXX XXXXXXXXX
TRIZECHAHN CORPORATION
by /s/ Xxxxx Xxxx
-----------------------------
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SCHEDULE A
Stock Option Rights
1. Termination For Cause
In the event the Executive's employment is terminated for cause
pursuant to the Employment Agreement, any options that were exercisable prior to
such termination shall continue to be exercisable for a period of 30 days
following the date on which the Executive's employment terminates and all other
options shall terminate and be of no further force or effect effective on the
date of such termination.
2. Termination by Death or for Permanent Incapacity
In the event that the Executive dies or his employment is terminated
because of the Permanent Incapacity of the Executive, the Executive or his legal
personal representatives, as the case may be, shall have the right to exercise
all of the Executive's options, whether or not vested at the date of death or
date of termination, as applicable, for a period of one year following the date
on which the Executive ceases to be an employee of TrizecHahn.
3. Termination by Executive
In the event that the Executive chooses to terminate his employment
with TrizecHahn as contemplated in Section 10(d) of the annexed Agreement, the
Executive shall have period of 30 days following the date on which the
Executive's employment terminates to exercise any options that were exercisable
prior to such termination and all other options shall terminate and be of no
further force or effect effective on the date of such termination.
SCHEDULE B
Termination Following Change in Control of TrizecHahn
1. As used in this Schedule, the following terms have the following
meanings:
(a) "Board" means the board of directors of TrizecHahn;
(b) "Change in Control" means:
(i) the date upon which the following three conditions shall have
been satisfied:
(A) the MVS shall have been converted into SVS in accordance with
their terms (the "Conversion");
(B) a person or group (other than Mr. Xxxxx Xxxx) holds shares
and/or other securities which, directly or after conversion,
exercise or exchange thereof, would entitle the holders
thereof to cast 20% or more of the votes attached to the
outstanding Voting Shares; and
(C) a change in the composition of the Board within two years
after the date of Conversion such that the directors of
TrizecHahn in office immediately before the date of
Conversion cease to constitute a majority of the Board; or
(ii) the date upon which the following two conditions shall have been
satisfied:
(A) the Conversion shall have occurred, and
(B) a person or group (other than Mr. Xxxxx Xxxx) holds shares
and/or other securities which, directly or after conversion,
exercise or exchange thereof, would entitle the holders
thereof to cast 35% or more of the votes attached to the
outstanding Voting Shares; or
(iii) the date upon which the following two conditions shall have been
satisfied:
(A) a majority of the MVS are beneficially owned, or control or
direction is exercised over a majority of the MVS, by any
person or group,
other than Mr. Xxxxx Xxxx or a member of his immediate family
("Change in Ownership"); and
(B) there is a change in the composition of the Board within two
years after the date of the Change in Ownership such that the
directors of TrizecHahn in office immediately before the date
of the Change in Ownership cease to constitute a majority of
the Board; or
(iv) the date upon which the following two conditions shall have been
satisfied:
(A) the shareholders of TrizecHahn shall have approved (1) an
amalgamation or merger of TrizecHahn with any other
corporation (other than a direct or indirect subsidiary), (2)
any other business combination or consolidation; (3) a plan
for the liquidation of TrizecHahn, or (4) an agreement for
the sale or disposition of all or substantially all of the
assets of TrizecHahn (any one of which is hereinafter
referred to as a "Corporate Reorganization"); and
(B) within two years following a Corporate Reorganization, a
majority of the Board of the amalgamated or merged entity or
successor entity into which TrizecHahn was liquidated or
which acquired substantially all of the assets of TrizecHahn
is not comprised of individuals who were directors of
TrizecHahn immediately before the Corporate Reorganization;
or
(v) the date upon which the following two conditions shall have been
satisfied:
(A) either of the Conversion, a Change in Ownership or a
Corporate Reorganization shall have occurred; and
(B) a person other than Xxxxxxxxxxx Xxxxxxxxx is appointed as
Chief Executive Officer of the amalgamated or merged entity
or successor entity into which TrizecHahn was liquidated or
which acquired substantially all of its assets (provided,
however, that if Xxxxxxxxxxx Xxxxxxxxx is offered such
appointment but declines to accept it, it is acknowledged and
agreed that no Change in Control shall have occurred);
-2-
(c) "MVS" means the outstanding Multiple Voting Shares in the capital of
TrizecHahn at any time;
(d) "person" includes, without limitation, an individual, corporation,
partnership, joint venture, association, trust, firm, unincorporated
organization or other legal or business entity;
(e) "SVS" means the outstanding Subordinate Voting Shares in the capital of
TrizecHahn at any time; and
(f) "Voting Shares" means any security of TrizecHahn carrying a right to
vote for the election of directors of TrizecHahn under all circumstances or
under circumstances that have occurred and are continuing.
2. At any time during the period commencing on the date that is three months
following a Change in Control and ending on the date that is nine months
following a Change in Control, the Executive shall have the right to terminate
his employment with TrizecHahn at his sole discretion by providing notice in
writing to that effect to TrizecHahn. In that event, the Executive shall be
entitled to receive the payments, benefits and other rights outlined in Sections
10(g) and 10(h) of the annexed Agreement.
-3-
PM Capital Corp.
00 Xxx Xxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
December 21, 2000
Xxxxxxxxxxx Xxxxxxxxx
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Dear Xxxxxxxxxxx:
We refer to your Employment Agreement (the "Employment Agreement")
dated as of December 21, 2000 with Trizec Xxxx Corporation ("TrizecHahn").
As you discussed with Xxxxx Xxxx before you agreed to accept a position
as Deputy Chairman and Chief Executive Officer of TrizecHahn, to induce you to
accept that position, PM Capital Corp. ("PM Capital") has agreed to grant to you
the right (the "Call Right") to purchase from PM Capital one million subordinate
voting shares (the "Call Shares") in the capital of TrizecHahn currently held by
PM Capital. This letter sets out the terms and conditions that apply to that
Call Right.
Your Call Right shall mirror in all respects, mutatis mutandis, your
right to purchase 1.5 million subordinate voting shares from the capital of
TrizecHahn pursuant to the stock options (the "Stock Options") referred to in
Section 6 of the Employment Agreement, as set forth in the Employment Agreement.
In particular, but without limiting the generality of the foregoing, the
following terms and conditions shall apply to the Call Right:
(a) your Call Right is non-assignable;
(b) the purchase price under the Call Right is U.S.$14.87 per subordinate
voting share;
(c) the Call Right will vest over a three year period, on the same basis as
the Stock Options;
(d) the Call Right will expire seven years from December 14, 2000, being
the date on which the Stock Options were granted to you by the Board of
Directors of TrizecHahn, unless earlier terminated as described below;
(e) in the event that your employment with TrizecHahn is terminated as
contemplated in Sections 10(a), (b), (c) or (d) of the Employment
Agreement, your right or the right of your estate, as the case may be,
to exercise your Call Right shall be identical to the right you or your
estate shall have to exercise your Stock Options, as set out in
Schedule A to the Employment Agreement;
(f) in the event that your employment with TrizecHahn is terminated as
contemplated in Section 10(f) of the Employment Agreement, you will be
entitled to continue to exercise the Call Right until December 31,
2005;
(g) in the event that your employment with TrizecHahn is terminated prior
to December 31, 2003 as contemplated in Section 10(g) of the Employment
Agreement, you will be entitled to retain the Call Right until December
31, 2005 and to exercise such Call Right in increments at any time
after vesting has occurred in respect of each third of the Call Right
(or, for greater certainty, to exercise the Call Right in full after it
has fully vested), as contemplated in Section 10(g) of the Employment
Agreement;
(h) any portion of your Call Right that is not exercised for any reason
whatsoever on or prior to the date on which you are thereafter
precluded from exercising same as contemplated above shall thereupon be
terminated without any further act required by either PM Capital or you
and you shall not be entitled to any compensation of any nature or kind
in respect thereof; and
(i) all other terms and conditions that apply to your Stock Options as set
forth in the stock option plan of TrizecHahn currently in effect shall
apply equally to your Call Right, mutatis mutandis.
In the event that you wish to exercise your rights under the Call Right
at any time, you shall provide written notice to that effect by personal
delivery or by telecopy to PM Capital at the following address: PM Capital Corp.
c/o TrizecHahn Corporation, BCE Place, 000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx X0X 0X0. Such notice must be delivered prior to 5:00 p.m. (Toronto time)
on the last business day in Toronto, Ontario prior to the expiry of the Call
Right as described above
-2-
in order to be effective. The purchase transaction will be completed on a date
that is mutually agreed to between you and PM Capital and, in any event, within
15 business days following the date on which your exercise notice is so received
by PM Capital. At the time of completion of your purchase of subordinate voting
shares from PM Capital, you will be provided with a share certificate
representing the shares you have purchased from PM Capital against delivery to
PM Capital of the necessary funds in U.S. dollars by way of certified cheque or
bank draft made payable to PM Capital or as it may otherwise direct in writing.
In the event you have given notice of exercise of your rights under the
Call Right as provided in the previous paragraph, PM Capital shall have the
option to cash settle the rights you have chosen to exercise. If PM Capital
chooses cash settlement, it shall provide you with written notice of this choice
not later than five business days prior to the day determined under the previous
paragraph for completing the purchase transaction (the "Completion Date"). On
the Completion Date, your rights under the Call Right will be cash settled by
payment as you may direct of an amount determined by multiplying (a) the number
of Call Shares in respect of which you have chosen to exercise your Call Right
by (b) the amount by which the average closing price of the Call Shares on The
New York Stock Exchange on the trading days occurring between the date PM
Capital provides notice that it wishes to cash settle and the Completion Date
exceeds U.S.$14.87 less (c) such deductions as are required to be withheld by
applicable law and regulations. Payment of any cash settlement shall be made by
way of certified cheque or bank draft against delivery by you to PM Capital of
an acknowledgment that your receipt of such payment terminates your rights under
the Call Right with respect to the applicable number of Call Shares.
PM Capital represents and warrants to you that (a) PM Capital has been
duly incorporated and is an existing corporation in good standing under the laws
of its jurisdiction of incorporation, (b) this Agreement has been duly
authorized, executed and delivered by PM Capital and constitutes a valid and
legally binding obligation of PM Capital enforceable against PM Capital in
accordance with its terms and (c) the Call Shares, when delivered and paid for,
upon exercise of the Call Right in accordance with the terms hereof, will be
duly authorized, validly issued, fully paid and non-assessable, and free and
clear of any liens or encumbrances.
This letter agreement shall be governed by and construed in accordance
with the laws of the Province of Ontario. For the purposes hereof, the term
"business day" means any day other than a Saturday or Sunday on which banks are
open for business in Xxxxxxx, Xxxxxxx. Time shall be of the essence hereof.
---------------------------------
-3-
If the foregoing accords with your understanding of the arrangements we
have agreed to, please sign below to signify your acceptance thereof, whereupon
this letter will constitute a binding agreement between PM Capital and you.
Yours truly,
PM Capital Corp.
by
------------------------------
---------------------------------
The foregoing is hereby agreed to this 21st day of December, 2000.
/s/ Xxxxxxxxxxx Xxxxxxxxx
----------------------------
Xxxxxxxxxxx Xxxxxxxxx
-4-
TrizecHahn Corporation
BCE Place
000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
December 21, 2000
Xxxxxxxxxxx Xxxxxxxxx
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Dear Xxxxxxxxxxx:
Reference is made to the Employment Agreement between you and
TrizecHahn Corporation (the "Company"), dated as of the date hereof (the
"Employment Agreement"). Pursuant to Section 4(c) of the Employment Agreement,
you will generally be required to devote your full business time towards the
performance of your duties under the Employment Agreement, except as provided in
Section 4(c) thereof or as may be approved from time to time by the Company's
Chairman or Board of Directors. This letter confirms our understanding that,
during your term of employment with the Company, you will be permitted to
continue serving in your current capacity as (i) a non-employee director of WPP
Group plc and (ii) an advisor to the Xxxxx Xxxxx Xxxxx Group; provided in each
case that such activities do not materially interfere with the performance of
your duties under the Employment Agreement.
Very truly yours,
Xxxxx Xxxx
Chairman, TrizecHahn Corporation
Agreed and Accepted:
/s/ Xxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx Xxxxxxxxx
