EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
as of March 8, 1996, by and between Price Enterprises, Inc., a Delaware
corporation ("Employer"), and Xxxxxx Xxxxxxx ("Executive").
RECITALS
A. Employer desires to employ Executive as Executive Vice President,
Corporate Development, of Employer.
B. Executive desires to accept such position upon the terms and
subject to the conditions herein provided.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants and conditions hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
EMPLOYMENT AND DUTIES
1.1 POSITION AND DUTIES. Executive shall serve as Executive Vice
President, Corporate Development, of Employer. Executive shall have such duties
and authority as are customary for, and commensurate with, such position, and
such other related duties and authority as may from time to time be delegated or
assigned to him by the Chief Executive Officer or the Board of Directors of
Employer. Executive shall discharge his duties in a diligent and professional
manner.
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1.2 OUTSIDE BUSINESS ACTIVITIES PRECLUDED. During his employment,
Executive shall devote his full energies, interest, abilities and productive
time to the performance of this Agreement, consistent with the practices of
other executives of Employer. Executive shall not, without the prior written
consent of Employer, perform other services of any kind or engage in any other
business activity, with or without compensation, that would interfere with the
performance of his duties under this Agreement. Executive shall not, without
the prior written consent of Employer, engage in any activity adverse to
Employer's interests.
1.3 PLACE OF EMPLOYMENT. Unless the parties agree otherwise in
writing, during the Employment Term (as defined in Section 3.1 below) Executive
shall perform the services he is required to perform under this Agreement at
Employer's offices located in San Diego, California; provided, however, that
Employer may from time to time require Executive to travel temporarily to other
locations on Employer's business.
ARTICLE II
COMPENSATION
2.1 SALARY. For Executive's services hereunder, Employer shall pay
as base salary to Executive the amount of $150,000 during each year of the
Employment Term. Said salary shall be payable in equal installments in
conformity with Employer's normal payroll period. Executive's salary shall be
reviewed by Employer's Board of Directors from time to time at its discretion,
and Executive shall receive such salary increases, if any, as Employer's Board
of Directors, in its sole discretion, shall determine.
2.2 BONUS. In addition to the salary set forth in Section 2.1 above,
during the Employment Term, Executive shall participate in Employer's bonus plan
for executive
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management personnel. All decisions regarding said bonus plan shall be made in
the sole discretion of Employer's Board of Directors, or the Compensation
Committee thereof.
2.3 OTHER BENEFITS. Executive shall be entitled to participate in
and receive benefits under Employer's standard company benefits practices and
plans for officers of Employer, including medical insurance, long-term
disability, life insurance, profit sharing and retirement plan, and Employer's
other plans (as well as Employer's standard indemnification agreement), subject
to and on a basis consistent with the terms, conditions and overall
administration of such practices and plans. In addition, Executive shall be
entitled to four (4) weeks' paid vacation each year, which if not used (in whole
or in part) in the year accrued will be deemed forfeited. Employer may in its
sole discretion grant such additional compensation or benefits to Executive from
time to time as Employer deems proper and desirable.
2.4 EXPENSES. Executive will receive a stipend in the amount of
$5,000 per month to defray Executive's out-of-pocket expenses, including
Executive's housing and transportation costs, related to his employment at
Employer's offices in San Diego, California (while Executive maintains another
residence in Los Angeles, California). In addition, during the term of his
employment hereunder, Executive shall be entitled to receive prompt
reimbursement for all other reasonable business-related expenses incurred by
him, in accordance with the policies and procedures from time to time adopted by
Employer, provided that Executive properly accounts for such business expenses
in accordance with Employer policy.
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2.5 STOCK OPTION PLAN. Employer has adopted The Price Enterprises
1995 Combined Stock Grant and Stock Option Plan (the "Stock Plan"). Executive
will receive options to purchase 75,000 shares of Employer's Common Stock,
exercisable at a price equal to the fair market value of the Common Stock at the
time of grant (which shall be five business days after the commencement of
Executive's term of employment), with such options vesting at twenty percent
(20%) per year over a period of five (5) years and expiring six (6) years from
the date of grant. Such anticipated grant of options to purchase 75,000 shares
of Common Stock shall be subject in all respects to the sole discretion of the
Compensation Committee of Employer's Board of Directors, as set forth in the
Stock Plan. In addition, such options shall be granted in accordance with and
subject to all other terms, conditions and restrictions set forth in the Stock
Plan.
2.6 DEDUCTIONS AND WITHHOLDINGS. All amounts payable or which
become payable under any provision of this Agreement shall be subject to any
deductions authorized by Executive and any deductions and withholdings required
by law.
ARTICLE III
TERM OF EMPLOYMENT
3.1 TERM. The term of Executive's employment hereunder shall
commence on March 11, 1996 and shall continue until March 10, 1998, unless
sooner terminated or extended as hereinafter provided (the "Employment Term").
3.2 EXTENSION OF TERM. The Employment Term may be extended by
written amendment to this Agreement signed by both parties.
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3.3 EARLY TERMINATION BY EXECUTIVE. Executive may terminate this
Agreement at any time by giving Employer written notice of his resignation
ninety (90) days in advance; provided, however, that the Board of Directors may
determine upon receipt of such notice that the effective date of such
resignation shall be immediate or some time prior to the expiration of the
ninety-day notice period. Executive's employment shall terminate as of the
effective date of his resignation as determined by the Board of Directors.
3.4 TERMINATION FOR CAUSE. Prior to the expiration of the Employment
Term, Executive's employment may be terminated for Cause by the Board of
Directors of Employer, immediately upon delivery of notice thereof. In such
event, Executive will be informed in writing as to the basis for such
termination and will be given an opportunity to address the Board of Directors
of Employer and request an opportunity to remedy such basis for termination.
Termination for "Cause" shall mean termination because of Executive's
(a) repeated and habitual failure to perform his duties or obligations
hereunder; (b) engaging in any act that has a direct, substantial and adverse
effect on Employer's interests; (c) personal dishonesty, willful misconduct, or
breach of fiduciary duty involving personal profit; (d) intentional failure to
perform his stated duties; (e) willful violation of any law, rule or regulation
which materially adversely affects his ability to discharge his duties or has a
direct, substantial and adverse effect on Employer's interests; (f) any material
breach of this contract by Executive; (g) conduct authorizing termination under
Cal. Labor Code Section 2924; or (h) inability to effectively perform his duties
in San Diego, California, due to Executive maintaining another residence (and
related personal obligations) in Los Angeles, California, resulting in a direct,
substantial and adverse effect on Employer's interests.
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3.5 TERMINATION DUE TO DEATH OR DISABILITY. Executive's
employment hereunder shall terminate immediately upon his death. In the
event that by reason of injury, illness or other physical or mental
impairment Executive shall be: (a) completely unable to perform his services
hereunder for more than three (3) consecutive months, or (b) unable to
perform his services hereunder for fifty percent (50%) or more of the normal
working days throughout six (6) consecutive months, then Employer may
terminate Executive's employment hereunder immediately upon delivery of
notice thereof. Executive's beneficiaries, estate, heirs, representatives, or
assigns, as appropriate, shall be entitled to the proceeds, if any, due under
any Employer-paid life insurance policy held by Executive, as determined by
and in accordance with the terms of any such policy, as well as any vested
benefits and accrued vacation benefits.
ARTICLE IV
BENEFITS AFTER TERMINATION OF EMPLOYMENT
4.1 BENEFITS UPON TERMINATION. Upon termination of the Agreement
for any reason, all salary and benefits of Executive hereunder shall cease
immediately, except as follows. Executive shall be entitled to the
continuation of Executive's base salary for a period of six (6) months following
termination (payable in equal installments in conformity with Employer's normal
payroll period) upon termination of this Agreement by Employer pursuant to
Section 3.4 (h).
Executive shall be entitled to a sum equal to all unpaid base salary
payable to Executive under Section 2.1, plus the sum of $150,000 (said sums to
be paid to Executive in equal installments through March 10, 1998, in conformity
with Employer's normal payroll period) provided, however, that the total of said
two sums shall not exceed $300,000 and that said sums
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shall be due only upon the following circumstances:
(i) termination of this Agreement by Employer for any reason other
than those set forth in Section 3.4 or Section 3.5, or,
(ii) in the event Xxxxxx Xxxxx no longer maintains his position as
Chief Executive Officer of Employer and within fifteen (15) days of such event
Executive gives Employer written notice of Executive's resignation, pursuant to
Section 3.3.
During the period of any such severance payments, Executive shall cooperate
with Employer in providing for the orderly transition of Executive's duties and
responsibilities to other individuals, as reasonably requested by Employer.
4.2 RIGHTS AGAINST EMPLOYER. The benefits payable under this Article
IV are exclusive, and no amount shall become payable to any person (including
the Executive) by reason of termination of employment for any reason, with or
without Cause, except as provided in this Article IV. Employer shall not be
obligated to segregate any of its assets or procure any investment in order to
fund the benefits payable under this Article IV.
ARTICLE V
CONFIDENTIAL INFORMATION
5.1 Executive acknowledges that Employer holds as confidential, and
Executive may have access to during the Employment Term, certain information and
knowledge respecting the intimate and confidential affairs of Employer in the
various phases of its business, including, but not limited to, trade secrets,
data and know-how, improvements, inventions, techniques, marketing plans,
strategies, forecasts, pricing information, and customer lists. During his
employment by Employer and thereafter, Executive shall not directly or
indirectly disclose
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such information to any person or use any such information, except as legally
required or as otherwise required in the course of his employment during the
Employment Term. All records, files, keys, documents, and the like relating to
Employer's business, which Executive shall prepare, copy or use, or come into
contact with, shall be and remain Employer's sole property, shall not be removed
from Employer's premises (other than in the ordinary course of business) without
its written consent, and shall be returned to Employer upon the termination of
this Agreement.
ARTICLE VI
GENERAL PROVISIONS
6.1 ENTIRE AGREEMENT. This Agreement contains the entire understanding
and sole and entire agreement between the parties with respect to the subject
matter hereof, and supersedes any and all prior agreements, negotiations and
discussions between the parties hereto with respect to the subject matter
covered hereby. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, oral or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
embodied herein, and that no other agreement, statement or promise not contained
in this Agreement shall be valid or binding. This Agreement may not be modified
or amended by oral agreement, but rather only by an agreement in writing signed
by Employer and by Executive which specifically states the intent of the parties
to amend this Agreement.
6.2 ASSIGNMENT AND BINDING EFFECT. Neither this Agreement nor the rights
or obligations hereunder shall be assignable by the Executive (except as set
forth in Section 3.5). Employer may assign this Agreement to any successor or
affiliate of Employer, and upon such assignment any such successor or affiliate
shall be deemed substituted for Employer upon the terms and subject to the
conditions hereof. In the event of any merger of Employer or the transfer
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of all (or substantially all) of Employer's assets, the provisions of this
Agreement shall be binding upon, and inure to the benefit of, the surviving
business entity or the business entity to which such assets shall be
transferred.
6.3 ARBITRATION. The parties hereto agree that any and all disputes
(contract, tort, or statutory, whether under federal, state or local law)
between Executive and Employer (including Employer's employees, officers,
directors, stockholders, members, managers and representatives) arising out of
Executive's employment with Employer, the termination of that employment, or
this Agreement, shall be submitted exclusively to final and binding arbitration.
Such arbitration shall take place in the County of San Diego, and may be
compelled and enforced according to the California Arbitration Act (Code of
Civil Procedure Sections 1280 ET SEQ.). Unless the parties mutually agree
otherwise, such arbitration shall be conducted before the American Arbitration
Association, according to its Commercial Arbitration Rules. Judgment on the
award the arbitrator renders may be entered in any court having jurisdiction
over the parties. Arbitration shall be initiated in accordance with the
Commercial Arbitration Rules of the American Arbitration Association.
6.4 NO WAIVER. No waiver of any term, provision or condition of this
Agreement, whether by conduct or otherwise, in any one or more instances shall
be deemed or be construed as a further or continuing waiver of any such term,
provision or condition, or as a waiver of any other term, provision or condition
of this Agreement.
6.5 GOVERNING LAW; RULES OF CONSTRUCTION. This Agreement has been
negotiated and executed in, and shall be governed by and construed in accordance
with the laws of, the State of California. Captions of the several Articles and
Sections of this Agreement are for
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convenience of reference only, and shall not be considered or referred to in
resolving questions of interpretation with respect to this Agreement.
6.6 NOTICES. Any notice, request, demand or other communication
required or permitted hereunder shall be deemed to be properly given when
personally served in writing, or when transmitted via certified United States
mail, return receipt requested, postage pre-paid, addressed to Employer or
Executive at his last known address. Each party may change its address by
written notice in accordance with this Section.
Address for Employer:
Price Enterprises, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxx Xxxxx, XX. 00000
Address for Executive:
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxxxx 000
Xxx Xxxxxxx, XX. 90049
6.7 SEVERABILITY. The provisions of this Agreement are severable.
If any provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions or
enforceable parts hereof shall not be affected thereby and shall be enforced to
the fullest extent permitted by law.
6.8 ATTORNEYS' FEES. In the event of any arbitration or litigation
brought to enforce or interpret any part of this Agreement, the prevailing party
shall be entitled to recover reasonable attorneys' fees, as well as all other
litigation costs and expenses as an element of damages.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto as of the date first above written.
PRICE ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: President
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/s/ Xxxxxx Xxxxxxx
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XXXXXX XXXXXXX
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