Exhibit 10.34
Bedford Property Investors, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
March 26, 2001
[Name of Employee]
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Retention Agreement
Dear ________:
Bedford Property Investors, Inc., a Maryland corporation
(the "Company"), considers it essential to the best interests of its
stockholders to take reasonable steps to retain key management
personnel. Further, the Board of Directors of the Company (the
"Board") recognizes that the uncertainty and questions, which might
arise among management in the context of a change in control of the
Company, could result in the departure or distraction of management
personnel to the detriment of the Company and its stockholders.
The Board has determined, therefore, that appropriate steps
should be taken to reinforce and encourage the continued attention and
dedication of members of the management of the Company and its
subsidiaries, including you, to their assigned duties without
distraction in the face of potentially disturbing circumstances
arising from any possible change in control of the Company.
In order to induce you to remain in the employ of the
Company, the Company has determined to enter into this letter
agreement (this "Agreement") which addresses the terms and conditions
of your employment in the event of a change in control of the Company.
Capitalized words that are not otherwise defined herein shall have the
meanings assigned to such words in Section 5 of this Agreement.
1. Severance Payments. In the event of your Involuntary
Termination during the Change in Control Period, the Company shall pay
you the following amounts, in one lump sum cash payment, within ten
days following your Involuntary Termination:
(a) the full amount of any earned but unpaid base salary
through the Date of Termination at the rate in effect at the
time of the Notice of Termination;
(b) a payment (calculated on the basis of your Reference
Salary) for all unused vacation time which you may have accrued
as of the Date of Termination;
(c) a pro rata portion of the annual bonus for the year in
which your Involuntary Termination occurs, calculated on the
basis of your target bonus for that year and on the assumption
that all performance targets have been or will be achieved,
which assumption will be adjusted for any facts that indicate
otherwise; and
(d) an amount (the "Severance Payment") equal to the
product of (i) your Annual Compensation and (ii) your Severance
Factor.
Your right to receive the Severance Payment shall be conditioned upon
your execution of a release in favor of the Company in the form
attached as Exhibit A hereto and which you do not revoke within the
revocation period provided therein. The Severance Payment shall be
reduced by any amount of severance payable under any other plan,
arrangement or agreement under which you are entitled to receive cash
severance payments.
2. Date and Notice of Termination. Any termination of
your employment by the Company, any successor employer arising from
the Change of Control, or by you during the Change in Control Period
shall be communicated by a notice of termination to the other party
(the "Notice of Termination"). The Notice of Termination shall
indicate the specific termination provision in this Agreement relied
upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of your
employment under the provision so indicated. The date of your
termination of employment with the Company and its subsidiaries (the
"Date of Termination") shall be determined as follows: (i) if your
employment is terminated for Disability, 30 days after a Notice of
Termination is given (provided that you shall not have returned to the
full-time performance of your duties during such 30-day period),
(ii) if your employment is terminated by the Company in an Involuntary
Termination, five days after the date the Notice of Termination is
received by you or (iii) if your employment is terminated by the
Company for Cause, the later of the date specified in the Notice of
Termination or ten days following the date such notice is received by
you. If the basis for your Involuntary Termination is your
resignation for Good Reason, the Date of Termination shall be ten days
after the date your Notice of Termination is received by the Company;
provided, that the events or circumstances cited by you as
constituting Good Reason are not cured by the Company during such
period in accordance with the terms hereof. The Date of Termination
for a resignation of employment other than for Good Reason shall be
the date set forth in the applicable notice, which shall be no earlier
than ten days after the date such notice is received by the Company.
3. No Mitigation or Offset. You shall not be required to
mitigate the amount of any payment provided for herein by seeking
other employment or otherwise, nor shall the amount of any payment or
benefit provided for herein be reduced by any compensation earned by
you as the result of employment by another employer.
4. Successors; Binding Agreement.
(a) Assumption by Successor. The Company will require any
successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the
business or assets of the Company expressly to assume and to agree to
perform its obligations under this Agreement in the same manner and to
the same extent that the Company would be required to perform such
obligations if no such succession had taken place; provided, however,
that no such assumption shall relieve the Company of its obligations
hereunder. As used herein, the "Company" shall mean the Company as
previously defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform its obligations by
operation of law or otherwise.
(b) Enforceability; Beneficiaries. This Agreement shall
be binding upon and inure to the benefit of you (and your personal
representatives and heirs) and the Company and any organization which
succeeds to substantially all of the business or assets of the
Company, whether by means of merger, consolidation, acquisition of all
or substantially all of the assets of the Company or otherwise,
including, without limitation, as a result of a Change in Control or
by operation of law. This Agreement shall inure to the benefit of and
be enforceable by your personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If you should die while any amount would still be payable
to you hereunder if you had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to your devisee, legatee or other designee or,
if there is no such designee, to your estate.
5. Definitions. For purposes of this Agreement, the
following capitalized terms have the meanings set forth below:
"Annual Compensation" shall mean the sum of your Reference
Salary and Reference Bonus.
"Cause" shall mean (a) your felony conviction, (b) your
disclosure of material trade secrets or other material confidential
information related to the business of the Company and its
subsidiaries or (c) your continued failure to substantially perform
your duties with the Company (other than any such failure resulting
from your incapacity due to physical or mental illness or any such
actual or anticipated failure resulting from your resignation for Good
Reason) upon failure to cure after reasonable notice from Company and
after a subsequent written demand for substantial performance is
delivered to you by the Board, which demand specifically identifies
the manner in which the Board believes that you have not substantially
performed your duties, and which performance is not substantially
corrected by you within ten days of receipt of such demand.
Notwithstanding the foregoing, you shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered
to you a copy of a resolution duly adopted by the affirmative vote of
not less than three-fifths of the entire membership of the Board at a
meeting of the Board called and held for such purpose (after
reasonable notice to you and an opportunity for you, together with
your counsel, to be heard before the Board), finding that in the good
faith opinion of the Board you were guilty of conduct set forth above
in clause (a), (b) or (c) of the first sentence of this section and
specifying the particulars thereof in detail.
"Change in Control" shall mean a change in control of the
Company of a nature that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Exchange Act, whether or not the Company is then subject to such
reporting requirement; provided, that anything in this Agreement to
the contrary notwithstanding, a Change in Control shall be deemed to
have occurred if:
(a) any individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity
or person, or any syndicate or group deemed to be a person under
Section 14(d)(2) of the Exchange Act (other than (i) the Company
or any of its subsidiaries or (ii) any trustee or other
fiduciary holding securities under an employee benefit plan of
the Company or of any of its subsidiaries), is or becomes the
"beneficial owner" (as defined in Rule 13d-3 of the General
Rules and Regulations under the Exchange Act), directly or
indirectly, of securities of the Company representing 30% or
more of the combined voting power of the Company's then
outstanding securities entitled to vote in the election of
directors of the Company;
(b) during any period of two consecutive years (not
including any period prior to the effective date of this
Agreement), individuals who at the beginning of such period
constituted the Board and any new directors, whose election by
the Board or nomination for election by the Company's
stockholders was approved by a vote of at least three-fourths of
the directors then still in office who either were directors at
the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to
constitute a majority thereof;
(c) there occurs a reorganization, merger, consolidation
or other corporate transaction involving the Company, in each
case with respect to which the stockholders of the Company
immediately prior to such transaction do not, immediately after
such transaction, own more than 50% of the combined voting power
of the Company or other corporation resulting from such
transaction; or
(d) all or substantially all of the real estate assets of
the Company are sold, liquidated or distributed. If less than
all of the real estate assets of the Company are sold,
liquidated or distributed, the Board shall conclusively make the
determination of whether substantially all of the real estate
assets of the Company are sold, liquidated or distributed.
"Change in Control Date" shall mean the date on which a
Change in Control occurs.
"Change in Control Period" shall mean the two-year period
commencing on the Change in Control Date; provided, however, that if
your employment with the Company and its subsidiaries terminates prior
to the Change in Control Date but on or after a Potential Change in
Control Date, and it is reasonably demonstrated that your termination
of employment (a) was at the request of a third party who has taken
steps reasonably calculated to effect a Change in Control or
(b) otherwise arose in connection with or in anticipation of a Change
in Control, then the "Change in Control Period" shall mean, as applied
to you, the two-year period beginning on the date immediately prior to
the date of your termination of employment.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder, and any successor provisions thereto.
"Date of Termination" has the meaning assigned thereto in
Section 2.
"Disability" shall mean (a) your incapacity due to physical
or mental illness which causes you to be absent from the full-time
performance of your duties with the Company for six consecutive months
and (b) your failure to return to full-time performance of your duties
for the Company within 30 days after written Notice of Termination due
to Disability is given to you. Any question as to the existence a
Disability upon which you and the Company cannot agree shall be
determined by a qualified independent physician selected by you (or,
if your are unable to make such selection, such selection shall be
made by any adult member of your immediate family), and approved by
the Company. The determination of such physician made in writing to
the Company and to you shall be final and conclusive for all purposes
hereunder.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time, and the regulations promulgated
and rulings issued thereunder, and any successor provisions thereto.
"Good Reason" shall mean the occurrence of any of the
following during the Change in Control Period:
(a) A meaningful and detrimental alteration in your
position, title, or nature or status of responsibilities from
those in effect immediately prior to the Change in Control Date;
(b) A reduction by the Company in your annual base salary
as in effect immediately prior to the Change in Control Date or
as the same may be increased from time to time thereafter; or a
reduction in your target annual bonus (expressed as a percentage
of base salary) below the target in effect for you prior to the
Change in Control Date;
(c) The relocation of the office of the Company where you
are employed immediately prior to the Change in Control Date
(the "CIC Location") to a location which is more than 25 miles
away from the CIC Location or the Company's requiring you to be
based more than 25 miles away from the CIC Location (except for
required travel on the Company's business to an extent
substantially consistent with your customary business travel
obligations in the ordinary course of business prior to the
Change in Control Date);
(d) The failure by the Company to continue to provide you
with benefits at least as favorable in the aggregate to those
enjoyed by you under the Company's savings, life insurance,
medical, health and accident, disability, and fringe benefit
plans and arrangements in which you were participating
immediately prior to the Change in Control Date; or the failure
by the Company to provide you with the number of paid vacation
days to which you are entitled immediately prior to the Change
in Control;
(e) The failure of the Company to obtain an agreement from
any successor to assume and agree to perform the Company's
obligations under this Agreement, as contemplated in Section
4(a) hereof;
(f) Any termination of your employment which is not
effected pursuant to the terms of this Agreement; or
(g) A material breach by the Company of the provisions of
this Agreement;
provided, however, that an event described above in clause (a), (b),
(d) or (g) shall not constitute Good Reason unless it is communicated
by you to the Company in writing and is not corrected by the Company
in a manner which is reasonably satisfactory to you (including full
retroactive correction with respect to any monetary matter) within ten
days of the Company's receipt of such written notice from you.
"Involuntary Termination" shall mean (a) your termination
of employment by the Company and its subsidiaries during the Change in
Control Period other than for Cause or Disability or (b) your
resignation of employment with the Company and its subsidiaries or
successors (whether by acquisition of stock or assets of the Company)
during the Change in Control Period for Good Reason.
"Notice of Termination" has the meaning assigned thereto in
Section 4.
"Potential Change in Control" shall mean the earliest to
occur of (a) the date on which the Company executes an agreement or
letter of intent, the consummation of the transactions described in
which would result in the occurrence of a Change in Control, (b) the
date on which the Board approves a transaction or series of
transactions, the consummation of which would result in a Change in
Control, or (c) the date on which a tender offer for the Company's
voting stock is publicly announced, the completion of which would
result in a Change in Control; provided, that no such event shall be a
"Potential Change in Control" unless it is followed by a Change in
Control within 180 days thereafter.
"Potential Change in Control Date" shall mean the date on
which a Potential Change in Control occurs.
"Reference Bonus" shall mean the greater of (a) the average
of the three annual bonuses paid to you prior to the your Date of
Termination, annualizing bonuses paid for services rendered for less
than a full year or (b) the average of the three annual bonuses paid
to you prior to the Change in Control Date, annualizing bonuses paid
for services rendered for less than a full year. If you have been
eligible to receive fewer than three bonuses prior to such your Date
of Termination or the Change in Control Date, as applicable, the
amounts described in clauses (a) and (b) hereof shall be calculated
using such lesser number of annual bonuses.
"Reference Salary" shall mean the greater of (a) the annual
rate of your base salary from the Company and its subsidiaries in
effect immediately prior to the date of your Involuntary Termination
and (b) the annual rate of your base salary from the Company and its
subsidiaries in effect immediately prior to the Change in Control
Date.
"Severance Factor" shall mean the number set forth on the
signature page hereof.
6. Notice. For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be
in writing and shall be deemed to have been duly given when delivered
or mailed by United States registered mail, return receipt requested,
postage prepaid, addressed to the Board of Directors, Bedford Property
Investors, Inc., 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, with a
copy to the General Counsel of the Company, or to you at the address
set forth on the first page of this Agreement or to such other address
as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be
effective only upon receipt.
7. Miscellaneous.
(a) Amendments, Waivers, Etc. No provision of this
Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing. No waiver by
either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver
of similar or dissimilar provisions or conditions at the same or at
any prior or subsequent time. No agreements or representations, oral
or otherwise, express or implied, with respect to the subject matter
hereof have been made by either party which are not expressly set
forth in this Agreement and this Agreement shall supersede all prior
agreements, negotiations, correspondence, undertakings and
communications of the parties, oral or written, with respect to the
subject matter hereof; provided, however, that any employment
agreement between you and the Company shall remain in full force and
effect, subject to the last sentence of Section 1.
(b) Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
(c) No Contract of Employment. Nothing in this Agreement
shall be construed as giving you any right to be retained in the
employ of the Company or shall affect the terms and conditions of your
employment with the Company prior to the commencement of the Change in
Control Period.
(d) Withholding. Amounts paid to you hereunder shall be
subject to all applicable federal, state and local withholding taxes.
(e) Source of Payments. All payments provided under this
Agreement shall be paid in cash from the general funds of the Company,
and no special or separate fund shall be established, and no other
segregation of assets made, to assure payment. You will have no
right, title or interest whatsoever in or to any investments that the
Company may make to aid it in meeting its obligations hereunder. To
the extent that any person acquires a right to receive payments from
the Company hereunder, such right shall be no greater than the right
of an unsecured creditor of the Company.
(f) Headings. The headings contained in this Agreement
are intended solely for convenience of reference and shall not affect
the rights of the parties to this Agreement.
(g) Only Retention Agreement. The prior retention
agreement between you and the Company, if any, is cancelled upon your
acceptance of this Retention Agreement.
If this letter sets forth our agreement on the subject
matter hereof, kindly sign and return to the Company the enclosed copy
of this letter which will then constitute our agreement on this
subject.
Sincerely,
BEDFORD PROPERTY INVESTORS, INC.
By:
____________________________________
Xxxxx X. Xxxxxxx, Chairman and
CEO
Agreed to as of this 26th day of March, 2001
____________________________
[Name of Employee]
Severance Factor: One (1.00)
Exhibit A
GENERAL RELEASE
1. For good and valuable consideration set forth in the Retention
Agreement between the undersigned and Bedford Property Investors,
Inc., the receipt and sufficiency of which is hereby acknowledged, the
undersigned, with the intention of binding himself, his heirs,
executors, administrators and assigns (collectively "Releasor"), does
hereby release, remise, acquit, and forever discharge Bedford Property
Investors, Inc., Bedford Acquisitions, Inc. and their affiliates, and
all of their present and former officers, directors, executives,
agents, employees, affiliated companies, divisions, subsidiaries,
successors, predecessors, and assigns (each a "Released Party" and
collectively, the "Released Parties"), of and from any and all claims,
actions, causes of action, demands, rights, damages, debts, sums of
money, complaints, grievances, promises, accounts, financial
obligations, suits, expenses, attorneys' fees and liabilities of
whatever kind or nature in law, equity or otherwise, whether now known
or unknown, suspected or unsuspected, which the undersigned,
individually or as a member of a class, now has, owns or holds or has
at any time heretofore had, owned or held against any Released Party,
arising out of or in any way connected with the undersigned's
employment relationship with Bedford Property Investors, Inc. (the
"Company") and any affiliated entities, or the termination thereof,
including, without limitation, any claim for severance or vacation
benefits, unpaid wages, salary or bonus, breach of contract, wrongful
discharge or termination of employment, impairment of economic
opportunity, reimbursement for fines or expenses paid, intentional
infliction of emotional harm or other tort, or employment
discrimination under any applicable federal, state, or local statutes,
provisions, orders, or regulations (including but not limited to any
claim under Title VII of the Civil Rights Act of 1964, as amended
("Title VII"), the federal Age Discrimination in Employment Act
("ADEA"), the California Fair Employment and Housing Act ("CFEHA") and
any similar or analogous federal, state or local statute), excepting
only (i) those obligations of Company under that certain Retention
Agreement between Company and Releasor dated March 26, 2001 (the
"Retention Agreement"), pursuant to which this Release is being
executed and delivered, and (ii) any rights to indemnification
Releasor may have under applicable corporate laws, the by-laws or
certificate of incorporation of any Released Party or as an insured
under any D&O or liability insurance policy now or previously in
force.
2. Releasor understands that by releasing employment discrimination
claims against the Released Parties, he or she also forever releases
and discharges any right he or she may have to file or recover in a
lawsuit Releasor may bring on the same claims and also any right he or
she may have to any relief that he or she might otherwise be entitled
to as a result of any proceedings instituted by the Equal Employment
Opportunity Commission or any other comparable enforcement authority.
3. Releasor acknowledges and agrees that the payment of
consideration referred to herein, as more fully described in the
Retention Agreement, is in full accord and satisfaction of any and all
claims and is made solely for the purpose of avoiding involvement in
protracted litigation based upon any claims which might be made by
Releasor and neither the Retention Agreement nor this Release are to
be construed in any way as an admission of any liability whatsoever by
any Released Party under Title VII, ADEA, CFEHA or any other federal
or state statute or principle of common law, any such liability having
been expressly denied.
4. Releasor intends by this Release to extinguish any and all
liability or claims, known or unknown, arising out of the subject
matter of this Release, and in order to accomplish this the
undersigned hereby acknowledges that he or she is familiar with
California Civil Code Section 1542 which reads as follows:
"A general release does not extend to claims
which the creditor does not know or suspect to
exist in his favor at the time of executing the
release, which if known by him must have
materially affected his settlement with the
debtor."
RELEASOR, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVES
ANY RIGHTS HE OR SHE MAY HAVE THEREUNDER, AS WELL AS UNDER ANY
STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. RELEASOR AGREES
THAT BY SIGNING THIS RELEASE AND ACCEPTING THE CONSIDERATION REFERRED
TO HEREIN, HE OR SHE GIVES UP ANY AND ALL RIGHTS HE OR SHE MAY HAVE TO
FILE A CLAIM OR COMPLAINT OF ANY KIND AGAINST THE RELEASED PARTIES.
5. Releasor hereby represents and warrants to the Released Parties
that he or she has not assigned or otherwise transferred any interest
in any claims which he or she may have against the Released parties,
or any of them, and further agrees to indemnify and hold the Released
Parties, and each of them, harmless from any liability, claims,
demands, costs, expense and attorneys' fees incurred by the Released
Parties as a result of any persons asserting any rights or claims
under any such assignment or transfer.
6. Company, on behalf of itself and the Released Parties, releases
and extinguishes any and all liability or claims, known or unknown,
arising out of the subject matter of this Release that it may have
against Releasor.
7. Releasor acknowledges that Company advised him or her to consult
with an attorney before executing this Release, that he or she was
given a period of 21 days within which to consider this Release, that
Releasor had adequate opportunity to review it, that Releasor fully
understands its terms, that Releasor was not coerced into signing it
and has signed it knowingly and voluntarily. The terms contained
herein are contractual and not mere recitals. Releasor further
acknowledges that the agreement is executed without reliance upon any
representation by any Released party or any representative thereof.
8. Releasor shall have the right to revoke this Release during a
period of seven days following his execution of this Release. To
revoke this Release, Releasor must both send a written letter by
certified mail to the Company, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxx Xxxxxx, and call Xx. Xxxxxx at (925)
299-4252 to inform her of the revocation. If the undersigned revokes
this Release, he or she must return all payments received pursuant to
the Retention Agreement along with the notice of revocation or the
revocation is of no force and effect. If no revocation is received
within the first seven days following execution of this Release, this
Release will no longer be revocable and it will then become fully
effective and enforceable.
Bedford Property Investors, Inc., a
Maryland corporation
By: _____________________________
Xxxxx X. Xxxxxxx
Chairman and CEO
ACCEPTED AND AGREED TO BY:
Dated: ___________________ _____________________________
[Name of Employee]
