EXHIBIT 10.2
FIRST AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is entered
into as of May 7, 2003, by and between XXXXXX XXXXXXXXXX (the "Employee") and
GLENBOROUGH REALTY TRUST INCORPORATED, a Maryland corporation (the
"Corporation").
RECITALS
This Agreement replaces and supersedes the Employment Agreement between the
parties dated January 1, 1998, which had a base term that expired on December
31, 2002.
For ease of reference, this Agreement is divided into the following parts, which
begin on the pages indicated:
FIRST PART: TERM OF EMPLOYMENT, DUTIES AND SCOPE, COMPENSATION AND
BENEFITS DURING EMPLOYMENT
(Sections 1-5, beginning on page 2)
SECOND PART: COMPENSATION AND BENEFITS IN CASE OF ACTUAL OR CONSTRUCTIVE
TERMINATION NOT OCCURRING AFTER A CHANGE IN CONTROL
(Sections 6-8, beginning on page 5)
THIRD PART: COMPENSATION AND BENEFITS IN CASE OF ACTUAL OR CONSTRUCTIVE
TERMINATION OCCURRING AFTER A CHANGE IN CONTROL
(Sections 9-12, beginning on page 8)
FOURTH PART: SECTION 280G PAYMENTS
(Sections 13-14, beginning on page 10)
FIFTH PART: TRADE SECRETS, SUCCESSORS, MISCELLANEOUS PROVISIONS,
SIGNATURE PAGE
(Sections 15-17, beginning on page 12)
FIRST PART: TERM OF EMPLOYMENT, DUTIES AND SCOPE, COMPENSATION AND BENEFITS
DURING EMPLOYMENT
SECTION 1: TERM OF EMPLOYMENT
(a) Basic Rule. The Corporation agrees to continue the Employee's employment,
and the Employee agrees to remain in employment with the Corporation. The
employment of the Employee shall be "at-will" at all times. The Company may
terminate the Employee's employment with the Company at any time, without any
advance notice, for any reason or no reason at all, notwithstanding anything to
the contrary contained in or arising from any statements, policies or practices
of the Company relating to the employment, discipline or termination of its
employees. Upon and after such termination, all obligations of the Company under
this Agreement shall cease, except as specifically provided herein.
(b) Termination for Cause. The Corporation may terminate the Employee's
employment at any time for Cause shown. For all purposes under this Agreement,
"Cause" shall mean (1) a willful failure by the Employee to substantially
perform the Employee's duties under this Agreement, other than a failure
resulting from the Employee's complete or partial incapacity due to physical or
mental illness or impairment, (2) a willful act by the Employee that constitutes
gross misconduct and that is materially injurious to the Corporation, (3) a
willful breach by the Employee of a material provision of this Agreement or (4)
a material and willful violation of a federal or state law or regulation
applicable to the business of the Corporation that is materially and
demonstrably injurious to the Corporation. No act, or failure to act, by the
Employee shall be considered "willful" unless committed without good faith and
without a reasonable belief that the act or omission was in the Corporation's
best interest.
The Employee shall first be given reasonable advance written notice
that the Corporation intends to terminate his employment for Cause. Such written
notice shall specify the particular acts, or failures to act, the basis of which
the decision to so terminate employment has been made. The Employee shall be
given the opportunity within 20 days of receipt of notice to meet with the Board
of Directors, accompanied by counsel, to defend such acts, or failures to act,
and the Employee shall also be given 14 working days after such meeting to
correct such acts or failures to act. Upon failure of Employee, within 14
working days, to correct such acts or failures to act, the Employee's employment
shall be automatically terminated for Cause.
(c) Termination for Disability. The Corporation may terminate the Employee's
employment for Disability by giving the Employee written notice. For all
purposes under this Agreement, "Disability" shall mean that the Employee, at the
time the notice is given, has been unable to perform the Employee's duties under
this Agreement for a period of not less than twelve consecutive months as a
result of the Employee's incapacity due to physical or mental illness. In the
event that the Employee resumes the performance of substantially all of the
Employee's duties under this Agreement before the termination of the Employee's
employment under this Section becomes effective, the notice of termination shall
automatically be deemed to have been revoked.
SECTION 2: DUTIES AND SCOPE OF EMPLOYMENT
(a) Position. The Corporation agrees to employ the Employee for the term of
employment under this Agreement in the position of President and Chief Operating
Officer. Employee shall be given such duties, responsibilities and authorities
as are appropriate to his position.
(b) Obligations. During the term of employment under this Agreement, the
Employee shall devote the Employee's full business efforts and time to the
business and affairs of the Corporation, as needed to carry out his duties and
responsibilities hereunder subject to the overall supervision of the
Corporation's Board of Directors. The foregoing shall not preclude the Employee
from engaging in
appropriate civic, charitable or religious activities or from devoting a
reasonable amount of time to private investments or from serving on the boards
of directors of other entities, as long as such activities and service do not
interfere or conflict with the Employee's responsibilities to the Corporation.
SECTION 3: BASE COMPENSATION
During the term of employment under this Agreement, the Corporation agrees to
pay the Employee as compensation for services a base salary at the annual rate
of $350,000, or at such higher rate as the Compensation Committee of the Board
of Directors may determine from time to time. Such salary shall be payable in
accordance with the standard payroll procedures of the Corporation. Once the
Corporation's Compensation Committee of the Board of Directors has increased
such salary, it thereafter shall not be reduced; provided, however, that if a
Change in Control has not occurred, such salary (including any increases) may be
reduced by the Corporation if (1) the Employee commits an act or omission that
meets the definition of Cause, as defined in Section 1(b), or (2) the Employee
and all other executive officers of the Corporation who are parties to written
employment agreements containing substantially the same provisions as this
Agreement have their salaries (including any increases) reduced by the same
percentage amount for the same time period. The annual compensation specified in
this Section 3, together with any increases in such compensation that the
Compensation Committee of the Board of Directors may grant from time to time,
and together with any reductions made in accordance with this Section 3, is
referred to in this Agreement as "Base Compensation."
SECTION 4: EMPLOYEE BENEFITS
In General. During the term of employment under this Agreement, the Employee
shall be eligible to participate in the employee benefit plans and executive
compensation and fringe benefit programs maintained by the Corporation,
including (without limitation) savings, pension or profit-sharing plans,
deferred compensation plans, stock option, incentive or other bonus plans, life,
disability, health, accident and other insurance programs, paid vacations,
automobile and similar plans or programs, subject in each case to the generally
applicable terms and conditions of the plan or program in question and to the
discretion and determinations of any person, committee or entity administering
such plan or program.
During the term of employment under this Agreement, Employee may be entitled to
an annual incentive bonus as determined by the Compensation Committee.
SECTION 5: BUSINESS EXPENSES AND TRAVEL
During the term of employment under this Agreement, the Employee shall be
authorized to incur necessary and reasonable travel, entertainment and other
business expenses in connection with the Employee's duties hereunder. The
Corporation shall reimburse the Employee for such expenses upon presentation of
an itemized account and appropriate supporting documentation, all in accordance
with generally applicable policies.
SECOND PART: COMPENSATION AND BENEFITS IN CASE OF ACTUAL OR CONSTRUCTIVE
TERMINATION NOT OCCURRING AFTER A CHANGE IN CONTROL
SECTION 6: TERMINATIONS NOT RELATING TO A CHANGE IN CONTROL
This Second Part of the Agreement, consisting of Sections 6 through 8, describes
the benefits and compensation, if any, payable in case of termination of
employment that does not occur after a Change in Control (as defined in Section
12). The Third Part of the Agreement, consisting of Sections 9 through 12,
describes benefits and compensation, if any, payable in case of termination
occurring after a Change in Control. If benefits and compensation are payable
under this Second Part, then no benefits and compensation are payable under the
Third Part.
SECTION 7: INVOLUNTARY TERMINATION WITHOUT CAUSE OR DISABILITY
In the event that, during the term of this Agreement, the Corporation terminates
the Employee's employment for any reason other than Cause or Disability, and
such termination does not occur after a Change in Control, then, after executing
the release of claims described in Section 7(d), the Employee shall be entitled
to receive the following payments and benefits:
(a) Severance (2x payment). The Corporation shall pay to the Employee following
the date of the employment termination and over the succeeding 24 months, in
accordance with standard payroll procedures, an amount equal to the following:
(1) Two times the Employee's Base Compensation in effect on the
date of the employment termination; plus
(2) 200% of the Employee's annual incentive bonus for the last
completed fiscal year of the Corporation.
Any other provision of this Agreement or of the Corporation's incentive
bonus plan notwithstanding, after the amount described in this Subsection (a)
has been paid to the Employee, the Employee shall have no further interest in
such Plan.
(b) Twenty-four Months of Life Insurance and Health Plan Coverage. The coverage
described in this Subsection (b) shall be provided for a "Continuation Period"
beginning on the date when the employment termination is effective and ending on
the earlier of (1) the 24-month anniversary of the date when the employment
termination is effective or (2) the date of the Employee's death. During the
Continuation Period, the Employee (and, where applicable, the Employee's
dependents) shall be entitled to continue participation in the group term life
insurance plan and in the health care plan for employees maintained by the
Corporation as if the Employee were still an employee of the Corporation. The
coverage provided under this Subsection (b) shall run concurrently with and
shall be offset against any continuation coverage under Part 6 of Title I of the
Employee Retirement Income Security Act of 1974, as amended. Where applicable,
the Employee's compensation for purposes of such plans shall be deemed to be
equal to the Employee's compensation (as defined in such plans) in effect on the
date of the employment termination. To the extent that the Corporation finds it
undesirable to cover the Employee under the group life insurance and health
plans of the Corporation, the Corporation shall provide the Employee (at its own
expense) with the same level of coverage under individual policies.
(c) Incentive Programs. Upon termination of the Employee's employment under this
Section 7, all stock options or equity awards granted by the Corporation shall
vest 100%. In addition, and subject to subsection (e) hereof, notwithstanding
anything to the contrary in the Corporation's stock option plans
and the Employee's stock option agreements, Employee shall have the full term
set forth in the stock option agreements to exercise such options (irrespective
of termination of employment).
(d) Release of Claims. As a condition to the receipt of the payments and
benefits described in this Section 7, the Employee shall be required to execute
a release of all claims arising out of the Employee's employment or the
termination thereof including, but not limited to, any claim of discrimination
under state or federal law, but excluding claims for indemnification from the
Corporation under any indemnification agreement with the Corporation, its
certificate of incorporation and by-laws or applicable law or claims for
directors and officers' insurance coverage.
(e) Conditions to Receipt of Payments and Benefits. In view of Employee's
position and his access to Confidential Information, as a condition to the
receipt of payments and benefits described in this Section 7, during the
"Continuation Period" described in Subsection 7(b) above, the Employee shall
not, without the Corporation's written consent, directly or indirectly, alone or
as a partner, joint venturer, officer, director, employee, independent
contractor, agent or stockholder (other than a less than 5% stockholder of a
publicly traded company) (i) engage in any activity for any other publicly
traded REIT headquartered in California with a market capitalization of $1
billion or more, which is in competition with the business of the Corporation,
(ii) solicit any of the Corporation's employees, independent contractors or
customers, (iii) hire any of the Corporation's employees or independent
contractors in an unlawful manner or actively encourage employees or independent
contractors to leave the Corporation, or (iv) otherwise breach his Confidential
Information obligations.
(f) No Mitigation. The Employee shall not be required to mitigate the amount of
any payment or benefit contemplated by this Section 7, nor shall any such
payment or benefit be reduced by any earnings or benefits that the Employee may
receive from any other source.
SECTION 8: OTHER TERMINATIONS UNDER THIS PART
If termination of employment, actual or constructive, occurs at a time that is
not after a Change in Control, and the termination is not described in Section
7, then the Employee is entitled only to the compensation, benefits and
reimbursements payable under the terms of Sections 3, 4 and 5 of this Agreement
for the period preceding the effective date of the termination including any
disability or death benefits to which Employee (or his estate or beneficiary(s))
may be entitled as a result of termination of his employment on account of
Disability or death. The payments under this Agreement shall fully discharge all
responsibilities of the Corporation to the Employee upon termination of the
Employee's employment. This Section 8 applies, without limitation, to any
termination of employment initiated by the Employee, termination of employment
caused by the Employee's death or Disability, termination of the Employee for
Cause, and any constructive termination.
THIRD PART: COMPENSATION AND BENEFITS IN CASE OF ACTUAL OR CONSTRUCTIVE
TERMINATION OCCURRING AFTER A CHANGE IN CONTROL
SECTION 9: TERMINATIONS RELATING TO A CHANGE IN CONTROL
This Third Part of the Agreement, consisting of Sections 9 through 12, describes
the benefits and compensation, if any, payable in case of termination of
employment that occurs after a Change in Control (as defined in Section 12). The
Second Part of the Agreement, consisting of Sections 6 through 8, describes
benefits and compensation, if any, payable in case of termination that does not
occur after a Change in Control. If benefits and compensation are payable under
this Third Part, then no benefits and compensation are payable under the Second
Part.
SECTION 10: INVOLUNTARY ACTUAL OR CONSTRUCTIVE TERMINATION WITHOUT CAUSE
In the event that, during the term of this Agreement and after a Change in
Control, the Employee's employment terminates in a Qualifying Termination, as
defined in Subsection (a), the Employee shall be entitled to receive the
payments and benefits described in Subsections (b) and (c).
(a) Qualifying Termination. A Qualifying Termination occurs if:
(1) The Corporation terminates the Employee's employment for any reason
other than Cause or Disability; or
(2) The Employee separates from employment with the Corporation in
response to a "Constructive Termination," which means a material reduction in
salary or benefits, a material breach of this Agreement, a material change in
responsibilities, or a requirement to relocate, except for office relocations
that would not increase the Employee's one-way commute distance by more than 20
miles.
(b) Severance (2.99x payment). The Corporation shall pay to the Employee in a
lump sum, not less than 31 days nor more than 60 days following the date of the
Qualifying Termination, an amount equal to 299% of the Employee's Base Amount.
For purposes of this Section 10(b), "Base Amount" shall mean the Employee's
average annual compensation as reported on IRS Form W-2 (excluding any
compensation attributable to the granting, vesting or exercise of stock options
or stock grants) for each of the five (5) taxable years preceding the Employee's
Qualifying Termination. Any other provisions of this Agreement or of the
Corporation's incentive bonus plan notwithstanding, after the amount described
in this Subsection (b) has been paid to the Employee, the Employee shall have no
further interest in such Plan.
(c) Incentive Programs. All stock options or equity awards granted by the
Corporation shall vest 100% upon the effective date of the Change in Control. In
addition, following a Qualifying Termination. However, to the extent that any
such accelerated vesting would trigger Excise Tax (as defined in Section 13,
below) liabilities, then to that extent such vesting shall remain unchanged.
Notwithstanding anything to the contrary in the Corporation's stock option plans
and the Employee's stock option agreements, (i) any unvested options shall
continue to vest (irrespective of termination of employment), and (ii) Employee
shall have the full term set forth in the stock option agreements to exercise
such options, whether or not their vesting has accelerated (irrespective of
termination of employment).
(d) No Mitigation. The Employee shall not be required to mitigate the amount of
any payment or benefit contemplated by this Section 10, nor shall any such
payment or benefit be reduced by any earnings or benefits that the Employee may
receive from any other source.
SECTION 11: OTHER TERMINATIONS UNDER THIS PART
If termination of employment, actual or constructive, occurs at a time that is
after a Change in Control, and the termination is not described in Section 10,
then the Employee is entitled only to the compensation, benefits and
reimbursements payable under the terms of Sections 3, 4 and 5 of this Agreement
for the period preceding the effective date of the termination including any
disability or death benefits to which Employee (or his estate or beneficiary(s))
may be entitled as a result of termination of his employment on account of
Disability or death. The payments under this Agreement shall fully discharge all
responsibilities of the Corporation to the Employee upon termination of the
Employee's employment. This Section 11 applies, without limitation, to any
termination of employment initiated by the Employee (except an
Employee-initiated termination that is described in Paragraph (2) of Section
10(a)) or a termination of employment caused by Disability, Cause or the
Employee's death.
SECTION 12: DEFINITION OF CHANGE IN CONTROL
For all purposes under this Agreement, "Change in Control" shall mean a "Change
in Control" or "Corporate Transaction," as those terms are defined in the
Glenborough Realty Trust Incorporated 1996 Stock Incentive Plan as in effect on
the date this Agreement is executed (the "Plan"); provided, however, that
Section 2.(o)(ii) of the Plan shall be deemed to read as follows.
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Company (including the capital
stock of the Company's subsidiary corporations), regardless of whether
such sale, transfer or other disposition occurs in connection with the
complete liquidation or dissolution of the Company; or
FOURTH PART: SECTION 280G PAYMENTS
SECTION 13: GROSS-UP PAYMENT.
In the event it is determined that any payment or distribution of any type to or
for the benefit of the Employee, pursuant to this Agreement or otherwise, by the
Corporation, any Person who acquires ownership or effective control of the
Corporation, or ownership of a substantial portion of the assets of the
Corporation (within the meaning of section 280G of the Code and the regulations
thereunder) or any affiliate of such Person (the "Total Payments") would be
subject to the excise tax imposed by section 4999 of the Code or any interest or
penalties with respect to such excise tax (such excise tax, together with any
such interest and penalties, are collectively referred to as the "Excise Tax"),
then the Employee shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that, after payment by the Employee of all
taxes (including any interest or penalties imposed with respect to such taxes),
including any Excise Tax, imposed upon the Gross-Up Payment, the Employee
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Total Payments.
SECTION 14: DETERMINATION BY ACCOUNTANT
All mathematical determinations and determinations as to whether any of the
Total Payments are "parachute payments" (within the meaning of section 280G of
the Code), in each case which determinations are required to be made under this
Section 14, including whether a Gross-Up Payment is required, the amount of such
Gross-Up Payment, and amounts relevant to the last sentence of this Section 14,
shall be made by an independent accounting firm selected by the Employee from
among the largest four accounting firms in the United States (the "Accounting
Firm"). The Accounting Firm shall provide to the Corporation and to the Employee
its determination (the "Determination"), together with detailed supporting
calculations regarding the amount of any Gross-Up Payment and any other relevant
matter, within ten days after termination of the Employee's employment, if
applicable, or at such earlier time following termination of employment as is
requested by the Employee (if the Employee reasonably believes that any of the
Total Payments may be subject to the Excise Tax). If the Accounting Firm
determines that no Excise Tax is payable by the Employee, it shall furnish the
Employee with a written statement that such Accounting Firm has concluded that
no Excise Tax is payable (including the reasons therefor) and that the Employee
has substantial authority not to report any Excise Tax on the Employee's federal
income tax return. If a Gross-Up Payment is determined to be payable, it shall
be paid to the Employee within ten days after the Determination is delivered to
the Corporation or the Employee. Any determination by the Accounting Firm shall
be binding upon the Corporation and the Employee, absent manifest error.
As a result of uncertainty in the application of section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments not made by the Corporation and members of the
Corporation should have been made ("Underpayment"), or that Gross-Up Payments
will have been made by the Corporation and members of the Corporation that
should not have been made ("Overpayments"). In either such event, the Accounting
Firm shall determine the amount of the Underpayment or Overpayment that has
occurred. In the case of an Underpayment, the Corporation promptly shall pay, or
cause to be paid, the amount of such Underpayment to or for the benefit of the
Employee. In the case of an Overpayment, the Employee shall, at the direction
and expense of the Corporation, take such steps as are reasonably necessary
(including the filing of returns and claims for refund), follow reasonable
instructions from, and procedures established by, the Corporation, and otherwise
reasonably cooperate with the Corporation to correct such Overpayment; provided,
however, that (1) Employee shall not in any event be obligated to return to the
Corporation an amount greater than the net after-tax portion of the Overpayment
that he has retained or recovered as a refund from the applicable taxing
authorities and (2) this provision shall be interpreted in a manner consistent
with the intent of Section 13, which is to make the Employee whole, on an
after-tax basis,
from the application of the Excise Tax, it being understood that the correction
of an Overpayment may result in the Employee repaying to the Corporation an
amount that is less than the Overpayment.
FIFTH PART: TRADE SECRETS, SUCCESSORS, MISCELLANEOUS PROVISIONS, SIGNATURE PAGE
SECTION 15: CONFIDENTIAL INFORMATION
(a) Acknowledgement. The Corporation and the Employee acknowledge that the
services to be performed by the Employee under this Agreement are unique and
extraordinary and that, as a result of the Employee's employment, the Employee
will be in a relationship of confidence and trust with the Corporation and will
come into possession of "Confidential Information" (1) owned or controlled by
the Corporation, (2) in the possession of the Corporation and belonging to third
parties or (3) conceived, originated, discovered or developed, in whole or in
part, by the Employee. As used herein "Confidential Information includes trade
secrets and other confidential or proprietary business, technical, personnel or
financial information, whether or not the Employee's work product, in written,
graphic, oral or other tangible or intangible forms, including but not limited
to specifications, samples, records, data, computer programs, drawings,
diagrams, models, customer names, ID's or e-mail addresses, business or
marketing plans, studies, analyses, projections and reports, communications by
or to attorneys (including attorney-client privileged communications), memos and
other materials prepared by attorneys or under their direction (including
attorney work product), and software systems and processes. Any information that
is not readily available to the public shall be considered to be a trade secret
and confidential and proprietary, even if it is not specifically marked as such,
unless the Corporation advises the Employee otherwise in writing.
(b) Nondisclosure. The Employee agrees that the Employee will not, without the
prior written consent of the Corporation, directly or indirectly use or disclose
Confidential Information to any person, during or after the Employee's
employment, except as may be necessary in the ordinary course of performing the
Employee's duties under this Agreement. The Employee will keep the Confidential
Information in strictest confidence and trust. This Section 15 shall apply
indefinitely, both during and after the term of this Agreement.
(c) Surrender Upon Termination. The Employee agrees that in the event of the
termination of the Employee's employment for any reason, the Employee will
immediately deliver to the Corporation all property belonging to the
Corporation, including all documents and materials of any nature pertaining to
the Employee's work with the Corporation, and will not take with the Employee
any documents or materials of any description, or any reproduction thereof of
any description, containing or pertaining to any Confidential Information. It is
understood that the Employee is free to use information that is in the public
domain (not as a result of a breach of this Agreement).
SECTION 16: SUCCESSORS
(a) Corporation's Successors. The Corporation shall require any successor
(whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially all of the
Corporation's business and/or assets, by an agreement in substance and form
satisfactory to the Employee, to assume this Agreement and to agree expressly to
perform this Agreement in the same manner and to the same extent as the
Corporation would be required to perform it in the absence of a succession. The
Corporation's failure to obtain such agreement prior to the effectiveness of a
succession shall be a breach of this Agreement and shall entitle the Employee to
all of the compensation and benefits to which the Employee would have been
entitled hereunder if the Corporation had involuntarily terminated the
Employee's employment without Cause or Disability, on the date when such
succession becomes effective. For all purposes under this Agreement, the term
"Corporation" shall include any successor to the Corporation's business and/or
assets that executes and delivers the assumption agreement described in this
Subsection (a) or that becomes bound by this Agreement by operation of law.
(b) Employee's Successors. This Agreement and all rights of the Employee
hereunder shall inure to the benefit of, and be enforceable by, the Employee's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
SECTION 17: MISCELLANEOUS PROVISIONS
(a) Waiver. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in writing
and signed by the Employee and by an authorized officer of the Corporation
(other than the Employee). No waiver by either party of any breach of, or of
compliance with, any condition or provision of this Agreement by the other party
shall be considered a waiver of any other condition or provision or of the same
condition or provision at another time.
(b) Whole Agreement. No agreements, representations or understandings (whether
oral or written and whether express or implied), other than stock option
agreements and indemnity agreements, that are not expressly set forth in this
Agreement have been made or entered into by either party with respect to the
subject matter hereof. In addition, the Employee hereby acknowledges and agrees
that this Agreement supersedes in its entirety any employment agreement between
the Employee and the Corporation in effect immediately prior to the effective
date of this Agreement. As of the effective date of this Agreement, such
employment agreement shall terminate without any further obligation by either
party thereto, and the Employee hereby relinquishes any further rights that the
Employee may have had under such prior employment agreement.
(c) Notice. Notices and all other communications contemplated by this Agreement
shall be in writing and shall be deemed to have been duly given when personally
delivered or when mailed by U.S. registered or certified mail, return receipt
requested and postage prepaid. In the case of the Employee, mailed notices shall
be addressed to the Employee at the home address that the Employee most recently
communicated to the Corporation in writing. In the case of the Corporation,
mailed notices shall be addressed to its corporate headquarters, and all notices
shall be directed to the attention of its Chief Executive Officer.
(d) No Setoff. There shall be no right of setoff or counterclaim, with respect
to any claim, debt or obligation, against payments to the Employee under this
Agreement.
(e) Choice of Law. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of California,
irrespective of California's choice-of-law principles.
(f) Severability. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision hereof, which shall remain in full force and effect.
(g) Arbitration. Except as otherwise provided in Section 14, any dispute or
controversy arising out of the Employee's employment or the termination thereof,
including, but not limited to, any claim of discrimination under state or
federal law, shall be settled exclusively by arbitration in San Mateo,
California, in accordance with the rules of the American Arbitration Association
then in effect; provided, however, that in the event of a claimed violation of
Section 15, the Corporation may seek injunctive relief in order to prevent
irreparable injury or preserve the status quo. Judgment may be entered on the
arbitrator's award in any court having jurisdiction and attorney fees will be
awarded to the prevailing party.
(h) No Assignment of Benefits. The rights of any person to payments or benefits
under this Agreement shall not be made subject to option or assignment, either
by voluntary or involuntary assignment or by operation of law, including
(without limitation) bankruptcy, garnishment, attachment or other creditor's
process, and any action in violation of this Subsection (h) shall be void.
(i) Employment Taxes. All payments made pursuant to this Agreement shall be
subject to withholding of applicable taxes.
(j) Benefit Coverage Non-Additive. In the event that the Employee is entitled to
life insurance and health plan coverage under more than one provision hereunder,
only one provision shall apply, and neither the periods of coverage nor the
amounts of benefits shall be additive.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case
of the Corporation by its duly authorized officer, as of the day and year first
above written. Employee has consulted (or has had the opportunity to consult)
with his own counsel prior to execution of this Agreement.
/s/ Xxxxxx Xxxxxxxxxx
---------------------------------------
Employee
GLENBOROUGH REALTY TRUST INCORPORATED
By /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Chairman, Compensation Committee
