EXHIBIT 10.3
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement, dated May 7, 2003, is between Glenborough
Realty Trust Incorporated (the "Company") and Xxxxxx X. Xxxxx ("Executive").
I. POSITION AND RESPONSIBILITIES
A. POSITION. Executive shall continue in the employment of the Company, to
render services to the Company in the position of Executive Vice President.
Executive shall perform such duties and responsibilities as are normally related
to such position in accordance with the standards of the industry and any
additional duties now or hereafter assigned to Executive by the Company.
Executive shall abide by the rules, regulations, and practices as adopted or
modified from time to time in the Company's sole discretion.
B. OTHER ACTIVITIES. Except upon the prior written consent of the Company,
Executive will not, during the term of this Agreement, (i) pursue any other
employment, or (ii) engage, directly or indirectly, in any other business
activity (whether or not pursued for pecuniary advantage) that might interfere
with Executive's duties and responsibilities hereunder or create a conflict of
interest with the Company.
C. NO CONFLICT. Executive represents and warrants that Executive's execution
of this Agreement, Executive's employment with the Company, and the performance
of Executive's proposed duties under this Agreement shall not violate any
obligations Executive may have to any other employer, person or entity,
including any obligations with respect to proprietary or confidential
information of any other person or entity.
II. COMPENSATION AND BENEFITS
A. BASE SALARY. In consideration of the services to be rendered under this
Agreement, the Company shall pay Executive a salary at the rate of Two Hundred
and Thirty Thousand Dollars ($230,000) per year ("Base Salary"). The Base Salary
shall be paid in accordance with the Company's regularly established payroll
practice. Executive's Base Salary will be reviewed from time to time in
accordance with the established procedures of the Company for adjusting salaries
for similarly situated employees and may be adjusted in the sole discretion of
the Company.
B. BONUS. Executive shall be eligible for an annual bonus equal to fifty
percent (50%) of Executive's Base Salary, subject to Executive meeting
individual performance standards established in writing by the Board of
Directors and subject to the Company meeting corporate performance standards as
established by the Compensation Committee of the Board of Directors ("Bonus").
The Compensation Committee of the Board of Directors shall have sole discretion
to establish corporate and individual performance standards.
C. STOCK GRANTS AND OPTIONS. Subject to Executive's performance and the
approval of the Compensation Committee of the Board of Directors, Executive
shall be eligible to receive additional stock grants and/or stock options and to
participate in other bonus programs as established by the Company.
D. BENEFITS. Executive shall be eligible to participate in the benefits made
generally available by the Company to similarly-situated Executives, in
accordance with the benefit plans established by the Company, and as may be
amended from time to time in the Company's sole discretion.
E. EXPENSES. The Company shall reimburse Executive for reasonable business
expenses incurred in the performance of Executive's duties hereunder in
accordance with the Company's expense reimbursement guidelines.
III. AT-WILL EMPLOYMENT; TERMINATION BY COMPANY
A. AT-WILL TERMINATION BY COMPANY. The employment of Executive shall be
"at-will" at all times. The Company may terminate Executive'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.
X. XXXXXXXXX. Except in situations where the employment of Executive is
terminated For Cause, By Death, By Disability, or within one (1) year of a
Change of Control (as defined in Section IV(E) below), in the event that the
Company terminates the employment of Executive at any time, Executive will be
eligible to receive an amount equal to twelve (12) months of the then-current
Base Salary of the Executive, payable in the form of salary continuation.
Executive's eligibility for severance is conditioned on Executive having first
signed a release agreement in the form attached as Exhibit A. Executive shall
not be entitled to any severance payments if Executive's employment is
terminated For Cause, By Death or By Disability (as defined in Section IV below)
or if Executive's employment is terminated by Executive (in accordance with
Section V below). In the event Executive is eligible for Change of Control
severance benefits as set forth in Section IV(D) or Section V(B) below,
Executive shall be ineligible for the severance benefit described in this
Section III(B).
IV. OTHER TERMINATIONS BY COMPANY
A. TERMINATION FOR CAUSE. For purposes of this Agreement, "For Cause" shall
mean: (i) Executive commits a crime involving dishonesty, breach of trust, or
physical harm to any person; (ii) Executive willfully engages in conduct that is
in bad faith and materially injurious to the Company, including but not limited
to, misappropriation of trade secrets, fraud or embezzlement; (iii) Executive
commits a material breach of this Agreement, which breach is not cured within
twenty days after written notice to Executive from the Company; (iv) Executive
willfully refuses to implement or follow a lawful policy or directive of the
Company, which breach is not cured within twenty days after written notice to
Executive from the Company; or (v) Executive engages in misfeasance or
malfeasance demonstrated by a pattern of failure to perform job duties
diligently and professionally. The Company may terminate Executive's employment
For Cause at any time, without any advance notice. The Company shall pay to
Executive all
compensation to which Executive is entitled up through the date of termination,
subject to any other rights or remedies of Employer under law; and thereafter
all obligations of the Company under this Agreement shall cease.
B. BY DEATH. Executive's employment shall terminate automatically upon
Executive's death. The Company shall pay to Executive's beneficiaries or estate,
as appropriate, any compensation then due and owing. Thereafter all obligations
of the Company under this Agreement shall cease. Nothing in this Section shall
affect any entitlement of Executive's heirs or devisees to the benefits of any
life insurance plan or other applicable benefits.
C. BY DISABILITY. If Executive becomes eligible for the Company's long term
disability benefits or if, in the sole opinion of the Company, Executive is
unable to carry out the responsibilities and functions of the position held by
Executive by reason of any physical or mental impairment for more than ninety
consecutive days or more than one hundred and twenty days in any twelve-month
period, then, to the extent permitted by law, the Company may terminate
Executive's employment. The Company shall pay to Executive all compensation to
which Executive is entitled up through the date of termination, and thereafter
all obligations of the Company under this Agreement shall cease. Nothing in this
Section shall affect Executive's rights under any disability plan in which
Executive is a participant.
D. TERMINATION FOLLOWING CHANGE OF CONTROL. In the event that the Company
terminates Executive's employment without Cause within one (1) year of a Change
of Control (as defined below), the Company shall pay to the Executive, in a lump
sum, not less than 31 days nor more than 60 days following the date of the such
termination, an amount equal to 299% of the Executive's Base Amount. For
purposes of this Section IV.D., "Base Amount" shall mean the Executive'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 Executive's
termination. Any other provisions of this Agreement or of the Company's
incentive bonus plan notwithstanding, after the amount described in this
Subsection D has been paid to the Executive, the Executive shall have no further
interest in such plan.
Executive's eligibility for severance is conditioned on Executive having first
signed a release agreement in the form attached as Exhibit A. Executive shall
not be entitled to any severance payments if Executive's employment is
terminated For Cause, By Death or By Disability (as defined in Section IV above)
or if Executive's employment is terminated by Executive without Good Reason (as
defined in Section V(B) below). In the event that the Company terminates
Executive's employment without Cause and such termination does not occur within
one (1) year of a Change of Control, the Executive will be eligible to receive
the benefits described in Section III(B) above.
E. "CHANGE OF CONTROL." For purposes of this Agreement, "Change of Control"
shall mean a change in ownership or control of the Company effected through a
merger, consolidation or acquisition by any person or related group of persons
(other than an acquisition by the Company or by a Company-sponsored employee
benefit plan or by a person or persons that directly or indirectly controls, is
controlled by, or is under common control with, the Company) of beneficial
ownership (within the meaning of Rule 13d-3 of the Securities Exchange Act of
1934) of securities possessing more than fifty percent of the total combined
voting power of the outstanding securities of the Company.
V. TERMINATION BY EXECUTIVE
A. AT-WILL TERMINATION BY EXECUTIVE. Executive may terminate employment with
the Company at any time for any reason or no reason at all, upon four weeks'
advance written notice. During such notice period Executive shall continue to
diligently perform all of Executive's duties hereunder. The Company shall have
the option, in its sole discretion, to make Executive's termination effective at
any time prior to the end of such notice period as long as the Company pays
Executive all compensation to which Executive is entitled up through the last
day of the four week notice period. Thereafter all obligations of the Company
shall cease.
B. TERMINATION FOR GOOD REASON AFTER CHANGE OF CONTROL. Executive's
termination shall be for "Good Reason" if Executive provides written notice to
the Company of the Good Reason within six months of the event constituting Good
Reason and provides the Company with a period of twenty days to cure the Good
Reason and the Company fails to cure the Good Reason within that period. For
purposes of this Agreement, "Good Reason" shall mean any of the following events
if (i) the event is effected by the Company without the consent of Executive and
(ii) such event occurs within one (1) year after a Change in Control (as
hereinafter defined): (A) a change in Executive's position with Employer which
materially reduces Executive's level of responsibility; (B) a reduction in
Executive's Base Salary, except for reductions that are comparable to reductions
generally applicable to similarly situated executives of the Company; or (C) a
relocation of Executive's principal place of employment by more than twenty
miles (which shall include all of San Francisco's city limits). In such event
Executive may terminate his employment for Good Reason, in which case Executive
will be eligible to receive an amount equal to Two Hundred and Ninety-Nine
Percent (299%) of the combined total of Executive's then-current annual Base
Salary and Bonus, payable in the form of salary continuation. Executive's
eligibility for severance is conditioned on Executive having first signed a
release agreement in the form attached as Exhibit A. Thereafter all obligations
of the Company or its successor under this Agreement shall cease.
VI. TERMINATION OBLIGATIONS
A. RETURN OF PROPERTY. Executive agrees that all property (including without
limitation all equipment, tangible proprietary information, documents, records,
notes, contracts and computer-generated materials) furnished to or created or
prepared by Executive incident to Executive's employment belongs to the Company
and shall be promptly returned to the Company upon termination of Executive's
employment.
B. RESIGNATION AND COOPERATION. Upon termination of Executive's employment,
Executive shall be deemed to have resigned from all offices and directorships
then held with the Company. Following any termination of employment, Executive
shall cooperate with the Company in the winding up of pending work on behalf of
the Company and the orderly transfer of work to other employees. Executive shall
also cooperate with the Company in the defense of any action brought by any
third party against the Company that relates to Executive's employment by the
Company.
VII. SECTION 280G PAYMENTS
A. EFFECT OF SECTION 280G. In the event that any payment or benefit (within
the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as
amended (the "Code")) to Executive or for Executive's benefit, paid or payable
or distributed or distributable pursuant to the terms of this Agreement or
otherwise in connection with, or arising out of, Executive's employment with the
Company or a Change in Control (a "Payment" or "Payments"), would be subject to
the excise tax imposed by Code Section 4999, or any interest or penalties are
incurred by Executive with respect to such excise tax (such excise tax, together
with any such interest and penalties, are hereinafter collectively referred to
as the "Excise Tax"), then Executive will be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by Executive
of all taxes (including any interest or penalties (other than interest and
penalties imposed by reason of Executive's failure to file timely a tax return
or pay taxes shown due on Executive's return) imposed with respect to such taxes
and the Excise Tax), including any Excise Tax imposed upon the Gross-Up Payment,
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
B. DETERMINATION BY ACCOUNTANT. An initial determination as to whether a
Gross-Up Payment is required pursuant to this Agreement and the amount of such
Gross-Up Payment shall be made by the Company. The Company shall provide its
determination (the "Determination"), together with detailed supporting
calculations and documentation, to Executive within fifteen (15) days of the
Termination Date, if applicable, or such other time as requested by Executive
(provided Executive reasonably believes that any of the Payments may be subject
to the Excise Tax). If requested by Executive, the Company shall furnish
Executive, at the Company's expense, with an opinion reasonably acceptable to
Executive from the Company's accounting firm (or an accounting firm of
equivalent stature reasonably acceptable to Executive) that there is a
reasonable basis for the Determination. Any Gross-Up Payment determined pursuant
to this Section VII shall be paid by the Company to Executive within five (30)
days of receipt of the Determination.
C. ADJUSTMENT OF PAYMENT. As a result of the uncertainty in the application of
Sections 4999 and 280G of the Code, it is possible that the Payments to be made
to, or provided for the benefit of, Executive will be either greater (an "Excess
Payment") or less (an "Underpayment") than the amounts provided for by the
limitations contained in Section VII.
1. If it is established, pursuant to a final determination of a court
or an Internal Revenue Service (the "IRS") proceeding which has been
finally and conclusively resolved, that an Excess Payment has been
made, such Excess Payment shall be deemed for all purposes to be a loan
to Executive made on the date Executive received the Excess Payment,
which loan Executive must repay to the Company together with interest
at the applicable federal rate under Code Section 7872(f)(2); provided,
that no loan shall be deemed to have been made and no amount will be
payable by Executive to the Company unless, and only to the extent
that, the deemed loan and payment would either reduce the amount on
which Executive is subject to tax under Code Section 4999 or generate a
refund of tax imposed under Code Section 4999.
2. In the event that it is determined (i) by the Accounting Firm, the
Company (which shall include the position taken by the Company, or
together with its consolidated group, on its federal
income tax return) or the IRS, (ii) pursuant to a determination by a
court, or (iii) upon the resolution to Executive's satisfaction of the
Dispute, that an Underpayment has occurred, the Company shall pay an
amount equal to the Underpayment to Executive within ten (10) days
after such determination or resolution, together with interest on such
amount at the applicable federal rate under Code Section 7872(f)(2)
from the date such amount would have been paid to Executive until the
date of payment.
VIII. PROPRIETARY INFORMATION; PROHIBITION ON THIRD PARTY INFORMATION
A. NON-SOLICITATION. Executive acknowledges that because of Executive's
position in the Company, Executive will have access to material intellectual
property and confidential information. During the term of Executive's employment
and for one year thereafter, in addition to Executive's other obligations
hereunder or under the Proprietary Information Agreement, Executive shall not,
for Executive or any third party, directly or indirectly (a) divert or attempt
to divert from the Company any business of any kind, including without
limitation the solicitation of or interference with any of its customers,
clients, members, business partners or suppliers, or (b) solicit or otherwise
induce any person employed by the Company to terminate his employment.
B. NON-DISCLOSURE OF THIRD PARTY INFORMATION. Executive represents and
warrants and covenants that Executive shall not disclose to the Company, or use,
or induce the Company to use, any proprietary information or trade secrets of
others at any time, including but not limited to any proprietary information or
trade secrets of any former employer, if any; and Executive acknowledges and
agrees that any violation of this provision shall be grounds for Executive's
immediate termination and could subject Executive to substantial civil
liabilities and criminal penalties. Executive further specifically and expressly
acknowledges that no officer or other employee or representative of the Company
has requested or instructed Executive to disclose or use any such third party
proprietary information or trade secrets.
IX. ARBITRATION
Executive agrees to sign and be bound by the terms of the Company's Arbitration
Agreement.
X. AMENDMENTS; WAIVERS; REMEDIES
This Agreement may not be amended or waived except by a writing signed by
Executive and by a duly authorized representative of the Company other than
Executive. Failure to exercise any right under this Agreement shall not
constitute a waiver of such right. Any waiver of any breach of this Agreement
shall not operate as a waiver of any subsequent breaches. All rights or remedies
specified for a party herein shall be cumulative and in addition to all other
rights and remedies of the party hereunder or under applicable law.
XI. ASSIGNMENT; BINDING EFFECT
A. ASSIGNMENT. The performance of Executive is personal hereunder, and Executive
agrees that Executive shall have no right to assign and shall not assign or
purport to assign any rights or obligations under this Agreement. This Agreement
may be assigned or transferred by the Company; and nothing in this Agreement
shall prevent the consolidation, merger or sale of the Company or a sale of any
or all or substantially all of its assets.
B. BINDING EFFECT. Subject to the foregoing restriction on assignment by
Executive, this Agreement shall inure to the benefit of and be binding upon each
of the parties; the affiliates, officers, directors, agents, successors and
assigns of the Company; and the heirs, devisees, spouses, legal representatives
and successors of Executive.
XII. NOTICES
All notices or other communications required or permitted hereunder shall be
made in writing and shall be deemed to have been duly given if delivered: (a) by
hand; (b) by a nationally recognized overnight courier service; or (c) by United
States first class registered or certified mail, return receipt requested, to
the principal address of the other party, as set forth below. The date of notice
shall be deemed to be the earlier of (i) actual receipt of notice by any
permitted means, or (ii) five business days following dispatch by overnight
delivery service or the United States Mail. Executive shall be obligated to
notify the Company in writing of any change in Executive's address. Notice of
change of address shall be effective only when done in accordance with this
paragraph.
Company's Notice Address:
Glenborough Realty Trust
000 Xxxxx Xx Xxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxxxxxx, President
Executive's Notice Address:
Glenborough Realty Trust
000 Xxxxx Xx Xxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx
XIII. SEVERABILITY
If any provision of this Agreement shall be held by a court or arbitrator to be
invalid, unenforceable, or void, such provision shall be enforced to the fullest
extent permitted by law, and the remainder of this Agreement shall remain in
full force and effect. In the event that the time period or scope of any
provision is declared by a court or arbitrator of competent jurisdiction to
exceed the maximum time period or scope
that such court or arbitrator deems enforceable, then such court or arbitrator
shall reduce the time period or scope to the maximum time period or scope
permitted by law.
XIV. TAXES
All amounts paid under this Agreement (including without limitation Base Salary
and severance) shall be paid less all applicable state and federal tax
withholdings and any other withholdings required by any applicable jurisdiction.
XV. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the State of California.
XVI. INTERPRETATION
This Agreement shall be construed as a whole, according to its fair meaning, and
not in favor of or against any party. Sections and section headings contained in
this Agreement are for reference purposes only, and shall not affect in any
manner the meaning or interpretation of this Agreement. Whenever the context
requires, references to the singular shall include the plural and the plural the
singular.
XVII. OBLIGATIONS SURVIVE TERMINATION OF EMPLOYMENT
Executive agrees that any and all of Executive's obligations under this
agreement, including but not limited to Exhibits B and C, shall survive the
termination of employment and the termination of this Agreement.
XVIII. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original of this Agreement, but all of which together shall
constitute one and the same instrument.
XIX. AUTHORITY
Each party represents and warrants that such party has the right, power and
authority to enter into and execute this Agreement and to perform and discharge
all of the obligations hereunder; and that this Agreement constitutes the valid
and legally binding agreement and obligation of such party and is enforceable in
accordance with its terms.
XX. ENTIRE AGREEMENT
This Agreement is intended to be the final, complete, and exclusive statement of
the terms of Executive's employment by the Company and may not be contradicted
by evidence of any prior or contemporaneous statements or agreements, except for
agreements specifically referenced herein (including the Proprietary Information
and Inventions Agreement, the Arbitration Agreement, and the Stock Grant
Agreement). To the extent that the practices, policies or procedures of the
Company, now or in the future, apply to Executive and are inconsistent with the
terms of this Agreement, the provisions of this Agreement shall control. Any
subsequent change in Executive's duties, position, or compensation will not
affect the validity or scope of this Agreement.
XXI. EXECUTIVE ACKNOWLEDGEMENT
EXECUTIVE ACKNOWLEDGES EXECUTIVE HAS HAD THE OPPORTUNITY TO CONSULT LEGAL
COUNSEL CONCERNING THIS AGREEMENT, THAT EXECUTIVE HAS READ AND UNDERSTANDS THE
AGREEMENT, THAT EXECUTIVE IS FULLY AWARE OF ITS LEGAL EFFECT, AND THAT EXECUTIVE
HAS ENTERED INTO IT FREELY BASED ON EXECUTIVE'S OWN JUDGMENT AND NOT ON ANY
REPRESENTATIONS OR PROMISES OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first written above.
GLENBOROUGH REALTY XXXXXX X. XXXXX:
TRUST INCORPORATED:
/s/ Xxxxxx Xxxxxxxxxx /s/ Xxxxxx X. Xxxxx
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By: Xxxxxx Xxxxxxxxxx Xxxxxx X. Xxxxx
President and Chief Operating Officer Executive Vice President
EXHIBIT A
GENERAL RELEASE
Xxxxxx X. Xxxxx ("You") and Glenborough Realty Trust Incorporated have
agreed on the following:
Effective _______, your employment at Glenborough Realty Trust (the
"Company") shall be terminated. Within fourteen days after you sign this
Agreement, you will begin to receive the severance payments provided in Section
__ of your Executive Employment Agreement. These payments shall be made in
accordance with the terms and conditions of the Executive Employment Agreement.
In return for these benefits, you completely release any and all claims
you may now have or have ever had against the Company, its affiliated, related,
parent or subsidiary corporations, and its present and former directors,
officers, and employees, and agree not to file, cause to be filed, or otherwise
pursue any such claims. For purposes of this General Release, the term "claims"
includes, but is not limited to, any and all: claims for compensation, bonuses,
severance pay, or stock options; claims arising from your employment including,
but not limited to, claims arising under the Title VII of the Civil Rights Act
of 1964, the California Fair Employment and Housing Act, the Age Discrimination
in Employment Act, the Worker Adjustment and Retraining Notification Act, or any
other claims for violation of any federal, state, county or municipal statute,
regulation or ordinance; and any and all claims for attorneys' fees and costs.
The parties agree that any and all disputes arising out of the terms of this
Agreement or their interpretation, any of the matters herein being released, or
any other dispute between the parties, shall be resolved in accordance with the
Arbitration Agreement executed by the parties.
You agree that this release specifically covers known and unknown
claims, which you the creditor does not know or suspect to exist in your favor
at the time of executing the release, which if known by you must have materially
affected your decision to enter into this Release.
You acknowledge that the payment and benefits described above exceed
the amount to which you otherwise are entitled under the Company's policies and
practices. You also agree that this Agreement is confidential and you will not
discuss it, or any of its terms, with anyone without the Company's prior
consent.
You further acknowledge that this Agreement represents the entire
agreement and understanding between the parties, supersedes and replaces any and
all prior agreements and understandings between them, and shall not be modified
in any way except in writing executed by the party or parties to be bound
thereby. If any term or portion of this Agreement is found to be unenforceable
under applicable law, such finding shall not invalidate the whole Agreement;
rather, such term or portion shall be enforced (by blue-penciling or otherwise)
to the greatest extent permitted by law, and the remainder of this Agreement
shall remain in full force and effect. You also acknowledge that this Agreement
is binding on you and your heirs, successors, and assigns and inures to the
benefit of the Company and its successors and assigns.
You have the right to consult an attorney and have been advised that
you may have 21 days to consider this Agreement. (You, of course, do not have to
wait 21 days to sign this Agreement). You have also been advised that you may
revoke this Agreement within 7 days after you sign it, and that this
agreement shall not become effective or enforceable until the revocation period
has expired. If you elect to revoke this Agreement, you will do so via written
letter sent certified mail to Xxxxxx Xxxxxxxxxx at Glenborough Realty Trust, 000
Xxxxx Xx Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000-0000.
Finally, you acknowledge that you have been afforded every opportunity
to and have read this Agreement, are fully aware of its contents and legal
effect, and have chosen to enter into this Agreement freely, without coercion,
and based on your own judgment.
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Xxxxxx X. Xxxxx Xxxxxxx Xxxxx
Chairman, Compensation Committee
Glenborough Realty Trust Incorporated
Date: Date:
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