EXHIBIT 10.14
AMENDMENT TO LETTER OF EMPLOYMENT
THIS AMENDMENT TO LETTER OF EMPLOYMENT ("Amendment") is made and
entered into by and between Xxxx X. Xxxxxxx ("Employee") and CABOT INDUSTRIAL
PROPERTIES, L.P. ("Employer").
WHEREAS, Employee and Employer entered into an amended letter of
employment, effective September 10, 1998 (the "Letter of Employment"), under
which Employee is to receive certain benefits if Employee's employment is
terminated under certain circumstances following a Change in Control (as
defined therein) (the "Change in Control Benefits"), with the payment of the
Change in Control Benefits to be made as soon as practicable following such
termination; and
WHEREAS, the Change in Control Benefits, prior to required payroll tax
withholding or any adjustment in accordance with the provisions of Exhibit A to
the Letter Agreement, is an amount equal to three (3) times the sum of the rate
of the Employee's annual base compensation as in effect on the date of
termination (or as in effect on the date of the Change in Control, if higher)
plus the amount of the Employee's bonus for the year prior to the year in which
the Employee's employment terminates (the "Initial Benefit"); and
WHEREAS, pursuant to the terms of the Agreement and Plan of Merger,
dated as of October __, 2001 (the "Merger Agreement"), Cabot Industrial Trust
("REIT") and Employer desire to have Rooster Acquisition Corp., a Delaware
corporation, merge with and into REIT with REIT as the surviving corporation
(the "Merger"); and
WHEREAS, as a result of the contemplated Merger, Employee and Employer
mutually agree that it is in the best interest of both parties for the
definition of Change in Control, the timing of the payment of the Change in
Control Benefits, and the calculation of the Initial Benefit under the Letter
of Employment to be amended; and
WHEREAS, Employee and Employer mutually agree that if the contemplated
Merger is either: (a) not effected or (b) not effected on or before April 30,
2002, this Amendment shall be without any force and effect and the definition
of Change in Control, the timing of the payment of the Change in Control
Benefits, and the calculation of the Initial Benefit under the Letter of
Employment shall at all times commencing immediately after the execution of
this Amendment be the definition of Change in Control and timing of payment of
such benefits in effect immediately prior to the execution of this Amendment.
NOW, THEREFORE, for and in consideration of the mutual promises set
forth below, it is hereby agreed by and between the Employee and Employer as
follows:
1. The definition of Change in Control under the Letter of
Employment shall be amended in its entirety to read as follows:
A "Change in Control" means the happening of any of the following:
(a) the effective time of a transaction under which the REIT
merges into or consolidates with another entity, sells or
otherwise disposes of all or substantially all of its
assets or adopts a plan of liquidation, provided, however,
that a Change in Control shall not be deemed to have
occurred by reason of a transaction, or a substantially
concurrent or otherwise related series of transactions,
upon the completion of which 50% or more of the beneficial
ownership of the voting power of the REIT, the surviving
corporation or corporation directly or indirectly
controlling the REIT or the surviving corporation, as the
case may be, is held by the same persons (as defined below)
(although not necessarily in the same proportion) as held
the beneficial ownership of the voting power of the REIT
immediately prior to the transaction or the substantially
concurrent or otherwise related series of transactions,
except that upon the completion thereof, employees or
employee benefit plans of the REIT may be a new holder of
such beneficial ownership; provided, further, that any
transaction described in this paragraph (a) with an
"Affiliate" of the REIT (as defined in the Securities
Exchange Act of 1934, as amended (the "Exchange Act"))
shall not be treated as a Change in Control; or
(b) the "beneficial ownership" (as defined in Rule 13d-3 under the
Exchange Act) of securities representing 25% or more of the
combined voting power of the REIT is acquired, other than
from the REIT, by any "person" as defined in Sections 13(d)
and 14(d) of the Exchange Act (other than any trustee or
other fiduciary holding securities under an employee
benefit or other similar stock plan of the REIT); or
(c) at any time during any period of two consecutive years,
individuals who at the beginning of such period were
members of the Board cease for any reason to constitute at
least a majority thereof (unless the election, or the
nomination for election by the REIT's shareholders, of each
new trustee was approved by a vote of at least two-thirds
of the trustees still in office at the time of such
election or nomination who were trustees at the beginning
of such period).
2. The timing of the payment of the Change in Control Benefits
under the Letter of Employment shall be amended in its entirety to provide as
follows:
The "lump sum payment" to be made pursuant to the terms of the Letter
of Employment shall be made on the earliest to occur of:
(a) the effective time of the Merger;
(b) the termination of the Merger Agreement as a result of an
injunction having been obtained against the Merger; or
(c) the 120th day following the close of the Tender Offer as
contemplated and set forth in the Merger Agreement.
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3. The calculation of the Initial Benefit under the Letter of
Employment shall be amended in its entirety to provide as follows:
The Initial Benefit shall be an amount equal to three (3) times the
sum of the rate of the Employee's annual base compensation as in
effect on the date of termination (or as in effect on the date of the
Change in Control, if higher) plus the amount of the Employee's bonus
for the year in which the Employee's employment terminates (provided
if termination of employment does not occur until the year 2002, the
bonus shall be the amount of bonus paid with respect to the year
2001).
4. In the event the contemplated Merger is either: (a) not
effected or (b) not effected on or before April 30, 2002, this Amendment shall
be without any force and effect and the definition of Change in Control, the
timing of the payment of the Change in Control Benefits, and the calculation of
the Initial Benefit under the Letter of Employment shall at all times
commencing immediately after the execution of this Amendment be the definition
of Change in Control and timing of payment of such benefits in effect
immediately prior to the execution of this Amendment.
5. Employee, intending to be legally bound and for and in
consideration of the benefits described in this Amendment, does for himself,
his heirs, executors, administrators, successors and assigns, hereby release
and forever discharge Employer, its successors, predecessors, parents,
subsidiaries, affiliates, assigns, directors, officers, agents and employees
and all persons, corporations or other entities who might claim to be jointly
and severally liable with them, from any and all actions, causes of action,
claims, demands, charges or suits of any kind whatsoever based upon, arising
out of or relating to this Amendment.
6. Employee acknowledges that Employee has freely and voluntarily
entered into this Amendment and agrees that he shall not institute any legal
proceedings either individually or as a class representative or member against
Employer as to any matter based upon, arising out of or relating to this
Amendment.
7. This Amendment shall be governed by and construed in
accordance with the laws of the State of Massachusetts.
8. Except as provided herein, each provision of this Amendment is
intended to be severable. If any term or provision is held to be invalid, void
or unenforceable by a court of competent jurisdiction for any reason
whatsoever, such ruling shall not affect the remainder of this Amendment.
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IN WITNESS WHEREOF, the parties, intending to be legally bound, apply
their signatures voluntarily and with full understanding of the contents of
this Amendment and after having had ample time to review and study this
Amendment.
Signed and executed this 28th day of October, 2001.
WITNESS: EMPLOYEE
/s/ Xxxx X. Xxxxxxx
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WITNESS: CABOT INDUSTRIAL PROPERTIES, L.P.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: President
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