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EXHIBIT 10.16
EMPLOYMENT AGREEMENT
This AGREEMENT, dated as of September 30, 1997 by and between
Xxxxx X. Xxxxx, an individual resident of the State of California (the
"Executive"), and The Peregrine Real Estate Trust, a California business trust
(the "Company").
Recitals
1. The Company desires to secure the services of Executive as an
employee of the Company for the period provided in this Agreement.
2. Executive is willing to enter into this Agreement for such
period and on the terms and conditions hereinafter set forth.
Agreement
In consideration of the premises and covenants herein contained,
the Company and Executive hereby agree as follows:
Section 1. Employment. (A) During the term of employment set
forth in Section 2 of this Agreement, the Company shall employ Executive, and
Executive shall serve, as the chief executive officer of the Company, or shall
serve in such other capacity, with such other title, as the Board of Trustees of
the Company shall reasonably determine from time to time consistent with the
skills and experience of Executive. Executive agrees to perform faithfully the
duties assigned to him to the best of his ability and to devote his full
business time and attention to the Company's business. Notwithstanding the
foregoing, Executive may continue his involvement with Snell&Co and other
related business matters to the extent that such activity does not materially
interfere with his responsibilities under this Agreement.
(B) Executive shall, subject to the control and guidance of the
Board of Trustees of the Company, perform such duties on behalf of the Company
and have such responsibilities as are consistent with the position of chief
executive officer and/or such additional or other duties as shall be reasonably
designated from time to time by the Board of Trustees of the Company.
(C) Executive agrees that he will not engage in any activities
which would interfere with his ability to discharge his responsibilities as the
full-time chief executive officer of the Company. During the period of
employment hereunder, Executive shall not make or continue to hold any
investment in or be associated with any enterprise, or engage, directly or
indirectly, in any business, which could be deemed to be in competition with the
Company, without having first obtained the approval of the Board of Trustees of
the Company. It is understood and agreed for the purposes of this provision that
share ownership in any publicly held corporation as to which Executive is not a
control person or a member of control group shall not be considered an
investment in or association with a competing enterprise.
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Section 2. Term and Place of Employment. Executive's term of
employment under this Agreement shall be for a period of three years commencing
on the date hereof, unless sooner terminated as provided in Section 5 below;
provided, however, that the term of employment hereunder may be extended by
mutual agreement between Executive and the Company at the end of such period for
an additional one year term. If the Company desires such an extension, it shall
serve written notice so stating upon Executive no less than 180 days prior to
the end of the initial three-year period. Executive shall perform his duties
principally in San Francisco and Sacramento, California and shall not be
required to change his place of residence in connection with his employment
hereunder.
Section 3. Compensation. (A) For all services to be rendered by
Executive to the Company under this Agreement the Company shall pay to Executive
a base salary of $250,000 per annum, payable pursuant to the pay policies
adopted by the Company (the "Base Salary").
(B) Executive may receive such other additional compensation as
may be determined from time to time by the Board of Trustees. Nothing herein
shall be deemed or construed to require the Board of Trustees to award any bonus
or additional compensation.
(C) The Company shall deduct from Executive's compensation all
federal, state and local taxes which it may now or may hereafter be required to
deduct.
Section 4. Benefits. (A) During the term of employment hereunder,
Executive shall be entitled, to the extent that he is otherwise eligible, to
participate fully in all benefits provided by the Company for its employees in
general, or for its executives, including, but not limited to, any pension,
profit-sharing, stock option or similar plan or program maintained from time to
time by the Company, and any life, accident, health, hospitalization or
long-term disability insurance maintained from time to time by the Company.
(B) In the event the Company wishes to obtain key man life
insurance on the life of the Executive, Executive agrees to cooperate with the
Company in completing any applications necessary to obtain such insurance and
promptly submit to such physical examinations and furnish such information as
any proposed insurance carrier may request.
(C) Executive shall be entitled to three weeks of paid vacation
per year during the term of his employment hereunder, such vacation to be taken
at such time or times selected by Executive and approved by the Company, which
approval will not be unreasonably withheld.
(D) The parties recognize that in the course of performing his
duties hereunder, Executive will necessarily incur out-of-pocket expenses for
the account of the Company. Executive shall be entitled to reimbursement for all
reasonable out-of-pocket expenses so incurred by him in the performance of his
duties hereunder, upon submission of an adequate accounting for such expenses.
Section 5. Termination; Termination Benefits. The term of
employment hereunder shall be terminated upon the first to occur of the
following:
(A) The expiration of the term of employment pursuant to Section
2 of this Agreement;
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(B) Executive's death or permanent disability. "Permanent
disability" shall mean physical or mental incapacity of a nature which prevents
Executive, in the sole judgment of the Board of Trustees of the Company, from
performing his duties under this Agreement for a period of six months. If the
term of employment is terminated because of Executive's death or disability, the
Company shall pay (in the case of death) to Executive's beneficiary or
beneficiaries designated in writing to the Company, or to Executive's estate in
the absence or lapse of such designation, or (in the case of permanent
disability) to Executive or his representative the Base Salary in respect of the
unexpired portion of the term of employment in the amounts and at the times
provided in Section 3;
(C) Executive's employment being terminated by the Board of
Trustees of the Company "for cause." Termination "for cause" shall mean
termination by action of the Board of Trustees of the Company because of (i) the
material failure of Executive to fulfill his obligations under this Agreement;
(ii) the material failure of Executive to perform faithfully the duties of his
office or the duties which are otherwise reasonably assigned to him by the Board
of Trustees commensurate with his office; (iii) the habitual intoxication or
inexcusable repeated or prolonged absence from work of Executive; (iv) the
perpetration by Executive of a fraud against the Company; or (v) the commission
by Executive of a felony. Termination for cause under subsection (iii), (iv) or
(v) of this paragraph shall occur upon delivery to Executive of a written notice
of such action by the Board of Trustees of the Company, which written notice
shall specify the grounds for such termination. If Executive's employment is
terminated for cause, the Company's only obligation to Executive shall be
payment of the Base Salary through the date on which such termination occurs.
Termination for cause under subsections (i) or (ii) of this paragraph shall
occur only if the Board of Trustees of the Company gives Executive sixty (60)
days' advance written notice of its intent to terminate for cause and the
reasons for such termination. During such sixty-day period, Executive shall have
an opportunity to correct the condition constituting cause. If the condition is
substantially corrected within this period, the termination notice shall be
rescinded; if not substantially corrected, termination shall become effective
upon expiration of the notice period;
(D) Executive's employment being terminated by the Board of
Trustees of the Company "without cause." Termination "without cause" shall mean
termination of the term of employment on any basis other than those provided in
paragraphs (A), (B) or (C) of this Section 5. If the term of employment is
terminated without cause, the Board of Trustees of the Company shall give 10
days written notice thereof to Executive and Executive shall be entitled to
receive the greater of (i) lump sum payment equal to one year's Base Salary or
(ii) the Base Salary in respect of the unexpired portion of the term of
employment in the amounts and at the times provided in Section 3; or
(E) Termination of this Agreement by Executive upon written
notice delivered to the Company no later than thirty (30) days following the
occurrence of a Change of Control (as defined herein). As used herein, "Change
of Control" shall mean (i) the acquisition by an individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act of 1934,
as amended (the "Exchange Act")), other than The Prudential Insurance Company of
America, TCW Special Credits Fund IV, TCW Special Credits Plus Fund, TCW Special
Credits Trust IV, TCW Special Credits Trust IVA, OCM Real Estate Opportunities
Fund A, L.P., OCM Real Estate Opportunities Fund B, L.P., any of their
respective affiliates or any other entity or person to which Oaktree Capital
Management, LLC, provides management or investment advisory services, of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 50% or more of either (a) the Common Shares of the Company (the
"Common Stock"), or (b) the combined voting power of the voting securities of
the Company entitled to vote generally in the election of trustees (the "Voting
Securities"); provided, however, that the following acquisitions shall not
constitute a Change of Control: (w) any acquisition pursuant to the conversion
of shares of convertible
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preferred stock of the Company outstanding on March 15, 1998, (x) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any subsidiary of the Company, (y) any acquisition
by any underwriter in connection with any firm commitment underwriting of
securities to be issued by the Company, or (z) any acquisition by any
corporation if, immediately following such acquisition, more than 80% of the
then outstanding shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of such corporation
(entitled to vote generally in the election of trustees), is beneficially owned,
directly or indirectly, by all or substantially all of the individuals and
entities who, immediately prior to such acquisition, were the beneficial owners
of the Common Stock and the Voting Securities in substantially the same
proportions, respectively, as their ownership, immediately prior to such
acquisition, of the Common Stock and Voting Securities; or (ii) consummation of
a reorganization, merger or consolidation, of the Company other than a
reorganization, merger or consolidation with respect to which all or
substantially all of the individuals and entities who were the beneficial
owners, immediately prior to such reorganization, merger or consolidation, of
the Common Stock and Voting Securities beneficially own, directly or indirectly,
immediately after such reorganization, merger or consolidation more than 80% of
the then outstanding common stock and voting securities (entitled to vote
generally in the election of trustees) of the corporation resulting from such
reorganization, merger or consolidation in substantially the same proportions as
their respective ownership, immediately prior to such reorganization, merger or
consolidation, of the Common Stock and the Voting Securities. In the event that
Executive terminates his employment pursuant to the terms of this Section 5(E),
Executive shall be entitled to receive an amount equal to the Base Salary in
respect of the unexpired portion of the term of employment hereunder in the
amounts and at the times provided in Section 3 hereof.
Section 6. Stock Options. As an inducement to Executive to enter
into this Agreement and subject to the terms of the Company's 1998 Long-Term
Incentive Plan (the "Plan"), the Company hereby grants to Executive an option to
purchase 850,000 shares of the Company's Common Stock (the "Options") at an
exercise price of $0.25 per share, which options shall vest in four equal annual
installments, the first of which shall vest upon execution of this Agreement by
each of the parties hereto and the remainder of which shall vest in equal annual
installments upon the first, second and third anniversary of this Agreement,
respectively. The Options shall expire on the date that is ten years from the
date of this Agreement. Upon the termination of Executive's employment with the
Company pursuant to Sections 5(A), (B) or (C), the Options that have not vested
as of the date of Executive's termination (the "Termination Date") shall
immediately terminate. Upon termination of Executive's employment with the
Company pursuant to Sections 5(D) or (E), the Options that have not vested as of
the Termination Date shall vest immediately as of such date. The Options
provided for herein may not be transferred, assigned, pledged or hypothecated in
any way (whether by operation of law or otherwise) except by will or the laws of
descent and distribution, and may be exercised only by Executive, or Executive's
legal representative or executor. The Options may be exercised by delivery by
any such person of the exercise price therefore to the Company in cash, pursuant
to a "cashless" exercise, by notice from any such person, authorizing the
Company to withhold from the issuance a number of shares of Common Stock
issuable upon exercise which, when multiplied by the then current "fair market
value" of the Common Stock, is equal to the aggregate exercise price of the
Options then being exercised by such person, or as provided in the Plan. For
purposes of this Section 6 fair market value shall be determined with reference
to the average closing price for the ten (10) trading days immediately preceding
the delivery of such notice, if the Common Stock is then so listed on a national
securities exchange or quoted on an automated quotation system, and if the
Common Stock is not then so listed or quoted, by the good faith determination by
action of a majority of the members of the Company's board of trustees, with the
Executive abstaining from any such action of the board of trustees. The Company
agrees to use its best efforts to include in its proxy statement for the first
annual meeting of
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shareholders following the date of this Agreement a proposal recommending that
the Company's shareholders approve the Plan.
Section 7. Non-Disclosure. This Executive shall not, at any time
during or after the termination of his employment hereunder except when acting
on behalf of and with the authorization of the Company, make use of or disclose
to any person, corporation, or other entity, for any purpose whatsoever, any
trade secret or other confidential information concerning the Company's
business, finances, proposed and current products, customers and pricing
(collectively referred to as the "Proprietary Information"). For the purposes of
this Agreement, trade secrets and confidential information shall mean
information disclosed to the Executive or known by him as a consequence of his
employment by the Company, whether or not pursuant to this Agreement, and not
generally known in the industry, concerning the business, finances, methods,
operations, market information, research and development, pricing and
information relating to proposed expansion of the Company or the Company's
business plans. The Executive acknowledges that trade secrets and other items of
confidential information, as they may exist from time to time, are valuable and
unique assets of the Company, and that disclosure of any such information would
cause substantial injury to the Company. The provisions of this Section 7 shall
survive termination of this Agreement. Notwithstanding the foregoing,
Proprietary Information shall not include any information known to Executive
prior to his employment by the Company and not acquired by Executive during the
course of events leading to such Employment.
Section 8. Restrictive Covenant. (A) Executive agrees that during
the period of time that Executive is employed by, and for any period with
respect to which Executive receives compensation from, the Company pursuant to
the terms of this Agreement (the "Noncompete Period") he will not directly or
indirectly enter into or become associated with or engage in any other business
(whether as a partner, officer, director, shareholder, employee, consultant,
representative, agent, franchisor, franchisee or otherwise), which business is
directly or indirectly involved in the investment in or management or operation
of commercial or real property anywhere in California notwithstanding the
foregoing, Executive may continue his involvement in Snell&Co, so long as
Snell&Co engages exclusively in the business that it currently conducts, and
other related business matters to the extent that such activity is not in
competition with the Company's business and does not interfere with Executive's
responsibilities under this Agreement.
(B) During the Noncompete Period, the Executive shall not
directly or indirectly through another entity (i) induce or attempt to induce
any employee, consultant, independent contractor or agent of the Company or any
of its subsidiaries to leave the employ of the Company or such subsidiary, or in
any way interfere with the relationship between the Company or any of its
subsidiaries and any employee, consultant, independent contractor or agent
thereof, (ii) hire or otherwise retain any person who was an employee,
consultant, independent contractor or agent of the Company or any of its
subsidiaries at any time during the six-month period immediately prior to the
date on which such hiring or engagement would take place or (iii) induce or
attempt to induce any customer, supplier, licensee, licensor, franchisee or
other business relation of the Company or any of its subsidiaries to cease doing
business with the Company or such subsidiary, or in any way interfere with the
relationship between any such customer, supplier, licensee, franchisee or
business relation and the Company or any of its subsidiaries (including making
any negative statements or communications about the Company or any of its
subsidiaries).
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(C) The parties hereto agree that, based upon the Company's
present business and plans for future expansion, the covenants and agreements
contained in this Section 8 are reasonable in duration, scope and geographic
area and are necessary to protect the goodwill of the Company's business. The
breach of the provisions of this Section 8 would irreparably harm the Company.
If, however, any court shall hold that the duration of non-competition or any
other restriction contained in this Section 8 is unenforceable, it is the
intention of the parties hereto that this Section 8 shall not thereby be
terminated but shall be deemed amended to delete therefrom or modify such
provision or portion adjudicated to be invalid or unenforceable or in the
alternative such judicially substituted term may be substituted therefor.
(D) The covenants and restrictions contained in this Section 8
shall survive termination of this Agreement.
Section 9. Notice. Any notice, demand, approval or other
communication which may or is required to be given under this Agreement shall be
in writing and shall be deemed to have been given on the earlier of the day
actually received or on the close of business on the second business day next
following the day when deposited in the United States mail, postage prepaid,
registered or certified, addressed to the party at the address set forth after
its name below or such other address as may be given by such party in writing to
the other, with copies sent to the persons indicated:
If to Executive:
Xxxxx X. Xxxxx
X.X. Xxx 0000
Xxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
If to the Company:
The Peregrine Real Estate Trust
0000 Xxxxx Xxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
With a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Section 10. Full and Complete Agreement; Amendment. This
Agreement constitutes the full and complete understanding and agreement of the
parties and supersedes all prior understandings and agreements regarding
Executive's employment by the Company. This Agreement may be modified only by a
written instrument executed by both parties.
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Section 11. Nonassignability. This Agreement and the rights and
benefits hereunder are personal to the Company and are not assignable or
transferable, nor may the services to be performed hereunder be assigned by the
Company to any person, firm or corporation; provided, however, that this
Agreement and the rights and benefits hereunder may be assigned by the Company
to any corporation acquiring all or substantially all of the assets of the
Company or to any corporation into which the Company may be merged or
consolidated, and this Agreement and the rights and benefits hereunder will
automatically be deemed assigned to any such corporation. Executive's right and
interests under this Agreement may not be assigned, pledged or encumbered by
Executive. The provisions of this Agreement shall inure to the benefit of
Executive's heirs, executors, administrators and successors in interest.
Section 12. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of California.
Section 13. Execution in Counterparts. This Agreement may be
executed simultaneously in one or more counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
instrument.
Section 14. Titles and Headings. Titles and section headings
herein are for purposes of reference only, and shall in no way limit, define or
otherwise affect the meaning or interpretation of any of the provisions of this
Agreement.
Section 15. Attorney's Fees. The Company shall reimburse
Executive for up to $5,000 in attorney's fees and costs actually incurred by
Executive in connection with the negotiation and preparation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first set forth above.
THE PEREGRINE REAL ESTATE TRUST
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Name:
Title:
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Xxxxx X. Xxxxx
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