Exhibit 10.15
EMPLOYMENT AGREEMENT
Employment Agreement (the "Agreement"), made and entered into as of
January 2, 1998 by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Employee") and Brandywine
Realty Trust, a Maryland real estate investment trust (the "Company").
BACKGROUND
The Company desires to employ Employee, and Employee desires to enter
into the employ of the Company, on the terms and conditions contained in this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Employment. The Company hereby employs Employee, and Employee
hereby accepts employment by the Company, for the period and upon the terms and
conditions contained in this Agreement.
2. Office and Duties.
(a) Employee shall be employed by the Company as its President and
Chief Executive Officer and will serve as a member of the Board of Trustees of
the Company (the "Board") and member of the Executive Committee of the Board,
and shall perform such duties and shall have such authority as may from time to
time be specified by the Board. Employee shall report directly to the Board.
(b) Without further consideration, Employee shall, as directed by the
Board, serve as a director or officer of, or perform such other duties and
services as may be requested for and with respect to, any of the Company's
Subsidiaries, including, without limitation, Brandywine Realty Services
Corporation. As used in this Agreement, the terms "Subsidiary" and
"Subsidiaries" shall mean, with respect to any entity, any corporation,
partnership, limited liability company or other business entity in which the
subject entity has the power (whether by contract, through securities ownership,
or otherwise and whether directly or indirectly through control of one or more
intermediate Subsidiaries) to elect a majority of board of directors or other
governing body, including, in the case of a partnership, a majority of the board
of directors or other governing body of the general partner.
(c) Employee shall devote his full working time, energy, skill and
best efforts to the performance of his duties hereunder, in a manner which will
faithfully and diligently further the business interests of the Company and its
Subsidiaries.
3. Term. Unless sooner terminated as hereinafter provided, the term of
Employee's employment shall be for a period of five (5) years (the "Term")
commencing on the date hereof. The Term shall automatically renew for
additional one-year periods at the expiration
of the then current Term unless either party shall give notice of his or its
election to terminate Employee's employment at least one year prior to the end
of the then-current Term, unless earlier terminated as hereinafter provided.
4. Base Salary. For all of the services rendered by Employee to the
Company and its Subsidiaries, Employee shall receive an aggregate base salary of
$300,000 per annum during the term of his employment hereunder. Such salary may
be paid, at the election of the Company, either by the Company or by one or more
of its Subsidiaries, in such relative proportions as the Company may determine,
as earned in periodic installments in accordance with the Company's normal
payment policies for executive officers. In the event that the Employee is also
employed during any period by a Subsidiary of the Company, the amount of the
base salary payable by the Company during such period shall be reduced by the
amount of salary received by Employee during such period from such Subsidiary.
Employee's base salary shall be subject to review by the Board not less
frequently than annually, and Employee shall receive such salary increases as
the Board may from time to time approve.
5. Bonus. Employee shall receive, during the term of his employment
hereunder, such annual bonus as the Board, in its sole discretion, may determine
from time to time. Any such bonus may be based on Employee's annual performance
goals as established by the Board from time to time.
6. Participation in Incentive Plans. In addition to Employee's
eligibility to receive annual bonuses pursuant to Section 5, Employee shall be
entitled to participate in short-term and long-term incentive plans as shall be
maintained by the Company from time to time on such terms and conditions as
shall be established by the Board.
7. Prior Option and Warrants. Nothing in this Agreement shall affect
the terms and conditions of options and warrants granted by the Company to
Employee before the date of this Agreement. Such options and warrants shall
continue in force as in effect immediately before the date of this Agreement.
Without limiting the generality of the foregoing, the options granted to
Employee under his employment agreement executed on August 8, 1994 (the "1994
Agreement") shall remain in effect, and those provisions of the 1994
Agreement which govern Employee's entitlement to exercise such options shall
continue in effect as if such 1994 Agreement had not been terminated. In
furtherance of the foregoing, references in Section 4.1(b)(v) of the 1994
Agreement to "the Company" shall hereafter be construed as references to the
Company and its Subsidiaries.
8. Fringe Benefits. Throughout the term of his employment and as long as
they are kept in force by the Company, Employee shall be entitled to participate
in and receive the benefits of any profit sharing plan, retirement plan, health
or other employee benefit plan made available to other executive officers of the
Company, but in no event shall such benefits be less favorable to Employee than
the benefits listed on Schedule A hereto.
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9. Automobile Allowance. Employee shall receive, during the term of his
employment hereunder, an automobile allowance of $833 per month.
10. Expenses. The Company shall reimburse Employee for all reasonable,
ordinary and necessary business expenses incurred by Employee in connection with
the performance of Employee's duties hereunder upon receipt of vouchers therefor
and in accordance with the Company's regular reimbursement procedures and
practices in effect from time to time.
11. Vacation. Employee shall be entitled to a vacation of four (4) weeks
during each twelve (12) month period of his employment hereunder, during which
time Employee's compensation hereunder shall be paid in full. Employee shall be
permitted to carry over unused vacation during each twelve (12) month period
during the term and use such unused vacation in any subsequent twelve (12) month
period during the term.
12. Disability. If the Board determines in good faith by a vote of a
majority of its members (other than Employee) that Employee is unable to perform
his duties hereunder due to partial or total disability or incapacity resulting
from a mental or physical illness or injury or any similar cause for a period of
one hundred and twenty (120) consecutive days or for a cumulative period of one
hundred and eighty (180) days during any twelve (12) month period,
the Company shall have the right to terminate Employee's employment at any time
thereafter.
13. Death. Employee's employment shall terminate at the time of his
death.
14. Termination of Employment for Cause. The Company may discharge
Employee at any time for Cause. Cause shall mean: (i) habitual intoxication;
(ii) drug addiction; (iii) intentional and willful violation of any express
direction of the Board; (iv) theft, misappropriation or embezzlement of the
Company's funds; (v) conviction of a felony; or (vi) repeated and consistent
failure of Employee to be present at work during regular hours without valid
reason therefor.
15. Termination of Employment Without Cause. The Board, in its sole
discretion, may terminate Employee's employment hereunder without Cause upon 30
days' prior written notice to Employee at any time.
16. Resignation For Good Reason. Employee's resignation shall be treated
as a "Resignation for Good Reason" if Employee resigns within six (6) months
after any of the following circumstances, unless in the case of the
circumstances set forth in paragraphs (b), (c) or (d) below, such circumstances
are fully corrected within 30 days of Employee's delivery of notice to the
Company:
(a) A reduction in Employee's annual rate of base salary;
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(b) A failure of the Company to make the payments required by Section
4 hereof;
(c) A significant adverse alteration in the nature or status of
Employee's responsibilities;
(d) Any other material breach by the Company of this Agreement;
(e) Relocation (without the written consent of Employee) of the
Company's executive offices to a location more than 30 miles from its current
location; or
(f) Upon a Change of Control (as defined in Section 17).
17. Change of Control. For purpose of this Agreement, a "Change of
Control" means:
(a) A "Change of Control" within the meaning of Section 1(d) of the
Brandywine Realty Trust 1997 Long-Term Incentive Plan, as currently in effect;
or
(b) The purchase of any common shares of beneficial interest of the
Company pursuant to a tender or exchange offer other than an offer by the
Company.
18. Payments Upon or After Termination of Employment.
(a) Voluntary Resignation Other than for Good Reason; Termination for
Cause; Non-Renewal of Employment Agreement. If Employee's employment hereunder
is terminated before the expiration of the Term because of Employee's voluntary
resignation (other than a Resignation for Good Reason) or because of the
Company's termination of Employee's employment for Cause, or if Employee's
employment is terminated at the expiration of the Term following an election by
either the Company or Employee not to renew the Term pursuant to Section 3, the
Company, or at its direction, its Subsidiaries shall pay to Employee or, as
appropriate, his legal representatives, heirs or estate all amounts payable
under Sections 4 and 8 accrued through the applicable date of termination (the
"Accrued Amount") within 30 days after such date of termination. If Employee's
employment is terminated by the Company for Cause or by the Employee voluntarily
(unless such termination of employment is a Resignation for Good Reason), or if
Employee's employment is terminated at the expiration of the Term following an
election by either the Company or Employee not to renew the Term pursuant to
Section 3, the Company shall have no obligation or liability hereunder after the
date of discharge or termination to pay or provide base salary, bonus
compensation, fringe benefits, or any other form of compensation hereunder other
than to pay the Accrued Amount.
(b) Termination of Employment Because of Death. If Employee's
employment is terminated as a result of the Employee's death before the
expiration of the Term,
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the Company shall pay Employee's legal representatives the Accrued Amount as of
the date of Employee's death, and, in addition, the consideration provided for
in Section 4 hereof, at the rate in effect at the date of termination, for one
year after such death, less the proceeds receivable by Employee's heirs and
legal representatives from any life insurance policy provided by the Company.
In addition, Employee shall be entitled to receive an amount equal to the
product that results from multiplying the amount of the bonus paid to him
pursuant to Section 5 hereof for the calendar year prior to the year in which
Employee dies multiplied by a fraction, the numerator of which is the number of
days that Employee was alive during the year in which the death occurs and the
denominator of which is 365.
(c) Termination of Employment Because of Disability. If Employee's
employment is terminated by the Company for disability before the expiration of
the Term, the Company shall pay Employee the Accrued Amount as of the such date
of termination, and, in addition, the consideration described in Sections 4 and
8 hereof, at the rate in effect at the date of termination, until one year after
Employee becomes eligible to receive benefits pursuant to the disability
insurance policy provided by the Company, at the rate in effect at such date of
termination, less the amount of disability insurance proceeds receivable by
Employee, provided that such period shall not exceed two years in the aggregate.
In addition, Employee shall be entitled to receive an amount equal to the
product that results from multiplying the amount of the bonus paid to him
pursuant to Section 5 hereof for the calendar year prior to the year in which
Employee's employement is terminated for disability multiplied by a fraction,
the numerator of which is the number of days that elapsed prior to the
termination during the year in which the termination occurs and the denominator
of which is 365.
(d) Termination of Employment by Company Without Cause; Resignation
for Good Reason. If Employee's employment is terminated by the Company without
Cause, or Employee Resigns for Good Reason, within 30 days following the date of
such termination of employment, the Company shall pay Employee the Accrued
Amount as of the date of such termination, and in addition:
(i) Subject to Section 18(d)(ii), the Company shall make a cash
lump sum payment to Employee equal to the greater of:
(A) the product of three (3) times the greater of (1)
the sum of the amounts paid or payable to Employee pursuant to Sections 4 and
5 hereunder (and the short-term portion of any bonus amounts paid or payable
pursuant to Section 6 hereunder) for the calendar year preceding the calendar
year in which such termination of employment occurs or (2) the sum of the
amounts paid or payable to Employee pursuant to Sections 4 and 5 hereunder
(and the short-term portion of any bonus amounts paid or payable pursuant to
Section 6 hereunder) during the one-year period ending on the date of such
termination, provided that if such date of termination occurs before the
first anniversary of the date hereof, the cash lump sum payment shall be
equal to the product of three (3) times the sum of (x) Employee's annualized
base salary pay rate in effect as of such date of termination and (y) the
maximum bonus that would have been payable for the year that includes such
date of termination if all of the conditions for the payment of such maximum
bonus had been satisfied; or
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(B) The amount payable pursuant to Section 4 hereunder for
the remainder of the Term at a rate equal to his base salary in effect at the
time of the date of such termination.
(ii) Employee may, in his sole discretion, elect in writing to
decline to receive part or all of the amount otherwise payable pursuant to
Section 18(d)(i). In addition, if, following payment of part or all of the
amount payable pursuant to Section 18(d)(i), Employee determines that Employee
would be in a better net after-tax position than he would be in if he retained
such amount, Employee may elect in writing to repay the Company the amount, plus
interest payable from the date of payment to the date of repayment at the
"applicable federal rate" as determined pursuant to section 1274 of the Code,
and upon such repayment and to the extent thereof, the original payment shall be
treated as a loan between the Company and Employee.
(e) In the event that Employee is employed by a Subsidiary of the
Company at the time of termination of employment, any amounts payable to the
Employee pursuant to this Section 18 shall be reduced by the amounts paid to
Employee by any such Subsidiary.
(f) Upon the payment of the amounts payable under this Section 18,
neither the Company nor any of its Subsidiaries shall have any further
obligations hereunder to Employee (or to his estate, heirs, beneficiaries, or
legal representatives, as appropriate, or otherwise) to pay or provide any base
salary, bonus compensation, or fringe benefits, provided that if Employee
Resigns for Good Reason or the Company terminates Employee's employment without
Cause, Company shall, at its own expense, for a thirty-six (36) month period
after the date of termination of employment, arrange to provide Employee with
life, disability, accident and health insurance benefits substantially similar
to those which Employee was entitled to receive immediately prior to such date
of termination.
19. Prior Agreement. This Agreement is the successor to the Employment
Agreement between Employee and the Company dated as of July 31, 1996 (which
Agreement was assigned to the Company as of October 31, 1996). Employee
represents to the Company that (a) there are no other agreements or
understandings with the Company to which Employee is a party relating to
employment, benefits or retirement, (b) there are no restrictions, agreements or
understandings whatsoever to which Employee is a party which would prevent or
make unlawful his execution of this Agreement or his employment hereunder, (c)
his execution of this Agreement and his employment hereunder shall not
constitute a breach of any contract, agreement or understanding, oral or
written, to which he is a party or by which he is bound, and (d) he is free and
able to execute this Agreement and to continue in the employment of the Company.
20. Key Man Insurance. The Company shall have the right at its expense to
purchase insurance on the life of Employee in such amounts as it shall from time
to time
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determine, of which the Company shall be the beneficiary. Employee shall submit
to such physical examinations as may be required, and shall otherwise cooperate
with the Company, in connection with the Company obtaining such insurance.
21. Miscellaneous.
(a) Controlling Law. This Agreement, and all questions relating to
its validity, interpretation, performance and enforcement, shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania.
(b) Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received when delivered in person
against receipt, or when sent by United States registered or certified mail,
return receipt requested, postage prepaid, addressed as set forth below:
(i) If to Employee:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(ii) If to the Company:
Brandywine Realty Trust
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
In addition, notice by mail shall be by air mail if posted outside of
the continental United States.
Any party may alter the address to which communications or copies are
to be sent by giving notice of such change of address in conformity with the
provisions of this paragraph for the giving of notice.
(c) Binding Nature of Agreement. This Agreement shall be binding
upon and inure to the benefit of the Company and its successors and assigns and
shall be binding upon Employee, his heirs and legal representatives.
(d) Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party
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who executes the same, and all of which shall constitute one and the same
instrument. This Agreement shall become binding when one or more counterparts
hereof, individually or taken together, shall bear the signatures of all of the
parties reflected hereon as the signatories.
(e) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(f) Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, inducements or
conditions, express or implied, oral or written, except as herein contained.
The express terms hereof control and supersede any course of performance and/or
usage of the trade inconsistent with any of the terms hereof. This Agreement
may not be modified or amended other than by an agreement in writing.
(g) Section and Paragraph Headings. The section and paragraph
headings in this Agreement are for convenience only; they form no part of this
Agreement and shall not affect its interpretation.
(h) Gender, Etc. Words used herein, regardless of the number and
gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context requires.
(i) Number of Days. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or holiday, then the final day shall be deemed to be the next
day which is not a Saturday, Sunday or holiday.
(j) Survival. The provisions of Sections 7, 12, 13, 14, 15, 16, 17,
18 and 19 shall survive the expiration or termination of the term of Employee's
employment hereunder.
(k) Assignability. This Agreement is not assignable by Employee. It
is assignable by the Company only (i) to any subsidiary of the Company so long
as the Company agrees to guarantee such subsidiary's obligations hereunder, or
(ii) subject to Sections 16 and 18 and only upon Employee's prior written
consent, to a person which is a successor in interest to the Company in the
business operated by it or which acquires all or substantially all of its
assets.
(l) Liability of Trustees, etc. No recourse shall be had for any
obligation of the Company hereunder, or for any claim based thereon or otherwise
in respect thereof, against any past, present or future trustee, shareholder,
officer or employee of the Company, whether by virtue of any statute or rule of
law, or by the enforcement of any
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assessment or penalty or otherwise, all such liability being expressly waived
and released by each party hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered on the date first above-written.
BRANDYWINE REALTY TRUST
By: ____________________________________
Title:__________________________________
EMPLOYEE
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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GUARANTEE
In the event that the Company fails to perform its obligations under
the foregoing Employment Agreement, Brandywine Operating Partnership, L.P. shall
promptly perform the obligations of the Company arising thereunder which have
not been performed in strict accordance with the terms and conditions thereof.
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: BRANDYWINE REALTY TRUST, its
general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and Chief
Executive Officer
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