Exhibit 10.16
EMPLOYMENT AGREEMENT
MICHAEL D. KAISER
This Employment Agreement (this "Agreement"), is made and entered into as of
the 28th day of September, 1998 (the "Effective Date"), by and
between Corporate Realty Management, LLC., a Maryland LLC (the "Employer"),
and Corporate Office Management Inc. ("COMI"), a subsidiary of Corporate
Office Properties Trust ("COPT"), and Michael D. Kaiser (the "Executive").
RECITALS
A. The Employer desires to employ the Executive as an officer of the Employer
for a specified term, and the Executive is willing to accept such employment
upon the terms and conditions hereinafter set forth.
B. The Employer recognizes that circumstances may arise in which a change of
control of the Employer, through acquisition or otherwise, may occur, thereby
causing uncertainty of employment without regard to the competence or past
contributions of the Executive, and that such uncertainty may result in the
loss of valuable services of the Executive. Accordingly, the Employer and
the Executive wish to provide reasonable security to the Executive against
changes in the employment relationship in the event of any such change of
control.
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter contained, it is covenanted and agreed by and between
the parties hereto as follows:
AGREEMENTS
1. POSITION AND DUTIES. The Employer hereby employs the Executive as the
President of the Employer, or in such other capacity as shall be mutually
agreed between the Employer and the Executive. During the period of the
Executive's employment hereunder, the Executive shall devote his best efforts
and full business time, energy, skills and attention to the business and
affairs of the Employer. The Executive's duties and authority shall consist
of and include all duties and authority customarily performed and held by
persons holding equivalent positions with business organizations similar in
nature and size to the Employer, as such duties and authority are reasonably
defined, modified and delegated from time to time by the Board of
Managers/Directors of the Employer (the "Board"). The Executive shall have
the powers necessary to perform the duties assigned to him, and shall be
provided such supporting services, staff, secretarial and other assistance,
office space and accouterments as shall be reasonably necessary and
appropriate in the light of such assigned duties.
2. COMPENSATION. As compensation for the services to be provided by the
Executive hereunder, the Executive shall receive the following compensation
and other benefits:
(a) BASE SALARY. The Executive shall receive an aggregate annual minimum
"Base Salary" at the rate of One Hundred and Thirty-Two Thousand dollars
($132,000) per annum, payable in periodic installments in accordance with the
regular payroll practices of the Employer. Such Base Salary shall be subject
to review annually by the Compensation Committee of the Board during the term
hereof, in accordance with the Employer's established compensation policies.
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(b) PERFORMANCE BONUS. The Executive shall receive an annual cash "Performance
Bonus," payable within ninety (90) days after the end of the fiscal year of the
Employer which shall be determined by the Board based upon the recommendation of
the Compensation Committee thereof.
(c) STOCK OPTIONS. Executive shall be entitled to stock options as determined
by the Compensation Committee and the Board.
(d) BENEFITS. The Executive shall be entitled to all perquisites extended to
similarly situated executives, as such are stated in the Employer's Executive
Perquisite Policy (the "Perquisite Policy") promulgated for the Board by the
Compensation Committee of the Board, and which Perquisite Policy is hereby
incorporated by reference, as amended from time to time. In addition, the
Executive shall be entitled to participate in all plans and benefits
generally, from time to time, accorded to employees of the Employer ("Benefit
Plans"), all as determined by the Board from time to time based upon the
input of its Compensation Committee. Executive shall also receive additional
benefits as follows:
(i) a seven hundred and fifty dollar ($750.00) per month automobile allowance
payable in cash part of the Executive's regular payroll or applied as a
credit toward a leased vehicle, at the direction of the Executive and
approved by the Employer; and
(e) WITHHOLDING. The Employer shall be entitled to withhold, from amounts
payable to the Executive hereunder, any federal, state or local withholding
or other taxes or charges which it is from time to time required to withhold.
The Employer shall be entitled to rely upon the opinion of its independent
accountants, with regard to any question concerning the amount or requirement
of any such withholding.
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3. TERM AND TERMINATION.
(a) BASIC TERM. The Executive's employment hereunder shall be for a
continuous and self-renewing two (2) year term, commencing as of the
Effective Date, unless terminated by either party, with or without cause,
effective as of the first (1st) business day after written notice to that
effect is delivered to the other party.
(b) PREMATURE TERMINATION.
(i) In the event of the termination of the employment of the Executive under
this Agreement by the Employer for any reason other than expiration of the
term hereof or a "for-cause" termination in accordance with the provisions of
paragraph (d) of this Section 3, then notwithstanding any actual or allegedly
available alternative employment or other mitigation of damages by or
available to the Executive, the Executive shall be entitled to a "Lump Sum
Payment" equal to the sum of: (w) his monthly Base Salary then payable,
multiplied by the remaining number of months or partial months until
expiration of the Basic Term or renewal term, if any, (but not less than 18
months), and an annualized and proportional amount equal to the average of
the two (2) most recent annual Performance Bonuses that the Executive
received; For purposes of calculating the Lump Sum Payment amounts due, the
Executive's employment with the Employer shall be agreed to have commenced on
October 1, 1998. In the event of a termination governed by this subparagraph
(b)(i) of Section 3, the Employer shall also: (y) notwithstanding the
vesting schedule otherwise applicable, fully vest all of Executive's options
outstanding under any option or stock incentive plan herein after established
by Employer ("Option Plan") and allow a period of eighteen (18) months
following the termination of employment for the Executive to exercise any
such options; and (z) continue for the Executive (provided that such items
are not available to him by virtue of other employment secured after
termination) the perquisites, plans and benefits provided under the
Employer's Perquisite Policy and Benefit Plans as of and after the date of
termination, [all items in (z) being collectively referred to as
"Post-Termination Perquisites and Benefits"], for the lesser of the number of
full months the Executive has theretofore been employed by the Employer (but
not less than twelve (12) months)or eighteen (18) months following such
termination. The payments and benefits provided under (w), (x), (y) and (z)
above by the Employer shall not be offset against or diminish any other
compensation or benefits accrued as of the date of termination.
(ii) Payment to the Executive under this Section 3(b) will be made monthly
over twelve (12) months, unless mutually agreed by the parties to minimize
the Executives' tax burden in any year.
(c) CONSTRUCTIVE TERMINATION. If at any time during the term of this
Agreement, except in connection with a "for-cause" termination pursuant to
paragraph (d) of this Section 3, the Executive is Constructively Discharged
(as hereinafter defined), then the Executive shall have the right, by written
notice to the Employer given within one hundred and twenty (120) days of such
Constructive Discharge, to terminate his services hereunder, effective as of
thirty (30) days after such notice, and the Executive shall have no rights or
obligations under this Agreement other than as provided in Section 5 hereof.
The Executive shall in such event be entitled to a Lump Sum Payment of Base
Salary and Performance Bonus compensation as well as all of the
Post-Termination Prerequisites and Benefits, as if such termination of his
employment had been effectuated pursuant to paragraph (b) of this Section 3.
For purposes of this Agreement, the Executive shall be deemed to have been
"Constructively Discharged" upon the occurrence of any one of the following
events:
(i) The Executive is not re-elected to, or is removed from, the position with
the Employer set forth in Section 1 hereof, other than as a result of the
Executive's election or appointment to positions of equal or superior scope
and responsibility; or
(ii) The Executive shall fail to be vested by the Employer with the powers,
authority and support services normally attendant to any of said offices; or
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(iii) The Employer shall notify the Executive that the employment of the
Executive will be terminated or materially modified in the future or that the
Executive will be Constructively Discharged in the future; or
(iv) The Employer changes the primary employment location of the Executive to
a place that is more than fifty (50) miles from the primary employment
location, 8815 Centre Park Drive, Columbia Maryland 21045, as of the
Effective Date of this Agreement; or
(v) The Employer otherwise commits a material breach of its obligations under
this Agreement.
(vi) The Employer seeks protection under U.S. Bankruptcy codes.
(d) TERMINATION FOR CAUSE. The employment of the Executive and this
Agreement may be terminated "for-cause" as hereinafter defined. Termination
"for-cause" shall mean the termination of employment on the basis or as a
result of: (i) the Executive's death or his permanent disability, which
latter term shall mean the Executive's inability, as a result of physical or
mental incapacity, substantially to perform his duties hereunder for a period
of either six (6) consecutive months, or one hundred and twenty (120)
business days within a consecutive twelve (12) month period; (ii) a material
violation by the Executive of any applicable material law or regulation
respecting the business of the Employer; (iii) the Executive being found
guilty of, or being publicly associated with, to the Employer's detriment, a
felony or an act of dishonesty in connection with the performance of his
duties as an officer of the Employer, or the Executive's commission of an act
which in the opinion of a reasonable third party disqualifies the Executive
from serving as an officer or director of the Employer; or (iv) the willful
or negligent failure of the Executive to perform his duties hereunder in any
material respect. The Executive shall be entitled to at least thirty (30)
days' prior written notice of the Employer's intention to terminate his
employment for any cause (except the Executive's death), specifying the
grounds for such termination, affording the Executive a reasonable
opportunity to cure any conduct or act (if curable) alleged as grounds for
such termination, and a reasonable opportunity to present to the Board his
position regarding any dispute relating to the existence of such cause.
(e) TERMINATION UPON DEATH. In the event payments are due and owing under
this Agreement at the death of the Executive, such payments shall be made to
such beneficiary, designee or fiduciary as Executive may have designated in
writing, or failing such designation, to the executor or administrator of his
estate, in full settlement and satisfaction of all claims and demands on
behalf of the Executive. Such payments shall be in addition to any other
death benefits of the Employer made available for the benefit of the
Executive, and in full settlement and satisfaction of all payments provided
for in this Agreement.
(f) TERMINATION UPON DISABILITY. The Employer may terminate the Executive's
employment after the Executive is determined to be disabled under the current
Employer program or by a physician engaged by the Employer and reasonably
approved by the Executive. In the event of a dispute regarding the
Executive's "disability," such dispute shall be resolved through arbitration
as provided in paragraph (d) of Section 9 hereof, except that the arbitrator
appointed by the American Arbitration Association shall be a duly licensed
medical doctor. The Executive shall be entitled to the compensation and
benefits provided for under this Agreement during any period of
incapacitation occurring during the term of this Agreement, and occurring
prior to the establishment of the Executive's "disability" during which the
Executive is unable to work due to a physical or mental infirmity.
Notwithstanding anything contained in this Agreement to the contrary, until
the date specified in a notice of termination relating to the Executive's
disability, the Executive shall be entitled to return to his positions with
the Employer as set forth in this Agreement, in which event no disability of
the Executive will be deemed to have occurred.
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(g) TERMINATION UPON CHANGE OF CONTROL.
(i) In the event of a Change in Control (as defined below) of the Employer
and the termination of the Executive's employment by Executive or by the
Employer under either 1 or 2 below, the Executive shall, be entitled to a
Lump Sum Payment equal to the sum of: (w) his monthly Base Salary then
payable, multiplied by twenty-four (24); plus (x) two (2) times the average
of the two (2) most recent annual Performance Bonuses that the Executive
received; provided, however, that if the Executive has been employed by the
Employer for fewer than two (2) years, then the amount set forth in (x) above
shall be equal to two (2) times the average of the annual Performance Bonuses
that the Executive has theretofore received from the Employer. The Employer
shall also: (y) notwithstanding the vesting schedule otherwise applicable,
fully vest all of Executive's options outstanding under any Option Plan and
allow a period of eighteen (18) months following the termination of
employment of the Executive for the Executive's exercise of such options; and
(z) continue for the Executive (provided that such items are not available to
him by virtue of other employment secured after termination) all of the
perquisites, plans and benefits provided under paragraph (c) of Section 2,
for 18 months following such termination. The payments and benefits provided
under (w), (x), (y) and (z) above by the Employer shall not be offset against
or diminish any other compensation or benefits accrued as of the date of
termination. The following shall constitute termination under this paragraph:
1. The Executive terminates his employment under this Agreement pursuant to
a written notice to that effect delivered to the Board within six (6) months
after the occurrence of the Change in Control.
2. Executive's employment is terminated, including Constructively
Discharged, by the Employer or its successor either in contemplation of or
after Change in Control, other than on a for-cause basis.
(ii) For purposes of this paragraph, the term "Change in Control" shall mean
the following occurring after the date of this Agreement:
1. The consummation of the acquisition by any person (as such term is
defined in Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended (the "1934 Act") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the 1934 Act) of forty percent (40%) or more of the
combined voting power embodied in the then-outstanding voting securities of
COPT or the Employer; or
2. Approval by the stockholders of the Employer of: (1) a merger or
consolidation of the Employer, if the stockholders of COPT or the Employer
immediately before such merger or consolidation do not, as a result of such
merger or consolidation, own, directly or indirectly, more than fifty percent
(50%) of the combined voting power of the then outstanding voting securities
of the entity resulting from such merger or consolidation in substantially
the same proportion as was represented by their ownership of the combined
voting power of the voting securities of COPT or the Employer outstanding
immediately before such merger or consolidation; or (2) a complete or
substantial liquidation or dissolution, or an agreement for the sale or other
disposition, of all or substantially all of the assets of COPT or the
Employer.
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because forty percent (40%) or more of the combined voting
then-outstanding securities is acquired by: (1) a trustee or other fiduciary
holding securities under one or more employee benefit plans maintained for
employees of the entity; or (2) any corporation or other entity which,
immediately prior to such acquisition, is owned directly or in directly the
stockholders of the Employer in the same proportion as their ownership of
stock in COPT or the Employer immediately prior to such acquisition.
(ii) If it is determined, in the opinion of the Employer's independent
accountants, in consultation with the Employer's independent counsel, that any
amount payable to the Executive by the Employer under this Agreement, or any
other plan or agreement under which the Executive participates or is a party,
would
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constitute an "Excess Parachute Payment" within the meaning of Section 280G
of the Internal Revenue Code of 1986, as amended (the "Code") and be subject
to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), the
Employer shall pay to the Executive a "grossing-up" amount equal to the
amount of such Excise Tax and all federal and state income or other taxes
with respect payment of the amount of such Excise Tax, including all such
taxes with respect to any such grossing-up amount. If at a later date, the
Internal Revenue Service assesses a deficiency against the Executive for the
Excise Tax which is greater than that which was determined at the time such
amounts were paid, the Employer shall pay to the Executive the amount of such
unreimbursed Excise Tax plus any interest, penalties and professional fees or
expenses, incurred by the Executive as a result of such assessment, including
all such taxes with respect to any such additional amount. The highest
marginal tax rate applicable to individuals at the time of payment of such
amounts will be used for purposes of determining the federal and state income
and other taxes with respect thereto. The Employer shall withhold from any
amounts paid under this Agreement the amount of any Excise Tax or other
federal, state or local taxes then required to be withheld. Computations of
the amount of any grossing-up supplemental compensation paid under this
subparagraph shall be made by the Employer's independent accountants, in
consultation with the Employer's independent legal counsel. The Employer
shall pay all accountant and legal counsel fees and expenses.
4. CONFIDENTIALITY AND LOYALTY. The Executive acknowledges that heretofore
or hereafter during the course of his employment he has produced and
received, and may hereafter produce, receive and otherwise have access to
various materials, records, data, trade secrets and information not generally
available to the public (collectively, "Confidential Information") regarding
the Employer and its subsidiaries and affiliates. Accordingly, during and
subsequent to termination of this Agreement, the Executive shall hold in
confidence and not directly or indirectly disclose, use, copy or make lists
of any such Confidential Information, except to the extent that such
information is or thereafter becomes lawfully available from public sources,
or such disclosure is authorized in writing by the Employer, required by law
or by any competent administrative agency or judicial authority, or otherwise
as reasonably necessary or appropriate in connection with the performance by
the Executive of his duties hereunder. All records, files, documents,
computer diskettes, computer programs and other computer-generated material,
as well as all other materials or copies thereof relating to the Employer's
business, which the Executive shall prepare or use, shall be and remain the
sole property of the Employer, shall not be removed from the Employer's
premises without its written consent, and shall be promptly returned to the
Employer upon termination of the Executive's employment hereunder. The
Executive agrees to abide by the Employer's reasonable policies, as in effect
from time to time, respecting confidentiality and the avoidance of interests
conflicting with those of the Employer.
5. NON-COMPETITION COVENANT.
(a) RESTRICTIVE COVENANT. The Employer and the Executive have jointly reviewed
the tenant lists, property submittals, logs, broker lists, and operations of
the Employer, and have agreed that as an essential ingredient of and in
consideration of this Agreement and the payment of the amounts described in
Sections 2 and 3 hereof, the Executive hereby agrees that, except with the
express prior written consent of the Employer, for a period equal to the
lesser of the number of full months the Executive has at any time been
employed by the Employer or twenty-four (24) months after the termination of
the Executive's employment with the Employer (the "Restrictive Period"), he
will not directly or indirectly compete with the then existing business of
the Employer, including, but not by way of limitation, by directly or
indirectly owning, managing, operating, controlling, financing, or by
directly or indirectly serving as an employee, officer or director of or
consultant to, or by soliciting or inducing, or attempting to solicit or
induce, any employee or agent of Employer to terminate employment with
Employer and become employed by any person, firm, partnership, corporation,
trust or other entity which owns or operates a business similar to that of
the Employer (the "Restrictive Covenant"). For purposes of this subparagraph
(a), a business shall be considered "similar" to that of the Employer if it
is engaged in the acquisition, development, ownership, operation, management
or leasing of suburban office property (i) in any geographic market or
submarket in which the Employer owns more than 750,000 s.f. of properties
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either as of the date hereof or as of the date of termination of the
Executive's employment. However, it is expressly understood that this
restriction shall apply only to the operations of the Employer as of the date
of termination of this agreement. If the Executive violates the Restrictive
Covenant and the Employer brings legal action for injunctive or other relief,
the Employer shall not, as a result of the time involved in obtaining such
relief, be deprived of the benefit of the full period of the Restrictive
Covenant. Accordingly, the Restrictive Covenant shall be deemed to have the
duration specified in this paragraph (a) computed from the date the relief is
granted but reduced by the time between the period when the Restrictive
Period began to run and the date of the first violation of the Restrictive
Covenant by the Executive. In the event that a successor of the Employer
assumes and agrees to perform this Agreement or otherwise acquires the
Employer, this Restrictive Covenant shall continue to apply only to the
primary service area of the Employer as it existed immediately before such
assumption or acquisition and shall not apply to any of the successor's other
offices or markets. The foregoing Restrictive Covenant shall not prohibit
the Executive from owning, directly or indirectly, capital stock or similar
securities which are listed on a securities exchange or quoted on the
National Association of Securities Dealers Automated Quotation System which
do not represent more than five percent (5%) of the outstanding capital stock
of any corporation.
(b) REMEDIES FOR BREACH OF RESTRICTIVE COVENANT. The Executive acknowledges
that the restrictions contained in Sections 4 and 5 of this Agreement are
reasonable and necessary for the protection of the legitimate proprietary
business interests of the Employer; that any violation of these restrictions
would cause substantial injury to the Employer and such interests; that the
Employer would not have entered into this Agreement with the Executive
without receiving the additional consideration offered by the Executive in
binding himself to these restrictions; and that such restrictions were a
material inducement to the Employer to enter into this Agreement. In the
event of any violation or threatened violation of these restrictions, the
Employer shall be relieved of any further obligations under this Agreement,
shall be entitled to any rights, remedies or damages available at law, in
equity or otherwise under this Agreement, and shall be entitled to
preliminary and temporary injunctive relief granted by a court of competent
jurisdiction to prevent or restrain any such violation by the Executive and
any and all persons directly or indirectly acting for or with him, as the
case may be, while awaiting the decision of the arbitrator selected in
accordance with paragraph (d) of Section 9 of this Agreement, which decision,
if rendered adverse to the Executive, may include permanent injunctive relief
to be granted by the court.
6. INTERCORPORATE TRANSFERS. If the Executive shall be voluntarily
transferred to an affiliate of the Employer, such transfer shall not be
deemed to terminate or modify this Agreement, and the employing corporation
to which the Executive shall have been transferred shall, for all purposes of
this Agreement, be construed as standing in the same place and stead as the
Employer as of the date of such transfer. For purposes hereof, an affiliate
of the Employer shall mean any corporation or other entity directly or
indirectly controlling, controlled by, or under common control with the
Employer. The Employer shall be secondarily liable to the Executive for the
obligations hereunder in the event the affiliate of the Employer cannot or
refuses to honor such obligations. For all relevant purposes hereof, the
tenure of the Executive shall be deemed to include the aggregate term of his
employment by the Employer or its affiliate.
7. INTEREST IN ASSETS. Neither the Executive nor his estate shall acquire
hereunder any rights in funds or assets of the Employer, otherwise than by
and through the actual payment of amounts payable hereunder; nor shall the
Executive or his estate have any power to transfer, assign (except into a
trust for purposes of estate planning), anticipate, hypothecate or otherwise
encumber in advance any of said payments; nor shall any of such payments be
subject to seizure for the payment of any debt, judgment, alimony, separate
maintenance or be transferable by operation of law in the event of
bankruptcy, insolvency or otherwise of the Executive.
8. INDEMNIFICATION.
(a) The Employer shall provide the Executive (including his heirs, personal
representatives, executors and
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administrators), during the term of this Agreement and thereafter throughout
all applicable limitations periods, with coverage under the Employer's
then-current directors' and officers' liability insurance policy, at the
Employer's expense.
(b) In addition to the insurance coverage provided for in paragraph (a) of
this Section 8, the Employer shall defend, hold harmless and indemnify the
Executive (and his heirs, executors and administrators) to the fullest extent
permitted under applicable law, and subject to the requirements, limitations
and specifications set forth in the Bylaws and other organizational documents
of the Employer, against all expenses and liabilities reasonably incurred by
him in connection with or arising out of any action, suit or proceeding in
which he may be involved by reason of his having been an officer of the
Employer (whether or not he continues to be an officer at the time of
incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgments, court costs and attorneys' fees
and the cost of reasonable settlements.
(c) In the event the Executive becomes a party, or is threatened to be made a
party, to any action, suit or proceeding for which the Employer has agreed to
provide insurance coverage or indemnification under this Section 8, the
Employer shall, to the full extent permitted under applicable law, advance
all expenses (including the reasonable attorneys' fees of the attorneys
selected by Employer and approved by Executive for the representation of the
Executive), judgments, fines and amounts paid in settlement (collectively
"Expenses") incurred by the Executive in connection with the investigation,
defense, settlement, or appeal of any threatened, pending or completed
action, suit or proceeding, subject to receipt by the Employer of a written
undertaking from the Executive covenanting: (i) to reimburse the Employer for
all Expenses actually paid by the Employer to or on behalf of the Executive
in the event it shall be ultimately determined that the Executive is not
entitled to indemnification by the Employer for such Expenses; and (ii) to
assign to the Employer all rights of the Executive to insurance proceeds,
under any policy of directors' and officers' liability insurance or
otherwise, to the extent of the amount of Expenses actually paid by the
Employer to or on behalf of the Executive.
9. GENERAL PROVISIONS.
(a) SUCCESSORS; ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the Executive, the Employer and his and its respective
personal representatives, successors and assigns, and any successor or assign
of the Employer shall be deemed the "Employer" hereunder. The Employer shall
require any successor to all or substantially all of the business and/or
assets of the Employer, whether directly or indirectly, by purchase, merger,
consolidation, acquisition of stock, or otherwise, by an agreement in form
and substance satisfactory to the Executive, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent as the
Employer would be required to perform if no such succession had taken place.
(b) ENTIRE AGREEMENT; MODIFICATIONS. This Agreement constitutes the entire
agreement between the parties respecting the subject matter hereof, and
supersedes all prior negotiations, undertakings, agreements and arrangements
with respect thereto, whether written or oral. Except as otherwise
explicitly provided herein, this Agreement may not be amended or modified
except by written agreement signed by the Executive and the Employer.
(c) ENFORCEMENT AND GOVERNING LAW. The provisions of this Agreement shall be
regarded as divisible and separate; if any of said provisions should be
declared invalid or unenforceable by a court of competent jurisdiction, the
validity and enforceability of the remaining provisions shall not be affected
thereby. This Agreement shall be construed and the legal relations of the
parties hereto shall be determined in accordance with the laws of the State
of Maryland as it constitutes the situs of the corporation and the employment
hereunder, without reference to the law regarding conflicts of law.
(d) ARBITRATION. Except as provided in paragraph (b) of Section 5, any dispute
or controversy arising under or in connection with this Agreement or the
Executive's employment by the Employer shall be settled exclusively by
arbitration, conducted by a single arbitrator sitting in Baltimore, MD in
accordance with the rules of the American Arbitration Association (the "AAA")
then in effect. The arbitrator shall be
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selected by the parties from a list of eleven (11) arbitrators provided by
the AAA, provided that no arbitrator shall be related to or affiliated with
either of the parties. No later than ten (10) days after the list of
proposed arbitrators is received by the parties, the parties, or their
respective representatives, shall meet at a mutually convenient location in
Baltimore, Maryland, or telephonically. At that meeting, the party who
sought arbitration shall eliminate one (1) proposed arbitrator and then the
other party shall eliminate one (1) proposed arbitrator. The parties shall
continue to alternatively eliminate names from the list of proposed
arbitrators in this manner until each party has eliminated five (5) proposed
arbitrators. The remaining arbitrator shall arbitrate the dispute. Each
party shall submit, in writing, the specific requested action or decision it
wishes to take, or make, with respect to the matter in dispute, and the
arbitrator shall be obligated to choose one (1) party's specific requested
action or decision, without being permitted to effectuate any compromise or
"new" position; provided, however, that the arbitrator is authorized to award
amounts not in dispute during the pendency of any dispute or controversy
arising under or in connection with this Agreement. The Employer shall bear
the cost of all counsel, experts or other representatives that are retained
by both parties, together with all costs of the arbitration proceeding,
including, without limitation, the fees, costs and expenses imposed or
incurred by the arbitrator. Judgment may be entered on the arbitrator's
award in any court having jurisdiction; including, if applicable, entry of a
permanent injunction under paragraph (b) of Section 5.
(e) PRESS RELEASES AND PUBLIC DISCLOSURE. Any press release or other public
communication by either the Executive or the Employer with any other person
concerning the terms, conditions or circumstances of Executive's employment,
or the termination of such employment, shall be subject to prior written
approval of both the Executive and the Employer, subject to the proviso that
the Employer shall be entitled to make requisite and appropriate public
disclosure of the terms of this Agreement, without the Executive's consent or
approval, as required under applicable statutes, and the rules and
regulations of the Securities and Exchange Commission and the Stock Exchange
on which the shares of Employer may from time to time be listed.
(f) WAIVER. No waiver by either party at any time of any breach by the other
party of, or compliance with, any condition or provision of this Agreement to
be performed by the other party, shall be deemed a waiver of any similar or
dissimilar provisions or conditions at the same time or any prior or
subsequent time.
(g) NOTICES. Notices given pursuant to this Agreement shall be in writing, and
shall be deemed given when received, and, if mailed, shall be mailed by
United States registered or certified mail, return receipt requested, postage
prepaid. Notices to the Employer shall be addressed to the principal
headquarters of the Employer, Attention: Chairman. Notices to the Executive
shall be sent to the address set forth below the Executive's signature on
this Agreement, or to such other address as the party to be notified shall
have given to the other.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Corporate Realty Management, LLC.
a Maryland LLC.
By: ------------------------ ------------------------
Randall M. Griffin, CEO Michael D. Kaiser
9
Corporate Office Management, Inc.,
a Maryland Corporation
By:
--------------------------
Clay W. Hamlin, III, CEO
Corporate Office Properties, L.P.,
a Delaware limited partnership by
its general partner, Corporate Office
Properties Trust
By:
--------------------------
Clay W. Hamlin, III, CEO
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