{"id":39023,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-catellus-development-corp-and-nelson-c.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-catellus-development-corp-and-nelson-c","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-catellus-development-corp-and-nelson-c.html","title":{"rendered":"Employment Agreement &#8211; Catellus Development Corp. and Nelson C. Rising"},"content":{"rendered":"<pre>\n                   AMENDMENT TO SECOND AMENDED AND RESTATED\n                   ----------------------------------------\n                             EMPLOYMENT AGREEMENT\n                             --------------------\n\n\n          THIS AMENDMENT TO SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT\n(this \"Amendment\") is entered into as of February 7, 2001, by and between\nCatellus Development Corporation, a Delaware corporation (the \"Company\"), and\nNelson C. Rising (the \"Executive\").\n\n          WHEREAS, the Company and the Executive are parties to that certain\nSecond Amended and Restated Employment Agreement (the \"Agreement\") dated as of\nOctober 1, 1999; and\n\n          WHEREAS, the Company and the Executive desire to amend, modify or\nrestate certain provisions of the Agreement;\n\n          NOW, THEREFORE, in consideration of the mutual premises set forth\nherein and for other good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, the parties hereto agree as\nfollows:\n\n          1.   Amendment and Restatement. Section 10 of the Agreement shall be\n               -------------------------                                       \namended and restated in its entirety as follows:\n\n          \"10. Change of Control Payments.\n               -------------------------- \n\n               (a)  Payments. If, within twelve months after the occurrence of a\n                    --------  \nChange of Control (as defined in paragraph 10(c) hereof), the Executive's\nemployment by the Company or its successor is terminated pursuant to paragraph\n3(d) (relating to Constructive Discharge) or paragraph 3(g) (relating to\ntermination by the Company without Cause), then the Executive shall be entitled\nto the following benefits in lieu of, and not in addition to, the amounts\notherwise payable to the Executive pursuant to paragraph 4(c) hereof:\n\n                    (i)   the Company shall pay to the Executive the amounts set\n     forth in paragraph 4(a); and\n\n                    (ii)  all stock options or other equity awards held by the\n          Executive with respect to the Company's Common Stock shall become\n          fully vested; and\n\n                    (iii) in lieu of any further salary payments to the\n          Executive for periods subsequent to the Date of Termination, the\n          Company shall pay to the Executive a lump sum payment in an amount\n          which is equal to three (3) times the Executive's Average Salary and\n          Bonus. For purposes of this Amendment, \"Average Salary and Bonus\"\n          shall mean the greater of (A) the Executive's annual salary and\n\nINITIALS:_____\/_____\/_____                                        EXECUTION COPY\n          RDF   WMK   NCR\n\n \n          annual bonus, including any amounts deferred by the Executive under\n          the Company's Profit Sharing and Savings Plan, Cafeteria Plan, and\n          Executive Deferred Compensation Plan, and any other deferred\n          compensation program now or hereafter established by the Company,\n          earned by the Executive for the three full calendar years prior to the\n          Executive's termination of employment (regardless of whether all of\n          such years occurred during the term of this Agreement and regardless\n          of whether those earned amounts were paid out on a current basis or\n          deferred) or such smaller number of full calendar years as the\n          Executive has been employed by the Company, divided by the number of\n          such full calendar years, or (B) the Executive's annual salary and\n          annual bonus, including any amounts deferred by the Executive under\n          the Company's Profit Sharing and Savings Plan, Cafeteria Plan, and\n          Executive Deferred Compensation Plan and any other deferred\n          compensation program now or hereafter established by the Company,\n          earned by the Executive for the three full calendar years with respect\n          to which annual bonuses have been determined prior to the occurrence\n          of the Change of Control (regardless of whether all of such years\n          occurred during the term of this Agreement and regardless of whether\n          those earned amounts were paid out on a current basis or deferred) or\n          such smaller number of full calendar years as the Executive has been\n          employed by the Company, divided by the number of such full calendar\n          years.\n\n               (b) Tax Protection Policy. The Executive shall receive the\n                   ---------------------                                  \n     benefits of the Tax Protection Policy attached hereto as Appendix A, which\n                                                              ----------       \n     is hereby incorporated by reference.\n\n               (c) Definition of \"Change of Control.\" A \"Change of Control\" of\n                   --------------------------------\n     the Company shall be deemed to have occurred upon the happening of any of\n     the following events:\n\n               (i) the acquisition or holding of the Company, by any individual,\n     entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the\n     Securities Exchange Act of 1934, as amended (the \"Exchange Act\")) (an\n     \"Acquiror\") of beneficial ownership (within the meaning of Rule 13d-3\n     promulgated under the Exchange Act) of 25% or more of the combined voting\n     power of the then outstanding shares of Common Stock and other stock of the\n     Company entitled to vote generally in the election of directors  (the\n     \"Outstanding Company Voting Securities\"), but excluding for this purpose\n     any such acquisition (or holding) by (i) the Company or any corporation\n     controlled by the Company; (ii) any employee benefit plan (or related\n     trust) of the Company or any corporation controlled by the Company; (iii)\n     any acquisition or ownership by an Acquiror of 25% of the Outstanding\n     Company Voting Securities as a result of an acquisition of common stock or\n     voting securities by the Company which, by reducing the number of shares of\n     the \n\nINITIALS: \/s\/ RDF \/ WMK \/ NCR                                     EXECUTION COPY\n             ----- ----- -----\n              RDF   WMK   NCR\n\n                                       2\n\n \n     Company's common stock or voting securities outstanding, increases the\n     proportionate number of shares beneficially owned by such Acquiror to 25%\n     or more of the Outstanding Company Voting Securities; provided, however,\n     that if an Acquiror shall become the beneficial owner of 25% or more of\n     the Outstanding Company Voting Securities by reason of a share acquisition\n     by the Company as described above and shall, after such share acquisition\n     by the Company, become the beneficial owner of any additional shares of\n     common stock or voting securities of the Company, then such acquisition\n     shall constitute a Change of Control; or (iv) any corporation with respect\n     to which, following such acquisition, more than 50% of, respectively, the\n     then outstanding shares of Common Stock of such corporation and the\n     combined voting power of the then outstanding voting securities of such\n     corporation entitled to vote generally in the election of directors is then\n     beneficially owned, directly or indirectly, by all or substantially all of\n     the individuals and entities who were the beneficial owners, respectively,\n     of the Outstanding Company Voting Securities  immediately prior to such\n     acquisition in substantially the same proportion as their ownership,\n     immediately prior to such acquisition, of the then Outstanding Company\n     Voting Securities;\n\n                    (ii)  individuals who, as of the date hereof, constitute the\n     Board of Directors (the \"Continuing Directors\") cease for any reason to\n     constitute at least a majority of the Board, provided that any individual\n     becoming a director subsequent to the date hereof whose election, or\n     nomination for election by the stockholders of Company, was approved by a\n     vote of at least a majority of the persons then comprising the Continuing\n     Directors shall be considered a Continuing Director, but excluding, for\n     this purpose, any such individual whose initial election as a member of the\n     Board is in connection with an actual or threatened \"election contest\"\n     relating to the election of the directors of the Company (as such term is\n     used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act);\n     or\n\n                    (iii) consummation by the Company of (A) a reorganization,\n     merger or consolidation of the Company, with respect to which in each case\n     all or substantially all of the individuals and entities who were the\n     respective beneficial owners of the Outstanding Company Voting Securities\n     immediately prior to such reorganization, merger or consolidation do not,\n     following such reorganization, merger or consolidation, beneficially own,\n     directly and indirectly, more than 50% of, respectively, the then\n     outstanding shares of Common Stock and the combined voting power of the\n     then outstanding voting securities entitled to vote generally in the\n     election of directors of the corporation or other entity resulting from\n     such reorganization, merger or consolidation, or (B) a complete liquidation\n     or dissolution of the Company, or (C) the sale or other disposition of all\n     or substantially all of the assets of the Company.\"\n\n\nINITIALS: \/s\/ RDF \/ WMK \/ NCR                                     EXECUTION COPY\n             ----- ----- -----\n              RDF   WMK   NCR\n\n\n\n\n                                       3\n\n \n          2.   No Other Modifications. Except as set forth in this Amendment,\n               ----------------------                                         \nthe Agreement shall remain unmodified and in full force and effect.\n\n          IN WITNESS WHEREOF, the parties hereto have executed this Amendment as\nof the date first written above.\n\n                         \"COMPANY\"\n\n\n                         CATELLUS DEVELOPMENT CORPORATION,\n                         a Delaware corporation\n\n\n\n                         By: \/s\/ Richard D. Farman                \n                            ---------------------------------------\n                               Richard D. Farman\n                               Lead Independent Director\n\n\n                         Date of Execution: February __, 2001\n\n\n\n                         By: \/s\/ William M. Kahane                  \n                            ---------------------------------------\n                               William M. Kahane\n                               Chair of the Compensation &amp; Benefits\n                               Committee of the Board of Directors\n\n\n                         Date of Execution:  February __, 2001\n\n\n                         \"EXECUTIVE\"\n\n\n                          \/s\/ Nelson C. Rising                      \n                         ------------------------------------------\n                         Nelson C. Rising\n\n\n                         Date of Execution: February __, 2001\n\nINITIALS: \/s\/ RDF \/ WMK \/ NCR                                     EXECUTION COPY\n             ----- ----- -----\n              RDF   WMK   NCR\n\n\n\n\n\n                                       4\n\n \n                                  Appendix A\n                                  ----------\n\n                             Tax Protection Policy\n                             ---------------------\n                                        \n          This Appendix shall apply if it is determined that any payment,\ndistribution or benefit provided (including, without limitation, the\nacceleration of any payment, distribution or benefit, the provision of any\nseverance pay or benefits and the acceleration of exercisability of any stock\noption) to the Executive or for the Executive's benefit (whether paid or payable\nor distributed or distributable) pursuant to the terms of this Agreement or\notherwise pursuant to or by reason of any other agreement, policy, plan, program\nor arrangement, including, without limitation, any stock option, stock\nappreciation right or similar right, or the lapse or termination of any\nrestriction on or the vesting or exercisability of any of the foregoing (the\n\"Payments\") would be subject to the excise tax imposed by Section 4999 of the\nInternal Revenue Code of 1986, as amended (the \"Code\"), by reason of being\n\"contingent on a change in the ownership or control\" of the Company, within the\nmeaning of Section 280G of the Code or to any similar tax imposed by state or\nlocal law, or any interest or penalties with respect to such excise tax (such\ntax or taxes, together with any such interest or penalties, are collectively\nreferred to as the \"Excise Tax\").  If the Payments are subject to the Excise Tax\nand it is determined that the Parachute Value of the Payments  (as defined\nbelow) exceeds 110% of the Safe Harbor Amount (as defined below), the Executive\nshall be entitled to receive from the Company an additional payment (the \"Gross-\nUp Payment\") in an amount such that the net amount of the Payments and the\nGross-Up Payment retained by the Executive after the calculation and deduction\nof all Excise Taxes (including any interest or penalties imposed with respect to\nsuch taxes) on those Payments and all federal, state and local income tax,\nemployment tax and Excise Tax (including any interest or penalties imposed with\nrespect to such taxes) on the Gross-Up Payment provided for in this Appendix A,\n                                                                    ---------- \nand taking into account any lost or reduced tax deductions on account of the\nGross-Up Payment, shall be equal to the Payments.   If it shall be determined\nthat the Parachute Value of the Payments does not exceed 110% of the Safe Harbor\nAmount, then no Gross-Up Payment shall be made to the Executive and the amount\nof the Payments otherwise due the Executive shall be reduced to the extent\nnecessary to assure that the Parachute Value of the Payments as calculated for\nthe Payments remaining after such reduction does not exceed the greater of (i)\nthe Safe Harbor Amount or (ii) the amount which yields the Executive the\ngreatest after-tax amount of Payments after taking into account any Excise Tax\nthe Executive must pay with respect to those Payments. To the extent any such\nreduction to the Executive's Payments becomes necessary by reason of the\npreceding sentence, the reduction shall be applied against the portion of the\nExecutive's Payments based upon the Executive's Average Salary and Bonus. For\nthe purposes of this Appendix A, (a) \"Parachute Value of the Payments\" shall\n                     ----------                                             \nmean the present value as of the date of the Change of Control for purposes of\nSection 280G of the Code of the portion of such Payments that constitutes a\n\"parachute payment\" under Section 280G(b)(2), as determined by the Accountants\n(as defined below) for purposes of determining whether and to what extent the\nExcise Tax will apply to such Payments, and (b) \"Safe Harbor Amount\" shall mean\nthe maximum Parachute Value of the Payments that the Executive can receive\nwithout any Payments being subject to the Excise Tax.\n\n\nINITIALS: \/s\/ RDF \/ WMK \/ NCR                                     EXECUTION COPY\n             ----- ----- -----\n              RDF   WMK   NCR\n\n\n\n\n                                       5\n\n \n              (i)  All determinations required to be made under this Appendix A,\n                                                                     ---------- \nincluding whether and when the Gross-Up Payment is required and the amount of\nsuch Gross-Up Payment, and the assumptions to be utilized in arriving at such\ndeterminations shall be made by the Accountants (as defined below) which shall\nprovide the Executive and the Company with detailed supporting calculations with\nrespect to such Gross-Up Payment within fifteen (15) business days of the\nreceipt of notice from the Executive or the Company that the Executive has\nreceived or will receive a Payment. For the purposes of making the\ndeterminations and calculations required herein, the Accountants may make\nreasonable assumptions and approximations concerning applicable taxes and may\nrely on reasonable, good faith interpretations concerning the application of\nSection 280G and 4999 of the Code, including (without limitation) the Proposed\nTreasury Regulations under Section 280G of the Code, provided that the\nAccountants' determinations must be made on the basis of \"substantial authority\"\n(within the meaning of Section 6662 of the Code).  For the purposes of this\nAppendix A, the \"Accountants\" shall mean the Company's independent certified\n----------                                                                  \npublic accountants serving immediately prior to the Change of Control.  In the\nevent that the Accountants are also serving as accountant or auditor for the\nindividual, entity or group effecting the Change of Control, the Executive may\nappoint another nationally recognized public accounting firm to make the\ndeterminations required hereunder (which accounting firm shall then be referred\nto as the Accountants hereunder).  All fees and expenses of the Accountants\nshall be borne solely by the Company.\n \n              (ii) For the purposes of determining whether any of the Payments\nwill be subject to the Excise Tax and the amount of such Excise Tax, such\nPayments will be treated as \"parachute payments\" within the meaning of Section\n280G of the Code, and all \"parachute payments\" in excess of the \"base amount\"\n(as defined under Section 280G(b)(3) of the Code) shall be treated as subject to\nthe Excise Tax, unless and except to the extent that in the opinion of the\nAccountants such Payments (in whole or in part) either do not constitute\n\"parachute payments\" or represent reasonable compensation for services actually\nrendered (within the meaning of Section 280G(b)(4) of the Code) in excess of the\n\"base amount,\" or such \"parachute payments\" are otherwise not subject to such\nExcise Tax.  For purposes of determining the amount of the Gross-Up Payment, the\nExecutive shall be deemed to pay federal income taxes at the highest applicable\nmarginal rate of federal income taxation for the calendar year in which the\nGross-Up Payment is to be made and to pay any applicable state and local income\ntaxes at the highest applicable marginal rate of taxation for the calendar year\nin which the Gross-Up Payment is to be made, net of the actual reduction in\nfederal income taxes which is reasonably expected to result from the deduction\nof such state or local taxes if paid in such year (determined, however, with\nregard to limitations on deductions based upon the amount of the Executive's\nadjusted gross income) To the extent practicable, any Gross-Up Payment with\nrespect to any Payment shall be paid by the Company at the time the Executive is\nentitled to receive the Payment and in no event will any Gross-Up Payment be\npaid later than five days after the receipt by the Executive of the Accountant's\ndetermination.  Any determination by the Accountants shall be binding upon the\nCompany and the Executive.\n\nINITIALS: \/s\/ RDF \/ WMK \/ NCR                                     EXECUTION COPY\n             ----- ----- -----\n              RDF   WMK   NCR\n\n\n                                       6\n\n \n               (iii) As a result of uncertainty in the application of Section\n4999 of the Code at the time of the initial determination by the Accountants\nhereunder, it is possible that the Gross-Up Payment made will have been an\namount less than the Company should have paid pursuant to this Appendix A (the\n                                                               -----------\n\"Underpayment\").  Unless the Company elects to exhaust its remedies under\nparagraph (v) below with respect to the additional Excise Tax on your Payments,\nthe Underpayment shall be promptly paid by the Company to or for the Executive's\nbenefit at the time you are required to pay the additional Excise Tax resulting\nin such Underpayment.\n\n               (iv)  The Executive and the Company shall each provide the\nAccountants access to and copies of any books, records and documents in the\npossession of the Company or Executive, as the case may be, reasonably requested\nby the Accountants, and otherwise cooperate with the Accountants in connection\nwith the preparation and issuance of the determination contemplated by this\nAppendix A.\n---------- \n\n               (v)   The Executive shall notify the Company in writing of any\nclaim by the Internal Revenue Service that, if successful, would require the\npayment by the Company of the Gross-Up Payment. Such notification shall be given\nas soon as practicable after the Executive is informed in writing of such claim\nand shall apprise the Company of the nature of such claim and the date on which\nsuch claim is requested to be paid. The Executive shall not pay such claim prior\nto the expiration of the 30-day period following the date on which the Executive\ngives such notice to the Company (or such shorter period ending on the date that\nany payment of taxes, interest and\/or penalties with respect to such claim is\ndue). If the Company notifies Executive in writing prior to the expiration of\nsuch period that it desires to contest such claim, Executive shall:\n\n                     (A) give the Company any information reasonably requested\nby the Company relating to such claim;\n\n                     (B) take such action in connection with contesting such\nclaim as the Company shall reasonably request in writing from time to time,\nincluding, without limitation, accepting legal representation with respect to\nsuch claim by an attorney reasonably selected by the Company and reasonably\nsatisfactory to the Executive;\n \n                     (C) cooperate with the Company in good faith in order to\neffectively contest such claim; and\n     \n                     (D) permit the Company to participate in any proceedings\nrelating to such claim; provided, however, that the Company shall bear and pay\ndirectly all additional Excise Taxes imposed upon the Executive and all costs,\nlegal fees and other expenses (including additional interest and penalties)\nincurred in connection with such contest and shall indemnify the Executive for\nand hold the Executive harmless from, on an after-tax basis, any additional\nExcise Tax (including interest and penalties with respect thereto) imposed upon\nthe Executive and any Excise Tax or income or employment tax (including interest\nand penalties with respect thereto)\n\n\nINITIALS: \/s\/ RDF \/ WMK \/ NCR                                     EXECUTION COPY\n             ----- ----- -----\n              RDF   WMK   NCR\n\n\n                                       7\n\n \nattributable to the Company's payment of that additional Excise Tax on the\nExecutive's behalf or imposed as a result of such representation and payment of\nall related costs, legal fees and expenses. The amounts owed to the Executive by\nreason of the foregoing shall be paid to the Executive or for the Executive's\nbenefit as they become due and payable. Without limiting the foregoing\nprovisions of this paragraph, the Company shall control all proceedings taken in\nconnection with such contest and, at its sole option, may pursue or forgo any\nand all administrative appeals, proceedings, hearings and conferences with the\ntaxing authority in respect of such claim and may, at its sole option, either\ndirect the Executive to pay the tax claimed and sue for a refund or contest the\nclaim in any permissible manner, and the Executive agrees to prosecute such\ncontest to a determination before any administrative tribunal, in a court of\ninitial jurisdiction and in one or more appellate courts, as the Company shall\ndetermine; provided, however, that if the Company directs the Executive to pay\nsuch claim and sue for a refund, the Company shall advance the amount of such\npayment to Executive, on an interest-free basis, and shall indemnify the\nExecutive for and hold the Executive harmless from, on an after-tax basis, any\nExcise Tax or income tax (including interest or penalties with respect thereto)\nimposed with respect to such advance or with respect to any imputed income with\nrespect to such advance (including as a result of any forgiveness by the Company\nof such advance); provided, further, that any extension of the statute of\nlimitations relating to the payment of taxes for the taxable year of the\nExecutive with respect to which such contested amount is claimed to be due is\nattributable in whole or in part to such contested amount. Furthermore, the\nCompany's control of the contest shall be limited to issues with respect to\nwhich a Gross-Up Payment would be payable hereunder and the Executive shall be\nentitled to settle or contest, as the case may be, any other issue raised by the\nInternal Revenue Service or any other taxing authority.\n\nINITIALS: \/s\/ RDF \/ WMK \/ NCR                                     EXECUTION COPY\n             ----- ----- -----\n              RDF   WMK   NCR\n\n\n\n                                       8\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7030],"corporate_contracts_industries":[9488],"corporate_contracts_types":[9539,9544],"class_list":["post-39023","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-catellus-development-corp","corporate_contracts_industries-real__operators","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39023","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39023"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39023"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39023"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39023"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}