{"id":39027,"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-timothy-j2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-catellus-development-corp-and-timothy-j2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-catellus-development-corp-and-timothy-j2.html","title":{"rendered":"Employment Agreement &#8211; Catellus Development Corp. and Timothy J. Beaudin"},"content":{"rendered":"<pre>TO:       Timothy J. Beaudin\n\nFROM:     Nelson C. Rising\n\nDATE:     February 7, 2001\n\nSUBJECT:  Memorandum of Understanding regarding Employment\n\n--------------------------------------------------------------------------------\n\n     This Memorandum of Understanding (\"Memorandum\") sets forth the terms of\nyour employment with Catellus Development Corporation (the \"Company\") or its\nsubsidiary. This Memorandum supersedes, in their entirety, all previous\nagreements and understandings concerning your employment except the Indemnity\nAgreement referenced in Section 8 below and any stock option agreements you have\nwith the Company; provided, however, that the provisions of this Memorandum\nregarding vesting of stock options in the event of termination of your\nemployment shall supersede such provisions of your stock option agreements.\n\n     Effective upon your execution of this Memorandum, the following provisions\nshall govern your employment with the Company or a subsidiary:\n\n1.   Title; Responsibilities and Duties. You are a full-time, regular employee\n     ----------------------------------\nof the Company with the title of President of Catellus Commercial Group, LLC, a\nsubsidiary of the Company (\"CCG\"), and you shall be expected to handle such\nresponsibilities and perform such duties as I shall assign from time to time\nconsistent with those you were handling and performing as of September 30, 2000.\nIf you become an employee of a subsidiary of the Company, the Company will\nnevertheless be bound by the terms of this Memorandum.\n\n2.   At-Will Employment. You acknowledge and agree that your employment is\n     ------------------\nat-will and that either the Company or you, at any time, with or without cause,\nmay terminate the employment relationship, including all compensation and\nbenefits. However, should your employment terminate, Section 10 below shall\napply.\n\n3.   Salary. Effective January 1, 2000, you shall be paid at the annualized\n     ------\nsalary rate of at least $325,000. Your salary shall be payable in accordance\nwith the Company's normal payroll practices and subject to all applicable tax\nwithholding requirements. Your salary will be reviewed in the first quarter of\neach year starting in 2001 and, if appropriate, it will be increased retroactive\nto January 1 of that year. Your salary, as it may be increased from time to time\nin the sole discretion of the Company, shall be referred to as your \"Base\nSalary.\"\n\n4.   Bonuses.\n     -------\n\n     4.1  Annual Bonuses. You are eligible to receive an annual maximum cash\n          --------------\nbonus for each calendar year of employment of up to two hundred percent (200%)\nof your Base Salary, subject to satisfaction of target performance criteria\ndetermined each year by the Company. The performance criteria may relate to\nindividual goals, Company or division goals, or a combination thereof and shall\nbe established and communicated to you within the first 90 days after the start\nof each calendar year. Such bonuses shall be paid no later than March 31 of the\n\n\n\nTimothy J. Beaudin\nMemorandum of Understanding regarding Employment\nFebruary 7, 2001\nPage 2 of 14\n\nfollowing year and are subject to all applicable tax withholding requirements.\nExcept as provided in Section 10, no bonus shall be payable if your employment\nterminates or you resign prior to the close of the calendar year to which such\nbonus relates.\n\n     4.2  Special Bonuses. In addition, you shall receive a special bonus in an\n          ---------------\namount equal to $166,667 on each of April 6, 2002, April 6, 2003, and April 6,\n2004, but only if (i) you have remained continuously employed by the Company\nthroughout the period beginning on the date of this Memorandum and ending on the\ndate the special bonus payment is otherwise due, and (ii) you have not sold any\nCommon Stock of the Company on or before the date the special bonus payment is\notherwise due unless that stock was acquired pursuant to the exercise of an\noption that was scheduled to expire by its terms within one year of the date of\nexercise. You acknowledge and agree that any special bonus paid pursuant to this\nparagraph will not be taken into account for purposes of determining benefits\nunder Section 6.1 below, and will not be taken into account as \"salary,\"\n\"compensation,\" \"bonus,\" or any similar term in determining the amount of any\npayment under any pension, retirement, or profit-sharing plan of the Company or\nany life insurance, disability, or other benefit plan of the Company, except as\notherwise specifically provided in the applicable plan document (including a\nspecific statement that the special bonus will be taken into account in\ndetermining the amount of any payment notwithstanding this Memorandum). All\nspecial bonus payments shall be subject to appropriate withholding payments\ndeducted therefrom.\n\n5.   Stock Options. Beginning in 2003, you may be entitled to receive\n     -------------\nadditional stock options under the Company's 2000 Performance Award Plan based\non your and the Company's performance as determined by the Company in its sole\ndiscretion.\n\n6.   Benefits; Relocation Loan.\n     -------------------------\n\n     6.1  Benefits. You shall be entitled to receive paid vacation, medical\n          --------\ncoverage, disability income replacement coverage, and other employee benefits,\nall to the same extent that the Company provides these benefits to the Company's\nother senior management employees.\n\n     6.2  Relocation Loan. In connection with your relocation from San\n          ---------------\nFrancisco, California, to the Denver, Colorado area, the Company has made a loan\nto you (the \"Relocation Loan\") on the following terms and conditions: (i) the\nprincipal amount is $500,000, and you shall use the proceeds solely for the\npurchase or construction of your principal residence, (ii) the term of the loan\nis five years from April 6, 1999, with required principal payments in equal\ninstallments at the end of the third, fourth and fifth years of the term, (iii)\nthe loan is without interest, (iv) the loan is evidenced by a Note in the form\nattached hereto as Exhibit A, (v) the loan is secured by a second deed of trust\n                   ---------\nwith respect to your principal residence in the Denver area, in the form\nattached hereto as Exhibit B, and (vi) your outstanding option agreements with\n                   ---------\nrespect to Common Stock of the Company have been amended, in the form attached\nhereto as Exhibit C, to provide that shares otherwise deliverable to you upon\n          ---------\nexercise of an option will be pledged to the Company and held by the Company as\nadditional security for the loan.\n\n7.   Expenses. You shall be entitled to reimbursement for reasonable and\n     --------\nproperly documented expenses you incur in the conduct of the Company's business,\nincluding a monthly automobile allowance in accordance with the Company's\nAutomobile Allowance Policy as well\n\n\n\nTimothy J. Beaudin\nMemorandum of Understanding regarding Employment\nFebruary 7, 2001\nPage 3 of 14\n\nas payment or reimbursement for cellular phone expenses. Such reimbursable\nexpenses shall be deemed to include dues (but not initiation fees) for a country\nclub, an athletic club, and a luncheon club.\n\n8. Indemnity. Pursuant to an Indemnity Agreement by and between the Company and\n   ---------\nyou, the Company shall indemnify you, and the Company shall maintain in full\nforce and effect directors' and officers' liability insurance for you in\nreasonable amounts from established and reputable insurers. To the same extent,\nthe Company shall pay and advance all expenses, including, without limitation,\nattorneys' fees, disbursements and retainers, accounting and witness fees,\ntravel and deposition costs, expenses of investigations, judicial or\nadministrative proceedings and appeals, amounts paid in settlement by you or on\nyour behalf, actually incurred by you in connection with any threatened, pending\nor completed claim, action, suit or proceeding, formal or informal, whether\nbrought before or after the date of this Memorandum, whether brought in the\nright of the Company or otherwise and whether of a civil, criminal,\nadministrative or investigative nature, by reason of the fact that you were a\ndirector, officer, employee or agent of the Company or were serving at the\nCompany's request as a director, officer, employee, or agent of another\ncorporation, limited liability company, partnership, joint venture, trust, or\nother enterprise.\n\n9. Employee Handbook; Confidential Information. As a condition of employment,\n   -------------------------------------------\nyou acknowledge that you have reviewed the Company's current Employee Handbook,\nexecuted the Handbook's Receipt and Acknowledgment (which is the last page of\nthe Handbook), and returned such Receipt and Acknowledgment and a completed W4\nform to Jaime Gertmenian. You agree that during the term of your employment and\nthereafter for a period of three years, you shall abide by the confidentiality\nprovisions of the current Employee Handbook.\n\n10. Termination of Employment. For definitions of capitalized terms used in this\n    -----------------------\nSection 10, see Appendix A attached to this Memorandum which is hereby\nincorporated by reference.\n\n    10.1 Right to Terminate. The Company or you may terminate your employment\n         ------------------\nhereunder at any time by giving the other party prior written notice; provided,\nthat upon your death, your employment hereunder shall terminate automatically.\nImmediately upon the termination of your employment hereunder for any reason,\nyou shall return promptly to the Company any property (including documents) in\nyour possession which is owned by the Company.\n\n    10.2 Benefits upon Termination.\n         -------------------------\n\n             (a) Basic Payments upon Termination. If your employment terminates\n                 -------------------------------\nfor any reason, the Company shall pay you your unpaid Base Salary for the period\nthrough the Date of Termination and your unpaid salary with respect to any\nvacation days accrued but not taken as of the Date of Termination (based upon\nyour Base Salary in effect at that time). You shall also be entitled to other\npayments or benefits to the extent provided in the Company's employee benefit\nplans or arrangements.\n\n             (b) Termination Other than for Cause, or for Death, Disability or\n                 -------------------------------------------------------------\nGood Reason. If (i) you cease to be an employee of the Company on account of (A)\n-----------\nthe Company's termination of your employment other than for Cause, (B)\nDisability or (C) your death, or (ii) you\n\n\n\n\nTimothy J. Beaudin\nMemorandum of Understanding regarding Employment\nFebruary 7, 2001\nPage 4 of 14\n\nresign your employment with the Company after giving the Company notice of the\noccurrence of one or more events that constitute Good Reason within a reasonable\nperiod (but not more than 90 days after such occurrence) and the Company fails\nto correct such occurrence within a reasonable time (but not more than 60 days)\nand your resignation occurs within 10 days after the expiration of that cure\nperiod, then in addition to the amounts payable under Section 10.2(a),\n\n               (A) the stock options held by you shall become fully vested, and\n\n               (B) the Company shall pay you, in monthly payments over a period\nof 24 months from the Date of Termination, a monthly amount equal to one\ntwenty-fourth (1\/24) of the amount that is two (2) times your Average Salary and\nBonus, and\n\n               (C) from the Date of Termination through the date on which COBRA\nbenefits expire or December 31, 2003, whichever is later, you shall be entitled\nto medical and dental coverage substantially comparable to the coverage in\neffect on the Date of Termination (subject to any reduction or termination of\nbenefits similarly affecting all senior management personnel of the Company), at\na cost to you not in excess of the employee premium rate for active employees of\nthe Company. Such medical and dental coverage may at the discretion of the\nCompany be provided by continuing your participation in the Company's group\nhealth plan, by paying a portion of the applicable COBRA premium for you and\nyour eligible dependents, or by covering you and your eligible dependents under\na substitute arrangement.\n\nYou shall not be required to mitigate the amount of any payment provided for in\nthis Section 10.2(b) by seeking other employment or otherwise. The Company shall\nnot be entitled to set off against the amounts payable to you under this\nMemorandum any amounts owed to the Company by you, any amounts earned by you in\nother employment after termination of your employment with the Company, or any\namounts which might have been earned by you in other employment had you sought\nsuch other employment.\n\n          (c) Termination for Cause; Resignation. If you cease to be an employee\n              ----------------------------------\nfor any reason other than as set forth in Section 10.2(b), then the Company\nshall have no obligation to make any payments to you for periods after the Date\nof Termination, your unvested stock options shall terminate, and your vested\noptions must be exercised, if at all, within the time periods after the Date of\nTermination specified in your stock option agreement(s).\n\n     10.3 Change of Control Payments. In the event that a Change of Control\n          --------------------------\noccurs while you are employed by the Company pursuant to the terms of this\nMemorandum, and within 12 months after the occurrence of the Change of Control,\nyour employment by the Company or the Company's successor is terminated by the\nCompany other than for Cause or you resign for one or more events that\nconstitute Good Reason, then you shall be entitled to receive from the Company\nor such successor, in lieu of, and not in addition to, the amounts otherwise\npayable to you pursuant to Section 10.2(b) hereof, the benefits provided below:\n\n          (a) the Company shall pay to you (A) your Base Salary, when due,\nthrough the Date of Termination at the rate in effect at the time the applicable\nNotice of Termination is\n\n\n\n\nTimothy J. Beaudin\nMemorandum of Understanding regarding Employment\nFebruary 7, 2001\nPage 5 of 14\n\n\ngiven, (B) the unpaid portion, if any, of any annual bonus which has been earned\nby you but which has not been paid as of the Date of Termination, and (C) all\nother amounts to which you are entitled under any compensation plan of the\nCompany at the time such payments are due, and (D) any unpaid salary with\nrespect to any vacation days accrued but not taken as of the Date of Termination\n(based upon your rate of Base Salary in effect at the time the applicable Notice\nof Termination is given); and\n\n                  (b)      all stock options or other equity awards held by you\nwith respect to the Company's Common Stock shall become fully vested; and\n\n                  (c)      in lieu of any further salary payments to you for\nperiods subsequent to the Date of Termination, the Company shall pay to you a\nlump sum payment in an amount which is equal to three (3) times your Average\nSalary and Bonus; and\n\n                  (d)      you shall receive the benefits of the Tax Protection\nPolicy attached hereto as Appendix B, which is hereby incorporated by reference.\n                          ----------\n\n         10.4 Payment of Special Bonuses. Should you cease to be an employee of\n              --------------------------\nthe Company on account of your death or Disability, or should your employment be\nterminated by the Company for any reason other than for Cause, or should you\nterminate your employment with the Company for Good Reason, whether before or\nafter a Change of Control event, then you will have the vested right to receive,\nat the times specified in Section 4.2, the amounts that would otherwise have\nbeen paid to you as special bonuses under that section, provided all the\nconditions to payment of such bonuses other than your continued employment with\nthe Company have been satisfied.\n\n11.      Severability. In case any one or more provisions of this Memorandum\n         ------------\nshall be invalid, illegal or unenforceable in any respect, the validity,\nlegality and enforceability of the remaining provisions shall not be in any way\nbe affected or impaired.\n\n12.      Arbitration. To the fullest extent allowed by law, any controversy or\n         -----------\nclaim arising out of or relating to your employment with the Company (or\ntermination of your employment) shall be settled by binding and non-appealable\narbitration in the city or region in which your office is located by an\narbitrator. Possible disputes covered by the foregoing, include (but are not\nlimited to) wage, contract, discrimination, or other employment-related claims\nunder laws known as Title VII of the Civil Rights Act, California Fair\nEmployment and Housing Act and comparable statutes in other states if\napplicable, Americans with Disabilities Act, Age Discrimination in Employment\nAct, and any other statutes relating to an employee's relationship with his\/her\nemployer. However, claims for workers' compensation benefits and unemployment\ninsurance are not covered by this arbitration agreement and such claims may be\npresented by you to the appropriate court or state agency. You and the Company\nshall initially confer and attempt to reach agreement on the individual to be\nappointed as such arbitrator. If no agreement is reached, the parties shall\nrequest from the Judicial Arbitration and Mediation Services (\"JAMS\") office in\nthe city or region where your office is located, a list of five retired judges\naffiliated with JAMS. (If there is no JAMS office in the city or region where\nyour office is located, then an organization which is comparable to JAMS would\nbe utilized.) You and the Company shall each alternately strike names from such\nlist until only one name remains and such person shall\n\n\n\nTimothy J. Beaudin\nMemorandum of Understanding regarding Employment\nFebruary 7, 2001\nPage 6 of 14\n\nthereby be selected as the arbitrator. Except as otherwise provided for herein,\nsuch arbitration shall be conducted in conformity with the procedures specified\nin the California Arbitration Act (Cal. C.C.P. (S)(S) 1280 et seq.) (or the\n                                                           -- ---\nstatute applicable in the state in which your office is located). The arbitrator\nshall allow the discovery authorized by California Code of Civil Procedure\n(S)1283.05 or any other discovery required by law in arbitration proceedings.\nAlso, to the extent that anything in this Memorandum conflicts with any\narbitration procedures required by applicable law, the arbitration procedures\nrequired by applicable law shall govern. The arbitrator shall issue a written\naward that sets forth the essential findings and conclusions on which the award\nis based. The arbitrator shall have the authority to award any relief authorized\nby law in connection with the asserted claims or disputes. The arbitrator's\naward shall be subject to correction, confirmation, or vacation, as provided by\nany applicable law setting forth the standard of judicial review of arbitration\nawards. The parties shall bear equally the arbitrator's fee and any other type\nof expense or cost that the employee would not be required to bear if he or she\nwere free to bring the dispute or claim in court as well as any other expense or\ncost that is unique to arbitration but exclusive of each party's attorneys'\nfees. The parties intend that this Section 12 shall be valid, binding,\nenforceable and irrevocable and shall survive the termination of this\nMemorandum. Any final decision of the arbitrator so chosen may be enforced by a\ncourt of competent jurisdiction. You are waiving your right to a jury trial and\nagree that the decision of the arbitrator shall be final and binding. If either\nparty is determined by the arbitrator to be the prevailing party in the\narbitration, then that party will be entitled to reimbursement from the other\nparty of all the reasonable fees (including attorneys' fees) and expenses\nincurred in connection with such arbitration.\n\n13.      Attorneys' Fees.  The Company will pay your attorneys' fees in\n         ---------------\nconnection with the preparation and negotiation of this Memorandum.\n\n14.      Amendments.  No amendments to this Memorandum may be made except by\n         ----------\nwriting signed by you and the Company.\n\n15.      Governing Law.  This Memorandum shall be governed by the internal laws\n         -------------\nof the State of California.\n\nCATELLUS DEVELOPMENT CORPORATION\n\n\nBy________________________________________\n         Nelson C. Rising\n         Chairman of the Board and\n         Chief Executive Officer\n\n\n                                               ACCEPTED AND AGREED:\n\n\n                                               _________________________________\n                                                 Timothy J. Beaudin\n\n                                                 Date signed: February __, 2001\n\n\n\nTimothy J. Beaudin\nMemorandum of Understanding regarding Employment\nFebruary 7, 2001\nPage 7 of 14\n\n\n                                   Appendix A\n                                   ----------\n\n                                   Definitions\n                                   -----------\n\n         For purposes of this Memorandum, the following definitions are set\nforth below:\n\n               (i)   \"Average Salary and Bonus\" means the greater of (a) your\nannual Base Salary and annual bonus (excluding any special bonus payable under\nSection 4.2 or 10.4), including any amounts deferred by you under the Company's\nProfit Sharing and Savings Plan, Cafeteria Plan, and Executive Deferred\nCompensation Plan and any other deferred compensation program now or hereafter\nestablished by the Company, earned by you for the three full calendar years\nprior to termination of your employment (regardless of whether all of such years\noccurred while this Memorandum was in effect and regardless of whether those\nearned amounts were paid out on a current basis or deferred) or such smaller\nnumber of full calendar years as you have been employed by the Company, divided\nby the number of such full calendar years, or (b) your annual Base Salary and\nannual bonus (excluding any special bonus payable under Section 4.2 or 10.4),\nincluding any amounts deferred by you under the Company's Profit Sharing and\nSavings Plan, Cafeteria Plan, and Executive Deferred Compensation Plan and any\nother deferred compensation program now or hereafter established by the Company,\nearned by you for the three full calendar years with respect to which annual\nbonuses have been determined prior to the occurrence of the Change of Control\n(regardless of whether all of such years occurred while this Memorandum was in\neffect and regardless of whether those earned amounts were paid out on a current\nbasis or deferred) or such smaller number of full calendar years as you have\nbeen employed by the Company, divided by the number of such full calendar years.\n\n               (ii)  \"Cause\" means that the Company provides you with a Notice\nof Termination for either of the following reasons: (a) the willful and\ncontinued failure by you substantially to perform your material duties (other\nthan any such failure resulting from your incapacity due to physical or mental\nillness) after written demand for substantial performance of such duties is\ndelivered to you by the Board of Directors, which demand identifies the manner\nin which the Board of Directors believes that you have not substantially\nperformed your duties and you have been given a reasonable period of time (but\nin no event more than 60 days) to correct your deficient performance; or (b)\nyour engaging in egregious misconduct involving serious moral turpitude to such\nan extent that, in the reasonable judgment of the Board of Directors, such\nmisconduct substantially impairs your ability to perform your duties with the\nCompany. For purposes of clause (a) of this definition, no act, or failure to\nact, on your part shall be deemed \"willful\" unless done, or omitted to be done,\nby you without reasonable belief that your action or omission was in the best\ninterest of the Company.\n\n               (iii) A \"Change of Control\" shall be deemed to have occurred upon\nthe happening of any of the following events:\n\n                     (a) the acquisition or holding of the Company, by any\nindividual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)\nof the Securities Exchange Act of 1934, as amended (the \"Exchange Act\")) (an\n\"Acquiror\") of beneficial ownership (within the meaning of Rule 13d-3\npromulgated under the Exchange Act) of 25% or more of the combined\n\n\n\nTimothy J. Beaudin\nMemorandum of Understanding regarding Employment\nFebruary 7, 2001\nPage 8 of 14\n\nvoting power of the then outstanding shares of Common Stock and other stock of\nthe Company entitled to vote generally in the election of directors (the\n\"Outstanding Company Voting Securities\"), but excluding for this purpose any\nsuch acquisition (or holding) by (i) the Company or any corporation controlled\nby the Company; (ii) any employee benefit plan (or related trust) of the Company\nor any corporation controlled by the Company; (iii) any acquisition or ownership\nby an Acquiror of 25% of the Outstanding Company Voting Securities as a result\nof an acquisition of common stock or voting securities by the Company which, by\nreducing the number of shares of the Company's common stock or voting securities\noutstanding, increases the proportionate number of shares beneficially owned by\nsuch Acquiror to 25% or more of the Outstanding Company Voting Securities;\nprovided, however, that if an Acquiror shall become the beneficial owner of 25%\nor more of the Outstanding Company Voting Securities by reason of a share\nacquisition by the Company as described above and shall, after such share\nacquisition by the Company, become the beneficial owner of any additional shares\nof common stock or voting securities of the Company, then such acquisition shall\nconstitute a Change of Control; or (iv) any corporation with respect to which,\nfollowing such acquisition, more than 50% of, respectively, the then outstanding\nshares of Common Stock of such corporation and the combined voting power of the\nthen outstanding voting securities of such corporation entitled to vote\ngenerally in the election of directors is then beneficially owned, directly or\nindirectly, by all or substantially all of the individuals and entities who were\nthe beneficial owners, respectively, of the Outstanding Company Voting\nSecurities immediately prior to such acquisition in substantially the same\nproportion as their ownership, immediately prior to such acquisition, of the\nthen Outstanding Company Voting Securities;\n\n               (b)  individuals who, as of the date hereof, constitute the Board\nof Directors (the \"Continuing Directors\") cease for any reason to constitute at\nleast a majority of the Board, provided that any individual becoming a director\nsubsequent to the date hereof whose election, or nomination for election by the\nstockholders of Company, was approved by a vote of at least a majority of the\npersons then comprising the Continuing Directors shall be considered a\nContinuing Director, but excluding, for this purpose, any such individual whose\ninitial election as a member of the Board is in connection with an actual or\nthreatened \"election contest\" relating to the election of the directors of the\nCompany (as such term is used in Rule 14a-11 of Regulation 14A promulgated under\nthe Exchange Act); or\n\n               (c)  consummation by the Company of (1) a reorganization, merger\nor consolidation of the Company, with respect to which in each case all or\nsubstantially all of the individuals and entities who were the respective\nbeneficial owners of the Outstanding Company Voting Securities immediately prior\nto such reorganization, merger or consolidation do not, following such\nreorganization, merger or consolidation, beneficially own, directly and\nindirectly, more than 50% of, respectively, the then outstanding shares of\nCommon Stock and the combined voting power of the then outstanding voting\nsecurities entitled to vote generally in the election of directors of the\ncorporation or other entity resulting from such reorganization, merger or\nconsolidation, or (2) a complete liquidation or dissolution of the Company, or\n(3) the sale or other disposition of all or substantially all of the assets of\nthe Company.\n\n         (iv)  \"Date of Termination\" means the effective date specified in the\nNotice of Termination as of which your employment terminates or, in the event of\ntermination of\n\n\n\nTimothy J. Beaudin\nMemorandum of Understanding regarding Employment\nFebruary 7, 2001\nPage 9 of 14\n\nemployment other than for Cause, the date as of which your employment is to\nterminate pursuant to the provisions of Section 10.1 of this Memorandum.\n\n                  (v)      \"Disability\" means that (i) you have a physical or\nmental condition that renders you incapable, after reasonable accommodation, of\nperforming your duties; (ii) such condition is reasonably determined by the\nChief Executive Officer to be of a long-term nature; and (iii) you are eligible\nfor income replacement benefits under the Company's long-term disability plan\nduring such period of disability.\n\n                  (vi)     \"Notice of Termination\" means a notice of a proposed\ntermination by the Company with a written explanation to you of the grounds for\nsuch proposed termination.\n\n                  (vii)    \"Good Reason\" exists if, without your express written\nconsent, any of the following occurs:\n\n                           (A)      the Company reduces your Base Salary as in\neffect from time to time; or\n\n                           (B)      an assigning of duties to you that are a\nreduction in any substantial respect from your position, authority, or\nresponsibilities as of September 30, 2000; or\n\n                           (C)      the Company's failure to fulfill the\nCompany's obligations under this Memorandum; or\n\n                           (D)      the Company's intentional failure, without\nyour consent, to pay to you any portion of your Base Salary, earned bonus, or\nother current compensation (if any), or to pay to you any portion of any\ninstallment of deferred compensation under any deferred compensation program\nwithin ten business days of the date such compensation is due or to issue shares\nof the Company's Common Stock in accordance with the terms of stock options\ngranted to you upon valid exercise thereof; or\n\n                           (E)      a relocation of your current place of\nemployment or requirement for you to be based anywhere other than within 25\nmiles from the site of your current place of employment; or\n\n                           (F)      the Company does not allow you to devote\nreasonable time to activities other than those required under this Memorandum,\nincluding supervision of personal investments and activities involving\nprofessional, charitable, educational, political, religious and similar types of\norganizations, speaking engagements, memberships of boards of directors of other\norganizations and similar activities, provided that you shall not serve on the\nboard of directors of any other business or hold any other position with any\nbusiness without the consent of the Chief Executive Officer; or\n\n\n                           (G)      the failure of any successor entity in a\nChange of Control to continue this Memorandum in effect and assume the Company's\nobligations and responsibilities hereunder.\n\n\n\n\nTimothy J. Beaudin\nMemorandum of Understanding regarding Employment\nPage 10 of 14\n\n\n\n\n\nTimothy J. Beaudin\nMemorandum of Understanding regarding Employment\nFebruary 7, 2001\nPage 11 of 14\n\n                                   Appendix B\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 you or for your benefit (whether paid or payable or distributed or\ndistributable) pursuant to the terms of this Memorandum or otherwise pursuant to\nor by reason of any other agreement, policy, plan, program or arrangement,\nincluding without limitation any stock option, stock appreciation right or\nsimilar right, or the lapse or termination of any restriction on or the vesting\nor exercisability of any of the foregoing (the \"Payments\") would be subject to\nthe excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as\namended (the \"Code\"), by reason of being \"contingent on a change in the\nownership or control\" of the Company, within the meaning of Section 280G of the\nCode or to any similar tax imposed by state or local law, or any interest or\npenalties with respect to such excise tax (such tax or taxes, together with any\nsuch interest or penalties, are collectively referred to as the \"Excise Tax\").\nIf the Payments are subject to the Excise Tax and it is determined that the\nParachute Value of the Payments (as defined below) exceeds 110% of the Safe\nHarbor Amount (as defined below), you shall be entitled to receive from the\nCompany an additional payment (the \"Gross-Up Payment\") in an amount such that\nthe net amount of the Payments and the Gross-Up Payment retained by you after\nthe calculation and deduction of all Excise Taxes (including any interest or\npenalties imposed with respect to such taxes) on those Payments and all federal,\nstate and local income tax, employment tax and Excise Tax (including any\ninterest or penalties imposed with respect to such taxes) on the Gross-Up\nPayment provided for in this Appendix B, and taking into account any lost or\n                             ----------\nreduced tax deductions you may incur on account of the Gross-Up Payment, shall\nbe equal to the Payments. If it shall be determined that the Parachute Value of\nthe Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-Up\nPayment shall be made to you, and the amount of the Payments otherwise due you\nshall be reduced to the extent necessary to assure that the Parachute Value of\nthe Payments as calculated for the Payments remaining after such reduction does\nnot exceed the greater of (i) the Safe Harbor Amount or (ii) the amount which\nyields you the greatest after-tax amount of Payments after taking into account\nany Excise Tax you must pay with respect to those Payments. To the extent any\nsuch reduction to your Payments becomes necessary by reason of the preceding\nsentence, the reduction shall be applied against the portion of your Payments\nbased upon your Average Salary and Bonus. For the purposes of this Appendix B,\n                                                                   ----------\n(a) \"Parachute Value of the Payments\" shall mean the present value as of the\ndate of the Change of Control for purposes of Section 280G of the Code of the\nportion of such Payments that constitutes a \"parachute payment\" under Section\n280G(b)(2), as determined by the Accountants (as defined below) for purposes of\ndetermining whether and to what extent the Excise Tax will apply to such\nPayments, and (b) \"Safe Harbor Amount\" shall mean the maximum Parachute Value of\nthe Payments that you can receive without any Payments being subject to the\nExcise Tax.\n\n\n\nTimothy J. Beaudin\nMemorandum of Understanding regarding Employment\nFebruary 7, 2001\nPage 12 of 14\n\n\n                    (i) All determinations required to be made under this\nAppendix B, including whether and when the Gross-Up Payment is required and the\n----------\namount of such Gross-Up Payment, and the assumptions to be utilized in arriving\nat such determinations shall be made by the Accountants (as defined below) which\nshall provide you 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 you or the Company that you have received or shall\nreceive a Payment. For purposes of making the determinations and calculations\nrequired herein, the Accountants may make reasonable assumptions and\napproximations concerning applicable taxes and may rely on reasonable, good\nfaith interpretations concerning the application of Section 280G and 4999 of the\nCode, including (without limitation) the Proposed Treasury Regulations under\nSection 280G of the Code, provided that the Accountants' determinations must be\nmade on the basis of \"substantial authority\" (within the meaning of Section 6662\nof the Code). For the purposes of this Appendix B, the \"Accountants\" shall mean\n                                       ----------\nthe Company's independent certified public accountants serving immediately prior\nto the Change of Control. In the event that the Accountants are also serving as\naccountant or auditor for the individual, entity or group effecting the Change\nof Control, you may appoint another nationally recognized public accounting firm\nto make the determinations required hereunder (which accounting firm shall then\nbe referred to as the Accountants hereunder). All fees and expenses of the\nAccountants shall be borne solely by the Company.\n\n                    (ii) For the purposes of determining whether any of the\nPayments shall be subject to the Excise Tax and the amount of such Excise Tax,\nsuch Payments shall be treated as \"parachute payments\" within the meaning of\nSection 280G of the Code, and all \"parachute payments\" in excess of the \"base\namount\" (as defined under Section 280G(b)(3) of the Code) shall be treated as\nsubject to the Excise Tax, unless and except to the extent that in the opinion\nof the Accountants 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, you\nshall be deemed to pay federal income taxes at the highest applicable marginal\nrate of federal income taxation for the calendar year in which the Gross-Up\nPayment is to be made and to pay any applicable state and local income taxes at\nthe highest applicable marginal rate of taxation for the calendar year in which\nthe Gross-Up Payment is to be made, net of the actual reduction in federal\nincome taxes which is reasonably expected to result from the deduction of such\nstate and local taxes if paid in such year (determined , however, with regard to\nlimitations on deductions based upon the amount of your adjusted gross income).\nTo the extent practicable, any Gross-Up Payment with respect to any Payment\nshall be paid by the Company at the time you are entitled to receive the Payment\nand in no event shall any Gross-Up Payment be paid later than five days after\nyour receipt of the Accountant's determination. Any determination by the\nAccountants shall be binding upon the Company and you.\n\n                    (iii) As a result of uncertainty in the application of\nSection 4999 of the Code at the time of the initial determination by the\nAccountants hereunder, it is possible that the Gross-Up Payment made shall have\nbeen an amount less than the Company should have paid pursuant to this Appendix\n                                                                       --------\nB (the \"Underpayment\"). Unless the Company elects to exhaust its remedies under\n-\nclause (v) below with respect to the additional Excise Tax on your Payments,\n\n\n\n\nTimothy J. Beaudin\nMemorandum of Understanding regarding Employment\nFebruary 7, 2001\nPage 12 of 14\n\nthe Underpayment shall be promptly paid by the Company to or for your benefit at\nthe time you are required to pay the additional Excise Tax resulting in such\nUnderpayment.\n\n                   (iv) You and the Company shall each provide the Accountants\naccess to and copies of any books, records and documents in the Company's or\nyour possession, as the case may be, reasonably requested by the Accountants,\nand otherwise cooperate with the Accountants in connection with the preparation\nand issuance of the determination contemplated by this Appendix B.\n                                                       ----------\n\n                    (v) You shall notify the Company in writing of any claim by\nthe Internal Revenue Service that, if successful, would require the payment by\nthe Company of the Gross-Up Payment. Such notification shall be given as soon as\npracticable after you are informed in writing of such claim and shall apprise\nthe Company of the nature of such claim and the date on which such claim is\nrequested to be paid. You shall not pay such claim prior to the expiration of\nthe 30-day period following the date on which you give such notice to the\nCompany (or such shorter period ending on the date that any payment of taxes,\ninterest and\/or penalties with respect to such claim is due). If the Company\nwere to notify you in writing prior to the expiration of such period that it\ndesires to contest such claim, you shall:\n\n                        (A) give the Company any information reasonably\n         requested by 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 you;\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 you and all costs, legal fees\nand other expenses (including additional interest and penalties) incurred in\nconnection with such contest and shall indemnify you for and hold you harmless\nfrom, on an after-tax basis, any additional Excise Tax (including interest and\npenalties with respect thereto) imposed upon you and any Excise Tax or income or\nemployment tax (including interest and penalties with respect thereto)\nattributable to the Company's payment of that additional Excise Tax on your\nbehalf or imposed as a result of such representation and payment of all related\ncosts, legal fees and expenses. The amounts owed to you by reason of the\nforegoing shall be paid to you or for your benefit as they become due and\npayable. Without limiting the foregoing provisions of this paragraph, the\nCompany shall control all proceedings taken in connection with such contest and,\nat its sole option, may pursue or forgo any and all administrative appeals,\nproceedings, hearings and conferences with the taxing authority in respect of\nsuch claim and may, at the Company's sole option, either direct you to pay the\ntax claimed and sue for a refund or contest the claim in any permissible manner,\nand you agree to prosecute such contest to a determination before any\nadministrative tribunal, in a court of initial jurisdiction and in one or more\nappellate courts, the Company shall\n\n\n\nTimothy J. Beaudin\nMemorandum of Understanding regarding Employment\nFebruary 7, 2001\nPage 12 of 14\n\ndetermine; provided, however, that if the Company were to direct you to pay such\nclaim and sue for a refund, the Company shall advance the amount of such payment\nto you, on an interest-free basis, and shall indemnify you for and hold you\nharmless from, on an after-tax basis, any Excise Tax or income tax (including\ninterest or penalties with respect thereto) imposed with respect to such advance\nor with respect to any imputed income with respect to such advance (including as\na result of any forgiveness by the Company of such advance); provided, further,\nthat any extension of the statute of limitations relating to the payment of\ntaxes for your taxable year with respect to which such contested amount is\nclaimed to be due is attributable in whole or in part to such contested amount.\nFurthermore, the Company's control of the contest shall be limited to issues\nwith respect to which a Gross-Up Payment would be payable hereunder and you\nshall be entitled to settle or contest, as the case may be, any other issue\nraised by the Internal Revenue Service or any other taxing authority.\n\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-39027","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\/39027","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=39027"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39027"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39027"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39027"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}