Exhibit 10.8
MAGUIRE PROPERTIES,
INC.
355 SOUTH GRAND AVE., SUITE
3300
LOS ANGELES, CALIFORNIA
90071
December 31, 2008
Mr. Peter K.
Johnston
[Address]
[City, State Zip Code]
Re: AMENDED AND RESTATED
EMPLOYMENT TERMS
Dear Peter:
Effective as of December 31,
2008 (the “ Effective Date ”), this letter (the
“ Letter ”) shall amend and restate in its
entirety that certain employment letter agreement (the “
Original Agreement ”), dated January 1, 2006,
between you and Maguire Properties, Inc. (the “ REIT
”) and Maguire Properties, L.P. (the “ Operating
Partnership ” and together with the REIT, the “
Company ”). From and after the Effective Date, you and
the Company agree that the Company will employ you on the terms and
conditions set forth in this Letter.
1. POSITIONS, DUTIES AND
RESPONSIBILITIES . You will be employed as Senior Vice
President, Leasing of the Company. In the capacity of Senior Vice
President, Leasing, you will have such duties and responsibilities
as are normally associated with such position, including completion
of leases in Company projects to the maximum extent possible
consistent with the leasing underwriting assumptions of the
Company. Your duties may be changed from time to time by the
Company, consistent with your position. You will report to the
Chief Executive Officer of the Company or any Executive Vice
President of the Company designated by the Chief Executive Officer,
and will work at the Company’s principal offices located in
downtown Los Angeles (or such other location in the Los Angeles
area as the Company may utilize as its principal offices), except
for travel to other locations as may be necessary to fulfill your
responsibilities. At the Company’s request, you will serve
the Company and/or its subsidiaries and affiliates in other offices
in Los Angeles and Orange County and equivalent or increased
capacities in addition to the foregoing. In the event that you
serve in any one or more of such additional capacities, your
compensation will not be increased beyond that specified in this
Letter. In addition, in the event your service in one or more of
such additional capacities is terminated, your compensation, as
specified in this Letter, will not be diminished or reduced in any
manner as a result of such termination for so long as you otherwise
remain employed under the terms of this Letter.
2. BASE SALARY . During your
employment with the Company, the Company will pay you a base salary
(the “ Base Salary ”) of $300,000 per year, less
payroll deductions and all required withholdings, payable in
accordance with the Company’s normal payroll practices and
prorated for any partial month of employment. Your Base Salary may
be subject to increase pursuant to the Company’s policies as
in effect from time to time.
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3. ANNUAL BONUS . During your
employment with the Company, in addition to the Base Salary set
forth above, you will be eligible to participate in the
Company’s incentive bonus plan for annual bonus purposes
applicable to similarly situated Senior Vice Presidents of the
Company. The amount of your annual bonus (the “ Annual
Bonus ”) will be based on the attainment of Company
performance criteria established and evaluated by the Company in
accordance with the terms of such bonus plan as in effect from time
to time, provided that, subject to the terms of such bonus plan,
your target Annual Bonus will be $100,000, but the actual bonus
shall range from $0 to $200,000. Notwithstanding the treatment of
other similarly situated Senior Vice Presidents under the incentive
bonus plan, the determination of your Annual Bonus shall be based
strictly on the component of the bonus plan relating to the
Company’s attainment of objective financial criteria
established in accordance with the terms and conditions of such
bonus plan, without regard to your personal performance or the
component of the bonus plan relating to individual
performance.
4. LEASING
BONUS . In addition to the Annual Bonus, the Company shall pay
you a bonus (the “ Leasing Bonus ”) equal to
$0.75 per square foot of rentable area leased during the term of
your employment (regardless of whether such leases resulted from
your efforts) pursuant to leases for space in the portfolio of
assets owned by the Company as of December 31, 2008 as
summarized on Exhibit “A” hereto (such assets are
individually and collectively defined as the “
Portfolio ”). The amount of the Leasing Bonus shall be
reviewed each year and reset by mutual agreement as the portfolio
of Company assets and inventory of available space for leasing
change (the prior year’s amount shall continue unless and
until reset by mutual agreement). Any Leasing Bonus due you will be
paid within thirty (30) days after the end of the calendar
quarter(s) in or after which the applicable lease(s) have been
executed, but in no event later than the last day of the applicable
two and one-half (2 1 / 2 ) month “short-term
deferral period” with respect to such Leasing Bonus, within
the meaning of Treasury Regulation Section 1.409A-1(b)(4). A
lease will be deemed to have been “executed” in a given
calendar quarter if the tenant executes and delivers to landlord or
landlord’s counsel the lease executed by Tenant in such
calendar quarter and landlord executes and delivers such lease to
the tenant or its agent at any time, provided, however, that if
landlord decides in good faith not to, and does not, execute such
lease, such lease shall no longer be considered for purposes of
calculating bonus eligibility. Notwithstanding the foregoing or the
actual Leasing Bonus paid to you, the parties agree that no later
than each April 30th during the term of your employment, there
shall be a reconciliation of eligible leases to take into account
any lease which had previously met the foregoing
“executed” conditions, but which tenant subsequently
terminated prior to the commencement date thereunder by
tenant’s exercise of a termination right explicitly set forth
in the lease, provided that no adjustment shall be made during such
reconciliation for terminations which result from a mutual
agreement or renegotiation of landlord and tenant under a given
lease, nor shall the reconciliation apply to any tenant termination
rights which may exist after the lease commencement date. Amounts
paid you, but subsequently identified through the reconciliation as
overpayment, shall automatically be credited against subsequent
Leasing Bonus otherwise payable you in the order due. For purposes
hereof, executed leases shall include renewal or extension of
existing leases and expansion of existing leases. A Leasing Bonus
will be due for leases approved and executed by landlord even if
“pro forma rents” are not achieved.
5. BENEFITS AND VACATION .
During your employment with the Company, you will be eligible for
standard benefits, such as savings and retirement plans (i.e.
401k),
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medical insurance, sick leave, vacations and
holidays to the extent applicable generally to other similarly
situated executives of the Company. You will not participate in the
Company’s equity plan or other long term incentive
programs.
6. COMPENSATION GROSS-UP .
The amount of compensation payable to you pursuant to Sections 2, 3
and 4 above will be “grossed up” as necessary (on an
after-tax basis) to compensate for any additional social security
withholding taxes due as a result of your shared employment by the
Operating Partnership, the REIT and, if applicable, any subsidiary
and/or affiliate thereof. If any amounts become payable to you
pursuant to this Section 6, then such amounts shall be paid to
you within thirty (30) days following your remittance (or the
filing of your tax return if no such, or only a portion of an
applicable remittance, is paid because of other deductions or tax
credits you are entitled to results in a partial or no remittance
(“ Remittance Exception ”) of such taxes to the
appropriate taxing authority and your providing us with a copy of
the applicable portion of your tax returns showing the calculation
of such taxes, but in no event later than the end of the calendar
year following that in which any such remittance (subject to the
Remittance Exception) is made.
7. CONFIDENTIAL AND PROPRIETARY
INFORMATION . As a condition of your employment with the
Company, you agree that during the term of such employment and any
time thereafter, you will not directly or indirectly disclose or
appropriate to your own use, or the use of any third party, any
trade secret or confidential information concerning the REIT, the
Operating Partnership, Maguire Properties Services, Inc., a
Maryland corporation, their respective subsidiar
