AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement"), dated as of
December 7, 2001, between WELLSFORD REAL PROPERTIES, INC., a Maryland
corporation with offices at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Company"), and XXXXXXX X. XXXXXXX, an individual residing at 00 Xxxxx Xxxxxx
Xxxx, Xxxxxxx, XX 00000 (the "Executive").
WHEREAS, the Company and the Executive are party to an Employment Agreement
dated as of May 30, 1997 (the "Original Agreement");
WHEREAS, the Company desires to ensure the services of the Executive beyond
the term of employment provided for in the Original Agreement;
WHEREAS, the Company and the Executive have agreed to modify the employment
benefits to be received by the Executive in the event his employment is
terminated as a result of, or in connection with, a change in control of the
Company, as hereinafter defined, and to provide the Executive with certain other
benefits whether or not the Executive's employment is terminated.
WHEREAS, the Company and the Executive desire to amend and restate the
Original Agreement;
NOW, THEREFORE for good and valuable consideration received by the parties
hereto.
IT IS AGREED:
1. Duties. (a) During the term of the Executive's employment hereunder the
Executive shall serve and the Company shall employ the Executive as Chairman of
the Board and from and after April 1, 2002, as Chairman of the Board, Chief
Executive Officer and President to perform such executive or administrative
services for the Company consistent with those of a Chairman of the Board, and
from and after April 1, 2002, a Chief Executive Officer and President as may be
assigned to the Executive by the Board of Directors of the Company (the
"Board"). The Executive hereby accepts such employment and agrees to perform
such services.
(b) The Executive shall devote substantially all of his time, attention and
energies during business hours to the performance of his duties hereunder. The
foregoing shall not be construed to prevent Executive from devoting time during
business hours to charitable and civic endeavors.
(c) The Executive shall cooperate with the Company, including taking such
medical examinations as the Company reasonably shall deem necessary, if the
Company shall desire to obtain medical, disability or life insurance with
respect to the Executive. Where reasonably possible, the Company shall cooperate
with the Executive's request to have such examinations
performed by the Executive's personal physician or another physician reasonably
acceptable to the Executive.
(d) The Executive shall not be required to relocate or conduct the
Company's business outside the New York, New York area in order to perform his
duties under this Agreement but shall undertake such reasonable business travel
as may be necessary to perform said duties (for which the Executive shall be
reimbursed pursuant to Section 4 below for costs and expenses incurred in
connection therewith).
2. Employment Term. This Agreement shall commence on December 7, 2001 and
shall continue in effect through December 31, 2004.
3. Compensation. (a) For all services rendered by the Executive pursuant to
this Agreement the Company shall pay to the Executive a base salary at the
annual rate of $318,000 for the period from the date of this Agreement through
December 31, 2004. All such compensation shall be paid semi-monthly or at such
other regular intervals, not less frequently than monthly, as the Company may
establish from time to time for executive employees of the Company.
(b) In addition to the compensation set forth in Section 3 hereof, the
Executive shall be awarded such bonus for each calendar year or partial calendar
year of his employment hereunder as the Board shall determine in its sole
discretion. In determining such bonus, the Executive understands that the Board
will consider, without limitation, the following factors with respect to the
applicable calendar year or partial calendar year: the Company's financial
performance, business performance and growth during such period; Executive's
responsibilities (including his participation in transactions of particular
financial or business significance to the Company) during such period; and such
other factors as the Board may deem appropriate in their sole discretion. Such
bonus may consist of cash; grants of shares of common stock of the Company
("Shares"); options to purchase Shares; loans to purchase Shares; share
appreciation rights (whether independent of or in conjunction with awards of
options); and such other awards as the Board in its sole discretion may deem
appropriate and which it believes is in furtherance of the growth of stockholder
value of the Company. In no event shall such bonus be less than $325,000 for
each of the years 2001 through 2004, with each such bonus to be payable in cash
within 30 days after the expiration of each such year.
4. Expenses. (a) The Company shall pay for all legal and accounting fees
and expenses incurred by the Executive in connection with the structuring,
negotiation and preparation of this Agreement. The Company shall reimburse the
Executive for all out-of-pocket expenses actually and necessarily incurred by
him in the conduct of the business of the Company against reasonable
substantiation submitted with respect thereto.
(b) Unless the provisions of subsection 4(c) hereof shall apply, the
Company shall reimburse the Executive for all legal fees and related expenses
(including the costs of experts, evidence and counsel) paid by the Executive as
a result of (i) the termination of Executive's employment (including all such
fees and expenses, if any, incurred in contesting or disputing any such
termination of employment), (ii) the Executive seeking to obtain or enforce any
right or benefit
provided by this Agreement or by any other plan or arrangement maintained by the
Company under which the Executive is or may be entitled to receive benefits,
including, without limitation, the Company's deferred compensation plan (iii)
the Executive's hearing before the Board as contemplated in subsection 6(c)
hereof or (iv) any action taken by the Company against the Executive; provided,
however, that the Company shall reimburse the legal fees and related expenses
described in this subsection 4(b) only if and when a final judgement, order or
decree of a court of competent jurisdiction has been rendered in favor of the
Executive and the time for appeal therefrom has expired and no appeal has been
perfected.
(c) The Company shall pay all legal fees and related expenses (including
the costs of experts, evidence and counsel) incurred by the Executive as they
become due as a result of (i) the termination of Executive's employment
(including all such fees and expenses, if any, incurred in contesting or
disputing any such termination of employment), (ii) the Executive seeking to
obtain or enforce any right or benefit provided by this Agreement or by any
other plan or arrangement maintained by the Company under which the Executive is
or may be entitled to receive benefits, (iii) the Executive's hearing before the
Board as contemplated in subsection 6(c) hereof or (iv) any action taken by the
Company against the Executive, until such time as a final judgement, order or
decree of a court of competent jurisdiction has been rendered in favor of the
Company and the time for appeal therefrom has expired and no appeal has been
perfected; provided, however, that the circumstances set forth above occurred on
or after a change in control of the Company, as defined in subsection 6(e). In
no event shall the Executive be required to reimburse the Company for any legal
fees or related expenses paid by the Company pursuant to this subsection 4(c).
5. Benefits. The Executive shall be entitled to six weeks of paid vacation
each year and such other medical and other benefits as are afforded from time to
time to all executive employees of the Company. The Company shall indemnify the
Executive in the performance of his duties pursuant to the bylaws of the Company
and to the fullest extent allowed by applicable law, including, without
limitation, legal fees, and shall continue to maintain the Executive as a named
beneficiary under any liability insurance policies maintained for directors
and/or officers of the Company for so long as Executive shall remain a director
or officer of the Company. In addition, Executive shall become, and continue as,
a named beneficiary under any liability insurance policies maintained by the
Company after a change in control of the Company for persons who were directors
or officers prior to a change in control of the Company to the extent they
provide coverage for events prior to the change in control of the Company. The
Company agrees to maintain the coverages referred to above unless, in each case,
any modification in indemnification and insurance coverage applies uniformly to
all officers and directors of the Company, as the case may be.
6. Earlier Termination. (a) If the Executive shall fail, because of illness
or incapacity, to render the services contemplated by this Agreement for six
successive months or for shorter periods aggregating nine months in any calendar
year, the Board may determine, on the basis of medical evidence satisfactory to
the Board, in the Board's sole discretion, that the Executive has become
disabled. If within thirty (30) days after the date on which written notice of
such determination is given to the Executive, the Executive shall not have
returned to the full-time
performance of his duties hereunder, this Agreement and the employment of the
Executive hereunder shall be deemed terminated on such 30th day in accordance
with Section 8 hereof.
(b) Except as otherwise provided in this Agreement, if the Executive shall
die during the term of this Agreement, this Agreement shall be deemed to have
been terminated as of the date of death of the Executive.
(c) The Company, by notice to the Executive, may terminate this Agreement
for proper cause. As used herein, "proper cause" shall mean (i) the willful and
continued failure by the Executive to substantially perform his duties with the
Company (other than any such failure resulting from the Executive's incapacity
due to physical or mental illness or any such actual or anticipated failure
resulting from termination by the Executive for Good Reason (as defined below))
after a written demand for substantial performance is delivered to the Executive
by the Board, which demand specifically identifies the manner in which the Board
believes that the Executive has not substantially performed his duties, or (ii)
the willful engaging by the Executive in conduct which is demonstrably and
materially injurious to the Company, monetarily or otherwise. For purposes of
this subsection 6(c), no act, or failure to act, on the Executive's part shall
be deemed "willful" unless done, or omitted to be done, by the Executive
otherwise than in good faith and in a manner that the Executive reasonably
believed was in or not opposed to the best interests of the Company and its
Stockholders. Notwithstanding the foregoing, the Executive shall not be deemed
to have been terminated for proper cause unless and until there shall have been
delivered to the Executive a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of the members of the Board at
a meeting of the Board called and held for such purpose (after reasonable notice
to the Executive and an opportunity for the Executive, together with counsel of
his choosing, to be heard before the Board not less than 10 business days after
the giving of such notice), finding that in the good faith opinion of the Board,
the Executive conducted himself as set forth above in clause (i) or (ii) of the
first sentence of this subsection 6(c) and specifying the particulars of such
conduct in detail. Notwithstanding anything contained in this Agreement to the
contrary, no failure to perform by the Executive after a Notice of Termination
is given by the Executive shall constitute proper cause for purposes of this
Agreement.
(d) The Executive may terminate this Agreement for "Good Reason" if any of
the following events occurs:
(i) the assignment to the Executive of any duties materially
inconsistent with his status as a senior executive officer of the Company
or a substantial alteration in the nature or status of his
responsibilities;
(ii) the Company's breach of any of its agreements or obligations
under this Agreement;
(iii) the failure by the Company to pay the Executive any installment
of a previous award under any bonus or incentive compensation arrangement;
(iv) the failure of the Company to obtain a satisfactory agreement
from any successor to assume and agree to perform this Agreement, as
contemplated in Section 13 hereof;
(v) any purported termination of the Executive's employment which is
not effected pursuant to a Notice of Termination (defined below) satisfying
the requirements of Section 7 hereof; or
(vi) any change in control of the Company, as defined in subsection
6(e).
(e) For purposes of this Agreement, a "change in control of the Company"
shall be deemed to occur if:
(i) there shall have occurred a change in control of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as in effect on the date hereof, whether or not the Company is
then subject to such reporting requirement, provided, however, that there shall
not be deemed to be a change in control of the Company if immediately prior to
the occurrence of what would otherwise be a change in control of the Company (A)
the Executive is the other party to the transaction (a "Control Event") that
would otherwise result in a change in control of the Company or (B) the
Executive is an executive officer, trustee, director or more than 5% equity
holder of the other party to the Control Event or of any entity, directly or
indirectly, controlling such other party, or
(ii) the Company engages in a merger, consolidation or reorganization or
sells all or substantially all of the Company's assets to a "Person" (as such
term is used for purposes of Section 13(d) or 14(d) of the Exchange Act (each, a
"Transaction")), provided, however, that a Transaction shall not be deemed to
result in a change in control of the Company if (A) immediately prior thereto
the circumstances in subsection 6(e)(i)(A) or subsection 6(e)(i)(B) above exist,
or (B) (1) the Stockholders immediately before such Transaction own, directly or
indirectly, immediately following such Transaction in excess of 69% of the
combined voting power of the outstanding voting securities of the corporation or
other entity resulting from such Transaction (the "Surviving Corporation") in
substantially the same proportion as their ownership of the voting securities of
the Company immediately before such Transaction and (2) the individuals who were
members of the Board immediately prior to the execution of the agreement
providing for such Transaction constitute at least a majority of the members of
the board of directors or the board of trustees, as the case may be, of the
Surviving Corporation, or of a corporation or other entity beneficially,
directly or indirectly, owning a majority of the outstanding voting securities
of the Surviving Corporation, or
(iii) the Company acquires the assets of another company or a subsidiary of
the Company merges, consolidates or reorganizes with another company (each, an
"Other Transaction") and (A) the Stockholders immediately before such Other
Transaction own, directly or indirectly, immediately following such Other
Transaction 69% or less of the combined voting power of the outstanding voting
securities of the corporation or other entity resulting from such Other
Transaction (the "Other Surviving Corporation") in substantially the same
proportion as their
ownership of the voting securities of the Company immediately before such Other
Transaction or (B) the individuals who were members of the Company's Board
immediately prior to the execution of the agreement providing for such Other
Transaction constitute less than a majority of the members of the board of
directors or the board of trustees, as the case may be, of the Other Surviving
Corporation, or of a corporation or other entity beneficially directly or
indirectly owning a majority of the outstanding voting securities of the Other
Surviving Corporation, provided, however, that an Other Transaction shall not be
deemed to result in a change in control of the Company if immediately prior
thereto the circumstances in subsection 6(e)(i)(A) or subsection 6(e)(i)(B)
above exist, or
(iv) adoption by the Board and approval by the Stockholders of a
liquidation or dissolution of the Company;
(v) any Person or group of affiliated Persons owns at any time 30% or more
of the outstanding voting securities of the Company, provided that such Person
or group shall not be deemed to own 30% or more of the outstanding voting
securities of the Company if the last event or transaction which results in such
ownership is (a) the issuance of such securities in connection with the sale by
the Company of less than all or substantially all of its assets or (b) the
acquisition by the Company of any such voting securities; provided, however,
that if a Person owns 30% or more of the outstanding voting securities of the
Company as a result of the acquisition by the Company of any such voting
securities and after such acquisition by the Company, such Person becomes the
owner of any additional voting securities of the Company than a change in
control of the Company shall occur; or
(vi) the rejection by the Stockholders of the entire slate of directors
that the Board proposes at a single election of directors; and
(vii) the rejection by the Stockholders of one-half or more of the
directors that the Board proposes over any two or more consecutive elections of
directors.
(f) Notwithstanding anything contained in this Agreement to the contrary,
if the Executive's employment is terminated prior to a change in control of the
Company and the Executive reasonably demonstrates that such termination: (i) was
at the request of a third party who has indicated an intention or taken steps
reasonably calculated to effect a change in control and who effectuates a change
in control of the Company or (ii) otherwise occurred in connection with, or in
anticipation of, a change in control of the Company which actually occurs, then
for all purposes of this Agreement, the date of a change in control of the
Company with respect to the Executive shall mean the date immediately prior to
the date of such termination of the Executive's employment.
7. Notice of Termination. Any purported termination of the Executive's
employment by the Company or by the Executive shall be communicated by a written
Notice of Termination to the other party hereto in accordance with Section 15
hereof. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated.
8. Date of Termination, Etc. "Date of Termination" shall mean (a) if the
Executive's employment is terminated for disability, thirty (30) days after
Notice of Termination is given (provided that the Executive shall not have
returned to the full-time performance of his duties during such thirty (30) day
period), and (b) if the Executive's employment is terminated pursuant to
subsection 6(c) or 6(d) hereof or for any other reason (other than disability),
the date specified in the Notice of Termination (which, in the case of a
termination pursuant to subsection 6(c) hereof shall not be less than thirty
(30) days, and in the case of a termination pursuant to subsection 6(d) hereof
shall not be less than thirty (30) nor more than sixty (60) days, respectively,
from the date such Notice of Termination is given); provided, however, if within
thirty (30) days after any Notice of Termination is given the party receiving
such Notice of Termination notifies the other party that a dispute exists
concerning the termination, the Date of Termination shall be the date on which
the dispute is finally resolved, either by mutual written agreement of the
parties, by a binding arbitration award, or by a final judgment, order or decree
of a court of competent jurisdiction (which is not appealable or the time for
appeal therefrom having expired and no appeal having been perfected), except
that with respect to a termination of this Agreement by reason of expiration of
its term as provided in Section 2 hereof, the Date of Termination shall be the
date the term hereof expires pursuant to Section 2 hereof, regardless of whether
a dispute exists with respect thereto; provided, further, that the Date of
Termination shall be extended by a notice of dispute only if such notice is
given in good faith and the party giving such notice pursues the resolution of
such dispute with reasonable diligence. Notwithstanding the pendency of any such
dispute, the Company will continue to pay the Executive his full compensation in
effect when the notice giving rise to the dispute was given (including, but not
limited to, base salary and installments under any bonus or incentive
compensation plan) and continue the Executive as a participant in all
compensation, benefit and insurance plans in which he was participating when the
notice giving rise to the dispute was given, until the dispute is finally
resolved in accordance with this Section 8. Amounts paid under this Section 8
are in addition to all other amounts due under this Agreement and shall not be
offset against or reduce any other amounts due under this Agreement. If it is
finally determined by a binding arbitration award, or by a final judgment, order
or decree of a court of competent jurisdiction (which is not appealable or the
time for appeal therefrom having expired and no appeal having been perfected),
that the Executive was terminated for proper cause, the Executive shall promptly
remit to the Company the amount of any cash payments and the value of any
non-cash benefits paid pursuant to this Section 8 to which the Executive would
not otherwise have been entitled.
9. Compensation Upon Termination or During Disability. Upon termination of
the Executive's employment or during a period of disability the Executive shall
be entitled to the following compensation and benefits:
(a) During any period that the Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness, the
Executive shall continue to receive his base salary at the annual rate in effect
at the commencement of any such period until his employment is terminated
pursuant to subsection 6(a) hereof. The Company shall also pay Executive for the
year in which he is terminated as a result of his disability a prorated portion
of the annual bonus payable to
Executive pursuant to subsection 3(b) hereof for the year in which Executive's
employment is terminated, which shall be an amount equal to the product of the
amount of such annual bonus and a fraction, the numerator of which is the number
of days elapsed in the year in which the Executive's employment terminated prior
to such termination and the denominator of which is 365.
(b) If the Executive's employment shall be terminated, at any time prior to
a change in control of the Company, for proper cause or by him other than for
Good Reason, the Executive shall be paid the Executive's base salary payable
pursuant to subsection 3(b) hereof through the Date of Termination.
(c) If the Executive's employment shall be terminated by reason of the
Executive's death, the base salary at the annual rate then in effect shall be
paid to the person designated from time to time in writing by the Executive and,
if not so designated, to the Executive's estate for the period up to and
including the date of Executive's death. The Company shall also pay to such
person or the estate, as the case may be, a prorated portion of the annual bonus
payable to Executive pursuant to subsection 3(b) hereof for the year in which
Executive's employment is terminated, which shall be an amount equal to the
product of the amount of such annual bonus and a fraction, the numerator of
which is the number of days elapsed in the year in which the Executive's
employment terminated prior to such termination and the denominator of which is
365.
(d) If the Executive's employment shall be terminated (i) by reason of his
death or disability, (ii) by the Company other than for proper cause or (iii) by
the Executive for Good Reason, then the Executive shall be entitled to the
benefits provided below:
(i) The Company shall pay as severance pay to the Executive a lump sum
severance payment equal to $1,929,000 which shall be paid to him no later
than 30 days after the Date of Termination.
(ii) Executive shall have the right to defer receipt of all payments
to be made pursuant to subdivision (d)(i) hereof, and to have such amounts
placed into the trust under the Company's non-qualified deferred
compensation plan.
(iii) Notwithstanding the foregoing, to the extent any of the payments
payable under this Section 9(d) would constitute an "excess" parachute
payment under Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code") and by reason of such excess parachute payment Executive would
be subject to an excise tax under Section 4999(a) of the Code (as
determined by Executive's tax advisor), then the payments shall be reduced
to the largest amount that can be received by Executive without incurring
an excise tax under Section 4999(a) of the Code (as determined by
Executive's tax advisor); provided, however, that such reduction shall
occur only if the after-tax value of the benefits to Executive calculated
with the foregoing reduction exceed those calculated without the foregoing
reduction. All amounts not paid to Executive by reason of a reduction
hereunder shall be paid by the Company directly to a public charity
qualified under Section 501(c)(3) of the Code, as determined by the Board;
provided that such charity's annual contributions for the preceding year
were in excess of $1 million and that Executive is not a director or
trustee of such charity.
(iv) If the Executive's employment is terminated for any reason
whatsoever (other than by the Company for proper cause), including by
reason of expiration of its term, the Company shall assign to Executive,
without the payment of any consideration by the Executive, all of the
Company's right, title and interest in and to that certain Split Dollar
Life Insurance Agreement dated November 18, 1993 between Wellsford
Residential Property Trust and Xxxxxxx X. Xxxxxxx, as modified by the Split
Dollar Life Insurance Agreement dated December 11, 1995 and the related
insurance policies referred to therein, and in connection therewith the
Company shall be deemed to have automatically waived repayment of any paid
or accrued premiums with respect to such policy and in connection therewith
the Company shall be deemed to have automatically waived repayment of any
paid or accrued premiums with respect to such policy.
(e) If the Executive's employment is terminated for any reason whatsoever
(other than by the Company for proper cause), all theretofore unvested stock
options, restricted options, restricted stock and other awards issued to
Executive pursuant to the Company's Incentive Plans shall immediately vest.
(f) If the Executive's employment is terminated at any time following a
change in control of the Company, for proper cause, the Company shall pay the
Executive his full base salary through the Date of Termination at the higher of
the rate in effect at the time Notice of Termination is given and the rate in
effect immediately prior to the change in control of the Company and the Company
shall have no further obligations to the Executive under this Agreement.
(g) In addition to all other amounts payable to the Executive under this
Section 9, the Executive shall be entitled to receive all benefits payable to
him under the Company's pension plans applicable to him and any other plan or
agreement relating to retirement benefits including, without limitation, any
deferred compensation arrangements (but subject to any then existing deferral
elections of Executive), as in effect upon the occurrence of a change in control
of the Company or the Executive's employment with the Company being terminated
for any reason whatsoever (other than by the Company for proper cause),
including by reason of expiration of its term.
(h) The Executive shall not be required to mitigate the amount of any
payment provided for in this Section 9 or elsewhere in this Agreement by seeking
other employment or otherwise, nor shall the amount of any payment or benefit
provided for in this Section 9 or elsewhere in this Agreement be reduced by any
compensation earned by him as the result of employment by another employer or by
retirement benefits after the Date of Termination, or as a result of services
performed by him as permitted under Section 10 hereof, or otherwise, except as
specifically provided in this Section 9.
(i) In the event the Executive's employment hereunder is terminated for any
reason whatsoever (except by the Company for proper cause), the Company agrees
to continue, at its
own cost and expense, the health, dental and life insurance benefits available
to Executive at the time his employment is terminated through December 31, 2004
and to the extent he remains eligible (provided Executive may at any time
supplement any cost necessary to allow for continued eligibility as provided
under the terms of the applicable policy), Executive may continue participation
in the Company's long-term disability plan on the same basis as provided prior
to his termination of employment, at his own cost and expense, through December
31, 2004.
10. Issuance of Restricted Shares. The Company agrees to issue into
Executive's deferred compensation account, on December 31, 2001, an aggregate
number of restricted common shares equal to the quotient of $1,356,000 divided
by the average of the high and low prices of the shares of common stock of the
Company on the American Stock Exchange on December 28, 2001. Such restricted
shares shall be issued under the Company's 1998 Management Incentive Plan and
vest as follows: 1/3 shall vest on each of December 31, 2001, June 30, 2002 and
January 1, 2003.
11. Performance of Other Services. From and after such time as the assets
of the Company are distributed to a Liquidating Trust, the Executive shall be
allowed to perform services for and engage in business activities with other
persons so long as such services and activities do not prevent Executive from
fulfilling his fiduciary responsibilities to the Company.
12. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES.
13. Entire Agreement. This Agreement sets forth the entire agreement of the
parties and is intended to supersede all prior employment negotiations,
understandings and agreements. No provision of this Agreement may be waived or
changed, except by a writing signed by the party to be charged with such waiver
or change.
14. Successors; Binding Agreement. (a) This Agreement shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any amount would still
be payable to him hereunder if he had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to the Executive's devisee, legatee or other designee or, if
there is no such designee, to the Executive's estate.
(b) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly assume and agree in writing
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain and deliver to Executive such assumption and
agreement prior to (but effective only upon) such succession shall be a breach
of this Agreement, except that for purposes of implementing the foregoing, the
date on which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement, expressly, by
operation of law, or otherwise.
15. Notices. All notices provided for in this Agreement shall be in
writing, and shall be deemed to have been duly given when delivered personally
to the party to receive the same, when given by telex, telegram or mailgram, or
when mailed first class postage prepaid, by registered or certified mail, return
receipt requested, addressed to the party to receive the same at his or its
address above set forth, or such other address as the party to receive the same
shall have specified by written notice given in the manner provided for in this
Section 15. All notices shall be deemed to have been given as of the date of
personal delivery, transmittal or mailing thereof.
16. Severability. If any provision in this Agreement is determined to be
invalid, it shall not affect the validity or enforceability of any of the other
remaining provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
WELLSFORD REAL PROPERTIES, INC.
By: /s/ Xxxxxx Xxxxxxxxx
--------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
