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EXHIBIT 10.44
AGREEMENT
AGREEMENT ("Agreement"), dated as of December 19, 2000 ("Effective
Date"), by and between New Plan Excel Realty Trust, Inc., a Maryland corporation
("Company"), and Xxxxx XxXxxxx ("XxXxxxx").
RECITALS
X. XxXxxxx is currently Executive Vice President of the Company.
B. The Company and XxXxxxx entered into an employment agreement
dated as of September 25, 1998, which provides for, among other things,
XxXxxxx'x employment by the Company (the "Employment Agreement").
X. XxXxxxx desires to, among other things, resign from his position
as Executive Vice President of the Company.
AGREEMENT
IN CONSIDERATION of the premises and the mutual covenants set forth
below, the parties hereby agree as follows:
1. Resignation. XxXxxxx hereby resigns effective as of December 29, 2000
(the "Resignation Date") as (a) an employee, officer, director and member of any
committee (Board or otherwise) of the Company, including, but not limited to,
his position as Executive Vice President of the Company, (b) a representative,
agent, signatory and other similar positions in connection with or for the
benefit of the Company and (c) an employee, officer, director, member of any
committee (Board or otherwise), trustee, representative, agent, signatory and
other similar position of any and all subsidiaries, affiliates (including
without limitation, ERT Development Corporation and its subsidiaries and
affiliates) and benefit plans of the Company. XxXxxxx agrees to execute all
documents that the Company reasonably determines are necessary or desirable to
effectuate or reflect the foregoing.
2. Payments and Benefits. In consideration of the resignations set forth in
Section 1 above, the Company shall provide XxXxxxx with the payments and
benefits set forth below:
(a) the Company shall pay XxXxxxx, upon the terms set forth below, the sum
of $476,000 (the "Gross Amount"), subject to the remaining provisions of
this clause (a). As of the date hereof, XxXxxxx has certain demand loans
outstanding to the Company (or its subsidiaries) in the aggregate amount
of $9,845.50 (inclusive of accrued interest thereon from October 1, 2000
through the Resignation Date) (the "Loan Balance"). It is agreed that
the Gross Amount shall be reduced by the Loan Balance. The Gross Amount
(after
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deduction of the Loan Amount) shall be paid to XxXxxxx in four equal
yearly installments of $116,538.62 each (each, an "Installment"), with
the first Installment being paid not earlier than January 1, 2001 and
not later than January 14, 2001 and the other three Installments being
paid between January 1 and January 14 of 2002, 2003 and 2004,
respectively. It is further agreed that each Installment subsequent to
the January, 2001 Installment shall accrue interest at the annual rate
of 7% per annum, simple and shall be paid together with the applicable
Installment payment.
(b) the Company shall pay XxXxxxx not earlier than January 1, 2001 and not
later than January 14, 2001 the sum of $20,451.27 for all accrued
vacation to which he is entitled as of the Resignation Date. XxXxxxx
acknowledges that this amount is the aggregate amount of accrued
vacation to which he is entitled as of the Resignation Date;
(c) all stock options held by XxXxxxx shall be cancelled as of the
Resignation Date;
(d) the Company shall provide XxXxxxx, his spouse and dependents, until
December 31, 2003, those benefits set forth in Section 8(a)(ii) of the
Employment Agreement in accordance with the terms of said Section
8(a)(ii), subject, however, to the provisos contained in said Section
8(a)(ii), which Section 8(a)(ii) shall survive the termination of the
Employment Agreement;
(e) the Company shall allow XxXxxxx to keep the Company car currently being
used by XxXxxxx and shall transfer title of the car to XxXxxxx, except
that XxXxxxx shall, from and after the Resignation Date, be responsible
for all costs and insurance with respect to the car; and
(f) the provisions of Sections 8(a)(iii) and (vii) of the Employment
Agreement shall survive the termination of the Employment Agreement.
3. Consulting Period. During the period from the Resignation Date through
the first anniversary of the Resignation Date ("Consulting Period"), XxXxxxx
shall provide such consulting services (the "Consulting Services") to the
Company as the Company may reasonably request with respect to development and
redevelopment opportunities in the greater New York metropolitan area. XxXxxxx
shall devote such time and energy on said Consulting Services as is necessary
for XxXxxxx to provide the Company with such Consulting Services as the Company
reasonably requires. In connection therewith, XxXxxxx shall provide the Company
with written documentation and status updates (in form and substance reasonably
required by the Company) relative to any projects on which XxXxxxx is providing
said Consulting Services. During the Consulting Period, the Company shall pay
XxXxxxx for such Consulting Services at the annual rate of $50,000, with
payments being made in equal monthly installments not later than the 15th day of
each month
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during the Consulting Period ("Consulting Payments"). Other than as provided in
paragraphs 2(d) and 2(e) of this Agreement, XxXxxxx shall not be entitled to any
benefits or perquisites during the Consulting Period.
4. Retention of Items and Documents. Except as otherwise provided in
section 2(e) regarding the Company car, XxXxxxx will return to the Company on or
prior to the Resignation Date all items related to the Company including, but
without limitation, all originals and all copies of documents, notes, computer
discs, tapes or other tangible information of any sort which he has in his
possession or under his custody or control that is the property of Company or is
confidential information and will not retain any copies of such items. In
addition, on or prior to the Resignation Date, XxXxxxx shall return to the
Company the Company credit card and phone currently being used by XxXxxxx.
5. Release.
(a) XxXxxxx. In consideration of the promises made by the
parties in this Agreement and the payments to be made by Company under this
Agreement, the receipt and sufficiency of which are hereby acknowledged, XxXxxxx
hereby releases and forever discharges, except as expressly provided herein, the
Company and its subsidiaries and affiliates and their shareholders, directors,
officers, agents, representatives, and employees and successors and assigns,
past and present ("Employer Released Parties"), jointly and individually, from
any and all claims, obligations, demands, damages, causes of action or
liabilities of any nature or kind whatsoever, known or unknown, which XxXxxxx,
his heirs, successors or assigns ever had or now have arising out of or in any
way connected with his employment and/or separation from Company or its
subsidiaries and affiliates including, but not limited to, claims arising under
or relating to the Employment Agreement and XxXxxxx'x services in any of the
capacities described in Section 1; provided, however, that this release does not
include, and specifically excludes, any and all claims, obligations, demands,
damages, causes of action or liabilities relating to or arising out of (i) this
Agreement and (ii) indemnification under the Company's articles of incorporation
or by-laws or indemnification obligations under this Agreement. Without limiting
the generality of the foregoing or the excluded items contained in the proviso
in the immediately preceding sentence, this release applies to any right which
XxXxxxx, his heirs, successors or assigns have or may have to commence or
maintain a charge or action alleging discrimination under any federal, state, or
local statute (whether before a court or an administrative agency), including,
but not limited to, Title VII of the Civil Rights Act of 1964, the Employee
Retirement Income Security Act of 1974, the Americans with Disabilities Act, the
Family and Medical Leave Act, the Fair Labor Standards Act, all as amended from
time to time, and to any right which XxXxxxx, his heirs, successors or assigns
have or may have to commence or maintain a claim for attorneys' fees, wrongful
discharge, estoppel, breach of contract, damage to personal or professional
reputation, misrepresentation, and/or intentional or negligent infliction of
emotional distress.
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XxXxxxx warrants and represents he has not directly or indirectly transferred or
assigned rights or causes of action against the Employer Released Parties.
XxXxxxx agrees not to make, assert or maintain any charge, claim, demand or
action which would be covered by this release. If XxXxxxx breaches this
provision, he agrees to indemnify the Employer Released Parties against all
liability, costs and expenses. including reasonable attorneys' fees, related to
such breach and in addition, XxXxxxx shall forfeit and waive any rights or
claims to the payment of any Installment or Consulting Payment not yet paid to
XxXxxxx by the Company and XxXxxxx shall further be required to return the
Company car to the Company.
(b) Company. In consideration for the promises made by the
parties in this Agreement, the receipt and sufficiency of which are hereby
acknowledged, the Company (which for purposes of this paragraph shall be deemed
to include all Employer Released Parties) hereby releases and forever
discharges, except as hereinafter expressly provided, XxXxxxx and his successors
and assigns, past and present ("XxXxxxx Released Parties"), jointly and
individually, from any and all claims, obligations, demands, damages, causes of
action or liabilities of any nature or kind whatsoever, known or unknown which
the Company and/or a subsidiary or affiliate of the Company ever had or now has
arising out of or in any way connected with XxXxxxx'x employment and/or
separation from Company or its subsidiaries and affiliates including, but not
limited to, claims arising under or relating to the Employment Agreement and
XxXxxxx'x services in any capacities described in Section 1; provided, however,
that this release does not include, and specifically excludes, any and all
claims, obligations, demands, damages, causes of action or liabilities relating
to or arising from (i) any claims as to which indemnification of a director or
officer of the Company would be unavailable under Maryland law and (ii) any
breach by XxXxxxx of the provisions of this Agreement. The Company warrants and
represents that neither it, nor a subsidiary, nor an affiliate of the Company
has directly or indirectly transferred or assigned rights or causes of action
against the XxXxxxx Released Parties. The Company agrees not to make, assert or
maintain (either directly or indirectly through a subsidiary or an affiliate of
the Company) any charge, claim, demand or action which would be covered by this
release. If the Company breaches this provision, it agrees to indemnify the
XxXxxxx Released Parties against all liability, costs and expenses, including
reasonable attorneys' fees, related to such breach.
6. Non-Disparagement.
(a) XxXxxxx agrees that he will not, directly or indirectly,
individually or in concert with others, intentionally engage in any
conduct or make any statement that is calculated or likely to have the
effect of undermining or disparaging the reputation of the Company or
any entity in control of, controlled by or under common control with the
Company or in which the Company owns any material amount of common or
preferred stock or interest or any entity in control of, controlled by
or under common control with such
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entity ("Affiliate"), or their good will, products, or business
opportunities or that is calculated or likely to have the effect of
undermining or disparaging the reputation of any officer, director,
agent, representative, or employee, past or present, of the Company
and/or its Affiliates.; provided, however, that XxXxxxx will be able to
respond to any statement made or published by the Company in breach of
its obligations under Section 6(b) below (and/or a statement made by a
current or former director or officer of the Company that would have
been in violation of this provision had such person been a party to this
Agreement).
(b) The Company agrees that it will not, directly or indirectly,
individually or in concert with others, intentionally engage in any
conduct or make any statement that is calculated or likely to have the
effect of undermining or disparaging the reputation of XxXxxxx;
provided, however, that the Company will be able to respond to any
statement made or published by XxXxxxx in breach of his obligations
under Section 6(a) above. The Company will inform its directors and
executive officers of this requirement and will take reasonable measures
to cause its directors and officers to comply with it. In the event that
the Company breaches the provisions of this Section and XxXxxxx, as a
result of said breach by the Company, brings legal action against the
Company, then in such event the Company shall not be entitled to
withhold or offset any payment to XxXxxxx of any unpaid Installment or
Consulting Payment.
7. ADEA Waiver. XxXxxxx acknowledges that this Agreement includes a waiver
of any rights and claims arising under the Age Discrimination in Employment Act
("ADEA"). XxXxxxx understands he is not waiving rights or claims that may arise
after the date this Agreement is executed. XxXxxxx acknowledges that the
consideration he is receiving in exchange for his waiver of the rights and
claims specified herein exceeds anything of value to which he already is
entitled. XxXxxxx acknowledges that he was advised in writing on or prior to the
Effective Date, to consult with an attorney prior to executing this Agreement.
XxXxxxx acknowledges that he has entered into this Agreement knowingly and
voluntarily with full understanding of its terms and after having had the
opportunity to seek and receive advice and counsel from his attorney. XxXxxxx
acknowledges that he was given a period of at least twenty-one (21) days within
which to consider this Agreement and was so advised in writing on or prior to
the Effective Date. XxXxxxx understands that he may revoke this ADEA waiver
during the seven (7) days following the execution of this Agreement and that the
ADEA waiver shall not become effective or enforceable until that seven-day
revocation period has expired.
8. Mitigation. XxXxxxx shall not be required to mitigate amounts payable
under this Agreement by seeking other employment or otherwise, and there shall
be no offset against amounts due XxXxxxx under Section 2 of this Agreement on
account of subsequent employment. In the event that XxXxxxx accepts employment
on a full
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time basis at any time during the Consulting Period such that XxXxxxx is
thereafter in the Company's reasonable opinion unable in any material respect to
provide the Company with the Consulting Services set forth in Section 3 of this
Agreement, then the Company at its option shall have the right upon written
notice to XxXxxxx to terminate the Consulting Services being provided by
XxXxxxx, in which event from and after the date of such written termination
notice the Company shall have no further obligation under this Agreement to make
the Consulting Payments to XxXxxxx.
9. Confidential Information, Ownership of Documents, Indemnification and
Insurance.
(a) The provisions of Sections 10(a), 10(b), 10(d), 10(e) and 11 of
the Employment Agreement shall apply as if set forth herein. For
purposes of incorporating Section 11 of the Employment Agreement in this
Agreement, the term Company shall be deemed to include affiliates of the
Company.
(b) From the Resignation Date through the sixth anniversary of the
Resignation Date, the Company agrees that XxXxxxx shall be covered under
any director's and officer's liability insurance policy maintained by
the Company with respect to senior executive officers as in effect from
time to time but the Company shall have no requirement or obligation to
continue to maintain any director's and officer's liability insurance
policy.
(c) In consideration of the payments being made by the Company to
XxXxxxx as provided in this Agreement, XxXxxxx agrees that he will not,
either directly or indirectly, alone or in association or concert with,
or as a shareholder, joint venturer, member, principal, agent,
consultant, broker, employee, officer, director or partner of or to, any
corporation, partnership, organization or other person or entity,
pursue, broker, divert or attempt to develop any project or transaction
which the Company (or any of its affiliated entities) is considering,
pursuing, developing or attempting to develop as of the Resignation
Date. In addition, XxXxxxx agrees not to solicit or initiate contact
with any then existing tenant in a shopping center owned or leased by
the Company if the purpose of such solicitation or initiation is to have
said tenant relocate its store premises to another location within a
radius of ten (10) miles from the Company shopping center. Except as
provided in this paragraph 9(c), the provisions of Section 10(c) of the
Employment Agreement shall not survive the termination of the Employment
Agreement. In the event that XxXxxxx breaches the provisions of this
paragraph 9 (c), XxXxxxx agrees that the Company shall be entitled to
injunction relief against XxXxxxx as a result of such breach and in
addition thereto XxXxxxx shall forfeit and waive any rights or claims to
the payment of any Installment or Consulting Payment not yet paid to
XxXxxxx by the Company and XxXxxxx shall further be required to return
the Company car to the Company.
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10. Successors; Binding Agreement.
(a) Company's Successors. No rights or obligations of the
Company under this Agreement may be assigned or transferred except that
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 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. As used in this Agreement, "Company" shall
mean the Company as hereinbefore defined and any successor to its
business and/or assets (by merger, purchase or otherwise) which executes
and delivers the agreement provided for in this Section 10 or which
otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
(b) XxXxxxx'x Successors. No rights or obligations of
XxXxxxx under the Agreement may be assigned or transferred by XxXxxxx
other than his rights to payments or benefits hereunder, which may be
transferred only by will or the laws of descent and distribution. Upon
XxXxxxx'x death, this Agreement and all rights of XxXxxxx hereunder
shall inure to the benefit of and be enforceable by XxXxxxx'x
beneficiary or beneficiaries, personal or legal representatives, or
estate. In the event of XxXxxxx'x death or a judicial determination of
his incompetence, reference in this Agreement to XxXxxxx shall be
deemed, where appropriate, to refer to his beneficiary(ies), estate or
other legal representative(s). If XxXxxxx should die after the
Resignation Date while any amounts 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 such person or persons so appointed in writing by XxXxxxx,
or otherwise to his legal representatives or estate and the provisions
of Section 2(d) relating to medical, dental and hospitalization benefits
shall continue to apply with respect to XxXxxxx'x surviving spouse
and/or dependents.
11. Notice. For the purposes of this Agreement, notices, demands and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered either personally or by
United States certified or registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to XxXxxxx:
Xxxxx XxXxxxx
00 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
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If to the Company:
New Plan Excel Realty Trust, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
12. Miscellaneous. No provisions of this Agreement may be amended, modified,
or waived unless such amendment or modification is agreed to in writing signed
by XxXxxxx and by a duly authorized officer of the Company, and such waiver is
set forth in writing and signed by the party to be charged. No waiver by either
party hereto at any time of any breach by the other party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. The respective rights and
obligations of the parties hereunder of this Agreement shall survive XxXxxxx'x
termination of employment and the termination of this Agreement to the extent
necessary for the intended preservation of such rights and obligations. The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of New York without regard to its conflicts
of law principles.
13. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of the Agreement, which shall remain in full force and
effect.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
15. Entire Agreement. Except as otherwise expressly provided herein, this
Agreement sets forth the entire agreement of the parties hereto in respect of
the subject matter contained herein and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto in respect of such subject matter. Any prior agreement of
the parties hereto in respect of the subject matter contained herein, including
without limitation, the Employment Agreement, is hereby terminated and canceled
with no rights or claim to any payment or benefits thereunder (including without
limitation any payments or benefits under the Employment Agreement for
termination by the Company without Cause or by XxXxxxx for Good Reason).
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16. Withholding. All payments or benefits under this Agreement (including,
without limitation, the Gross Amount and the Consulting Payment) shall be
subject to any required withholding of Federal, state and local taxes pursuant
to any applicable law or regulation and the Company shall be permitted to take
any other action required to comply with withholding obligations.
17. Press Release. The Company and XxXxxxx will mutually agree upon the text
of a statement concerning the circumstances of XxXxxxx'x resignation from the
Company, and the Company will inform XxXxxxx reasonably in advance of the making
of such statement. All subsequent announcements and communications to be made by
the Company in relation to XxXxxxx'x resignation shall be based upon and
consistent with such statement. The Company will inform its directors and
executive officers of this requirement and will take reasonable measures to
cause its directors and officers to comply with it at the Company's sole
discretion.
18. Noncontravention. The Company represents that the Company is not
prevented from entering into, or performing this Agreement by the terms of any
law, order, rule or regulation, its by-laws or certificate of incorporation, or
any agreement to which it is a party, other than which would not have a material
adverse effect on the Company's ability to enter into or perform this Agreement.
19. Section Headings. The section headings in this Agreement are for
convenience of reference only, and they form no part of this Agreement and shall
not affect its interpretation.
20. Cooperation. For one (1) year after the Resignation Date, XxXxxxx agrees
upon request of the Company to make himself available at reasonable times during
normal business hours and upon reasonable notice for the purpose of assisting
the Company with responding to questions, depositions, administrative
proceedings and court hearings, executing documents, and cooperating with
Company and its accountants and legal counsel with respect to claims and
litigation of which he has personal or corporate knowledge. The Company agrees
to reimburse XxXxxxx for all reasonable expenses, including, without limitation,
travel expenses, incurred in connection with such service upon the presentation
of reasonable itemized statements of such expenses in accordance with the
Company's policies and procedures now in force or as such policies and
procedures may be modified with respect to all senior executive officers. The
services to be provided by XxXxxxx pursuant to the provisions of this Section 20
are in addition to the services to be provided by XxXxxxx pursuant to the
provisions of Section 3 hereof. In the event that XxXxxxx is required to spend
in excess of 10 days pursuant to the provisions of this Section 20, then for
each day thereafter that XxXxxxx spends providing such services to the Company
XxXxxxx shall be paid a per diem rate of $500.00 per day, in addition to the
expense reimbursement provided for herein.
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21. Shareholder Approval. The Company represents and warrants to XxXxxxx
that no shareholder approval is required for the Company to enter into this
Agreement and provide the benefits hereunder.
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22. ACKNOWLEDGMENT. XXXXXXX REPRESENTS AND AGREES THAT HE FULLY UNDERSTANDS
HIS RIGHT TO DISCUSS ALL ASPECTS OF THIS AGREEMENT WITH LEGAL COUNSEL AND, TO
THE EXTENT HE DEEMS APPROPRIATE, HE HAS FULLY AVAILED HIMSELF OF THIS RIGHT, AND
HE HAS CAREFULLY READ AND FULLY UNDERSTANDS ALL THE PROVISIONS OF THIS AGREEMENT
AND IS VOLUNTARILY ENTERING INTO THEM.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
NEW PLAN EXCEL REALTY TRUST,
INC., a Maryland corporation
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Senior VP
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XXXXX XXXXXXX
/s/ Xxxxx XxXxxxx
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