Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of June 30,
2006, by and between ENTERTAINMENT PROPERTIES TRUST, a Maryland real estate
investment trust (the "Company"), and XXXX X. XXXXXX ("Employee").
A. The Company and Employee are parties to the 2002 Agreement (defined
below), and desire to terminate and replace the 2002 Agreement with this
Agreement to permit Employee to continue employment with the Company on a
part-time basis on the date hereof.
In consideration of the mutual covenants contained herein, the parties
agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the following meanings.
"2002 AGREEMENT" shall mean Employee's Employment Agreement dated September
1, 2002 which is hereby canceled and superceded by this Agreement.
"BOARD" shall mean the Board of Trustees of the Company.
"CAUSE" shall mean and be limited to (a) Employee's willful and continued
failure or refusal to perform his duties with the Company (other than as a
result of his Disability or incapacity due to mental or physical illness) which
is not remedied in the reasonable good faith determination of the Board within
30 days after Employee's receipt of written notice specifying the nature of such
failure or refusal, (b) the willful engagement by Employee in misconduct which
is materially and demonstrably injurious to the Company, or (c) a material
breach of the terms of this Agreement by Employee, which breach is not cured
within 30 days after notice of breach is given to Employee by the Company. For
purposes of this Agreement, no act or failure to act shall be considered
"willful" unless done or omitted in bad faith and without reasonable belief that
the act or omission was in the best interests of the Company. A failure or
refusal to perform duties materially and adversely inconsistent with Employee's
position as described in Section 2 shall not be considered willful or in bad
faith.
"CHANGE IN CONTROL" shall mean the occurrence of any of the following
events:
(a) Incumbent Trustees cease for any reason to constitute at least a
majority of the Board.
(b) Any "person" (as defined in Section 3(a)(9) of the Exchange Act
and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) or
"group" (within the contemplation of Section 13(d)(3) of the Exchange Act
and Rule 13d-5 thereunder) is or becomes a "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act) or controls the voting power,
directly or indirectly, of shares of the Company representing 25% or more
of the Company Voting Securities, other than (i) an acquisition of Company
Voting Securities by an underwriter pursuant to an offering of shares by
the Company,
(ii) a Non-Qualifying Transaction, or (iii) an acquisition of Company
Voting Securities directly from the Company which is approved by a majority
of the Incumbent Trustees. For purposes of this definition:
(A) "Company Voting Securities" shall mean the outstanding shares
of the Company eligible to vote in the election of trustees of the
Company.
(B) "Company 25% Shareholder" shall mean any "person" or "group"
which beneficially owns or has voting control of 25% or more of the
Company Voting Securities.
(C) "Business Combination" shall mean a merger, consolidation,
acquisition, sale of all or substantially all of the Company's assets
or properties, statutory share exchange or similar transaction
involving the Company or any of its subsidiaries that requires the
approval of the Company's shareholders, whether for the transaction
itself or the issuance or exchange of securities in the transaction.
(D) "Incumbent Trustees" shall mean (1) the trustees of the
Company as of the date of this Agreement or (2) any trustee elected
subsequent to the date of this Agreement whose election or nomination
was approved by a vote of at least two-thirds of the Incumbent
Trustees then on the Board (either by specific vote or approval of a
proxy statement of the Company in which such person is named as a
nominee for trustee).
(E) "Parent Corporation" shall mean the ultimate parent entity
that directly or indirectly has beneficial ownership or voting control
of a majority of the outstanding voting securities eligible to elect
directors of a Surviving Corporation.
(F) "Surviving Corporation" shall mean the entity resulting from
a Business Combination.
(G) "Non-Qualifying Transaction" shall mean a Business
Combination in which all of the following criteria are met: (1) more
than 50% of the total voting power of the Surviving Corporation or, if
applicable, the Parent Corporation, is represented by Company Voting
Securities that were outstanding immediately prior to the Business
Combination (or, if applicable, is represented by shares into which
the Company Voting Securities were converted pursuant to the Business
Combination and held in substantially the same proportion as the
Company Voting Securities were held immediately prior to the Business
Combination, (2) no "person" or "group" (other than a Company 25%
Shareholder or any Employee Benefit Plan (or related trust) sponsored
or maintained by the Surviving Corporation or the Parent Corporation)
would become the beneficial owner, directly or indirectly, of 25% or
more of the total voting power of the outstanding voting securities
eligible to elect directors of the Parent Corporation (or, if there is
no Parent Corporation, the Surviving Corporation) and no Company
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25% Shareholder would increase its percentage of such total voting
power as a result of the transaction, and (3) at least a majority of
the members of the board of directors or similar governing body of the
Parent Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) following the consummation of the Business
Combination were Incumbent Trustees at the time of the Board's
approval of the Business Combination.
(c) The shareholders of the Company approve a Business Combination,
other than a Non -Qualifying Transaction.
(d) The shareholders of the Company approve a plan of complete
liquidation or dissolution of the Company.
(e) The acquisition of direct or indirect Control of the Company by
any "person" or "group."
(f) Any transaction or series of transactions which results in the
Company being "closely held" within the meaning of the REIT provisions of
the Code, after any applicable grace period, and with respect to which the
Board has either waived or failed to enforce the "Excess Share" provisions
of the Company's Amended and Restated Declaration of Trust.
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because any "person" or "group" acquires beneficial ownership or
voting control of more than 25% of the Company Voting Securities as a result of
any acquisition of Company Voting Securities by the Company, but if after that
acquisition by the Company the "person" or "group" becomes the beneficial owner
or obtains voting control of any additional Company Voting Securities, a Change
in Control shall be deemed to occur unless otherwise exempted as set forth
above.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COMPENSATION COMMITTEE" shall mean the Compensation Committee appointed by
the Board.
"CONTROL" shall mean the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of the Company,
whether through the ownership of Company Voting Securities, by contract, or
otherwise.
"DISABILITY" shall mean (a) the adjudication of incompetence of Employee or
(b) the failure of Employee to perform his duties with the Company on a
full-time basis for 90 consecutive days as a result of incapacity due to mental
or physical illness which is determined to be permanent by a physician selected
by the Company or its insurers and acceptable to Employee or his legal
representative, which acceptance shall not be unreasonably withheld.
"EMPLOYMENT PERIOD" shall mean the period from the date of this Agreement
until the fifth anniversary of the date hereof.
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"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
"HEALTH PLANS" shall mean any and all individual and family health and
hospitalization insurance and/or self-insurance plans, medical reimbursement
plans, prescription drug plans, dental plans of the Company as in effect on the
date hereof and which were available to Employee immediately prior to Employee's
termination of employment with the Company.
"INCENTIVE PLAN" shall mean the First Amended and Restated 1997 Share
Incentive Plan of the Company.
"NOTICE OF TERMINATION" shall mean a written instrument delivered by
Employee or the Company, as the case may be, which (a) gives notice of the
termination of this Agreement and Employee's employment hereunder, (b) indicates
the provision of this Agreement under which the termination is made, (c)
describes in reasonable detail the facts and circumstances claimed to provide a
basis for termination and (d) specifies the Termination Date (which shall be not
more than 30 days after the date of the Notice). The failure by Employee or the
Company to describe in a Notice of Termination any fact or circumstance which
contributes to a showing of Disability or Cause (as applicable) shall not waive
any right to assert such fact or circumstance in enforcing Employee's or the
Company's rights hereunder.
"TERMINATION DATE" shall mean: (a) if Employee is terminated pursuant to
Section 5(b) or (c) or terminates pursuant to Section 5(d), the date of receipt
of the Notice of Termination or any later date specified in the Notice, or (b)
if Employee is terminated by reason of death, the date of his death.
2. DUTIES. The Company hereby employs Employee to perform accounting,
financial and investor relations services for the Company, and Employee hereby
accepts such engagement, on the terms and conditions set forth herein. Employee
shall report to the Chief Executive Officer of the Company and shall be under
the control and supervision of the Chief Executive Officer at the Company's
offices during the term of this Agreement. Employee shall faithfully observe and
comply with the rules, regulations, instructions, practices and policies of the
Company now in force or any changes therein which may hereafter be adopted which
are applicable to employees of the Company, including without limitation, the
Company's Code of Ethics and Xxxxxxx Xxxxxxx Policy. Employee shall devote such
time and attention to the business of the Company as the Company may reasonably
request and may engage in any other business activities for gain or profit,
including personal investments or service on corporate, civic or charitable
boards or committees, so long as such activities are in compliance with Section
9. It is understood, however, that Employee shall make his services available to
the Company and the Company may elect to utilize those services for no more than
80 hours per month during the Employment Period. It is recognized that the time
which Employee will be required to devote to the performance of his services
during any particular period may vary depending on the nature and extent of the
services requested of him.
3. TERM. This Agreement and Employee's employment shall remain in effect
during the Employment Period, unless sooner terminated in accordance with
Section 5.
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4. COMPENSATION.
(a) COMPENSATION. Employee shall receive compensation for services
provide at a rate of $150.00 per hour, payable in regular increments in
accordance with the Company's standard payroll procedures (but not less
frequently than monthly) less applicable withholdings.
(b) HEALTH PLANS. For a period ending six months after the date
hereof, Employee shall be eligible to continue participation in all Health
Plans on the same basis as Employee participated in such Health Plans as a
full-time employee of the Company prior to the date hereof.
(c) EQUITY INCENTIVE GRANTS. Pursuant to the Incentive Plan, Employee
currently holds unexercised options to purchase Common Shares pursuant to
the Incentive Plan and unvested restricted share grants of Common Shares
(collectively, the "Grants"). Nothing in this Agreement shall modify, amend
or otherwise effect the Grants, which the parties acknowledge and agree
shall continue in full force and effect in accordance with the terms of the
Grants and the Incentive Plan during the Employment Period and thereafter
to the extent provided by such Grants and the Incentive Plan. Parties
hereto understand and agree that Employee will have no right to participate
in any future Grants under the Incentive Plan.
(d) EXPENSE REIMBURSEMENTS. The Company shall reimburse Employee for
all business travel and other out-of-pocket expenses reasonably incurred by
Employee in the performance of his services under this Agreement. All
reimbursable expenses shall be appropriately documented in reasonable
detail by Employee upon submission of any request for reimbursement, in a
format and manner consistent with the Company's expense reporting policies
applicable to management employees of the Company.
5. TERMINATION. This Agreement and Employee's services hereunder shall be
terminated upon the earliest of:
(a) DEATH. Employee's employment shall automatically terminate upon
his death.
(b) DISABILITY. The Company will make efforts to reasonably
accommodate Employee as required by applicable federal and state laws.
However, in the event of Employee's Disability, the Board may, after giving
30 days' written notice to Employee, terminate Employee by giving Notice of
Termination if he is unable because of his Disability to resume his
full-time duties within such 30-day period.
(c) CAUSE. The Board may terminate Employee's employment for Cause by
giving Notice of Termination to Employee.
(d) CHANGE IN CONTROL. Employee may terminate his employment by giving
Notice of Termination upon a Change in Control.
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6. NON-EXCLUSIVITY OF RIGHTS. Except as expressly provided for herein,
nothing in this Agreement shall limit or otherwise affect any rights Employee
may have under any other contract or agreement with the Company. Amounts which
are vested benefits or which Employee is otherwise entitled to receive at or
subsequent to a Termination Date under any plan, policy, practice or program of,
or any contract or agreement with, the Company shall be payable in accordance
with the same, except as explicitly modified in this Agreement. Employee shall
not be eligible to participate in the Company's retirement plans.
7. FULL SETTLEMENT; RESOLUTION OF DISPUTES.
(a) The Company's obligation to make the payments provided in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any unilateral right of set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against
Employee or others, but the foregoing shall not limit the right of the
Company to seek such relief in any proceeding. If Employee is the
prevailing party in any action brought by the Company to contest any
liability or obligation hereunder or in any action by Employee to enforce
the provisions hereof, the Company shall reimburse Employee for the fees
and expenses of his counsel incurred in such action.
(b) Employee understands and agrees that Employee is releasing the
Released Parties from any and all claims, damages, lawsuits, injuries,
liabilities and causes of action that Employee may have under any express
or implied contract, or any city ordinance or state, federal or common law
meant to protect workers in their employment relationships including,
without limitation, claims under Title VII of the Civil Rights Act of 1964,
as amended, the Age Discrimination in Employment Act, the Missouri Human
Rights Act, the Americans with Disabilities Act, the Equal Pay Act, 42
U.S.C. Sections 1981, 1983 and 1985, 18 U.S.C. Section 1514A, the Family &
Medical Leave Act, the Employee Retirement Income Security Act, the Fair
Labor Standards Act, the Labor Management Relations Act, Workers'
Compensation laws, and under which Employee may have rights and claims,
whether known to Employee or not, arising, directly or indirectly out of
his employment by the Company, and/or the termination of his employment
with the Company.
(c) Employee understands and agrees that Employee is releasing the
Released Parties from any and all claims, damages, lawsuits, injuries,
liabilities and causes of action that I may have, under the Age
Discrimination in Employment Act, the Missouri Human Rights Act, and any
other federal, state or local laws prohibiting age discrimination in
employment, whether known to Employee or not, past or present, suspected or
unsuspected, arising, directly or indirectly out of his employment by the
Company or the termination of his employment with the Company or any
statements or actions of the Released Parties.
(d) Employee understands and acknowledges that he is entitled to the
terms and conditions of this Agreement which constitute full and adequate
consideration which is the only consideration he will receive as a result
of his execution of this Agreement including the release of claims
contained in this Section 7 and not otherwise.
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(e) Employee acknowledges that he been given the option to consider
this Agreement for up to twenty-one (21) days before signing it. Employee
further acknowledge that he been advised to consult with an attorney prior
to signing this Agreement.
(f) Employee understands that after signing this Agreement, he has
seven (7) days in which to consider it and, if desired, to revoke it by
giving written notice of such revocation to the Company in care of
Entertainment Properties Trust, 00 Xxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxx
Xxxx, Xxxxxxxx 00000, fax number 000-000-0000, prior to the expiration of
the 7-day revocation period, but that upon such revocation, Employee shall
forfeit any and all rights to all consideration otherwise to be provided to
me under the terms of this Agreement. Employee also understands that this
Agreement shall not become effective or enforceable until the expiration of
the 7-day revocation period.
8. INDEMNIFICATION. Nothing in this Agreement shall limit Employee's
indemnification rights under the Company's Declaration of Trust or Bylaws or any
Trustees' and Officers' insurance coverage. Employee shall not be liable to the
Company or its shareholders for any errors or omissions made in good faith and
in the absence of gross negligence or willful misconduct.
9. NON-COMPETITION; NON-SOLICITATION.
(a) During the term of this Agreement and during the two year period
thereafter (the "Non-Compete Period"), Employee shall not, directly or
indirectly, unless for the Company or otherwise with the express written
consent of the Company:
(i) own or have any interest in, or act as an officer, director,
partner, member, manager, principal, employee, agent, representative,
consultant, independent contractor or other capacity of or for, or in
any way assist, any Competitive Enterprise within the Restricted Area,
whether paid or unpaid; or
(ii) divert or attempt to divert clients, customers or accounts
of the Company (whether or not the applicable parties have done
business with the Company once or more than once), regardless of their
location.
Employee agrees that because of the nationwide nature of the
Company's business and its interdependence with the worldwide nature of its
businesses, the "Restricted Area" shall include the entire United States
and Canada, and that a more limited geographic restriction is neither
feasible nor appropriate to protect the interests of the Company.
"Competitive Enterprise" shall mean any business opportunity, investment or
lease, financing, acquisition or development opportunity considered by the
Company prior to the date hereof or during the term of this Agreement.
(b) During the term of this Agreement and the Non-Compete Period,
Employee shall not directly or indirectly solicit, induce, or encourage any
employee, consultant, agent, or customer of the Company with whom he has
worked to terminate his, her or its employment, agency, contractual, or
customer relationship with the
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Company or to render services for or transfer business to any competitor of
the Company. During the term of this Agreement and the Non-Compete Period,
Employee shall not solicit, induce or encourage any customer of the Company
to offer employment to or seek consulting services from Employee, and
Employee shall not accept employment from or provide consulting services to
any customer of the Company.
(c) All references to the Company in this Section 9 shall include all
subsidiaries, joint ventures and controlled affiliates of the Company.
10. CONFIDENTIAL INFORMATION.
(a) Employee shall retain in confidence and shall not disclose to any
party (other than officers, trustees or representatives of the Company as
required for the conduct of the Company's business), nor use for any
purpose (other than in the performance of his duties hereunder) any
confidential or proprietary information of or with respect to the Company,
its business, financial condition or performance, existing or potential
properties, existing or potential transactions, negotiations,
relationships, plans, strategies, projections, existing or potential
tenants or any other information of a confidential or proprietary nature,
whether in written, oral or electronic format and whether disclosed prior
to, or after the date of this Agreement ("Confidential Information").
Notwithstanding the foregoing, Confidential Information shall not include
(i) information which is publicly disclosed or otherwise
generally available through no fault of Employee, or (ii) information
required to be disclosed by Employee or the Company under the federal
securities laws and regulations or any subpoena or order of a court or
governmental agency. In no event shall an asserted violation of the
provisions of this Section 10(a) constitute a basis for the Company's
unilateral deferral or withholding of any amounts otherwise payable to
Employee under this Agreement, without limitation of the right of the
Company to assert any right of set-off, counterclaim, recoupment,
defense or other claim in any proceeding.
11. REMEDIES.
(a) Employee acknowledges that any breach of the covenants in Sections
9 and 10 would cause irreparable injury to the Company which would not be
fully compensable in damages. Accordingly, the Company shall be entitled to
injunctive or specific relief from a court of competent jurisdiction
against any breach or threatened breach by Employee, his agents or persons
acting through him, of the covenants in Section 10(a), without the
necessity of posting bond or proving lack of an adequate remedy at law, and
without limitation of other remedies that may be available to the Company
at law or in equity.
(b) In addition to the equitable remedies described in Section 11(a),
the parties hereto agree that, at the election of the Company, the Employee
shall pay over to the Company as liquidated damages, and not as a penalty,
for any breach of the covenants in Sections 9 and 10 all amounts paid to
Employee during the Employment Period, all
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Common Shares or other securities issued to Employee pursuant to the
Incentive Plan during the Employment Period, all unvested Grants, which
shall be forfeited by Employee, and all profits derived from the sale
thereof during the Employment Period, and such additional amounts as
permitted under law.
12. SUCCESSORS.
(a) This Agreement is personal to Employee and shall not be assigned
by him without the prior written consent of the Board. The provisions of
Section 8 shall inure to the benefit of and be binding on and enforceable
by Employee's heirs and legal representatives.
(b) This Agreement may be assigned by the Company to any successor to
its business or assets and shall inure to the benefit of its successors and
assigns.
(c) This Agreement shall be binding upon and enforceable against any
successor (whether direct or indirect, by acquisition, merger,
consolidation, Change in Control or otherwise) to the Company or to all or
substantially all of its assets, whether such transaction was approved by
the Incumbent Trustees or otherwise. The Company shall advise any successor
to its business or assets and the entity effecting any Change in Control of
the provisions of this Agreement and the survival of such provisions
following the consummation of such transaction. As used in this Agreement,
"Company" shall mean Entertainment Properties Trust and any successor to
its business, assets or outstanding securities.
13. EXCESS PARACHUTE PAYMENT. If the Internal Revenue Service asserts that
any portion of any payment made to Employee pursuant to this Agreement
constitutes an "excess parachute payment" and imposes an excise tax thereon, the
Company will indemnify Employee in an amount equal to the excise tax. Such
amount shall be paid to Employee immediately upon a final judicial determination
of, or settlement determining, the liability for the excise tax.
14. REPLACEMENT. This Agreement supersedes and replaces the 2002 Agreement,
with the exception of the restrictions on the Program Shares (as defined in the
2002 Agreement) recited in Section 3(d) of the 1997 Agreement, Section 1 of the
2000 Agreement and Section 1 of the 2002 Agreement, which shall survive such
termination to the extent applicable.
15. GOVERNING LAW. This Agreement shall be governed by Missouri law,
without reference to conflicts of laws rules.
16. HEADINGS. Section headings are for convenience of reference only and
shall have no effect on the interpretation of this Agreement.
17. ENTIRE AGREEMENT. This constitutes the entire agreement of the parties
with regard to the subject matter hereof and may not be modified or amended
except by written instrument executed by the Company and Employee.
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18. NOTICE. Any notice or other communication hereunder shall be in writing
and may be hand delivered or sent by registered or certified mail return receipt
requested, commercial courier or facsimile transmission:
If to Employee: Xxxx X. Xxxxxx
13204 Fontana
Xxxxxxx, Xxxxxx 00000
If to the Company: Entertainment Properties Trust
00 Xxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: General Counsel
FAX: (000) 000-0000
or to such other address or facsimile number as either party shall have
furnished the other in writing. Notices and communications shall be effective
when actually received by the addressee.
19. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or unenforceability of any other
provision of this Agreement.
20. WAIVER. A party's failure to insist upon strict compliance with any
provision of this Agreement or the failure to assert any right such party may
have hereunder shall not be deemed a waiver of such provision or any other
provision of this Agreement.
21. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be an original and both of which, taken together, shall constitute a
single instrument.
22. BOARD APPROVAL. This Agreement has been approved by the Board upon the
recommendation of the Compensation Committee. The officer signing this Agreement
on behalf of the Company is duly authorized to do so and to bind the Company to
the provisions hereof.
23. TAXATION. Employee understands and agrees that the Company or any of
its representatives, including its attorneys, has not made any express or
implied representations to me with respect to the tax implications of any
payment made herein.
24. CONSULTATION WITH AN ATTORNEY. Employee has been advised to consult
with an attorney prior to signing this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement this 1st day
of August, 2006, and effective as of the above date.
COMPANY
ENTERTAINMENT PROPERTIES TRUST
By: /s/ Xxxxx X. Brain
------------------------------------
Xxxxx X. Brain
President and Chief Executive Officer
EMPLOYEE:
/s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
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