EXHIBIT 10.43
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
-----------------------------------------
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Amended and Restated
Agreement") is made and entered into as of the 27th day of February, 1998, by
and between FEDERAL REALTY INVESTMENT TRUST, a business trust organized under
the laws of the District of Columbia (herein called the "Employer" or the
"Trust"), and Xxxxxx X. Xxxxxxx (herein called the "Executive").
WITNESSETH
WHEREAS, Executive and Employer entered into an employment agreement dated
April 13, 1989 ("Employment Agreement");
WHEREAS, Employer continues to desire to employ Executive as its President
and Chief Executive Officer and Executive continues to desire to serve Employer
as its President and Chief Executive Officer; and
WHEREAS, Employer and Executive desire to amend and restate the Employment
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. Employment. Employer hereby continues to employ Executive as its
----------
President and Chief Executive Officer to perform the duties set forth in Section
2 of this Amended and Restated Agreement for the salary and for the term set
forth in Sections 3 and 6 of this Amended and Restated Agreement, respectively,
and subject to all of the other provisions of this Amended and Restated
Agreement.
2. Duties. Executive hereby continues to accept employment by Employer
------
as its President and Chief Executive Officer and agrees to continue to undertake
and assume the responsibilities which would ordinarily or customarily be
associated with such a
position with a comparable employer and to use his reasonable best efforts in
performing, for and on behalf of and at the sole cost and expense of Employer,
during normal business hours (other than during absences due to illness or
vacation) any and all such responsibilities and such additional and related
responsibilities as may from time to time be reasonably designated by the Board
of Trustees of Employer (the "Board"), including, without limitation, serving as
a director of or in an executive capacity in any other entity in which the Trust
has a significant interest. Executive shall report to the Board. All other
officers of the Trust shall report to Executive or such person(s) as the
Executive designates from time to time. From and after the date first written
above, Executive may (i) serve on corporate, trade group, civic or charitable
boards or committees, (ii) deliver lectures, fulfill speaking engagements or
teach at educational institutions or programs, (iii) manage his personal,
financial and legal affairs, and (iv) invest personally in any business in a
private capacity where no actual conflict of interest exists between such
investment and the business of the Trust.
3. Salary; Bonus; Grant of Options.
-------------------------------
(a) Salary. Employer agrees to pay Executive, for all services rendered
by Executive under this Amended and Restated Agreement, subject to the stock in
lieu of salary plan approved by the Compensation Committee of the Board (the
"Committee") on September 26, 1997 (the "Stock in Lieu of Salary Plan"), a Basic
Salary of $475,000 per annum for the first year, and thereafter during the term
of his employment under this Amended and Restated Agreement such greater amount
as may be fixed by the Board, in each case in accordance with Employer's
customary payroll practices for its executives; provided, however, that if
Executive has elected to receive stock in lieu of his Basic Salary pursuant to
the Stock in Lieu of Salary Plan, his Basic Salary shall be increased to an
amount equal to 133% of his Basic Salary; provided, further, that the amount of
the Basic Salary shall in no event be decreased below its then-current level
(for cash or stock, as appropriate) and; provided, further, that the amount of
the Basic Salary shall be
-2-
increased as of the January lst of each year by no less than fifty (50) percent
of the percentage increase if any, in the U.S. Bureau of Labor Statistics,
Consumer Price Index, "United States City Average for Urban Wage Earners and
Clerical Workers Selected Data (1967-100) all items" for the preceding twelve
(12) months. In the event the aforementioned Index shall have been replaced by
an alternate means of cost price measurement, then such replacement cost price
measurement will be used. It is expressly understood that the January lst
percentage increase shall be applied to the Basic Salary level in effect as of
the immediately preceding December 31st and that the January lst percentage
increase shall establish the new level of Basic Salary for the then-current
year, which level of Basic Salary shall in no event be lower than the level of
Basic Salary as of the immediately preceding December 31st. Notwithstanding the
foregoing, it is understood and contemplated that the level of Basic Salary may
be further increased from time to time by the Board if such additional increases
are necessary to accurately reflect the value of Executive's services to
Employer and in order to ensure Executive's salary remains competitive with
salaries received by chief executive officers of equity real estate investment
trusts of the same or larger size than the size of Employer. Notwithstanding
the foregoing, nothing in this Amended and Restated Agreement shall be viewed or
treated as serving to modify, impinge upon or conflict with any rights
previously granted by Employer to Executive under any retirement, stock option,
stock grant, disability or other benefit program and all such programs shall
remain in full force and effect notwithstanding any provisions of this Amended
and Restated Agreement.
(b) Bonus. In addition to the Basic Salary, Executive shall be
eligible annually for the term of his employment under this Amended and Restated
Agreement to receive a cash bonus, subject to the stock in lieu of bonus plan
approved by the Committee on September 26, 1997 (the "Stock in Lieu of Bonus
Plan"), of up to 120% of his Basic Salary in the discretion of the Board upon
Executive's performance of all services rendered by him under this Amended and
Restated Agreement in accordance with
-3-
the achievement of the annual or other specific performance criteria fixed by
the Board from time to time. If Executive has elected to receive stock in lieu
of his Bonus pursuant to the Stock in Lieu of Bonus Plan, his Bonus shall be
increased to an amount equal to 133% of his Bonus.
(c) Grant of September 26, 1997 Options. The parties hereto acknowledge
that Executive has been granted an option on September 26, 1997 in the amount of
three hundred thousand (300,000) shares of beneficial interest, no par value, of
the Trust, as set forth in Exhibit A hereto.
4. Benefits.
--------
(a) Participation in Employee Benefit Plans. Executive shall be entitled
to participate in all employee benefit plans, practices and programs maintained
by Employer and made generally available to other executive officers of
Employer, including, without limitation, all pension, retirement, supplemental
retirement, profit sharing, savings, medical, hospitalization, disability,
dental, life or travel accident insurance benefit plans. Executive's
participation in such plans, practices and programs shall be on not less than
the same basis and terms as are applicable to the other executive officers of
Employer. Executive shall receive service credit for all purposes, including,
without limitation, benefit accrual, vesting and participation under any such
plans, practices and programs for the entire term of his employment with
Employer since August 14, 1972.
(b) Vacation and Other Leave. Executive shall be entitled to receive five
(5) weeks of annual paid vacation, or such greater number of weeks of annual
paid vacation as the Committee determines from time to time, to be taken at
appropriate times so as not to materially interfere with his duties hereunder.
In addition to such paid vacation, Executive shall be entitled, without loss of
pay, to absent himself voluntarily from the performance of his employment for
such periods of time and for such valid reasons as the Board in its discretion
may determine. Further, the Board shall be entitled to grant to Executive a
leave or leaves of absence with or without pay at such time or times and
-4-
upon such terms and conditions as the Board and Executive may determine.
(c) Life Insurance. Employer shall provide, at its cost, supplemental
multi-year, renewable split-dollar term life insurance coverage for Executive
equal to life insurance protection of $5,000,000. Employer shall be the owner
of the policy and Executive will be entitled to name the beneficiary thereof,
subject to the transfer of the policy to the Executive upon a Termination for
Cause or upon Voluntary Resignation under Section 7 hereof upon terms mutually
satisfactory to the Trust and the Executive as set forth in the agreement with
respect to such policy (or policies) to be entered into by Employer and
Executive.
(d) Disability Insurance. Employer shall maintain, at its cost,
supplemental renewable long-term disability insurance as agreed to by Employer
and Employee.
(e) Medical Examination. Employer shall provide, at its cost, a medical
examination for Executive on an annual basis at a medical clinic selected by
Executive.
(f) Automobile. Employer shall lease an automobile customary for a senior
executive officer of a public company of comparable size for Executive's use and
otherwise pay the insurance, maintenance and taxes, if any, in respect of such
automobile. Executive may select the type of automobile to be leased, subject
to the consent of the Chairperson of the Committee.
(g) Tax Preparation and Financial Planning Assistance. Employer shall
provide, at its cost, tax preparation and financial planning assistance for
Executive, to be furnished by such advisers as chosen by Executive, up to a
maximum aggregate of $10,000 per year.
(h) Office and Facilities. Consistent with his senior executive status
hereunder, Executive shall be provided with an appropriate office at Employer's
executive offices and such other location as may be mutually agreed and with an
executive assistant selected by Executive to provide organizational, writing,
analytical, secretarial, and other support services.
-5-
5. Reimbursement for Business Expenses. Employer agrees to pay all
-----------------------------------
reasonable expenses incurred by Executive in furtherance of the business of
Employer, including, without limitation, traveling and entertainment expenses,
or to reimburse Executive for such reasonable expenses advanced by him.
6. Term. Subject to the provisions for termination set forth in Section 7,
----
the initial term of Executive's employment under this Amended and Restated
Agreement shall be for a period of three (3) years from the date of this Amended
and Restated Agreement and shall be automatically extended, at the expiration of
the first and each subsequent month of employment under this Amended and
Restated Agreement, for additional three (3) year periods beginning on the
expiration of each such month, unless one of the parties hereto shall give
written notice to the other party hereto on or before ninety (90) days prior to
the expiration of such month of such party's intention and election not to so
extend the Amended and Restated Agreement.
7. Termination.
-----------
(a) Termination for Cause. Employer may terminate Executive's employment
under this Amended and Restated Agreement for "Cause" only in the manner set
forth below. For purposes of this Amended and Restated Agreement or any
amendment or modification hereto, Employer shall be deemed to have terminated
Executive's employment for "Cause" in the event that Executive's employment is
terminated for any of the following reasons:
willful and continual failure to use reasonable best efforts
(other than failure due to disability or Executive's
termination of his employment with the Trust under Section
7(c) hereof) to substantially perform his duties with the
Trust after demand for substantial performance is delivered
by the Trust in writing specifically identifying the manner
in which the Trust believes Executive has not used
reasonably best efforts to
-6-
substantially perform his duties and after expiration of a
reasonable time for Executive to pursue diligently a cure to
such demand;
willful misconduct which is demonstrably and materially injurious
to Employer or an affiliate thereof, monetarily or
otherwise; or conviction of, or plea of guilty or nolo
(i) contendere to, a felony; provided, however, that no
termination of Executive under clause (i) or (ii) shall
occur until (x) there shall have been delivered to Executive
a copy of the written resolution adopted by two thirds of
the Board (excluding Executive for purposes of determining
this approval) in good faith at a duly called meeting
thereof setting forth that Executive was guilty of the
conduct set forth in any such clause and specifying the
particulars thereof in detail and (y) Executive shall have
been provided an opportunity to be heard by the Board at
such meeting with 45 days' advance written notice thereof,
and; provided, further, that no act or failure to act shall
be considered willful unless done or omitted to be done in
bad faith and without reasonable belief that the action or
omission was in the best interests of the Trust and no
failure to perform by Executive after a notice of
termination hereunder is given by the Trust shall constitute
"Cause" for purposes of this definition.
Executive shall be entitled to the assistance of his counsel (at the
expense of the Trust) in contesting or otherwise disputing in good faith any
allegation or finding of such conduct in any Board meeting or any subsequent
judicial or other proceeding instigated by Executive, the Trust, or any third
party. Under no circumstances shall
-7-
Executive be obligated to pay or reimburse the Trust for any attorneys' fees and
expenses incurred by the Trust. In the event that Executive's employment is
terminated for Cause, Employer only will be obligated to pay to Executive the
compensation due and payable to him hereunder as of the date of Executive's
termination of employment.
(b) Termination Upon Voluntary Resignation. Executive may terminate his
employment in all capacities under this Amended and Restated Agreement at any
time by giving written notice to Employer at least six (6) months prior to the
effective termination date stated in such notice. In the event of such
termination, Employer only will be obligated to pay to Executive the
compensation, including, without limitation, any bonus previously awarded but
unpaid, due and payable to him hereunder as of the effective date of
termination.
(c) Termination Without Cause. Executive may terminate his employment
under this Amended and Restated Agreement effective immediately by written
notice to Employer, given within six (6) months after the occurrence of any of
the following events without Executive's written consent:
(i) The nature of Executive's duties or the scope of his
responsibilities as set forth herein are materially
modified without Executive's written consent; or
(ii) Employer changes the location of its principal office to
be outside a fifty (50) mile radius of Washington, D.C.;
or
(iii) The occurrence of a Change in Control as defined in
Section 1 of Executive's Executive Agreement with
Employer, as amended; or
(iv) Executive is not reappointed as a member of the Board; or
(v) A Chairman of the Board is appointed other than Executive;
or
-8-
(vi) This Amended and Restated Agreement is not assumed by any
successor to Employer pursuant to Section 15(c) hereof in
a situation other than a Change in Control.
In the event of any such termination by Executive, Executive shall be
entitled to receive, and Employer shall be obligated to provide to Executive,
all payments, compensation (including, without limitation, a bonus for each year
of the remaining term of Executive's employment under this Amended and Restated
Agreement at least equal to the greater of (i) the greatest annual aggregate
amount of any cash or stock bonuses paid to Executive in respect of any of the
three (3) fiscal years immediately preceding such termination by Executive (it
being understood and agreed that this amount shall not include compensation paid
pursuant to performance share awards) or (ii) the amount equal to Executive's
maximum aggregate cash or stock bonus (it being understood and agreed that a
bonus shall not include compensation paid pursuant to performance share awards)
which could be awarded for the fiscal year in which such termination by
Executive occurs had he continued his employment until the end of such fiscal
year, assuming all performance targets and goals (if applicable) had been fully
met by Employer and by Executive, as applicable, for such year), and other
benefits provided under this Amended and Restated Agreement, as if such
termination had not occurred; provided, however, in the event that Executive's
employment with Employer is terminated pursuant to Section 7(c)(iii) hereof,
Executive shall receive such payments as are set forth in his Executive
Agreement with Employer, as amended, in lieu of the payments or benefits due and
payable under Section 3 hereof.
(d) Termination Upon Disability. Notwithstanding Executive's right to
receive full compensation for any period of illness or incapacity during the
term of his employment under this Amended and Restated Agreement pursuant to
Section 8 hereof, Employer shall have the right to terminate his employment
under this Amended and Restated Agreement upon thirty (30) days prior written
notice if (i) Executive's Disability
-9-
has disabled Executive totally from rendering service to the Employer for at
least a six (6) month consecutive period during the term of his employment, (ii)
Executive's "Disability" is within the meaning of such defined term in
Employer's group long-term disability policy, and (iii) Executive is covered
under such policy. In the event of Executive's termination upon Disability,
Executive shall be entitled to receive as severance pay each month for the three
(3) years immediately following the date of termination an amount in cash equal
to the difference, if any, between (i) the sum of (y) the amount of payments
Executive receives or will receive during that month pursuant to the disability
insurance policies maintained by Employer for Executive's benefit and (z) the
adjustment described in the next sentence and (ii) Employee's base monthly
salary on the date of termination due to Disability. The adjustment referred
to in clause (z) of the preceding sentence is the amount by which any tax-exempt
payments referred to in clause (y) would need to be increased if such payments
were subject to tax in order to make the after-tax proceeds of such payments
equal to the actual amount of such tax-exempt payments.
(e) Termination Upon Death. Subject to the terms of the Stock in Lieu
of Salary Plan and the Stock in Lieu of Bonus Plan, if Executive dies, his
estate shall receive his then-current Basic Salary through the last day of the
month of Executive's death in a lump sum payment, plus any bonus previously
awarded but unpaid, and any accrued but unpaid vacation pay through the last day
of the month in which Employee's death occurs.
8. Sick Benefits. Subject to Section 7(d) hereof, Executive shall
-------------
receive full compensation for any period of illness or incapacity during the
term of his employment under this Amended and Restated Agreement.
9. Directors' and Officers' Liability Insurance. Employer shall maintain
--------------------------------------------
Directors' and Officers' liability insurance for the benefit of Executive (and
other executives of Employer). After Executive is no longer employed by
Employer, for three
-10-
(3) years following the date of termination of Executive's employment, Employer
shall provide Executive with Director's and Officers' liability insurance
coverage for events occurring prior to the termination of Executive's employment
that is no less favorable than Employer's Directors' and Officers' liability
insurance policy in effect on the date first written above in terms of coverage
and amounts; provided, however, that the annual cost to Employer of such
coverage shall not exceed two hundred percent (200%) of Employer's fiscal 1997
annual premium for its Directors' and Officers' liability insurance policy (it
being understood that in any case Employer shall provide as much coverage as
possible for such two hundred percent (200%) premium amount).
10. Executive Obligation to Employer. During the period in which
--------------------------------
Executive is employed by Employer, Executive agrees to use his reasonable best
efforts to advance the interests of Employer, within appropriate guidelines of
Employer, and to conduct his business duties for Employer in a professional
manner.
11. Confidential Information. Executive agrees that during or after the
------------------------
period of his employment, he will not, without authorization from Employer or
except as required by law, divulge, disclose or otherwise communicate to any
person or company any information of a private, internal or confidential nature
pertaining to specific details of Employer's business, functions or operations;
provided, however, that the foregoing restriction is not applicable to
information concerning Employer's business which was or became generally
available to the public other than as a result of a disclosure by Executive.
Executive further agrees that, upon termination of his employment with Employer
for any reason, he will promptly return to Employer all books and records of or
pertaining to Employer's business, and all other property belonging to Employer
which is in his custody or possession.
12. Mitigation. Executive shall not be required to mitigate the amount of
----------
any payment, benefit, or other Trust obligation provided for in this Agreement
by seeking other employment or otherwise and no such payment, benefit or other
Trust obligation
-11-
shall be offset or reduced by the amount of any compensation or benefits
provided to Executive in any subsequent employment.
13. Indemnification.
---------------
(a) General. Employer agrees that if Executive is made a party or
-------
threatened to be made a party to any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact that Executive is or was a trustee, director or officer of Employer or any
subsidiary thereof or is or was serving at the request of Employer or any
subsidiary thereof as a trustee, director, officer, member, employee or agent of
another corporation or a partnership, joint venture, trust or other enterprise,
including, without limitation, service with respect to employees benefit plans,
whether or not the basis of such Proceeding is alleged action in an official
capacity as a trustee, director, officer, member, employee or agent while
serving as a trustee, director, officer, member, employee or agent, Executive
shall be indemnified and held harmless by Employer to the fullest extent
authorized by the Trust's Third Amended and Restated Declaration of Trust, dated
as of May 24, 1984 and by District of Columbia law, as the same exists or may
hereafter be amended, against all Expenses (as hereinafter defined) incurred or
suffered by Executive in connection therewith, and such indemnification shall
continue as to Executive even if Executive has ceased to be an officer,
director, trustee or agent, or is no longer employed by Employer and shall inure
to the benefit of his heirs, executors and administrators; provided, however,
that Executive shall not be so indemnified for any Proceeding which shall have
been adjudicated to have arisen out of or been based upon his willful
misconduct, bad faith, gross negligence or reckless disregard of duty or his
failure to act in good faith in the reasonable belief that his action was in the
best interests of Employer.
(b) Expenses. As used in this Amended and Restated Agreement, the
--------
term "Expenses" shall include, without limitation, damages, losses, judgments,
liabilities, fines, penalties, excise taxes, settlements, and costs, attorneys'
fees, accountants'
-12-
investigations, and any expenses of establishing a right to indemnification
under this Amended and Restated Agreement.
(c) Enforcement. If a claim or request under this Amended and
-----------
Restated Agreement is not paid by Employer or on its behalf, within thirty (30)
days after a written claim or request has been received by Employer, Executive
may at any time thereafter bring suit against Employer to recover the unpaid
amount of the claim or request and if successful in whole or in part, Executive
shall be entitled to be paid also the expenses of prosecuting such suit. All
obligations for indemnification hereunder shall be subject to, and paid in
accordance with, applicable District of Columbia law.
(d) Partial Indemnification. If Executive is entitled under any
-----------------------
provision of this Amended and Restated Agreement to indemnification by Employer
for some or a portion of any Expenses, but not, however, for the total amount
thereof, Employer shall nevertheless indemnify Executive for the portion of such
Expenses to which Executive is entitled.
(e) Advances of Expenses. Expenses incurred by Executive in
--------------------
connection with any Proceeding shall be paid by Employer in advance upon request
of Executive that Employer pay such Expenses and upon Executive's delivery of an
undertaking to reimburse Employer for Expenses with respect to which Executive
is not entitled to indemnification.
(f) Notice of Claim. Executive shall give to Employer notice of any
---------------
claim made against him for which indemnification will or could be sought under
this Amended and Restated Agreement, but the failure of Executive to give such
notice shall not relieve Employer of any liability Employer may have to
Executive except to the extent that Employer is prejudiced thereby. In
addition, Executive shall give Employer such information and cooperation as it
may reasonably require and as shall be within Executive's power and at such time
and places as are convenient for Executive.
(g) Defense of Claim. With respect to any Proceeding as to which
----------------
-13-
Executive notifies Employer of the commencement thereof;
(i) Employer will be entitled to participate therein at its
own expense; and
(ii) Except as otherwise provided below, to the extent that it
may wish, Employer will be entitled to assume the defense thereof,
with counsel reasonably satisfactory to Executive. Executive also
shall have the right to employ his own counsel in such action, suit or
proceeding if he reasonably concludes that failure to do so would
involve a conflict of interest between Employer and Executive, and
under such circumstances the fees and expenses of such counsel shall
be at the expense of Employer.
(iii) Employer shall not be liable to indemnify Executive under
this Amended and Restated Agreement for any amounts paid in settlement
of any action or claim effected without its written consent. Employer
shall not settle any action or claim in any manner which would not
include a full and unconditional release of Executive without
Executive's prior written consent. Neither Employer nor Executive will
unreasonably withhold or delay their consent to any proposed
settlement.
(h) Non-exclusivity. The right to indemnification and the payment
---------------
of Expenses incurred in defending a Proceeding in advance of its final
disposition conferred in this Amended and Restated Agreement shall not be
exclusive of any other right which Executive may have or hereafter may acquire
under any statute, provision of the declaration of trust or certificate of
incorporation or by-laws of Employer or any subsidiary, agreement, vote of
shareholders or disinterested directors or trustees or otherwise.
14. Legal Fees and Expenses. Employer shall reimburse Executive promptly
-----------------------
following the date first written above for all legal fees and expenses incurred
by Executive in connection with Employer and Executive entering into this
Amended and
-14-
Restated Agreement and any other agreements contemplated hereby upon receipt of
reasonable written evidence of such fees and expenses. If any contest or dispute
shall arise between Employer and Executive regarding any provision of this
Amended and Restated Agreement or an agreement contemplated hereby, Employer
shall reimburse Executive (in addition to Executive's right to legal fees and
expenses under Section 7(a) hereof) for (i) all legal fees and expenses incurred
by Executive in connection with defending such contest or dispute and (ii) all
legal fees and expenses incurred by the Executive in bringing such contest or
dispute, in each case so long as the Executive is acting in good faith. Such
reimbursement shall be made as soon as practicable following the resolution of
such contest or dispute (whether or not appealed) to the extent the Company
receives reasonable written evidence of such fees and expenses.
15. General Provisions
------------------
(a) Severability. In case any one or more of the provisions of this
------------
Amended and Restated Agreement shall, for any reason, be held or found by final
judgment of a court of competent jurisdiction to be invalid, illegal or
unenforceable in any respect (1) such invalidity, illegality or unenforceability
shall not affect any other provisions of this Amended and Restated Agreement,
(2) this Amended and Restated Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein, and (3) if
the effect of a holding or finding that any such provision is either invalid,
illegal or unenforceable is to modify to Executive's detriment, reduce or
eliminate any compensation, reimbursement, payment, allowance or other benefit
to Executive intended by Employer and Executive in entering into this Amended
and Restated Agreement, Employer shall promptly negotiate and enter into an
agreement with Executive containing alternative provisions (reasonably
acceptable to Executive) that will restore to Executive (to the extent legally
permissible) substantially the same economic, substantive and income tax
benefits Executive would have enjoyed had any such provision of this Amended and
Restated Agreement been upheld as legal, valid and
-15-
enforceable. Failure to insist upon strict compliance with any provision of
this Amended and Restated Agreement shall not be deemed a waiver of such
provision or of any other provision of this Amended and Restated Agreement.
(b) Modification and Waiver. No provision of this Amended and
-----------------------
Restated Agreement may be amended, modified or waived unless such amendment,
modification or waiver shall be agreed to in writing and signed by Executive and
by a person duly authorized by the Board.
(c) Successor and Assigns. No rights or obligations of Employer
---------------------
under this Amended and Restated Agreement may be assigned or transferred except
that Employer 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 Employer to expressly assume and agree to perform this
Amended and Restated Agreement in the same manner and to the same extent that
the Company would be required to perform it as if no succession had taken place.
In the event of such assignment, any and all references to Employer in other
paragraphs of this Amended and Restated Agreement shall be deemed to mean and
include such assignee. No rights or obligations of Executive under this Amended
and Restated Agreement may be assigned or transferred by Executive other than
his rights to payments or benefits hereunder, which may be transferred only by
will or the laws of descent and distribution. Upon Executive's death, this
Amended and Restated Agreement and all rights of Executive hereunder shall inure
to the benefit of and be enforceable by Executive's beneficiary or
beneficiaries, personal or legal representatives, or estate, to the extent any
such person succeeds to Executive's interests under this Amended and Restated
Agreement. Executive shall be entitled to select and change one or more
beneficiaries to receive any amount that may be payable hereunder after his
death by giving Employer written notice thereof. In the event of Executive's
death or a judicial determination of his incompetence, reference in this Amended
and Restated Agreement to Executive shall be deemed, where
-16-
appropriate, to refer to his beneficiaries, estate or other legal
representatives. If Executive should die following termination of his employment
with Employer 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 Amended and Restated Agreement to
such person or persons so appointed in writing by Executive, or otherwise to his
legal representatives or estate.
(d) No Attachments. Except as required by law, no right to receive
--------------
payments under this Amended and Restated Agreement shall be subject to
anticipation, commutation, alienation, sale, assignment, encumbrance, charge,
pledge or hypothecation, or to execution, attachment, levy or similar process or
assignment by operation of law, and any attempt, voluntary or involuntary, to
affect any such action shall be null, void and of no effect.
(e) No Set-Off. The Trust shall have no right of set-off, reduction
----------
or counterclaim in respect of any debt or other obligation of Executive to the
Trust against any payment, benefit or other Trust obligation to Executive
provided for in this Amended and Restated Agreement or pursuant to any other
plan, agreement or policy; provided, however, that the Trust may reduce any
payment provided for in this Amended and Restated Agreement in the event of the
termination of Executive's employment (i) due to Disability or (ii) without
Cause, by the amount of any payment made to Executive pursuant to a Restricted
Share Award Agreement between Executive and the Trust in the event of the
termination of Executive's employment due to Disability or without Cause
expressly intended to act as a setoff against any payment provided for in this
Amended and Restated Agreement, such intention to be evidenced only by a written
instruction in such Restricted Share Award Agreement.
(f) Headings. The headings of Sections and Subsections hereof are
--------
included solely for conveniences of reference and shall not control the meaning
or interpretation of any of the provisions of this Amended and Restated
Agreement.
-17-
(g) Governing Law. This Amended and Restated Agreement has been
-------------
executed and delivered in the State of Maryland shall be construed in accordance
with and governed for all purposes by the laws of the State of Maryland.
(h) Confidentially of Employment Relationship. Employer, except to
-----------------------------------------
the extent required by law, will not make or publish, without the express prior
written consent of Executive, any written or oral statement concerning the terms
of Executive's employment relationship with Employer and will not, if for any
reason he or Employer xxxxxx his employment with Employer, make or publish any
written or oral statement concerning Executive including, without limitation,
his work-related performance or the reasons or basis for Executive or Employer
severing his employment relationship with Employer; provided, however, that the
foregoing restriction is not applicable to information concerning the
Executive's employment relationship with Employer which was or became generally
available to the public other than as a result of a disclosure by Employer.
(i) Termination of Prior Agreements. Except as may otherwise be
-------------------------------
provided herein, this Amended and Restated Agreement shall terminate and
supersede any and all prior written agreements existing between Employer and
Executive prior to the date hereof which address the same subject matter as this
Amended and Restated Agreement with respect to the terms and conditions of
Executive's employment with Employer, and Employer and Executive hereby mutually
release and discharge each other from any further obligation, liability or
responsibility under any of the foregoing.
(j) Notices. Any notice required or permitted to be given under
-------
this Amended and Restated Agreement shall be in writing and shall be deemed to
have been given when delivered in person or when deposited in the U.S. mail,
registered or certified, postage prepaid, and mailed to the respective addresses
set forth herein, unless a party changes its address for receiving notices by
giving notice in accordance with this Subsection, in which case, to the address
specified in such notice.
-18-
(k) Survival. The agreements and obligations of Employer and
--------
Executive made in Sections 7, 9, 11, 12, 13, 14, and 15 of this Amended and
Restated Agreement shall survive the expiration or termination of this Amended
and Restated Agreement.
(l) Federal Income Tax Withholding. Employer may withhold from any
------------------------------
benefits payable under this Amended and Restated Agreement all federal, state,
city or other taxes as shall be required pursuant to any law or governmental
regulation or ruling.
(m) Source of Payments. All payments provided under this Amended
------------------
and Restated Agreement shall be paid in cash from the general funds of Employer,
and no special or separate fund shall be established and no other segregation of
assets shall be made to assure payment.
(n) Exculpatory Clause. Neither Employer's shareholders nor the
------------------
Trustees, officers, employees or agents of Employer shall be liable under this
Amended and Restated Agreement, and Executive shall look solely to Employer's
estate for the payment of any claim under or for performance of this Amended and
Restated Agreement. The Trust is organized pursuant to a Third Amended and
Restated Declaration of Trust dated as of May 24, 1984.
(o) Counterparts. This Amended and Restated Agreement may be
------------
executed in multiple counterparts with the same effect as if each of the signing
parties had signed the same document. All counterparts shall be construed
together and constitute the same instrument.
-19-
IN WITNESS WHEREOF, the parties have executed and delivered this Amended
and Restated Agreement as of the day and year indicated above.
XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Address:
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
FEDERAL REALTY INVESTMENT TRUST
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chair, Compensation Committee
Address:
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
-20-
