EXHIBIT 10.31
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of May 30, 1997, between WELLSFORD
REAL PROPERTIES, INC., a Maryland corporation with offices at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), and XXXXXXX
X. XXXXXXX, an individual residing at 00 Xxxxx Xxxxxx Xxxx,
Xxxxxxx, Xxx Xxxx 00000 (the "Executive").
WHEREAS, the Executive is an executive of Wellsford
Residential Property Trust, a Maryland real estate investment trust
("Wellsford Residential");
WHEREAS, Equity Residential Properties Trust, a Maryland
real estate investment trust ("EQR"), is merging with and into
Wellsford Residential as of the date hereof (the "Merger");
WHEREAS, immediately prior to the Merger, Wellsford
Residential is distributing to its common shareholders, pro rata,
all of the shares of common stock that it owns in the Company (the
"Distribution"); and
WHEREAS, the Company desires to employ the Executive, and
the Executive desires to be employed by the Company.
IT IS AGREED:
1. Duties. (a) During the term of the Executive's
employment hereunder the Executive shall serve and the Company
shall employ the Executive as Chairman of the Board to perform such
executive or administrative services for the Company consistent
with those of a Chairman of the Board as may be assigned to the
Executive by the directors of the Company. The Executive hereby
accepts such employment and agrees to perform such services.
(b) The Executive shall devote such time, attention and
energies during business hours to the performance of his duties
hereunder as is necessary to properly carry out the
responsibilities of his office.
(c) The Executive shall cooperate with the Company,
including taking such medical examinations as the Company
reasonably shall deem necessary, if the Company shall desire to
obtain medical, disability or life insurance with respect to the
Executive. Where reasonably possible, the Company shall cooperate
with the Executive's request to have such examinations performed by
the Executive's personal physician or another physician reasonably
acceptable to the Executive.
(d) The Executive shall not be required to relocate or
conduct the Company's business outside the New York, New York area
in order to perform his duties under this Agreement but shall
undertake such reasonable business travel as may be necessary to
perform said duties (for which the Executive shall be reimbursed
pursuant to Section 4 below for costs and expenses incurred in
connection therewith).
2. Employment Term. This Agreement shall commence on
May 30, 1997 and shall continue in effect through December 31,
2002; provided, however, that, on January 1, 2003 and on each
January 1 thereafter, the term of this Agreement shall
automatically be extended for one additional year beyond such
January 1 unless, not later than June 30 of the preceding year,
either the Executive or the Company shall have given notice to the
other not to extend this Agreement.
3. Compensation. For all services rendered by the
Executive pursuant to this Agreement:
(a) The Company shall pay to the Executive an annual
base salary at the following rates:
(i) for the period from May 30, 1997 through
December 31, 1997 - $275,000;
(ii) for the period from January 1, 1998 through
December 31, 1998 - $283,250;
(iii) for the period from January 1, 1999 through
December 31, 1999 - $291,748;
(iv) for the period from January 1, 2000 through
December 31, 2000 - $300,500;
(v) for the period from January 1, 2001 through
December 31, 2001 - $309,515;
(vi) for the period from January 1, 2002 through
December 31, 2002 - $318,800; and
(vii) for each additional year thereafter, the
annual base salary for the immediately
preceding year plus 3% of such annual base
salary.
All such compensation shall be paid bi-weekly or at such other
regular intervals, not less frequently than monthly, as the Company
may establish from time to time for executive employees of the
Company.
(b) In addition to the compensation set forth in
subsection 3(a) above, the Executive shall be awarded such bonus
for each calendar year or partial calendar year of his employment
hereunder as the directors of the Company shall determine in their
sole discretion. In determining such bonus, the Executive
understands that the directors will consider, without limitation,
the following factors with respect to the applicable calendar year
or partial calendar year: the Company's financial performance,
business performance and growth during such period; Executive's
responsibilities as an officer of the Company (including his
participation in transactions of particular financial or business
significance to the Company) during such period; the total
compensation package paid to executive officers having similar
responsibilities as the Executive who are employed by entities
which are similar to the Company; and such other factors as the
directors may deem appropriate in their sole discretion. Such
bonus may consist of cash; grants of shares ("Shares") of Common
Stock of the Company; options to purchase Shares; loans to purchase
Shares; share appreciation rights (whether independent of or in
conjunction with awards of options); and such other awards as the
directors in their sole discretion may deem appropriate and which
they believe are in furtherance of the growth of long-term
stockholder value of the Company.
4. Expenses. (a) The Company shall pay for all legal
and accounting fees and expenses incurred by the Executive in
connection with the structuring, negotiation and preparation of
this Agreement. The Company shall reimburse the Executive for all
out-of-pocket expenses actually and necessarily incurred by him in
the conduct of the business of the Company against reasonable
substantiation submitted with respect thereto.
(b) Unless the provisions of subsection 4(c) below shall
apply, the Company shall reimburse the Executive for all legal fees
and related expenses (including the costs of experts, evidence and
counsel) paid by the Executive as a result of (i) the termination
of Executive's employment (including all such fees and expenses, if
any, incurred in contesting or disputing any such termination of
employment), (ii) the Executive seeking to obtain or enforce any
right or benefit provided by this Agreement or by any other plan or
arrangement maintained by the Company under which the Executive is
or may be entitled to receive benefits, (iii) the Executive's
hearing before the directors as contemplated in subsection 6(c) of
this Agreement or (iv) any action taken by the Company against the
Executive; provided, however, that the Company shall reimburse the
legal fees and related expenses described in this subsection 4(b)
only if and when a final judgement has been rendered in favor of
the Executive and all appeals related to any such action have been
exhausted.
(c) The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel)
incurred by the Executive as they become due as a result of (i) the
termination of Executive's employment (including all such fees and
expenses, if any, incurred in contesting or disputing any such
termination of employment), (ii) the Executive seeking to obtain or
enforce any right or benefit provided by this Agreement or by any
other plan or arrangement maintained by the Company under which the
Executive is or may be entitled to receive benefits, (iii) the
Executive's hearing before the directors as contemplated in
subsection 6(c) of this Agreement or (iv) any action taken by the
Company against the Executive, unless and until such time that a
final judgement has been rendered in favor of the Company and all
appeals related to any such action have been exhausted; provided,
however, that the circumstances set forth above occurred on or
after a change in control of the Company.
(d) For purposes of this Agreement, a "change in control
of the Company" shall be deemed to occur if:
(i) there shall have occurred a change in control
of a nature that would be required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
as in effect on the date hereof, whether or not the Company is then
subject to such reporting requirement, provided, however, that
there shall not be deemed to be a "change in control" of the
Company if immediately prior to the occurrence of what would
otherwise be a "change in control" of the Company (a) the Executive
is the other party to the transaction (a "Control Event") that
would otherwise result in a "change in control" of the Company or
(b) the Executive is an executive officer, trustee, director or
more than 5% equity holder of the other party to the Control Event
or of any entity, directly or indirectly, controlling such other
party,
(ii) the Company merges or consolidates with, or
sells all or substantially all of its assets to, another company
(each, a "Transaction"), provided, however, that a Transaction
shall not be deemed to result in a "change in control" of the
Company if (a) immediately prior thereto the circumstances in
(i)(a) or (i)(b) above exist, or (b) (1) the shareholders of the
Company, immediately before such Transaction own, directly or
indirectly, immediately following such Transaction in excess of
fifty percent (50%) of the combined voting power of the outstanding
voting securities of the corporation or other entity resulting from
such Transaction (the "Surviving Corporation") in substantially the
same proportion as their ownership of the voting securities of the
Company immediately before such Transaction and (2) the individuals
who were members of the Company's Board of Directors immediately
prior to the execution of the agreement providing for such
Transaction constitute at least a majority of the members of the
board of directors or the board of trustees, as the case may be, of
the Surviving Corporation, or of a corporation or other entity
beneficially directly or indirectly owning a majority of the
outstanding voting securities of the Surviving Corporation, or
(iii) the Company acquires assets of another
company or a subsidiary of the Company merges or consolidates with
another company (each, an "Other Transaction") and (a) the
shareholders of the Company, immediately before such Other
Transaction own, directly or indirectly, immediately following such
Other Transaction 50% or less of the combined voting power of the
outstanding voting securities of the corporation or other entity
resulting from such Other Transaction (the "Other Surviving
Corporation") in substantially the same proportion as their
ownership of the voting securities of the Company immediately
before such Other Transaction or (b) the individuals who were
members of the Company's Board of Directors immediately prior to
the execution of the agreement providing for such Other Transaction
constitute less than a majority of the members of the board of
directors or the board of trustees, as the case may be, of the
Other Surviving Corporation, or of a corporation or other entity
beneficially directly or indirectly owning a majority of the
outstanding voting securities of the Other Surviving Corporation,
provided, however, that an Other Transaction shall not be deemed to
result in a "change in control" of the Company if immediately prior
thereto the circumstances in (i)(a) or (i)(b) above exist.
5. Benefits. The Executive shall be entitled to six
weeks of paid vacation each year and such other medical and other
benefits as are afforded from time to time to all executive
employees of the Company. The Company shall indemnify the
Executive in the performance of his duties pursuant to the bylaws
of the Company and to the fullest extent allowed by applicable law,
including, without limitation, legal fees.
6. Earlier Termination. (a) If the Executive shall
fail, because of illness or incapacity, to render the services
contemplated by this Agreement for six successive months or for
shorter periods aggregating nine months in any calendar year, the
directors of the Company may determine, on the basis of medical
evidence satisfactory to the Company, in the Company's sole
discretion, that the Executive has become disabled. If within
thirty (30) days after the date on which written notice of such
determination is given to the Executive, the Executive shall not
have returned to the full-time performance of his duties hereunder,
this Agreement and the employment of the Executive hereunder shall
be deemed terminated in accordance with Section 8 hereof.
(b) Except as otherwise provided in this Agreement, if
the Executive shall die during the term of this Agreement, this
Agreement shall be deemed to have been terminated as of the date of
death of the Executive.
(c) The Company, by notice to the Executive, may
terminate this Agreement for proper cause. As used herein, "proper
cause" shall mean (i) the willful and continued failure by the
Executive to substantially perform his duties with the Company
(other than any such failure resulting from the Executive's
incapacity due to physical or mental illness or any such actual or
anticipated failure resulting from termination by the Executive for
Good Reason (as defined below)) after a written demand for
substantial performance is delivered to the Executive by the
directors of the Company, which demand specifically identifies the
manner in which the directors believe that the Executive has not
substantially performed his duties, or (ii) the willful engaging by
the Executive in conduct which is demonstrably and materially
injurious to the Company, monetarily or otherwise. For purposes of
this subsection 6(c), no act, or failure to act, on the Executive's
part shall be deemed "willful" unless done, or omitted to be done,
by the Executive otherwise than in good faith and in a manner that
the Executive reasonably believed was in or not opposed to the best
interests of the Company and its shareholders. Notwithstanding the
foregoing, the Executive shall not be deemed to have been
terminated for proper cause unless and until there shall have been
delivered to the Executive a copy of a resolution duly adopted by
the affirmative vote of not less than three-quarters (3/4) of all
of the directors of the Company at a meeting of the directors
called and held for such purpose (after reasonable notice to the
Executive and an opportunity for the Executive, together with
counsel of his choosing, to be heard before the directors not less
than 10 business days after the giving of such notice), finding
that in the good faith opinion of the directors, the Executive
conducted himself as set forth above in clause (i) or (ii) of the
first sentence of this subsection 6(c) and specifying the
particulars of such conduct in detail.
(d) The Executive may terminate this Agreement for "Good
Reason" if any of the following events occurs:
(i) the assignment to the Executive of any duties
materially inconsistent with his status as a senior
executive officer of the Company or a substantial
alteration in the nature or status of his
responsibilities;
(ii) the Company's breach of any of its agreements
or obligations under this Agreement;
(iii) the failure by the Company to pay the
Executive any annual installment of a previous award
under any bonus or incentive compensation arrangement;
(iv) the failure of the Company to obtain a
satisfactory agreement from any successor to assume and
agree to perform this Agreement, as contemplated in
Section 14 hereof;
(v) any purported termination of the Executive's
employment which is not effected pursuant to a Notice of
Termination (defined below) satisfying the requirements
of Section 7 below; or
(vi) any change in control of the Company.
7. Notice of Termination. Any purported termination of
the Executive's employment by the Company or by the Executive shall
be communicated by a written Notice of Termination to the other
party hereto in accordance with Section 16 hereof. For purposes of
this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated.
8. Date of Termination, Etc. "Date of Termination"
shall mean (a) if the Executive's employment is terminated for
disability, thirty (30) days after Notice of Termination is given
(provided that the Executive shall not have returned to the full-
time performance of his duties during such thirty (30) day period),
and (b) if the Executive's employment is terminated pursuant to
subsection 6(c) or 6(d) above or for any other reason (other than
disability), the date specified in the Notice of Termination
(which, in the case of a termination pursuant to subsection 6(c)
above shall not be less than thirty (30) days, and in the case of
a termination pursuant to subsection 6(d) above shall not be less
than thirty (30) nor more than sixty (60) days, respectively, from
the date such Notice of Termination is given); provided, however,
if within thirty (30) days after any Notice of Termination is given
the party receiving such Notice of Termination notifies the other
party that a dispute exists concerning the termination, the Date of
Termination shall be the date on which the dispute is finally
resolved, either by mutual written agreement of the parties, by a
binding arbitration award, or by a final judgment, order or decree
of a court of competent jurisdiction (which is not appealable or
the time for appeal therefrom having expired and no appeal having
been perfected), except that with respect to a termination of this
Agreement by reason of expiration of its term as provided in
Section 2, the Date of Termination shall be the date the term
hereof expires pursuant to Section 2, regardless of whether a
dispute exists with respect thereto; provided, further, that the
Date of Termination shall be extended by a notice of dispute only
if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable
diligence. Notwithstanding the pendency of any such dispute, the
Company will continue to pay the Executive his full compensation in
effect when the notice giving rise to the dispute was given
(including, but not limited to, base salary and installments under
any bonus or incentive compensation plan) and continue the
Executive as a participant in all compensation, benefit and
insurance plans in which he was participating when the notice
giving rise to the dispute was given, until the dispute is finally
resolved in accordance with this Section. Amounts paid under this
Section 8 are in addition to all other amounts due under this
Agreement and shall not be offset against or reduce any other
amounts due under this Agreement. If it is finally determined by
a binding arbitration award, or by a final judgment, order or
decree of a court of competent jurisdiction (which is not
appealable or the time for appeal therefrom having expired and no
appeal having been perfected), that the Executive was terminated
for proper cause, the Executive shall promptly remit to the Company
the amount of any cash payments and the value of any non-cash
benefits paid pursuant to this Section 8 to which the Executive
would not otherwise have been entitled.
9. Compensation Upon Termination or During Disability.
Upon termination of the Executive's employment or during a period
of disability the Executive shall be entitled to the following
compensation and benefits:
(a) During any period that the Executive fails to
perform his duties hereunder as a result of incapacity due to
physical or mental illness, the Executive shall continue to receive
his base salary at the rate in effect at the commencement of any
such period until his employment is terminated pursuant to
subsection 6(a) hereof, together with any bonus that may be payable
pursuant to subsection 3(b). Thereafter, the compensation provided
in Section 3 hereof shall continue to be paid to the Executive for
the longer of (i) a period of 36 months after such termination and
(ii) the remaining term of this Agreement pursuant to Section 2
hereof, in either case at the annual base salary in effect at the
time his employment is terminated, and the Executive shall continue
to be covered by the Company's health, dental and life insurance
benefits for such period.
(b) If the Executive's employment shall be terminated,
at any time prior to a change in control of the Company, for proper
cause or by him other than for Good Reason, the Executive shall be
paid the Executive's full base salary through the Date of
Termination at the rate in effect at the time Notice of Termination
is given and the Company shall thereafter have no further
obligations to the Executive under this Agreement.
(c) If the Executive's employment shall be terminated by
reason of the Executive's death, the compensation provided in
subsection 3(a) hereof shall be paid to the person designated from
time to time in writing by the Executive and, if not so designated,
to the Executive's estate for the longer of (i) a period of 36
months following such termination and (ii) the remaining term of
this Agreement pursuant to Section 2 hereof, in either case at the
annual base salary in effect at the time of his death. The person
designated by the Executive and, if not so designated, the
Executive's estate shall also receive (i) any bonus awarded
pursuant to subsection 3(b) and not yet paid and (ii) with respect
to the year in which the Executive dies (in the event the directors
of the Company have not yet determined whether to award the
Executive a bonus for such calendar year), a bonus equal to the
product of (x) the annual base salary payable to the Executive
pursuant to subsection 3(a) from January 1 of the year in which the
Executive shall have died through the last day of the month during
which the Executive shall have died and (y) the Deemed Bonus
Fraction (as defined in subsection 9(d) below).
(d) If the Executive's employment shall be terminated
(I) by the Company other than for proper cause or disability or
(II) by the Executive for Good Reason, then the Executive shall be
entitled to the benefits provided below:
(i) the Company shall pay as severance pay to the
Executive, not later than the Date of Termination, a lump
sum severance payment (the "Severance Payment") equal to
(A) the aggregate of all compensation due to the
Executive hereunder had his employment not been so
terminated, including, without limitation, all bonus
payments which would have been due to the Executive
pursuant to subsection 3(b), assuming that the Executive
would have received a bonus for each calendar year equal
to the product of (x) the annual base salary that would
be payable to the Executive pursuant to subsection 3(a)
for such calendar year and (y) the greater of (i) 1/2 or
(ii) the percentage of the Executive's base salary for
the immediately preceding fiscal year that was paid to
the Executive as a bonus for the immediately preceding
fiscal year, expressed as a fraction (the greater of
clauses (i) and (ii) being herein referred to as the
"Deemed Bonus Fraction"), through the expiration of this
Agreement, plus (B) the greater of (x) the aggregate of
all compensation due to the Executive hereunder had his
employment not been so terminated, including, without
limitation, all bonus payments which would have been due
to the Executive pursuant to subsection 3(b), assuming
that the Executive would have received a bonus for each
calendar year equal to the product of (i) the annual base
salary that would be payable to the Executive pursuant to
subsection 3(a) for such calendar year and (ii) the
Deemed Bonus Fraction, through the expiration of this
Agreement (assuming, solely for purposes of this
subsection 9(d)(i)(B)(x), that this Agreement expires on
the last day of the thirty-sixth month following the end
of the calendar year in which the Date of Termination
occurs), or (y) 2.99 times the "base amount" within the
meaning of Sections 280G(b)(3) and 280G(d) of the
Internal Revenue Code of 1986, as amended (the "Code"),
and any applicable temporary or final regulations
promulgated thereunder, or its equivalent as provided in
any successor statute or regulation; provided, however,
if the Executive's employment shall be terminated other
than pursuant to subsection 6(d)(vi), the Severance
Payment shall equal only the greatest of the amounts set
forth in subsection 9(d)(i)(A), 9(d)(i)(B)(x) or
9(d)(i)(B)(y) above. If Section 280G of the Code (and
any successor provisions thereto) shall be repealed or
otherwise be inapplicable, then the Severance Payment
under clause (i)(B)(y) above shall equal 2.99 times the
average of the Executive's annual compensation (from the
Company or from Wellsford Residential, as the case may)
during the three calendar year period preceding the
calendar year in which the Date of Termination occurs.
For purposes of determining annual compensation in the
preceding sentence, compensation payable to the Executive
by the Company or by Wellsford Residential shall include
every type and form of compensation includible in the
Executive's gross income in respect of his employment by
the Company or by Wellsford Residential (including,
without limitation, all income reported on an Internal
Revenue Service Form W-2), compensation income recognized
as a result of the Executive's exercise of stock options
or sale of the stock so acquired and including, without
limitation, any annual bonus payments previously paid to
such Executive. For purposes of calculating the "base
amount" within the meaning of Sections 280G(b)(3) and
280G(d) of the Code and annual compensation in the second
preceding sentence, any income of the Executive that
constitutes a "parachute payment" within the meaning of
Section 280G(b)(2) of the Code shall not be taken into
account in making such calculations; and
(ii) an amount equal to the Additional Amount
pursuant to Section 10 below.
(e) If the Executive's employment shall be terminated,
at any time following a change in control of the Company, for
proper cause, the Company shall pay the Executive his full base
salary through the Date of Termination at the higher of the rate in
effect at the time Notice of Termination is given and the rate in
effect immediately prior to the change in control of the Company
and the Company shall have no further obligations to the Executive
under this Agreement.
(f) In addition to all other amounts payable to the
Executive under this Section 9, the Executive shall be entitled to
receive all benefits payable to him under the Company's Pension
Plans applicable to him and any other plan or agreement relating to
retirement benefits as in effect upon the occurrence of a change in
control.
(g) The Executive shall not be required to mitigate the
amount of any payment provided for in this Section 9 by seeking
other employment or otherwise, nor shall the amount of any payment
or benefit provided for in this Section 9 be reduced by any
compensation earned by him as the result of employment by another
employer or by retirement benefits after the Date of Termination,
or otherwise, except as specifically provided in this Section 9.
10. Additional Amount. Whether or not Section 9 is
applicable, if in the opinion of tax counsel selected by the
Executive and reasonably acceptable to the Company, the Executive
has or will receive any compensation or recognize any income
(whether or not pursuant to this Agreement or any plan or other
arrangement of the Company and whether or not the Executive's
employment with the Company has terminated) which constitute an
"excess parachute payment" within the meaning of Section 280G(b)(1)
of the Code (or for which a tax is otherwise payable under Section
4999 of the Code), then the Company shall pay the Executive an
additional amount (the "Additional Amount") equal to the sum of (i)
all taxes payable by the Executive under Section 4999 of the Code
with respect to (a) all such excess parachute payments (or
otherwise), and (b) the Additional Amount, plus (ii) all federal,
state and local income taxes payable by Executive with respect to
the Additional Amount. The amounts payable pursuant to this
Section 10 shall be paid by the Company to the Executive within 30
days of the written request therefor made by the Executive, but in
all events (whether or not there has been a written request by the
Executive) not later than the date of the "change in control of the
Company", unless otherwise agreed to in writing by the Executive.
11. Income Tax Payment. Whether or not Section 9 is
applicable, if (i) the Executive has or will receive any
compensation or recognize any income (whether or not pursuant to
this Agreement or any plan or other arrangement of the Company and
whether or not the Executive's employment with the Company has
terminated) in connection with a "change in control" of the Company
(as that term may be interpreted in this Agreement and any plan or
other arrangement of the Company), and (ii) such compensation or
income represents non-cash compensation or income, then the Company
shall pay the Executive in cash an amount (the "Income Tax
Payment") equal to all federal, state and local income taxes
payable by Executive with respect to such non-cash compensation or
income. The Income Tax Payment shall be paid by the Company to the
Executive not later than the date of the "change in control of the
Company", unless otherwise agreed to in writing by the Executive.
12. Indemnification. The Company shall indemnify and
hold harmless the Executive for and against, and shall pay to the
Executive an amount (the "Indemnified Amount") equal to, the sum of
(i) all taxes payable by the Executive under Section 4999 of the
Code with respect to (a) any compensation received and any income
recognized by the Executive in connection with the Merger and
Distribution as described in the Joint Proxy Statement/
Prospectus/Information Statement, dated April 25, 1997, of
Wellsford Residential and EQR and (b) the Indemnified Amount, plus
(ii) all federal, state and local income taxes payable by Executive
with respect to the Indemnified Amount; provided, however, that the
Company shall have no obligations under this Section 12 with
respect to items comprising the Indemnified Amount to the extent
already paid on behalf of the Executive by Wellsford Residential or
the surviving trust in the Merger.
13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
14. Entire Agreement. This Agreement sets forth the
entire agreement of the parties and is intended to supersede all
prior employment negotiations, understandings and agreements. No
provision of this Agreement may be waived or changed, except by a
writing signed by the party to be charged with such waiver or
change.
15. Successors; Binding Agreement. (a) This Agreement
shall inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the
Executive should die while any amount would still be payable to him
hereunder if he had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to the Executive's devisee, legatee or
other designee or, if there is no such designee, to the Executive's
estate.
(b) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or
assets of the Company to expressly assume and agree in writing to
perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain and
deliver to Executive such assumption and agreement prior to (but
effective only upon) such succession shall be a breach of this
Agreement, except that for purposes of implementing the foregoing,
the date on which any such succession becomes effective shall be
deemed the Date of Termination. As used in this Agreement, "Com-
pany" shall mean the Company as hereinbefore defined and any suc-
cessor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement, expressly, by operation of law,
or otherwise.
16. Notices. All notices provided for in this Agreement
shall be in writing, and shall be deemed to have been duly given
when delivered personally to the party to receive the same, when
given by telex, telegram or mailgram, or when mailed first class
postage prepaid, by registered or certified mail, return receipt
requested, addressed to the party to receive the same at his or its
address above set forth, or such other address as the party to
receive the same shall have specified by written notice given in
the manner provided for in this Section 16. All notices shall be
deemed to have been given as of the date of personal delivery,
transmittal or mailing thereof.
17. Severability. If any provision in this Agreement is
determined to be invalid, it shall not affect the validity or
enforceability of any of the other remaining provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
WELLSFORD REAL PROPERTIES, INC.
By: /s/ Xxxxxx Xxxxxxxxx
___________________________________
Name: Xxxxxx Xxxxxxxxx
Title: President
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxxx
___________________________________
Xxxxxxx X. Xxxxxxx
