Exhibit 10.39
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), effective as of
April 1, 2003, by and between Lexington Corporate Properties Trust, a Maryland
real estate investment trust (the "Company") and E. Xxxxxx Xxxxxxx (the
"Executive").
WITNESSETH:
WHEREAS, the Board of Trustees of the Company (the "Board"),
has determined that it is in the best interests of the Company and its
shareholders to assure that the Company will have the continued dedication of
the Executive and to provide the Executive with compensation and benefits
arrangements which are competitive with those of other real estate investment
trusts; and
WHEREAS, the Board believes it is imperative to diminish the
inevitable distraction of the Executive by virtue of the personal uncertainties
and risks created by a pending or threatened Change of Control (as defined
below) and to encourage the Executive's full attention and dedication to the
Company currently and in the event of any threatened or pending Change of
Control;
NOW, THEREFORE, in order to accomplish these objectives and in
consideration of the mutual covenants and promises contained herein, the parties
hereto, each intending to be legally bound hereby, agree as follows:
1. Employment. Subject to the terms and conditions set
forth herein, the Company shall employ the Executive as [INSERT RELEVANT TITLE],
and the Executive accepts such employment for the Employment Term (as defined
below). During the Employment Term, the Executive shall perform [FOR ROSKIND,
ROUSE, EGLIN AND XXXXXXX "the duties of the [INSERT RELEVANT TITLE] and such
other duties as may from time to time be assigned to him by the Board"; FOR ALL
OTHERS: "such duties as may from time to time be assigned to him by the
Board,"], commensurate with the Executive's position.
2. Performance. Except as provided below, the Executive
will serve the Company faithfully and to the best of his ability and will devote
his full business time, energy, experience and talents to the business of the
Company and its affiliates; provided, however, that it shall not be considered a
violation of the foregoing for the Executive to serve on civic or charitable
boards or committees, or, with the advance written approval of the Board, on
industry boards or committees, so long as any of such activities do not
interfere with the performance of the Executive's responsibilities as an
employee of the Company in accordance with this Agreement.
3. Employment Term. Unless earlier terminated pursuant
to Section 6 below (including, but not limited to, the Executive's termination
of employment due to death, resignation, Disability (as defined in Section
6(b)(iii) below), the employment term shall begin upon February 1, 2003 (the
"Effective Date"), and shall continue for a period of four years; from such date
(the "Initial Term"); provided that such term shall be automatically extended
for additional periods of one (1) year commencing on the fourth anniversary of
the Effective Date and each anniversary thereof (such period the "Additional
Term") unless either party shall have
given notice to the other party that such party does not desire to extend the
term of this Agreement, such notice to be given at least one hundred eighty
(180) days prior to the end of Initial Term or Additional Terms (the Initial
Term and the Additional Term or Terms, if applicable, collectively, the
"Employment Term").]
4. Compensation and Benefits.
(a) Base Salary. As compensation for services
hereunder and in consideration of the Executive's other agreements hereunder,
during the Employment Term, the Company shall pay the Executive a base salary,
payable in equal installments in accordance with the Company's procedures,
subject to withholding and other applicable taxes, at an annual rate of three
hundred fifty thousand Dollars ($350,000), subject to review by the Company no
less frequently than annually for increase (but not to be decreased) (such base
salary, as increased from time to time being hereinafter referred to as "Base
Salary").
(b) Bonuses and Incentive Compensation. During
the Employment Term, the Executive shall have opportunities for bonuses and
shall have opportunities for incentive compensation comparable to those provided
to its senior executives of the Company and shall be eligible to participate in
all bonus and incentive compensation plans made available by the Company, from
time to time, for its senior executives.
(c) Medical, Dental, Disability, Life Insurance,
Pension and Other Benefits. During the Employment Term, the Executive shall, in
accordance with the terms and conditions of the applicable plan documents and
all applicable laws, be eligible to participate in the various medical, dental,
disability, life insurance, pension and other employee benefit plans made
available by the Company, from time to time, for its senior executives.
(d) Vacation, Sick Leave. During the Employment
Term, the Executive shall be entitled to vacation and sick leave in accordance
with the Company's established practices with respect to its senior executives.
(e) Expenses. The Executive shall be reimbursed
by the Company for all reasonable expenses actually incurred by him in
connection with the performance of his duties hereunder in accordance with
policies established by the Company from time to time and upon receipt of
appropriate documentation.
5. Termination. (a) The employment of the Executive
hereunder shall terminate at the end of the Employment Term. The employment of
the Executive hereunder may also be terminated at any time (i) by the Company
with or without Cause (as defined in Section 5(b)(i) below), (ii) by the
Executive with or without Good Reason (as defined in Section 5(b)(ii) below) by
notice of resignation delivered to the Company; or (iii) by the Executive or the
Company within two years following a Change in Control. Anything in this
Agreement to the contrary notwithstanding, if a Change of Control occurs and if
the Executive's employment with the Company is terminated prior to the date on
which the Change of Control occurs, and if it is reasonably demonstrated by the
Executive that such termination of employment (i) was at the request of a third
party who has taken steps reasonably calculated to effect a Change of Control or
(ii) otherwise arose in connection with or anticipation of a Change of Control,
then the
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Executive shall be treated for purposes of this Agreement as if he had been
terminated within two years following the Change in Control (such a termination
shall be referred to in this Agreement as a "Pre-Change in Control
Termination"). At any time after a Disability (as defined in Section 5(b)(iii)
below) occurs, provided that the Board, upon advice of a medical doctor selected
in accordance with Section 5(b)(iii) hereof, determines that the Executive
remains incapable of performing his essential duties and responsibilities
hereunder, subject to applicable legal requirements, the Company may terminate
the Executive's employment effective forthwith after giving notice to the
Executive of such termination. Further, if the Board, upon advice of a medical
doctor selected in accordance with Section 5(b)(iii) hereof, shall reasonably
determine that the Executive has become physically or mentally incapable of
performing his essential duties and responsibilities as provided in this
Agreement and such incapacity is likely to last for a period of at least one
hundred eighty (180) days from the onset of such incapacity, the Company may, at
its discretion at any time thereafter while the Executive remains incapable of
performing his material duties hereunder, and subject to applicable legal
requirements, remove the Executive from his then position with the Company;
provided, further, that if he returns to full time employment, with the
permission of the Board, prior to the time he is determined to have incurred a
Disability, he shall be restored to his position or positions with the Company.
(b) For purposes of this Agreement,
(i) "Cause" shall mean: (A) the
Executive's conviction of, plea of nolo contendere to, or written admission of
the commission of, a felony, (B) any breach by the Executive of any material
provision of this Agreement; (C) any act by the Executive involving moral
turpitude, fraud or misrepresentation with respect to his duties for the Company
or its affiliates; or (D) gross negligence or willful misconduct on the part of
the Executive in the performance of his duties as an employee, officer or member
of the Company or its affiliates; provided, however, that the Company may not
terminate the Executive's employment under clauses (B), (C) or (D) unless the
Company first gives the Executive notice of its intention to terminate and of
the grounds for such termination within 90 days of such event, and in the case
of a breach set forth in clause (B) above, the Executive either (X) has not,
within 30 days following receipt of such notice, cured such Cause, or (Y) in the
event such Cause cannot be cured within such 30-day period, has not taken all
reasonable steps to cure such Cause.
(ii) "Good Reason" shall mean the
occurrence of the following events without the Executive's written consent,
provided that such occurrence is not cured within thirty (30) days of the
Executive giving the Company written notice thereof: (A) a reduction in the
Executive's rate of Base Salary; (B) a breach by the Company of any material
provision of this Agreement; or (C) the Company's requiring the Executive to be
based at any office or location located more than eighty (80) miles from the New
York metropolitan area. Notwithstanding anything herein to the contrary, any
change of the Executive's position with the Company to which the Executive
consents in writing shall not constitute Good Reason.
(iii) "Disability" shall mean the mental
or physical incapacity of the Executive such that (A) he qualifies for long-term
disability benefits under a Company-sponsored long-term disability policy or (B)
the Executive has been incapable as a result of illness, disease, mental or
physical disability, disorder, infirmity, or impairment or similar cause
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of performing his essential duties and responsibilities for any period of one
hundred eighty (180) days (whether or not consecutive) in any consecutive three
hundred sixty-five (365) day period. Disability shall be determined by an
approved medical doctor selected by the Company and the Executive. If the
Company and the Executive cannot agree on a medical doctor, each party shall
select a medical doctor and the two doctors shall select a third who shall be
the approved medical doctor for this purpose.
(iv) "Change in Control" shall mean:
(A) The acquisition by any individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person")
of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of either (i) the then outstanding common shares of
beneficial interest of the Company (the "Outstanding Company Common Stock") or
(ii) the combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of trustees (the "Outstanding
Company Voting Securities"); provided, however, that for purposes of this
subsection (A), the following acquisitions shall not constitute a Change of
Control: (1) any acquisition directly from the Company, (2) any acquisition by
the Company, (C) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any entity controlled by the Company
or (D) any acquisition by any entity pursuant to a transaction which complies
with clauses (1), (2) and (3) of subsection (C) of this Section 5(b)(iv); or
(B) Individuals who, as of the date
hereof, constitute the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that any
individual becoming a trustee subsequent to the date hereof whose election, or
nomination for election by the Company's shareholders, was approved by a vote of
at least a majority of the trustees then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board; or
(C) Consummation of a reorganization,
merger or consolidation or sale or other disposition of all or substantially all
of the assets of the Company (a "Business Combination"), in each case, unless,
following such Business Combination, (1) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding common shares
of beneficial interest and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of trustees, as the
case may be, of the entity resulting from such Business Combination (including,
without limitation, an entity which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either directly or
through one or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the Outstanding
Company Common Stock and Outstanding Company
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Voting Securities, as the case may be, (2) no Person (excluding any entity
resulting from such Business Combination or any employee benefit plan (or
related trust) of the Company or such entity resulting from such Business
Combination) beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of the entity
resulting from such Business Combination or the combined voting power of the
then outstanding voting securities of such entity except to the extent that such
ownership existed prior to the Business Combination and (3) at least a majority
of the members of the board of directors or board of trustees, as the case may
be, of the entity resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement with the
successor or purchasing entity in respect of such Business Combination, or of
the action of the Board, providing for such Business Combination; or
(D) Approval by the shareholders of the
Company of a complete liquidation or dissolution of the Company.
6. Severance. (a) If, during the Employment Term,
(1) the Executive terminates his employment with the
Company for Good Reason;
(2) the Executive's employment is terminated by the
Company without Cause;
(3) the Executive's employment is terminated for any
reason by the Company or the Executive within two years following a Change in
Control; or
(4) the Executive's employment is terminated in a
Pre-Change in Control Termination;
then, the Company shall have no liability or further obligation to the Executive
except as follows: the Executive shall be entitled to receive (i) within 30 days
of such termination of employment, any earned but unpaid Base Salary for the
period prior to termination and any earned but unpaid bonuses for prior periods
which have ended at the time of such termination ("Entitlements"); (ii) at the
time provided in such plan, any rights to which he is entitled in accordance
with plan provisions under any employee benefit plan, program or arrangement,
fringe benefit or incentive plan ("Rights"); (iii) within 30 days of such
termination of employment, severance pay (the "Severance Pay") in the amount of
three (3) times the sum of the Executive's Base Salary at termination and his
regular target bonus assuming achievement of 100% of target under Company's
executive bonus plan in effect for the fiscal year in which his termination
occurs; and (iv) all long-term incentive awards to which the Executive is
entitled, including but not limited to restricted stock subject to the [AS
APPLICABLE: Lexington Corporate Properties Trust Executive Deferred Compensation
Agreement- Option Replacement Shares- among the Company, the Executive and the
2003 Lexington Rabbi Trust- Option Replacement Shares-, OR Lexington Corporate
Properties Trust Nonvested Share Agreement (Option Replacement Shares) among the
Company and the Executive ] effective January 31, 2003 and [AS APPLICABLE: the
Lexington Corporate Properties Trust Executive Deferred Compensation
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Agreement- Loan Replacement Shares- among the Company, the Executive and the
2003 Lexington Rabbi Trust- Loan Replacement Shares- OR the Lexington Corporate
Properties Trust Nonvested Share Agreement (Loan Replacement Shares) among the
Company and the Executive] effective as of January 31, 2003, and stock options,
shall vest. Additionally, medical, dental, disability, life insurance and other
employee welfare benefits (the "Welfare Plans") then provided to senior
executives of the Company shall be continued following the date of termination
for a period of three (3) years and, if the Executive is precluded from
participating in any Welfare Plan by its terms or applicable law during such
period, the Company shall pay to the Executive in cash the premiums or other
contributions that the Company would otherwise pay as of the date of the
Executive's termination, or date of payment if later, to continue the
Executive's participation in the Welfare Plans for three years. Except in the
case of a termination within two years following a Change in Control or a
Pre-Change in Control Termination, as a condition of receiving the Severance Pay
under Section 6(a)(iii) and the vesting of awards under Section 6(a)(iv), the
Executive agrees to execute a release releasing the Company and its affiliates
from any and all obligations and liabilities to the Executive arising from or in
connection with the Executive's employment or termination of employment with the
Company and its affiliates and any disagreements with respect to such
employment, except that such release shall not apply with respect to any rights
of the Executive to indemnification under the Company's Certificate of
Incorporation or By-Laws or to any rights of the Executive to indemnification or
directors' and officers' liability insurance coverage of the Company and its
affiliates.
(b) If during the Employment Term, the
Executive's employment is terminated on account of death or Disability, the
Company shall have no liability or further obligation to the Executive except as
follows: the Executive (and his estate or designated beneficiaries under any
Company-sponsored employee benefit plan in the event of his death) shall be
entitled to receive (i) any Entitlements within 30 days of such termination of
employment or, if later, the date such Entitlement would otherwise be paid to
active employees of the Company, and any Rights at the time provided in the
relevant plans; (ii) at the time such bonuses or payments would otherwise have
been paid, a pro rata portion of the bonuses he would have received under the
Company's executive bonus plan in effect at the time of his termination had he
remained employed by the Company for the full fiscal year in which his
termination occurs, equal to the ratio of the number of days of his employment
by the Company during such fiscal year to 365, and a pro rata portion of any
payment he would have received under any performance-based restricted stock
program of the Company had he remained employed by the Company for the full
performance period or periods in which his termination occurs, equal to the
ratio of the number of days of his employment by the Company during such period
to the full number of days in such period (such amounts to be referred to herein
as the "Pro Rata Bonus and Incentive Payments"); (iii) within 30 days of such
termination of employment, Severance Pay in the amount of one (1) times the
Executive's Base Salary at termination; and (iv) (x) in the case of death, all
long-term incentive awards to which the Executive is entitled, including but not
limited to restricted stock subject to the [AS APPLICABLE: Lexington Corporate
Properties Trust Executive Deferred Compensation Agreement- Option Replacement
Shares- among the Company, the Executive and the 2003 Lexington Rabbi Trust-
Option Replacement Shares-, OR Lexington Corporate Properties Trust Nonvested
Share Agreement (Option Replacement Shares) among the Company and the Executive
] effective January 31, 2003 and [AS APPLICABLE: the Lexington Corporate
Properties Trust Executive Deferred Compensation Agreement- Loan Replacement
Shares- among the Company, the Executive and the 2003 Lexington Rabbi Trust-
Loan
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Replacement Shares- OR the Lexington Corporate Properties Trust Nonvested
Share Agreement (Loan Replacement Shares) among the Company and the Executive]
effective as of January 31, 2003, and stock options, shall vest, or (y) in the
case of Disability, any bonuses attributable to the fiscal year prior to the
fiscal year in which the Executive's employment is terminated which is paid in
Company stock shall be fully vested to the extent not vested at the date of the
Executive's termination. Additionally, the group health plan then provided to
senior executives of the Company shall be continued following the date of
termination for a period of two (2) years and, during such period, if the
Executive is precluded from participating in such group health plan by its terms
or applicable law, the Company shall pay to the Executive in cash the premiums
or other contributions that the Company would otherwise pay as of the date of
the Executive's termination to continue the Executive's participation in the
group health plan for two years. Notwithstanding the foregoing, the continuation
period for group health benefits under Section 4980B of the Code by reason of
the Executive's termination of employment with the Company shall be measured
from his actual date of termination of employment. As a condition of receiving
the Severance Pay under Section 6(b)(iii) and the bonus payments under Section
6(b)(ii) and (iv), the Executive, or the representative of his estate if he has
died, agrees to execute a release releasing the Company and its affiliates from
any and all obligations and liabilities to the Executive arising from or in
connection with the Executive's employment or termination of employment with the
Company and its affiliates and any disagreements with respect to such
employment, except that such release shall not apply with respect to any rights
of the Executive to indemnification under the Company's Certificate of
Incorporation or By-Laws or to any rights of the Executive to indemnification or
directors' and officers' liability insurance coverage of the Company and its
affiliates.
(c) If during the Employment Term, the
Executive's employment is terminated by the Company for Cause or by the
Executive without Good Reason and Section 6(a) (with respect to a Change in
Control) does not apply, the Company shall have no liability or further
obligation to the Executive except as follows: the Executive shall be entitled
to receive any Entitlements within 30 days of such termination of employment or,
if later, the date such Entitlement would otherwise be paid to active employees
of the Company, and any Rights at the time provided in the relevant plans.
(d) The payments made pursuant to this Section 6
shall be excluded from all pension and benefit calculations under the employee
benefit plans of the Company and its affiliates, except as otherwise provided in
the applicable employee benefit plan.
7. Covenants of the Executive. (a) During the Employment
Term and for a period of two (2) years thereafter, (i) the Executive shall not,
within any jurisdiction or marketing area in which the Company or any of its
affiliates is doing business, directly or indirectly, own, manage, operate,
control, consult with, be employed by or participate in the ownership,
management, operation or control of any business of the type and character
engaged in or competitive with that conducted by the Company or any of its
affiliates; (ii) the Executive shall not, directly or indirectly, employ,
solicit for employment or otherwise contract for the services of any employee of
the Company or any of its affiliates at the time of this Agreement or who shall
subsequently become an employee of the Company or any such affiliate; provided,
however, this subparagraph (ii) shall not apply to the Executive's personal
secretary at the time of termination; and (iii) the Executive will not solicit,
in competition with the Company or its
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affiliates, any person who is, or was at any time within the twelve months prior
to his termination of employment, a customer of the business conducted by the
Company or any of its affiliates. For purposes of determining whether to
permanently withhold, or recover, payments from the Executive pursuant to
Section 7(d) hereof, the Board shall determine what constitutes a competing
business; provided that (x) the scope of businesses and the jurisdictions and
marketing areas within which the Executive has agreed not to compete pursuant to
clause (a)(i) of this Section 7 shall, for any challenged activity of the
Executive, be determined as of the date of any such activity and (y) the
Executive's ownership of securities of two percent (2%) or less of any publicly
traded class of securities of a public company shall not be considered to be
competition with the Company or any of its affiliates. Notwithstanding the
foregoing, the provisions of this Section 7(a) shall not apply following the
Executive's termination if the Executive is terminated without Cause or for Good
Reason.
(b) For the Employment Term and thereafter, (i)
the Executive will not divulge, transmit or otherwise disclose (except as
legally compelled by court order, and then only to the extent required, after
prompt notice to the Company of any such order), directly or indirectly, other
than in the regular and proper course of business of the Company, any
confidential knowledge or information with respect to the operations, finances,
organization or employees of the Company or with respect to confidential or
secret processes, services, techniques, customers or plans with respect to the
Company; and (ii) the Executive will not use, directly or indirectly, any
confidential information for the benefit of anyone other than the Company;
provided, however, that the Executive has no obligation, express or implied, to
refrain from using or disclosing to others any such knowledge or information
which is or hereafter shall become available to the public other than through
disclosure by the Executive. All new processes, techniques, know-how,
inventions, plans, products, patents and devices developed, made or invented by
the Executive, alone or with others, while an employee of the Company which are
related to the business of the Company shall be and become the sole property of
the Company, unless released in writing by the Company, and the Executive hereby
assigns any and all rights therein or thereto to the Company.
(c) All files, records, correspondence,
memoranda, notes or other documents (including, without limitation, those in
computer-readable form) or property relating or belonging to the Company or its
affiliates, whether prepared by the Executive or otherwise coming into his
possession in the course of the performance of his services under this
Agreement, shall be the exclusive property of Company and shall be delivered to
Company and not retained by the Executive (including, without limitations, any
copies thereof) upon termination of this Agreement for any reason whatsoever.
(d) The Executive acknowledges that a breach of
his covenants contained in this Section 7 may cause irreparable damage to the
Company and its affiliates, the exact amount of which will be difficult to
ascertain, that the remedies at law for any such breach will be inadequate and
that the amounts payable to the Executive pursuant to the provisions of Section
6(a)(iii), (iv) and (v) and /or 6(b)(ii), (iii) and (iv) hereunder are
additional consideration for the covenants contained in this Section 7.
Accordingly, the Executive agrees that if he breaches any of the covenants
contained in this Section 7, in addition to any other remedy which may be
available at law or in equity, the Company shall be entitled to specific
performance and injunctive relief. In addition, the breach of any of the
covenants contained in this Section 7 shall
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entitle the Company to permanently withhold, and to recover from the Executive
any amounts paid to the Executive pursuant to the provisions of Section
6(a)(iii), (iv) and (v) and /or 6(b)(ii), (iii) and (iv) of this Agreement. The
Company shall provide the Executive with at least five days prior written notice
before withholding of any payment provided for in the immediately preceding
sentence.
(e) The Company and the Executive further
acknowledge that the time, scope, geographic area and other provisions of this
Section 7 have been specifically negotiated by sophisticated commercial parties
and agree that all such provisions are reasonable under the circumstances of the
activities contemplated by this Agreement. In the event that the agreements in
this Section 7 shall be determined by any court of competent jurisdiction to be
unenforceable by reason of their extending for too great a period of time or
over too great a geographical area or by reason of their being too extensive in
any other respect, they shall be interpreted to extend only over the maximum
period of time for which they may be enforceable and/or over the maximum
geographical area as to which they may be enforceable and/or to the maximum
extent in all other respects as to which they may be enforceable, all as
determined by such court in such action.
(f) The Executive agrees to cooperate with the
Company, during the Term of Employment and thereafter (including following the
Executive's termination of employment for any reason), by making himself
reasonably available to testify on behalf of the Company or any of its
affiliates in any action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, and to assist the Company, or any affiliate,
in any such action, suit, or proceeding, by providing information and meeting
and consulting with the Company's Board or its representatives or counsel, or
representatives or counsel to the Company, or any affiliate as reasonably
requested; provided, however that the same does not materially interfere with
his then current professional activities or important personal activities and is
not contrary to the best interests of the Executive. The Company agrees to
reimburse the Executive, on an after-tax basis, for all expenses actually
incurred in connection with his provision of testimony or assistance, and, if
during the period following the Employment Term, the Company requests the
Executive's cooperation for a period of greater than 8 hours per month, the
Company agrees to reimburse the Executive at a rate of $250.00 per hour.
(g) The Executive agrees that, during the Term
of Employment and thereafter (including following the Executive's termination of
employment for any reason) he will not make statements or representations, or
otherwise communicate, directly or indirectly, in writing, orally, or otherwise,
or take any action which may, directly or indirectly, disparage the Company or
any of its affiliates or their respective officers, directors, employees,
advisors, businesses or reputations. The Company agrees that, during the
Employment Term, and thereafter, (including following the Executive's
termination of employment for any reason) it will not make statements or
representations, or otherwise communicate, directly or indirectly, in writing,
orally, or otherwise, or take any action which may, directly or indirectly,
disparage the Executive's reputation. Notwithstanding the foregoing, nothing in
this Agreement shall preclude the Executive or a representative of the Company
from making truthful statements or disclosures that are required by applicable
law, regulation or legal process.
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8. Special Tax Provision. (a) In the event it shall be
determined that any amount or benefit paid with respect to the Executive,
(whether pursuant to the terms of this Agreement or any other plan, arrangement
or agreement with the Company, any person whose actions result in a change of
ownership covered by Section 280G(b)(2) of the Internal Revenue Code of 1986, as
amended (the "Code") or any person affiliated with the Company or such person),
as a result of any change in ownership of the Company covered by Code Section
280G(b)(2) (collectively, the "Covered Payments") is subject to the excise tax
imposed by Section 4999 of the Code and/or any interest or penalties with
respect to such excise tax (such excise tax is hereinafter referred to as the
"Excise Tax"), the Company shall pay to the Executive an additional payment (the
"Tax Reimbursement Payment") in an amount such that after payment by the
Executive of all taxes (including any Excise Tax) (including, without
limitation, income taxes) imposed upon the Tax Reimbursement Payment, the
Executive retains an amount of the Tax Reimbursement Payment equal to the Excise
Tax imposed upon the Covered Payments.
(b) For purposes of determining the amount of
the Tax Reimbursement Payment, the Executive shall be deemed to (i) pay Federal
income taxes at the highest applicable marginal rate of Federal income taxation
for the calendar year in which the Tax Reimbursement Payment is to be made and
(ii) pay any applicable state and local income taxes at the highest applicable
marginal rate of income taxation for the calendar year in which the Tax
Reimbursement Payment is to be made, net of the maximum reduction in Federal
income taxes which could be obtained from deduction of such state and local
taxes if paid in such year.
(c) (i) (A) All determinations under this
Section 8, including whether and when a Tax Reimbursement Payment is required
and the amount of such Tax Reimbursement Payment and the assumptions to be
utilized in arriving at such determination, shall be made by the Company's
outside legal counsel (based on calculations made by a benefits consulting firm
or by independent certified public accountants appointed by the Company) or by
independent certified public accountants appointed by the Company (collectively
the "Tax Advisor").
(B) In the event that the Tax Advisor
determines, for any reason whatsoever, the correct amount of the Tax
Reimbursement Payment to be less than the amount determined at the time the Tax
Reimbursement Payment was made, the Executive shall repay to the Company, within
thirty days after the time that the amount of such reduction in Tax
Reimbursement Payment is determined by the Tax Advisor, the portion of the prior
Tax Reimbursement Payment attributable to such reduction (including the portion
of the Tax Reimbursement Payment attributable to the Excise Tax and federal,
state and local income tax imposed on the portion of the Tax Reimbursement
Payment being repaid by the Executive, using the assumptions and methodology
utilized to calculate the Tax Reimbursement Payment (unless manifestly
erroneous)), plus interest on the amount of such repayment at the rate provided
in Section 6621(a)(1) of the Code.
(ii) In the event that the determination
set forth in (A) above is made by the Tax Advisor after the filing by the
Executive of any of his tax returns for the calendar year in which the change in
ownership event covered by Code Section 280G(b)(2) occurred but prior to the
date the statute of limitations has expired for refund claims, the
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Executive shall file at the request of the Company an amended tax return in
accordance with the Tax Advisor's determination, but no portion of the Tax
Reimbursement Payment shall be required to be refunded to the Company until
actual refund or credit of such portion has been made to the Executive, and
interest payable to the Company shall not exceed the interest received or
credited to the Executive by such tax authority for the period it held such
portion (less any tax the Executive must pay on such interest and which the
Executive is unable to deduct as a result of payment of the refund).
(iii) In the event that the Excise Tax is
later determined by the Tax Advisor or the Internal Revenue Service to exceed
the amount taken into account hereunder at the time the Tax Reimbursement
Payment is made (including by reason of any payment the existence or amount of
which cannot be determined at the time of the Tax Reimbursement Payment), the
Company shall make an additional Tax Reimbursement Payment in respect of such
excess (plus any interest or penalties payable with respect to such excess) once
the amount of such excess is finally determined.
(iv) In the event of any controversy
with the Internal Revenue Service (or other taxing authority) under this Section
8, the Executive shall promptly notify the Company of such controversy and
provide all documents provided by the Internal Revenue Service (or other taxing
authority) to the Executive within 10 days of receipt of such documents. The
Executive shall permit the Company to control issues related to this Section 8,
provided that such issues do not potentially materially adversely affect the
Executive; provided further, however, that the Company shall bear and pay
directly all costs and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify and hold the
Executive harmless, on an after-tax basis, for any Excise Tax or income tax
thereon, including interest and penalties, which is payable to the Executive
pursuant to the provisions of Section 8(a) hereof. In the event any issues do
potentially materially adversely affect the Executive, the Executive and the
Company shall in good faith cooperate so as not to jeopardize resolution of the
issues, but if the parties cannot agree the Company shall make the final
determination with regard to the issues; provided further, however, that the
Company shall bear and pay directly all costs and expenses (including additional
interest and penalties) incurred in connection with such contest and shall
indemnify and hold the Executive harmless, on an after-tax basis, for any Excise
Tax or income tax thereon, including interest and penalties, which is payable to
the Executive pursuant to the provisions of Section 8(a) hereof. In the event of
any conference with any taxing authority as to the Excise Tax or associated
income taxes, the Executive shall permit a representative of the Company to
accompany the Executive, and the Executive and his representative shall
cooperate with the Company and its representative.
(v) With regard to any initial filing
for a refund or any other action required pursuant to this Section 8 (other then
by mutual agreement) or, if not required, agreed to by the Company and the
Executive, the Executive shall cooperate fully with the Company.
(d) The Company shall use its best efforts to
cause the Tax Advisor to promptly deliver the initial determination required
hereunder within forty-five (45) days after the change in ownership covered by
Section 280G(b)(2) of the Code. The Tax Reimbursement Payment, or any portion
thereof, payable by the Company shall be paid not later than the thirtieth
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(30th) day following the determination by the Tax Advisor or as soon as
practicable thereafter. The amount of such payment shall be subject to later
adjustment in accordance with the determination of the Tax Advisor as provided
herein.
(e) The Company shall be responsible for all
charges of the Tax Advisor.
(f) The Executive and the Company shall mutually
agree on and promulgate further guidelines in accordance with this Section 8 to
the extent, if any, necessary to effect the reversal of excessive, or a
shortfall in, Tax Reimbursement Payments.
(g) The payments made pursuant to Section 8
hereof shall be excluded from all pension and benefit calculations under the
employee benefit plans of the Company and its affiliates.
9. Notices. Any notices required or permitted hereunder
shall be in writing and shall be deemed to have been given when personally
delivered or when mailed, certified or registered mail, postage prepaid, to the
following addresses:
If to the Executive:
If to the Company:
Lexington Corporate Properties Trust
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
10. General.
(a) Governing Law. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of New York applicable to contracts executed and to be performed
entirely within said State.
(b) Construction and Severability. If any
provision of this Agreement shall be held invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired, and
the parties undertake to implement all efforts which are necessary, desirable
and sufficient to amend, supplement or substitute all and any such invalid,
illegal or unenforceable provisions with enforceable and valid provisions which
would produce as nearly as may be possible the result previously intended by the
parties without renegotiation of any material terms and conditions stipulated
herein.
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(c) Assignability. The Executive may not assign
his interest in or delegate his duties under this Agreement. This Agreement is
for the employment of the Executive, personally, and the services to be rendered
by him under this Agreement must be rendered by him and no other person. The
Executive represents and warrants to the Company that the Executive has no
contracts or agreements of any nature that the Executive has entered into with
any other person, firm or corporation that contain any restraints on the
Executive's ability to perform his obligations under this Agreement. This
Agreement shall be binding upon and inure to the benefit of the Company and its
successors and assigns. Notwithstanding anything else in this Agreement to the
contrary, the Company will assign this Agreement to and all rights hereunder
shall inure to the benefit of any person, firm or corporation resulting from the
reorganization of the Company or succeeding to the business or assets of the
Company by purchase, merger or consolidation.
(d) Enforcement Costs. If any contest or dispute
shall arise under this Agreement involving the termination of the Executive's
employment with the Company and its affiliates or involving the failure or
refusal of the Company to perform fully in accordance with the terms hereof, the
Company shall advance the Executive or pay directly on his behalf, all
reasonable legal fees and expenses, if any, incurred or, in the case of fees and
expenses for which payment is required before the services are rendered, to be
incurred within the next 30 days, by the Executive in connection with such
contest or dispute upon presentation of an itemized xxxx to the Company
regarding any such fees and expenses along with proof reasonably satisfactory to
the Company that such expenses have been incurred or will be incurred within the
next 30 days by the Executive; provided, however, that in the event the
resolution of any such contest or dispute includes a finding that the
Executive's claims in such contest or dispute are frivolous or brought in bad
faith, the Executive shall be required to reimburse the Company, for all sums
advanced to the Executive pursuant to this Section 10(d) in connection with such
contest or dispute, together with interest in an amount equal to the prime rate
published by The Chase Manhattan Bank, N.A. in the Wall Street Journal from time
to time in effect, but in no event higher than the maximum legal rate
permissible under applicable law, such interest to accrue from the date the
Company makes payment to the Executive hereunder through the date of the
Executive's repayment thereof.
(e) Compliance with Rules and Policies. The
Executive shall perform all services in all material respects in accordance with
the applicable policies, procedures and rules established by the Company,
including, but not limited to, the By-Laws of the Company. In addition, the
Executive, where applicable, shall comply in all material respects with all
laws, rules and regulations that are generally applicable to the Company, its
affiliates and their employees, directors and officers.
(f) Withholding. The Company shall withhold from
all amounts due hereunder any applicable withholding taxes payable to federal,
state, local or foreign taxing authorities.
(g) Entire Agreement; Modification. This
Agreement constitutes the entire agreement of the parties hereto with respect to
the subject matter hereof, supersedes all prior agreements and undertakings,
both written and oral, including, but not limited to the Employment Agreement
dated September 20, 1999 between the Company and the Executive.
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(h) Duration. Notwithstanding the Employment
Term hereunder, the applicable sections of this Agreement shall continue for so
long as any obligations remain under this Agreement.
(i) Survival. The covenants set forth in Section
7 of this Agreement shall survive and shall continue to be binding upon the
Executive notwithstanding the termination of this Agreement for any reason
whatsoever. It is expressly agreed that the remedy at law for the breach or
threatened breach of any such covenant is inadequate and that the Company, in
addition to any other remedies that may be available to it, in law or in equity,
shall be entitled to injunctive relief to prevent the breach or any threatened
breach thereof without bond or other security or a showing that monetary damages
will not provide an adequate remedy.
(j) Waiver. No waiver by either party hereto of
any of the requirements imposed by this Agreement on, or any breach of any
condition or provision of this Agreement to be performed by, the other party
shall be deemed a waiver of a similar or dissimilar requirement, provision or
condition of this Agreement at the same or any prior or subsequent time. Any
such waiver shall be express and in writing, and there shall be no waiver by
conduct.
(k) Counterparts. This Agreement may be executed
in two or more counterparts, all of which taken together shall constitute one
instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound, have hereunto executed this Agreement effective as of the day and
year first written above.
Date: April 1, 2003 LEXINGTON CORPORATE PROPERTIES TRUST
/s/ X. Xxxxxx Eglin
-------------------------------
Name: X. Xxxxxx Eglin
Title: Chief Executive Officer
EXECUTIVE
Date: Aril 1, 2004 /s/ E. Xxxxxx Xxxxxxx
-------------------------------
E. Xxxxxx Xxxxxxx
Similar agreements have been entered into with the following officers:
X. Xxxxxx Xxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx Xxxxxxx
Xxxx X. Xxxxxx Zwaag
Xxxxxxx X. Xxxxxxxxx
Xxxx X. Xxxx
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