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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
AGREEMENT ("Agreement"), dated as of September 14, 2000, by and
between New Plan Excel Realty Trust, Inc., a Maryland corporation (the
"Company") and Xxxxxxx Xxxxxxxx ("Executive").
RECITAL
The Company desires to employ Executive on the terms and conditions
set forth in this Agreement, and Executive desires to be so employed.
AGREEMENT
IN CONSIDERATION of the premises and the mutual covenants set forth
below, the parties hereby agree as follows:
1. Employment. The Company hereby agrees to employ Executive
and Executive hereby accepts such employment, on the terms and conditions
hereinafter set forth.
2. Term. The period of employment of Executive by the Company
hereunder (the "Employment Period") shall commence on the date Executive
commences full time employment with the Company (the "Effective Date") (but in
no event later than October 1, 2000) and shall continue through the third
anniversary of the Effective Date. Thereafter, the Employment Period shall
automatically be extended for one (1) additional year unless either party shall
provide notice of nonrenewal not less than six (6) months prior to the date on
which such extension would be effective. The Employment Period may be sooner
terminated by either party in accordance with Section 6 of this Agreement. At
the time Executive ceases to be a full-time employee of the Company, the
Executive agrees that he shall resign from any positions Executive holds as a
director, trustee or officer of the Company and its subsidiaries and any entity
in control of, controlled by or under common control with the Company or in
which the Company owns any common or preferred stock or interest or any entity
in control of, controlled by or under common control with such entity
("Affiliate") and as a member of any committee of the board of directors and the
board of trustees of the Company and its subsidiaries and Affiliates of which he
is a member.
3. Position and Duties.
(a) Executive Vice President. At all times during
the Employment Period, Executive shall serve as an Executive Vice President of
the Company. Executive shall have those powers and duties normally associated
with the position of an Executive Vice President and such other powers and
duties as may be properly prescribed by the Chief Executive Officer of the
Company, provided that such other powers and duties are consistent with
Executive's position as an Executive Vice President. Except as specifically set
forth in this section, Executive shall
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perform full-time services for the Company and devote such time, attention and
energies to Company affairs as are necessary to fully perform his duties (other
than absences due to illness or vacation) for the Company. Notwithstanding the
above, Executive shall be permitted, to the extent such activities do not
materially and adversely affect the ability of Executive to fully perform his
duties and responsibilities hereunder, to (i) manage Executive's personal,
financial and legal affairs and (ii) serve on civic or charitable boards or
committees.
4. Place of Performance. The principal place of employment of
Executive shall be at the Company's corporate offices in New York, New York.
5. Compensation and Related Matters.
(a) Salary. During the Employment Period, the Company
shall pay Executive an annual base salary of $250,000 ("Base Salary").
Executive's Base Salary shall be paid in approximately equal installments in
accordance with the Company's customary payroll practices. If Executive's Base
Salary is increased by the Company, such increased Base Salary shall then
constitute the Base Salary for all purposes of this Agreement.
(b) Bonus. The executive compensation and stock option
committee (the "Compensation Committee") of the Board of Directors of the
Company (the "Board") shall review Executive's performance at least annually
during each year of the Employment Period and cause the Company to award
Executive a cash bonus which the Compensation Committee shall reasonably
determine as fairly compensating and rewarding Executive for services rendered
to the Company and/or as an incentive for continued service to the Company, but
in no event shall Executive's bonus for the 2000 calendar year be less than
$100,000 (the "First Year Bonus") (calculated on a prorated basis based on the
number of days in calendar year 2000 from and after the Effective Date). The
amount of Executive's cash bonus shall be determined in the discretion of the
Compensation Committee and shall be dependent upon, among other things, the
achievement of certain performance levels by the Company, including, without
limitation, growth in funds from operations, and Executive's performance and
contribution to increasing the funds from operations. Notwithstanding anything
contained herein to the contrary, except with respect to the First Year Bonus,
there shall be no guarantee as to the amount of Executive's yearly bonus and a
decrease in Executive's bonus to an amount less than the First Year Bonus shall
not constitute a breach or violation of this Agreement by the Company or
constitute a Good Reason Event.
(c) Expenses. The Company shall promptly reimburse
Executive for all reasonable business expenses upon the presentation of
reasonably itemized statements of such expenses in accordance with the Company's
policies and procedures now in force or as such policies and procedures may be
modified with respect to all senior executive officers of the Company.
(d) Vacation. Executive shall be entitled to the
number of weeks of vacation per year provided to the Company's senior executive
officers, but in no event less than four (4) weeks annually.
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(e) Welfare, Pension and Incentive Benefit Plans.
During the Employment Period, Executive (and his spouse and dependents to the
extent provided therein) shall be entitled to participate in and be covered
under all the welfare benefit plans or programs maintained by the Company from
time to time on terms no less favorable than provided for any of its full time
senior executives (other than the Chief Executive Officer) including, without
limitation, all medical, hospitalization, dental, disability, accidental death
and dismemberment and travel accident insurance plans and programs. In addition,
during the Employment Period, Executive shall be eligible to participate in and
be covered under all pension, retirement, savings and other employee benefit,
perquisite, change in control and executive compensation plans and any annual
incentive or long-term performance plans and programs maintained from time to
time by the Company on terms no less favorable than provided for any of its full
time senior executives (other than the Chief Executive Officer).
(f) Automobile. During the Employment Period, the
Company shall provide Executive with an automobile allowance in the amount of
$600 per month or, in lieu thereof, at the Company's election, the Company shall
purchase and allow Executive the use of a Company automobile of a quality and
nature similar to other senior executives of the Company (other than the Chief
Executive Officer).
(g) Option. Executive shall be granted on the
Effective Date options ("Option") to purchase seventy five thousand (75,000)
shares of common stock of the Company ("Shares"). Such Option shall be granted
by the Compensation Committee pursuant to the 1993 Stock Option Plan of New Plan
Excel Realty Trust, Inc., as amended ("Stock Option Plan"). The Option shall be
an incentive stock option to the extent permissible under the limitations
applicable to incentive stock options under the Stock Option Plan and under
applicable law. The Option shall have an exercise price per Share equal to the
fair market value (as defined in the Stock Option Plan) of a Share underlying an
option granted on the Effective Date, i.e., the closing price on the last
trading day preceding the Effective Date (the "Effective Date Market Price").
(i) Of the Option, options to purchase fifty four thousand
(54,000) Shares ("Time Vested Options") shall become vested
at the rate of ten thousand eight hundred (10,800) Shares
on each anniversary of the Effective Date. Notwithstanding
the foregoing, Time Vested Options shall become vested if
the Executive's employment is terminated (x) during the
Employment Period but after the first anniversary of the
Effective Date by the Company without "Cause" (as herein
defined) or by the Executive for "Good Reason" (as herein
defined) or (y) after the Employment Period if Executive's
termination after the expiration of the Employment Period
would have accelerated the vesting of the Time Vested
Options if such employment was terminated during the
Employment Period, as provided, in (x) above. In addition,
if the Executive dies or the Executive's employment is
terminated because of Disability during the Employment
Period, 50% of the Time Vested Options which were not
vested immediately prior to his death or Disability shall
become vested on the date of his death or Disability.
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Subject to the provisions of the Stock Option Plan, the Time Vested Options
shall have a maximum term of ten years from the Effective Date but no additional
vesting of Time Vested Options shall occur after termination of Executive's
employment (subject however to acceleration of said Time Vested Options as
otherwise specifically provided in this Agreement) and the Time Vested Options
shall terminate earlier [1] on the ninetieth (90th) day after Executive is no
longer employed by the Company on a full-time basis for any reason other than
death or Disability, or [2] on the first anniversary of the Executive's
termination of employment by reason of death or Disability.
(ii) Of the Option, options to purchase twenty-one thousand (21,000) Shares
("Performance Vested Options") shall vest on the eighth anniversary of the
Effective Date provided Executive is a full-time employee of the Company at such
time or may vest earlier on the basis of performance as herein described.
[1] Performance Vested Options for ten thousand five
hundred (10,500) Shares shall vest on the fourth anniversary of the
Effective Date if the annualized return on investment on a Share from
the Effective Date through the fourth anniversary of the Effective
Date (determined in good faith by the Compensation Committee based
upon dividends paid and appreciation in Share price during such
period) ("Cumulative Four Year ROI") is at least 16%. If Cumulative
Four Year ROI is not greater than 14%, no Performance Vested Options
shall vest on the fourth anniversary of the Effective Date. To the
extent Cumulative Four Year ROI is greater than 14% but not at least
16%, Performance Vested Options for fifty two and one-half (52.5)
Shares shall become vested on the fourth anniversary of the Effective
Date for each .01% by which Cumulative Four Year ROI exceeds 14%.
[2] All Performance Vested Options which have not
previously vested shall vest on the fifth anniversary of the
Effective Date if the annualized return on investment of a Share from
the Effective Date through the fifth anniversary of the Effective
Date (determined in good faith by the Compensation Committee based
upon dividends paid and appreciation in Share price during such
period) ("Cumulative Five Year ROI") is at least 16%. If Cumulative
Five Year ROI is not greater than 14%, no additional Performance
Vested Options shall vest on the fifth anniversary of the Effective
Date. To the extent Cumulative Five Year ROI is greater than 14% but
not at least 16%, for each .01% by which Cumulative Five Year ROI
exceeds 14%, additional Performance Vested Options shall become
vested for a number of Shares equal to the quotient of (A) the
difference between twenty-one thousand (21,000) and the number of
Performance Vested Options which became vested on the fourth
anniversary of the Effective Date and (B) two hundred (200).
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[3] Notwithstanding the foregoing, Performance
Vested Options shall become vested if the Executive's employment with
the Company is terminated by the Company (x) during the Employment
Period but after the first anniversary of the Effective Date by the
Company without "Cause" (as herein defined) or by the Executive for
"Good Reason" (as herein defined) or (y) after the Employment Period
if Executive's termination after the expiration of the Employment
Period would have accelerated the vesting of the Performance Vested
Options if such employment was terminated during the Employment
Period, as provided in (x) above. If the Executive dies or the
Executive's employment is terminated because of Disability during the
Employment Period prior to the fourth anniversary of the Effective
Date, Performance Vested Options for ten thousand five hundred
(10,500) Shares shall vest if the cumulative return on investment
from the Effective Date through the date of death or termination of
Executive's employment because of Disability is at least 16% or
Performance Vested Options for fifty-two and one half (52.5) Shares
for each .01% by which the cumulative return on investment from the
Effective Date through the date of death or Disability exceeds 14%
(up to 16%) shall vest (such determinations to be made in a manner
consistent with the Cumulative Four Year ROI calculations). Subject
to the provisions of the Stock Option Plan, the Performance Vested
Options shall have a maximum term of ten years but no additional
vesting of Performance Vested Options shall occur after termination
of Executive's employment (subject however to acceleration of said
Time Vested Options as otherwise specifically provided in this
Agreement) and the Performance Vested Options shall terminate earlier
[A] on the ninetieth (90th) day after Executive is no longer employed
by the Company as a full-time employee for any reason other than
death or Disability, or [B] on the first anniversary of the
Executive's termination of employment by reason of death or
Disability.
(i) No Hedging. During the Employment Period, Executive will not in any
way attempt to limit the financial risk with respect to the Options which are
not vested by means of any hedging (including without limitation, selling short)
or other techniques.
6. Termination. Executive's employment hereunder may be terminated during the
Employment Period under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate upon his
death.
(b) Disability. If, as a result of Executive's incapacity due to
physical or mental illness, Executive shall have been substantially unable to
perform his duties hereunder for an entire period of one hundred twenty (120)
days, and within thirty (30) days after written Notice of Termination (as
defined in Section 7(a)) is given after such one hundred twenty (120) day
period, Executive shall not have returned to the substantial performance of his
duties on a
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full-time basis, the Company shall have the right to terminate Executive's
employment hereunder for "Disability", and such termination in and of itself
shall not be, nor shall it be deemed to be, a breach of this Agreement. For
purposes of this Agreement, the Disability of Executive shall be determined by
an independent physician mutually selected by the Company and Executive.
(c) Cause. The Company shall have the right to terminate Executive's
employment for Cause, and such termination in and of itself shall not be, nor
shall it be deemed to be, a breach of this Agreement. For purposes of this
Agreement, the Company shall have "Cause" to terminate Executive's employment
upon Executive's:
(i) conviction of, or plea of guilty or nolo contendere
to, a felony; or
(ii) willful and continued failure to use reasonable best efforts
to substantially perform his duties hereunder (other than such failure
resulting from Executive's incapacity due to physical or mental illness or
subsequent to the issuance of a Notice of Termination by Executive for Good
Reason (as defined in Section 6(d)) after demand for substantial
performance is delivered by the Company in writing that specifically
identifies the manner in which the Company believes Executive has not used
reasonable best efforts to substantially perform his duties; or
(iii) willful misconduct (including, but not limited to, a willful
breach of the provisions of Section 10) that is materially economically
injurious to the Company or to any Affiliate.
For purposes of this Section 6(c), no act, or failure to act, by
Executive shall be considered "willful" unless committed in bad faith and
without a reasonable belief that the act or omission was in the best interests
of the Company or any Affiliates thereof; provided, however, that the willful
requirement outlined in paragraphs (ii) or (iii) above shall be deemed to have
occurred if the Executive's action or non-action continues for more than ten
(10) days after Executive has received written notice of the inappropriate
action or non-action. Failure to achieve performance goals, in and of itself,
shall in no event be grounds for a termination for Cause hereunder. Cause shall
not exist under paragraph (ii) or (iii) above unless and until the Company has
delivered to Executive a copy of a resolution duly adopted by a majority of the
Board (excluding Executive for purposes of determining such majority) at a
meeting of the Board called and held for such purpose (after reasonable (but in
no event less than thirty (30) days) notice to Executive and an opportunity for
Executive, together with his counsel, to be heard before the Board), finding
that in the good faith opinion of the Board, Executive was guilty of the conduct
set forth in paragraph (ii) or (iii) and specifying the particulars thereof in
detail. This Section 6(c) shall not prevent Executive from challenging in any
court of competent jurisdiction the Board's determination that Cause exists or
that Executive has failed to cure any act (or failure to act) that purportedly
formed the basis for the Board's determination.
(d) Good Reason. Executive may terminate his employment for "Good
Reason" upon the occurrence, without the written consent of Executive, of one of
the following
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events (a "Good Reason Event"); provided, however, that the Company shall have
the right to challenge in any court of competent jurisdiction the Executive's
determination that he has the right to terminate his employment for "Good
Reason.":
(i) the assignment to Executive of duties materially
and adversely inconsistent with Executive's status as an Executive
Vice President of the Company or a material and adverse alteration in
the nature of Executive's duties and/or responsibilities, reporting
obligations, titles or authority as an Executive Vice President;
(ii) a reduction by the Company in Executive's Base
Salary or a failure by the Company to pay any such amounts when due;
(iii) the relocation of the Company's executive offices
or Executive's own office location to a location that is more than
fifty (50) miles from New York, New York;
(iv) any purported termination of Executive's employment
for Cause which is not effected substantially in accordance with the
procedures of Section 6(c) (and for purposes of this Agreement, no
such purported termination shall be effective);
(v) the failure to grant the Option as provided in
Section 5(g) of this Agreement or the Company's failure to pay or
provide in any material respect any employee benefits due to be
provided to Executive under this Agreement;
(vi) the Company's failure to provide in all material
respects the indemnification set forth in Section 11 of this
Agreement, or to require any successor to assume and agree to perform
this Agreement as set forth in Section 13 of this Agreement; or
(vii) a Change in Control (as defined below) of the
Company.
In order for the Executive to terminate his employment hereunder for
Good Reason, the Executive shall be required to give the Company written notice
(the "Cure Notice") of the alleged Good Reason Event within thirty (30) days
following the date on which the Executive obtains actual knowledge of the
occurrence of such Good Reason Event, which Cure Notice shall indicate the
specific termination provision in this Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances claimed to constitute such Good
Reason Event. In the event that the Company fails to cure such alleged Good
Reason Event within thirty (30) days (the "Cure Period") following the date on
which the Executive delivered the Cure Notice to the Company, then Executive
shall have a period of thirty (30) days from the expiration of the Cure Period
to deliver a Notice of Termination pursuant to Section 7(a) hereof.
Notwithstanding anything to the contrary contained in this Agreement, in the
event that the Executive fails to deliver the Cure Notice or the Notice of
Termination within the required time
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periods set forth above (time being of the essence with respect thereto), then
Executive shall thereafter waive any rights to terminate this Agreement with
respect to the facts and circumstances giving rise to such Good Reason Event.
Executive's right to terminate his employment hereunder for Good
Reason shall not be affected by his incapacity due to physical or mental
illness. Executive's continued employment during the Cure Period shall not
constitute consent to, or a waiver of rights with respect to, any act or failure
to act constituting Good Reason hereunder.
If Executive terminates employment hereunder for Good Reason and is
reemployed by the Company or any successor within six months of such termination
of employment, Executive's termination of employment shall retroactively not be
considered a termination for Good Reason and Executive shall have no entitlement
to any payments or benefits pursuant to Section 8(a) (including without
limitation, Section 8(a)(v)). To the extent Executive has already received
payments or benefits pursuant to Section 8(a) (including without limitation,
Section 8(a)(v)), Executive shall repay to the Company such payments or benefits
or make other equitable restitution to the Company, as the Board shall
determine.
For purposes of this Agreement, a "Change in Control" of the Company
means the occurrence of one of the following events:
(1) individuals who, on the Effective Date,
constitute the Board (the "Incumbent Directors") cease for
any reason to constitute at least a majority of the Board,
provided that any person becoming a director subsequent to
the Effective Date whose election or nomination for
election was approved by a vote of a majority of the
Incumbent Directors then on the Board (either by a
specific vote or by approval of the proxy statement of the
Company in which such person is named as a nominee for
director, without objection to such nomination) shall be
an Incumbent Director; provided, however, that no
individual initially elected or nominated as a director of
the Company as a result of an actual or threatened
election contest with respect to directors or as a result
of any other actual or threatened solicitation of proxies
by or on behalf of any person other than the Board shall
be an Incumbent Director;
(2) any "person" (as such term is defined in
Section 3(a)(9) of the Securities Exchange Act of 1934
(the "Exchange Act") and as used in Sections 13(d)(3) and
14(d)(2) of the Exchange Act) is or becomes, after the
Effective Date, a "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 30% or more of the
combined voting power of the Company's then outstanding
securities eligible to vote for the election of the Board
(the "Company Voting Securities"); provided, however, that
an event described in this paragraph (2) shall not be
deemed to be a Change in Control if any of following
becomes such a beneficial owner: (A) the Company or any
majority-owned entity (provided, that this exclusion
applies solely to the ownership levels of the Company or
the majority-owned entity), (B)
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any tax-qualified, broad-based employee benefit plan
sponsored or maintained by the Company or any
majority-owned entity, (C) any underwriter temporarily
holding securities pursuant to an offering of such
securities, (D) any person pursuant to a Non-Qualifying
Transaction (as defined in paragraph (3)), or (E)
Executive or any group of persons including Executive (or
any entity controlled by Executive or any group of persons
including Executive);
(3) the consummation of a merger,
consolidation, share exchange or similar form of
transaction involving the Company or any of its
subsidiaries, or the sale of all or substantially all of
the Company's assets (a "Business Transaction"), unless
immediately following such Business Transaction (i) more
than 50% of the total voting power of the entity resulting
from such Business Transaction or the entity acquiring the
Company's assets in such Business Transaction (the
"Surviving Corporation") is beneficially owned, directly
or indirectly, by the Company's shareholders immediately
prior to any such Business Transaction, and (ii) no person
(other than the persons set forth in clauses (A), (B), or
(C) of paragraph (2) above or any tax-qualified,
broad-based employee benefit plan of the Surviving
Corporation or its Affiliates) beneficially owns, directly
or indirectly, 30% or more of the total voting power of
the Surviving Corporation (a "Non-Qualifying
Transaction"); provided, however, that in the event a
definitive agreement is entered into providing for the
occurrence of an event which, if consummated, would result
in a Change in Control of the Company (a "Merger Event"),
then all options and equity interests granted or acquired
by the Executive pursuant to this Agreement which have not
then become fully vested, shall become fully vested but
only on a provisional basis, for the sole purpose of
enabling the Executive to exercise any such options and
tender any such equity interests as necessary to permit
the Executive to participate in the Merger Event on the
same basis as all other stockholders. If the Merger Event
is consummated, such accelerated vesting shall no longer
be provisional. If the Merger Event is not consummated,
the Executive shall continue to have the same vested
status in his options and equity interests as he had
without regard to the provisional vesting terms included
herein; or
(4) Board and to the extent necessary,
shareholder approval of a liquidation or dissolution of
the Company, unless the voting common equity interests of
an ongoing entity (other than a liquidating trust) are
beneficially owned, directly or indirectly, by the
Company's shareholders in substantially the same
proportions as such shareholders owned the Company's
outstanding voting common equity interests immediately
prior to such liquidation and such ongoing entity assumes
all existing obligations of the Company to Executive under
this Agreement and the Stock Option Agreements pursuant to
which the Stock Options were granted.
(e) Without Good Reason. Executive shall have the
right to terminate his employment hereunder without Good Reason by providing the
Company with a Notice of
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Termination, and such termination shall not in and of itself be, nor shall it be
deemed to be, a breach of this Agreement.
7. Termination Procedure.
(a) Notice of Termination. Any termination of Executive's
employment by the Company or by Executive during the Employment Period (other
than termination pursuant to Section 6(a)) shall be communicated by written
Notice of Termination to the other party hereto in accordance with Section 14
and subject to the other provisions of this Agreement. 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 Executive's employment under the provision so
indicated.
(b) Date of Termination. "Date of Termination" shall mean (i)
if Executive's employment is terminated by his death, the date of his death,
(ii) if Executive's employment is terminated pursuant to Section 6(b), thirty
(30) days after Notice of Termination (provided that Executive shall not have
returned to the substantial performance of his duties on a full-time basis
during such thirty (30) day period), and (iii) if Executive's employment is
terminated for any other reason, the date on which a Notice of Termination is
given or any later date (within thirty (30) days after the giving of such
notice) set forth in such Notice of Termination.
8. Compensation Upon Termination or During Disability. In the event
Executive is disabled or his employment terminates during the Employment Period,
the Company shall provide Executive with the payments and benefits set forth
below; provided, however, as a specific condition to being entitled to any
payments or benefits under this Section 8 Executive must have resigned from any
position as a director, trustee and officer of the Company and all of its
subsidiaries and Affiliates and as a member of any committee of the board of
directors and the board of trustees of the Company and its subsidiaries and
Affiliates of which he is a member and must have joined the Company in having
executed a mutual release of the Company and its Affiliates, in a form
reasonably acceptable to the Company and Executive. Executive acknowledges and
agrees that the payments set forth in this Section 8 constitute liquidated
damages for termination of his employment during the Employment Period.
(a) Termination By Company Without Cause or By Executive for
Good Reason. If Executive's employment is terminated by the Company without
Cause or by Executive for Good Reason:
(i) the Company shall pay to Executive his Base Salary
and accrued vacation pay through the Date of Termination, as soon as
practicable following the Date of Termination; and
(ii) the Company shall pay to Executive a payment equal
to two times Executive's average total cash compensation paid (Base
Salary and bonus only) for the two (2) preceding fiscal years of the
Company ending prior to termination
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as soon as practicable following the Date of Termination; provided,
however, if the Executive has previously given a notice of
non-renewal with respect to the Employment Period pursuant to Section
2, the payment referred to in this subsection (ii) shall not be made;
(iii) the Company shall reimburse Executive pursuant to
Section 5(c) for reasonable expenses incurred, but not paid prior to
such termination of employment;
(iv) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance
with the terms and provisions of any agreements, plans or programs of
the Company; and
(v) to the extent that termination occurs after the
first anniversary of the Effective Date, the stock options described
in Section 5(g) shall fully vest as of the Date of Termination.
The foregoing notwithstanding, the total of the severance payments
payable under this Section 8(a) shall be reduced to the extent the payment of
such amounts would cause Executive's total termination benefits (as determined
by Executive's tax advisor) to constitute an "excess" parachute payment under
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and
by reason of such excess parachute payment Executive would be subject to an
excise tax under Section 4999(a) of the Code, but only if Executive determines
that the after-tax value of the termination benefits calculated with the
foregoing restriction exceed those calculated without the foregoing restriction.
(b) Termination by Company For Cause or By Executive
Without Good Reason. If Executive's employment is terminated by the Company for
Cause or by Executive (other than for Good Reason):
(i) the Company shall pay Executive his Base Salary and,
to the extent required by law or the Company's vacation policy, his
accrued vacation pay through the Date of Termination, as soon as
practicable following the Date of Termination; and
(ii) the Company shall reimburse Executive pursuant to
Section 5(c) for reasonable expenses incurred, but not paid prior to such
termination of employment, unless such termination resulted from a
misappropriation of Company funds; and
(iii) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance
with the terms and provisions of any agreements, plans or programs of the
Company.
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(c) Disability. During any period that Executive fails to
perform his duties hereunder as a result of incapacity due to physical or mental
illness ("Disability Period"), Executive shall continue to receive his full Base
Salary set forth in Section 5(a) until his employment is terminated pursuant to
Section 6(b). In the event Executive's employment is terminated for Disability
pursuant to Section 6(b):
(i) the Company shall pay to Executive (A) his Base
Salary and accrued vacation pay through the Date of Termination,
as soon as practicable following the Date of Termination, and (B)
continued Base Salary (as provided for in Section 5(a)) for six
(6) months; and
(ii) the Company shall reimburse Executive pursuant to
Section 5(c) for reasonable expenses incurred, but not paid prior
to such termination of employment; and
(iii) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in
accordance with the terms and provisions of any agreements, plans
or programs of the Company.
(d) Death. If Executive's employment is terminated by his
death:
(i) the Company shall pay in a lump sum to Executive's
beneficiary, legal representatives or estate, as the case may be,
Executive's Base Salary through the Date of Termination and one
(1) times Executive's annual rate of Base Salary;
(ii) the Company shall reimburse Executive's beneficiary,
legal representatives, or estate, as the case may be, pursuant to
Section 5(c) for reasonable expenses incurred, but not paid prior
to such termination of employment; and
(iii) Executive's beneficiary, legal representatives or
estate, as the case may be, shall be entitled to any other
rights, compensation and benefits as may be due to any such
persons or estate in accordance with the terms and provisions of
any agreements, plans or programs of the Company.
(e) Failure to Extend. A failure to renew the term of this
Agreement by either party shall not be deemed to constitute a termination of
Executive's employment for purposes of this Agreement.
(f) Bonus. In the event the Executive's termination of
employment occurs for any reason after the end of any fiscal year of the Company
for which annual bonus performance criteria have been established, the Executive
shall be entitled to payment of any bonus which is earned by reason of such
performance criteria having been met for such fiscal year according to
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the performance criteria established, without regard to whether the Executive's
termination of employment precedes the bonus payment date.
9. Mitigation. Executive shall not be required to mitigate amounts
payable under this Agreement by seeking other employment or otherwise, and there
shall be no offset against amounts due Executive under this Agreement on account
of subsequent employment. Additionally, amounts owed to Executive under this
Agreement shall not be offset by any claims the Company may have against
Executive, and the Company's obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder shall not be
affected by any other circumstances, including, without limitation, any
counterclaim, recoupment, defense or other right which the Company may have
against Executive or others.
10. Confidential Information, Ownership of Documents; Non-Competition.
(a) Confidential Information. Executive shall hold in a fiduciary
capacity for the benefit of the Company all trade secrets and confidential
information, knowledge or data relating to the Company and its businesses and
investments, which shall have been obtained by Executive during Executive's
employment by the Company and which is not generally available public knowledge
(other than by acts by Executive in violation of this Agreement). Except as may
be required or appropriate in connection with his carrying out his duties under
this Agreement, Executive shall not, without the prior written consent of the
Company or as may otherwise be required by law or any legal process, or as is
necessary in connection with any adversarial proceeding against the Company (in
which case Executive shall use his reasonable best efforts in cooperating with
the Company in obtaining a protective order against disclosure by a court of
competent jurisdiction), communicate or divulge any such trade secrets,
information, knowledge or data to anyone other than the Company and those
designated by the Company or on behalf of the Company in the furtherance of its
business or to perform duties hereunder.
(b) Removal of Documents; Rights to Products. All records, files,
drawings, documents, models, equipment, and the like relating to the Company's
business, which Executive has control over shall not be removed from the
Company's premises without its written consent, unless such removal is in the
furtherance of the Company's business or is in connection with Executive's
carrying out his duties under this Agreement and, if so removed, shall be
returned to the Company promptly after termination of Executive's employment
hereunder, or otherwise promptly after removal if such removal occurs following
termination of employment. Executive shall assign to the Company all rights to
trade secrets and other products relating to the Company's business developed by
him alone or in conjunction with others at any time while employed by the
Company.
(c) Protection of Business. During the Employment Period and if
the Executive is terminated by the Company with or without Cause or Executive
terminates employment without Good Reason, until the first anniversary of
Executive's Date of Termination, the Executive will not (i) serve as an officer,
employee, director or consultant of a REIT or other real estate business with a
significant portion of its business involved with
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community shopping centers; (ii) engage, anywhere within the geographical areas
in which the Company or any of its Affiliates (the "Designated Entities") are
conducting their business operations or providing services as of the Date of
Termination, in any business which is being engaged in by the Designated
Entities as of the Date of Termination or pursue or attempt to develop any
project known to Executive and which the Designated Entities are pursuing,
developing or attempting to develop as of the Date of Termination, unless such
project has been inactive for over nine (9) months (a "Project"), directly or
indirectly, alone, in association with or as a shareholder, principal, agent,
partner, officer, director, employee or consultant of any other organization;
(iii) divert to any entity which is engaged in any business conducted by the
Designated Entities in the same geographic area as the Designated Entities, any
Project or any customer of any of the Designated Entities; or (iv) solicit any
officer, employee (other than secretarial staff) or consultant of any of the
Designated Entities to leave the employ of any of the Designated Entities.
Notwithstanding the preceding sentence, Executive shall not be prohibited from
owning less than three (3%) percent of any publicly traded corporation, whether
or not such corporation is in competition with the Company. If, at any time, the
provisions of this Section 10(c) shall be determined to be invalid or
unenforceable, by reason of being vague or unreasonable as to area, duration or
scope of activity, this Section 10(c) shall be considered divisible and shall
become and be immediately amended to only such area, duration and scope of
activity as shall be determined to be reasonable and enforceable by the court or
other body having jurisdiction over the matter; and Executive agrees that this
Section 10(c) as so amended shall be valid and binding as though any invalid or
unenforceable provision had not been included herein.
(d) Injunctive Relief. In the event of a breach or threatened
breach of this Section 10, Executive agrees that the Company shall be entitled
to injunctive relief in a court of appropriate jurisdiction to remedy any such
breach or threatened breach, Executive acknowledging that damages would be
inadequate and insufficient.
(e) Continuing Operation. Except as specifically provided in this
Section 10, the termination of Executive's employment or of this Agreement shall
have no effect on the continuing operation of this Section 10.
11. Indemnification.
(a) General. The Company agrees that if Executive is made a party
or a 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 the Company
or any subsidiary of the Company or is or was serving at the request of the
Company or any subsidiary 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 employee
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 the Company to the same
extent as other officers and directors, as in effect from time to time, against
all Expenses incurred or suffered by
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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 the Company and shall inure to the benefit of
his heirs, executors and administrators.
(b) Expenses. As used in this Agreement, the term "Expenses"
shall include, without limitation, damages, losses, judgments, liabilities,
fines, penalties, excise taxes, settlements, and costs, attorneys' fees,
accountants' fees, and disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to indemnification
under this Agreement.
(c) Enforcement. If a claim or request under this Agreement is
not paid by the Company or on its behalf, within thirty (30) days after a
written claim or request has been received by the Company, Executive may at any
time thereafter bring suit against the Company to recover the unpaid amount of
the claim or request and, if Executive prevails in respect to the material
issues, 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 Maryland law.
(d) Partial Indemnification. If Executive is entitled under
any provision of this Agreement to indemnification by the Company for some or a
portion of any Expenses, but not, however, for the total amount thereof, the
Company, 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 the Company in advance upon
request of Executive that the Company pay such Expenses; but only in the event
that Executive shall have delivered in writing to the Company (i) an undertaking
to reimburse the Company for Expenses with respect to which Executive is not
entitled to indemnification and (ii) an affirmation of his good faith belief
that the standard of conduct necessary for indemnification by the Company has
been met.
(f) Notice of Claim. Executive shall give to the Company
notice of any claim made against him for which indemnification will or could be
sought under this Agreement. In addition, Executive shall give the Company such
information and cooperation as it may reasonably require and as shall be within
Executive's power and at such times and places as are convenient for Executive.
(g) Defense of Claim. With respect to any Proceeding as to
which Executive notifies the Company of the commencement thereof:
(i) The Company will be entitled to participate
therein at its own expense; and
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(ii) Except as otherwise provided below, to the
extent that it may wish, the Company will be entitled to assume the
defense thereof, with counsel reasonably satisfactory to Executive,
which in the Company's sole discretion may be regular counsel to the
Company and may be counsel to other officers and directors of the
Company or any subsidiary. 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 the Company and Executive, and under such
circumstances the fees and expenses of such counsel shall be at the
expense of the Company.
(iii) The Company shall not be liable to indemnify
Executive under this Agreement for any amounts paid in settlement of
any action or claim effected without its written consent. The Company
shall not settle any action or claim in any manner which would impose
any penalty or limitation on Executive or which would otherwise
adversely affect Executive's personal or professional reputation
without in either case obtaining Executive's written consent. Neither
the Company 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 Section 11 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 the Company or any subsidiary, agreement, vote of shareholders or
disinterested directors or trustees or otherwise.
12. Legal Fees and Expenses. If any contest or dispute shall arise
between the Company and Executive regarding any provision of this Agreement, the
Company shall reimburse Executive for all legal fees and expenses reasonably
incurred by Executive in connection with such contest or dispute, but only if
Executive prevails in respect of the material issues in dispute of Executive's
claims brought and pursued in connection with such contest or dispute. Such
reimbursement shall be made as soon as practicable following the final
resolution of such contest or dispute to the extent the Company receives
reasonable written evidence of such fees and expenses.
13. Successors; Binding Agreement.
(a) Company's Successors. No rights or obligations of the
Company under this Agreement may be assigned or transferred except that the
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as herein before defined and any
successor to its business and/or assets (by merger, purchase or otherwise) which
executes and delivers the agreement
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provided for in this Section 13 or which otherwise becomes bound by all the
terms and provisions of this Agreement by operation of law.
(b) Executive's Successors. No rights or obligations of
Executive under this 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
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 Agreement. Executive shall be entitled to
select and change a beneficiary or beneficiaries to receive any benefit or
compensation payable hereunder following Executive's death by giving the Company
written notice thereof. In the event of Executive's death or a judicial
determination of his incompetence, reference in this Agreement to Executive
shall be deemed, where appropriate, to refer to his beneficiary(ies), estate or
other legal representative(s). If Executive should die following his Date of
Termination while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts unless otherwise provided herein shall be
paid in accordance with the terms of this Agreement to such person or persons so
appointed in writing by Executive, or otherwise to his legal representatives or
estate.
14. Notice. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally,
or sent by nationally recognized, overnight courier or by telecopy with copy
sent by personal delivery or nationally recognized overnight courier, or by
registered or certified mail, return receipt requested and postage prepaid,
addressed as follows:
If to Executive:
Xx. Xxxxxxx Xxxxxxxx
c/o New Plan Excel Realty Trust, Inc.
0000 Xxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
If to the Company:
New Plan Excel Realty Trust, Inc.
0000 Xxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Fax: 000-000-0000
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or to such other address as any party may have furnished to the others in
writing in accordance herewith. All such notices and other communications shall
be deemed to have been received (a) in the case of personal delivery, on the
date of such delivery, (b) in the case of delivery by nationally-recognized,
overnight courier, on the business day following dispatch, (c) in the case of
telecopy, on the date of transmission if copy is delivered not later than the
next business day via either personal delivery or nationally-recognized
overnight courier, and (d) in the case of mailing, on the third business day
following such mailing.
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15. Miscellaneous. No provisions of this Agreement may be amended,
modified, or waived unless such amendment or modification is agreed to in
writing signed by Executive and by a duly authorized officer of the Company, and
such waiver is set forth in writing and signed by the party to be charged.
Subject to the provisions of Section 6(d) of this Agreement, no waiver by either
party hereto at any time of any breach by the other party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not set forth expressly in this Agreement.
The respective rights and obligations of the parties hereunder of this Agreement
shall survive Executive's termination of employment and the termination of this
Agreement to the extent necessary for the intended preservation of such rights
and obligations. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of New York without
regard to its conflicts of law principles.
16. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
18. Entire Agreement. This Agreement sets forth the entire agreement
of the parties hereto in respect of the subject matter contained herein and
supersede all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, director, employee or representative of any party hereto in respect of
such subject matter. Any prior agreement of the parties hereto in respect of the
subject matter contained herein is hereby terminated and canceled.
19. Withholding. All payments hereunder shall be subject to any required
withholding of Federal, state and local taxes pursuant to any applicable law or
regulation.
20. Noncontravention. The Company represents that the Company is not
prevented from entering into, or performing this Agreement by the terms of any
law, order, rule or regulation, its by-laws or certificate of incorporation, or
any agreement to which it is a party, other than which would not have a material
adverse effect on the Company's ability to enter into or perform this Agreement.
Executive represents to the Company that he is not a party to any contract that
would preclude him from accepting employment as an Executive Vice President of
the Company and he has no reason to believe that accepting employment as an
Executive Vice President of the Company would result in a disclosure of any
confidential information of any prior employer.
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21. Section Headings. The section headings in this Agreement are for
convenience of reference only, and they form no part of this Agreement and shall
not affect its interpretation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first above written.
NEW PLAN EXCEL REALTY TRUST, INC.,
a Maryland corporation
By: /s/ XXXXXX X. XXXXXX
--------------------
Name:
Title:
/s/ XXXXXXX XXXXXXXX
--------------------
XXXXXXX XXXXXXXX
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