EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of September 20, 2005 by
ENTERTAINMENT PROPERTIES TRUST, a Maryland real estate investment trust (the
"Company") and XXXX X. XXXXXXXX ("Employee"). In consideration of the mutual
covenants contained herein, the parties agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following meanings.
"ANNUAL INCENTIVE PROGRAM" shall mean the annual incentive program of the
Company, as amended from time to time, or any successor incentive program
adopted by the Board or the Compensation Committee, pursuant to which annual
Performance Bonuses and Incentive Bonuses may be awarded to Employee.
"BOARD" shall mean the Board of Trustees of the Company.
"CAUSE" shall mean and be limited to an affirmative determination by the
Board that any of the following has occurred: (a) Employee's willful and
continued failure or refusal to perform his duties with the Company (other than
as a result of his Disability or incapacity due to mental or physical illness)
which is not remedied in the reasonable good faith determination of the Board
within 30 days after Employee's receipt of written notice from the Board
specifying the nature of such failure or refusal, or (b) the willful engagement
by Employee in misconduct which is materially and demonstrably injurious to the
Company. For purposes of this Agreement, no act or failure to act shall be
considered "willful" unless done or omitted in bad faith and without reasonable
belief that the act or omission was in the best interests of the Company. A
failure or refusal to perform duties materially and adversely inconsistent with
Employee's position, as contemplated in paragraph (a) of the definition of "Good
Reason," shall not be considered willful or in bad faith.
"CHANGE IN CONTROL" shall mean the occurrence of any of the following
events:
(a) Incumbent Trustees cease for any reason to constitute at least a
majority of the Board.
(b) Any "person" (as defined in Section 3(a)(9) of the Exchange Act
and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) or
"group" (within the contemplation of Section 13(d)(3) of the Exchange Act
and Rule 13d-5 thereunder) is or becomes a "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act) or controls the voting power,
directly or indirectly, of shares of the Company representing 25% or more
of the Company Voting Securities, other than (i) an acquisition of Company
Voting Securities by an underwriter pusuant to an offering of shares by the
Company, (ii) a Non-Qualifying Transaction, or (iii) an acquisition of
Company Voting Securities directly from the Company which is approved by a
majority of the Incumbent Trustees. For purposes of this definition:
(A) "Company Voting Securities" shall mean the outstanding shares
of the Company eligible to vote in the election of trustees of the
Company.
(B) "Company 25% Shareholder" shall mean any "person" or "group"
which beneficially owns or has voting control of 25% or more of the
Company Voting Securities.
(C) "Business Combination" shall mean a merger, consolidation,
acquisition, sale of all or substantially all of the Company's assets
or properties, statutory share exchange or similar transaction
involving the Company or any of its subsidiaries that requires the
approval of the Company's shareholders, whether for the transaction
itself or the issuance or exchange of securities in the transaction.
(D) "Incumbent Trustees" shall mean (1) the trustees of the
Company as of the date of this Agreement or (2) any trustee elected
subsequent to the date of this Agreement whose election or nomination
was approved by a vote of at least two-thirds of the Incumbent
Trustees then on the Board (either by specific vote or approval of a
proxy statement of the Company in which such person is named as a
nominee for trustee).
(E) "Parent Corporation" shall mean the ultimate parent entity
that directly or indirectly has beneficial ownership or voting control
of a majority of the outstanding voting securities eligible to elect
directors of a Surviving Corporation.
(F) "Surviving Corporation" shall mean the entity resulting from
a Business Combination.
(G) "Non-Qualifying Transaction" shall mean a Business
Combination in which all of the following criteria are met: (1) more
than 50% of the total voting power of the Surviving Corporation or, if
applicable, the Parent Corporation, is represented by Company Voting
Securities that were outstanding immediately prior to the Business
Combination (or, if applicable, is represented by shares into which
the Company Voting Securities were converted pursuant to the Business
Combination and held in substantially the same proportion as the
Company Voting Securities were held immediately prior to the Business
Combination), (2) no "person" or "group" (other than a Company 25%
Shareholder or any Employee Benefit Plan (or related trust) sponsored
or maintained by the Surviving Corporation or the Parent Corporation)
would become the beneficial owner, directly or indirectly, of 25% or
more of the total voting power of the outstanding voting securities
eligible to elect directors of the Parent Corporation (or, if there is
no Parent Corporation, the Surviving Corporation) and no Company 25%
Shareholder would increase its percentage of such total voting power
as a result of the transaction, and (3) at least a majority of the
members of the board of directors or similar governing body of the
Parent Corporation (or, if there
is no Parent Corporation, the Surviving Corporation) following the
consummation of the Business Combination were Incumbent Trustees at
the time of the Board's approval of the Business Combination.
(c) The shareholders of the Company approve a Business Combination,
other than a Non -Qualifying Transaction.
(d) The shareholders of the Company approve a plan of complete
liquidation or dissolution of the Company.
(e) The acquisition of direct or indirect Control of the Company by
any "person" or "group."
(f) Any transaction or series of transactions which results in the
Company being "closely held" within the meaning of the REIT provisions of
the Code, after any applicable grace period, and with respect to which the
Board has either waived or failed to enforce the "Excess Share" provisions
of the Company's Amended and Restated Declaration of Trust.
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any "person" or "group" acquires beneficial
ownership or voting control of more than 25% of the Company Voting
Securities as a result of any acquisition of Company Voting Securities by
the Company, but if after that acquisition by the Company the "person" or
"group" becomes the beneficial owner or obtains voting control of any
additional Company Voting Securities, a Change in Control shall be deemed
to occur unless otherwise exempted as set forth above.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COMPENSATION COMMITTEE" shall mean the compensation committee appointed by
the Board.
"CONTROL" shall mean the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of the Company,
whether through the ownership of Company Voting Securities, by contract, or
otherwise.
"DISABILITY" shall mean (a) the adjudication of incompetence of Employee or
(b) the failure of Employee to perform his duties with the Company on a
full-time basis for 90 consecutive days as a result of incapacity due to mental
or physical illness which is determined to be permanent by a physician selected
by the Company or its insurers and acceptable to Employee or his legal
representative, which acceptance shall not be unreasonably withheld.
"EMPLOYEE BENEFIT PLANS" shall mean any and all 401(k) plans, profit
sharing plans, retirement plans, savings plans, investment plans, Health Plans,
group life insurance, disability insurance, salary continuation plans,
accidental death and travel accident insurance plans, fringe benefits and all
other benefit plans, programs and policies of the Company adopted for peer
management employees of the Company or agreed to by Employee and the Company
during the Employment Period.
"EMPLOYMENT PERIOD" shall mean the period from the date of this Agreement
until the second anniversary of the date hereof, as extended automatically by
adding one additional 12 month period on the first anniversary of the date
hereof and on each anniversary thereafter, creating a rolling two year
Employment Period.
"EXCESS PARACHUTE PAYMENT" shall have the meaning given by such term in
Section 280G of the Code.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
"EXCISE TAX" shall mean any tax imposed by Section 4999 or 280G of the
Code.
"GOOD REASON" shall mean (a) any Change in Control, or (b) any of the
following which is not remedied in the reasonable good faith determination of
Employee within 30 days after the Company's receipt of written notice specifying
the event claimed to constitute Good Reason:
(i) The assignment to Employee of duties materially and adversely
inconsistent with Employee's position as described in Section 2 or other
position to which Employee may have been promoted prior to that time, or
any material reduction in Employee's office, status, position, title(s) or
responsibilities which is not agreed to by Employee.
(ii) Any material reduction in Employee's base compensation or
eligibility under the Annual Incentive Program or Employee Benefit Plans
which is not agreed to by Employee.
(iii) A material breach of this Agreement by the Company, its
successors or assigns, including any failure to pay Employee on a timely
basis any amounts to which he is entitled under this Agreement.
(iv) Any requirement that Employee be based at any office outside of a
35 mile radius of the current offices of the Company.
"GROSS-UP PAYMENT" shall mean a payment to Employee in an amount equal to
all Excise Tax imposed on Employee as a result of any of the events described in
Section 6(f), plus an amount equal to all federal, state or local income or
other tax imposed on Employee as a result of any payment of such Excise Tax
amount.
"HEALTH PLANS" shall mean any and all individual and family health and
hospitalization insurance and/or self-insurance plans, medical reimbursement
plans, prescription drug plans, dental plans and other health and/or wellness
plans.
"INCENTIVE BONUS" shall mean any long term incentive bonus awarded to
Employee under the Annual Incentive Program.
"NOTICE OF TERMINATION" shall mean a written instrument delivered by
Employee or the Board, as the case may be, which (a) gives notice of the
termination of this Agreement and Employee's employment hereunder, (b) indicates
the provision of this Agreement under which the termination is made, (c) unless
the termination is pursuant to Section 5(a), (d), (f) or (g), describes in
reasonable detail the facts and circumstances claimed to provide a basis for
termination and (d) specifies the Termination Date (which shall be not more than
30 days after the date of the Notice). The failure by Employee or the Company to
describe in a Notice of Termination any fact or circumstance which contributes
to a showing of Disability, Good Reason or Cause (as applicable) shall not waive
any right to assert such fact or circumstance in enforcing Employee's or the
Company's rights hereunder.
"PERFORMANCE BONUS" shall mean any annual performance bonus awarded to
Employee under the Annual Incentive Program.
"RESIGNATION" shall mean Employee's resignation from the Company other than
pursuant to Section 5(e) or (g). "Resign" shall have the correlative meaning.
"TERMINATION DATE" shall mean: (a) if Employee is terminated pursuant to
Section 5(b) or (c) or terminates pursuant to Section 5(e) or (g), the date of
receipt of the Notice of Termination or any later date specified in the Notice,
(b) if Employee is terminated by reason of death, the date of his death, or (c)
if Employee is terminated pursuant to Section 5(d) or Resigns, 30 days after the
date of receipt of the Notice of Termination.
"YEAR" shall mean a calendar year including, for purposes of Section 4, all
of calendar year 2005.
2. DUTIES. The Company employs Employee as its Vice President - Accounting
and Administration. During the Employment Period (a) Employee shall perform such
duties commensurate with his position as Vice President - Accounting and
Administration as the Board shall assign from time to time, and (b) Employee
shall devote his full time and attention to the business of the Company and
shall not engage in any other business activity for gain or profit, other than
personal investments or service on corporate, civic or charitable boards or
committees, so long as such activities do not significantly interfere with the
performance of his responsibilities under this Agreement. Employee accepts his
employment and agrees to faithfully observe and enforce the policies and
decisions of the Company in effect from time to time, including but not limited
to the Company's Code of Business Conduct and Ethics and Xxxxxxx Xxxxxxx and
Regulation FD Compliance Policy.
3. TERM. This Agreement and Employee's employment shall remain in effect
during the Employment Period, as extended, unless sooner terminated in
accordance with Section 5.
4. COMPENSATION.
(a) BASE SALARY. Employee shall receive an annual base salary of
$181,500, payable in regular increments in accordance with the Company's
standard payroll procedures (but not less frequently than monthly) less
applicable withholdings, and subject to such increases as awarded in the
discretion of the Compensation Committee from time to time.
(b) BONUS. Employee shall be eligible for an annual Performance Bonus
and an annual Incentive Bonus in accordance with the Annual Incentive
Program. The Compensation Committee shall establish the bonus computation
methodology and performance criteria for each Year and shall have sole
authority to administer the Annual Incentive Program, to establish
performance goals, to certify to their achievement and to establish the
amount of the
Performance Bonus and Incentive Bonus and the type of compensation
comprising the Incentive Bonus.
(c) EMPLOYEE BENEFIT PLANS. Employee shall be eligible to participate
in all Employee Benefit Plans made available to other peer management
employees of the Company or otherwise agreed to by Employee and the
Compensation Committee during the Employment Period.
(d) VACATION. Employee shall be entitled to at least four weeks paid
vacation during each Year of service, or such greater amount as afforded
other peer management employees of the Company or otherwise agreed to by
Employee and the Compensation Committee (prorated for any partial Year).
(e) EXPENSE REIMBURSEMENTS. The Company shall reimburse Employee for
all business travel and other out-of-pocket expenses reasonably incurred by
Employee in the performance of his services under this Agreement. All
reimbursable expenses shall be appropriately documented in reasonable
detail by Employee upon submission of any request for reimbursement, in a
format and manner consistent with the Company's expense reporting and
reimbursement policies applicable to other peer management employees of the
Company.
(f) ADJUSTMENTS TO COMPENSATION. Employee's base salary and other cash
compensation shall be subject to withholding and other applicable taxes. If
Employee is employed by the Company for less than 12 months in any Year,
unless otherwise provided in Section 6 or in the applicable plan or
arrangement, his compensation and benefits shall be prorated in accordance
with the number of days in the Year during which he is employed.
5. TERMINATION. This Agreement and Employee's employment hereunder shall be
terminated upon the earliest of:
(a) DEATH. Employee's employment shall automatically terminate upon
his death.
(b) DISABILITY. The Company will make efforts to reasonably
accommodate Employee as required by applicable federal and state laws.
However, in the event of Employee's Disability, the Board may, after giving
30 days' written notice to Employee, terminate Employee by giving Notice of
Termination if he is unable because of his Disability to resume his
full-time duties within such 30-day period.
(c) CAUSE. The Board may terminate Employee's employment for Cause by
giving Notice of Termination to Employee. Employee shall have the right to
appeal any termination for Cause to the Board by providing written notice
to the Chairman of the Board not later than five business days after the
date of the Notice of Termination. Employee and his counsel shall have the
right to appear before the Board at a meeting at which such appeal shall be
considered. The determination of the Board with regard to such appeal shall
be final and binding.
(d) WITHOUT CAUSE. The Board may terminate Employee's employment
without Cause by giving 30 days' Notice of Termination to Employee.
(e) GOOD REASON. Employee may terminate his employment for Good Reason
by giving Notice of Termination to the Company.
(f) RESIGNATION. Employee may Resign his employment by giving 30 days'
Notice of Termination to the Company.
(g) RETIREMENT. Employee may retire at or after age 65.
6. COMPENSATION ON TERMINATION. Upon termination of Employee's employment
for any reason provided in Section 5, Employee (or his estate) shall be entitled
to all compensation earned and all benefits under Employee Benefit Plans and
expense reimbursements vested or accrued through the Termination Date. In
addition:
(a) DEATH. If Employee's employment is terminated pursuant to Section
5(a), Employee's estate shall receive from the Company, in a lump-sum
payment due within 30 days after the Termination Date, an amount equal to
the sum of (i) Employee's base salary at the rate in effect on the
Termination Date for the remainder of the Employment Period, plus (ii) the
amount of the Performance Bonus plus the value on the award date of the
Incentive Bonus paid or payable to Employee for the most recently completed
Year prior to Employee's death (annualized as applicable) times the number
of Years remaining in the Employment Period (for purposes of (i) and (ii)
any partial Year during the remainder of the Employment Period shall be
treated as an entire Year), reduced on a dollar-for-dollar basis by (iii)
the aggregate amount of all benefits payable to Employee's estate or
beneficiaries under any and all life insurance policies maintained by the
Company on Employee's life. In addition (1) notwithstanding anything to the
contrary in any share option plan or agreement, any share options held by
Employee on the date of his death shall become immediately exercisable and
may be exercised by Employee's heirs or devisees until the earlier of 180
days after the date of his death or 10 years after the grant date of the
options, and (2) all unvested restricted shares held by Employee on the
date of his death shall become fully vested as of such date.
(b) DISABILITY. If Employee's employment is terminated pursuant to
Section 5(b), Employee or his personal representative shall receive from
the Company, in a lump-sum payment due within 30 days after the Termination
Date, an amount equal to the sum of (i) Employee's base salary at the rate
in effect on the Termination Date for the remainder of the Employment
Period, plus (ii) the amount of the Performance Bonus plus the value on the
award date of the Incentive Bonus paid or payable to Employee for the most
recently completed Year prior to the Termination Date (annualized as
applicable) times the number of Years remaining in the Employment Period
(for purposes of (i) and (ii) any partial Year during the remainder of the
Employment Period shall be treated as an entire Year), reduced on a
dollar-for-dollar basis by (iii) the aggregate amount of all disability
benefits payable to Employee under disability plans maintained by Company.
In addition (1) notwithstanding anything to the contrary in any share
option plan or agreement, any share options held by Employee on the
Termination Date shall become immediately exercisable and may be exercised
by Employee or his personal representative until the earlier of 180 days
after the Termination Date or 10 years after the grant date of the options,
and (2) all unvested restricted shares held by Employee on the Termination
Date shall become fully vested as of such date.
(c) BY THE COMPANY FOR CAUSE; RESIGNATION; RETIREMENT. If Employee is
terminated pursuant to Section 5(c) or Employee Resigns or retires at or
after age 65, Employee shall have no right to any severance compensation or
benefits, except as required by law.
(d) BY THE COMPANY WITHOUT CAUSE; BY EMPLOYEE FOR GOOD REASON. If
Employee is terminated pursuant to Section 5(d) or terminates pursuant to
Section 5(e), Employee shall receive from the Company (or its successor, if
applicable), in a lump-sum payment due within 30 days after the Termination
Date, an amount equal to the sum of (i) Employee's base salary at the rate
in effect immediately prior to the Termination Date times the number of
Years remaining in the Employment Period, plus (ii) the amount of the
Performance Bonus plus the value on the award date of the Incentive Bonus
paid or payable to Employee for the most recently completed Year prior to
the Termination Date (annualized as applicable) times the number of Years
remaining in the Employment Period (for purposes of (i) and (ii), any
partial Year during the remainder of the Employment Period shall be treated
as an entire Year). In addition (1) notwithstanding anything to the
contrary in any share option plan or agreement, any share options held by
Employee on the Termination Date shall become immediately exercisable and
may be exercised by Employee until the earlier of 180 days after the
Termination Date or 10 years after the grant date of the options, and (2)
all unvested restricted shares held by Employee on the Termination Date
shall become fully vested as of such date.
(e) EMPLOYEE BENEFIT PLANS. If Employee is terminated pursuant to
Section 5(b) or (d) or terminates pursuant to Section 5(e), Employee shall
be entitled to participate at the Company's expense in all Employee Benefit
Plans in which Employee was eligible to participate prior to the
Termination Date for the remainder of the Employment Period. Upon
Employee's death, his immediate family shall be entitled to participate at
the Company's expense in all Health Plans in which Employee was eligible to
participate prior to his death for the remainder of the Employment Period.
For purposes of this Section 6(e), any partial Year during the remainder of
the Employment Period shall be treated as an entire Year.
(f) GROSS-UP PAYMENT. If the Internal Revenue Service asserts that any
portion of any payment made to Employee pursuant to any provision of this
Agreement constitutes an Excess Parachute Payment and imposes an Excise Tax
thereon, then the Company agrees that it will indemnify and hold harmless
Employee in an amount equal to such Excise Tax. Such amount shall be paid
to Employee immediately pending a final judicial determination of, or
settlement determining, such liability for the Excise Tax otherwise. In
addition, the Company shall pay a Gross-Up Payment to Employee or his
estate in the amount of any Excise Tax incurred by Employee or his estate
as a result of any severance compensation, accelerated exercisability of
options, accelerated vesting of restricted shares and/or continuation of
benefits under this Section 6, plus an amount equal to any federal, state
or local income tax imposed on Employee as the result of the Company's
payment of any such Excise Tax amount. Such Gross-Up Payment shall be
payable to Employee at the time the respective applicable tax triggering
such Gross-Up Payment is due. For purposes of determining the amount of the
Gross-Up Payment, Employee will be deemed to (i) pay federal income taxes
at the highest marginal rate of federal income taxation in the calendar
year in which the Gross-Up Payment is made, and (ii) state and local income
taxes at the highest marginal rates of taxation in the state and locality
of his residence in the calendar year in which the Gross-Up Payment is made
net, in the case of clause (i), of the maximum reduction in federal income
taxes which could be obtained from
deduction of such state and local taxes. The parties agree that the
payments required to be made under this Section 6 are such that the
payments Employee receives, or is entitled to receive, under this Section 6
shall not be reduced by any Excise Tax or Gross-Up Payment with respect
thereto and therefore the net amount retained by Employee, after
reimbursement for any Excise Tax, or any other federal, state or local
income or other tax that may be payable on receipt of such reimbursement
for Excise Tax, that is imposed as a result of any payment required to be
made under this Section 6 shall be equal to the same amount as if no such
Excise Tax or other tax had been imposed.
All other rights and obligations of the Company and Employee under
this Agreement (other than Sections 8, 9 and 10, which shall survive
termination) shall cease as of the Termination Date.
7. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall limit
Employee's continuing or future participation in any plan, program, policy or
practice provided by the Company and for which Employee may qualify, nor shall
anything herein limit or otherwise affect any rights Employee may have under any
other contract or agreement with the Company. Amounts which are vested benefits
or which Employee is otherwise entitled to receive at or subsequent to a
Termination Date under any plan, policy, practice or program of, or any contract
or agreement with, the Company shall be payable in accordance with the same,
except as explicitly modified in this Agreement.
8. FULL SETTLEMENT; RESOLUTION OF DISPUTES.
(a) The Company's obligation to make the payments provided in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any unilateral right of set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against
Employee or others, but the foregoing shall not limit the right of the
Company to seek such relief in any proceeding. In no event shall Employee
be obligated to seek other employment or take any other action to mitigate
any amounts payable under this Agreement. If Employee is the prevailing
party in any action brought by the Company to contest any liability or
obligation hereunder or in any action by Employee to enforce the provisions
hereof, the Company shall reimburse Employee for the fees and expenses of
his counsel incurred in such action.
(b) If there is a dispute between the Board and Employee (i) if the
Board terminates for Cause, with respect to the existence of Cause (ii) if
Employee terminates with Good Reason, with respect to the existence of Good
Reason, then, upon the entry of a final, nonappealable judgment by a court
of competent jurisdiction declaring that the Board's termination was not
for Cause or that Employee's determination of Good Reason was made in good
faith, as the case may be, the Company shall pay all amounts provided in
the applicable provisions of Section 6, plus any damages to which Employee
is entitled by reason of the Company's breach of this Agreement and shall
reimburse Employee for the fees and expenses of his counsel incurred in
such proceeding.
(c) Any amount payable under this Section 8 shall bear interest at the
federal rate provided in Section 7872(f)(2)(A) of the Code until fully
paid.
9. INDEMNIFICATION. Nothing in this Agreement shall limit Employee's
indemnification rights under the Company's Declaration of Trust or Bylaws or any
Trustees' and Officers' insurance coverage. Employee shall not be liable to the
Company or its shareholders for any errors or omissions made in good faith and
in the absence of gross negligence or willful misconduct.
10. CONFIDENTIAL INFORMATION.
(a) Employee shall retain in confidence and shall not disclose to any
party (other than officers, trustees or representatives of the Company as
required for the conduct of the Company's business), nor use for any
purpose (other than in the performance of his duties hereunder) any
confidential or proprietary information of or with respect to the Company,
its business, financial condition or performance, existing or potential
properties, existing or potential transactions, negotiations,
relationships, plans, strategies, projections, existing or potential
tenants or any other information of a confidential or proprietary nature,
whether in written, oral or electronic format and whether disclosed prior
to or after the date of this Agreement ("Confidential Information").
Notwithstanding the foregoing, Confidential Information shall not include
(i) information which is publicly disclosed or otherwise generally
available through no fault of Employee, or (ii) information required to be
disclosed by Employee or the Company under the federal securities laws and
regulations or any subpoena or order of a court or governmental agency. In
no event shall an asserted violation of the provisions of this Section
10(a) constitute a basis for the Company's unilateral deferral or
withholding of any amounts otherwise payable to Employee under this
Agreement, without limitation of the right of the Company to assert any
right of set-off, counterclaim, recoupment, defense or other claim in any
proceeding.
(b) Employee acknowledges that any breach of the covenants in Section
10(a) would cause irreparable injury to the Company which would not be
fully compensable in damages. Accordingly, the Company shall be entitled to
injunctive or specific relief from a court of competent jurisdiction
against any breach or threatened breach by Employee, his agents or persons
acting through him, of the covenants in Section 10(a), without the
necessity of posting bond or proving lack of an adequate remedy at law, and
without limitation of other remedies that may be available to the Company
at law or in equity.
11. SUCCESSORS.
(a) This Agreement is personal to Employee and shall not be assigned
by him without the prior written consent of the Board. The provisions of
Sections 6 and 8 shall inure to the benefit of and be binding on and
enforceable by Employee's heirs and legal representatives.
(b) This Agreement may be assigned by the Company to any successor to
its business or assets and shall inure to the benefit of its successors and
assigns.
(c) This Agreement shall be binding upon and enforceable against any
successor (whether direct or indirect, by acquisition, merger,
consolidation, Change in Control or otherwise) to the Company or to all or
substantially all of its assets, whether such transaction was approved by
the Incumbent Trustees or otherwise. The Company shall advise any successor
to its business or assets and the person or entity effecting any Change in
Control of the provisions of this Agreement and the survival of such
provisions following the consummation of such
transaction. As used in this Agreement, "Company" shall mean Entertainment
Properties Trust and any successor to its business, assets or outstanding
securities.
12. EXCESS PARACHUTE PAYMENT. If the Internal Revenue Service asserts that
any portion of any payment made to Employee pursuant to this Agreement
constitutes an "excess parachute payment" and imposes an Excise Tax thereon, the
Company will indemnify Employee in an amount equal to the Excise Tax. Such
amount shall be paid to Employee immediately upon a final judicial determination
of, or settlement determining, the liability for the Excise Tax.
13. GOVERNING LAW. This Agreement shall be governed by Missouri law,
without reference to conflicts of laws rules.
14. HEADINGS. Section headings are for convenience of reference only and
shall have no effect on the interpretation of this Agreement.
15. ENTIRE AGREEMENT. This constitutes the entire agreement of the parties
with regard to the subject matter hereof and may not be modified or amended
except by written instrument executed by the Company and Employee.
16. NOTICE. Any notice or other communication hereunder shall be in writing
and may be hand delivered or sent by registered or certified mail return receipt
requested, commercial courier or facsimile transmission:
If to Employee: Xxxx X. Xxxxxxxx
00 Xxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
FAX: (000) 000-0000
If to the Company: Entertainment Properties Trust
00 Xxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
FAX: (000) 000-0000
or to such other address or facsimile number as either party shall have
furnished the other in writing. Notices and communications shall be effective
when actually received by the addressee.
17. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or unenforceability of any other
provision of this Agreement.
18. WAIVER. A party's failure to insist upon strict compliance with any
provision of this Agreement or the failure to assert any right such party may
have hereunder shall not be deemed a waiver of such provision or any other
provision of this Agreement, and no such waiver shall be effective unless by
written instrument signed by the party granting the waiver.
19. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be an original and both of which, taken together, shall constitute a
single instrument.
20. BOARD APPROVAL. This Agreement has been approved by the Board upon the
recommendation of the Compensation Committee. The officer signing this Agreement
on behalf of the Company is duly authorized to do so and to bind the Company to
the provisions hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
above date.
COMPANY
ENTERTAINMENT PROPERTIES TRUST
By /s/ Xxxxx X. Brain
-------------------------------------
Xxxxx X. Brain
President and Chief Executive Officer
EMPLOYEE
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
