EXHIBIT 10.32
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated as of October 11, 2006
(the "Effective Date"), among Wellsford Real Properties, Inc., a Maryland
corporation ("WRP"), Xxxx Services LLC, a Maryland limited liability company and
a wholly-owned subsidiary of WRP ("LLC", and together with WRP, the
"Employers"), and Xxxxx Xxxxxxx ("Employee").
Recitals
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WHEREAS, Employee is currently employed by Xxxx, Inc., a
Delaware corporation ("Xxxx"), under an Amended and Restated Employment
Agreement dated as of July 25, 2003 (the "Original Agreement"); and
WHEREAS, WRP, LLC and Xxxx have entered into that certain
Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), pursuant to which, and subject to the terms and conditions of
which, Xxxx will merge (the "Merger") with and into LLC and LLC will be the
survivor in the Merger and will be a wholly owned subsidiary of WRP; and
WHEREAS, the Employers desire to employ Employee and Employee
desires to be employed by the Employers effective immediately following (i) the
Effective Time (as such term is defined in the Merger Agreement) and (ii) the
repayment by Employee of the Shareholder Note (as defined in the Original
Agreement) pursuant to the terms thereof (the "Employment Date").
NOW, THEREFORE, Employee and Employers, in consideration of
the agreements, covenants and conditions contained herein, hereby agree as
follows:
1. Basic Employment Provisions.
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(a) Employment and Term. Subject to the terms and conditions of
this Agreement, the Employers hereby employ Employee, and Employee agrees to be
employed by the Employers, for a period (the "Employment Period") of three years
from the Employment Date.
(b) Duties. Employee shall serve as the President and Chief
Executive Officer of WRP and as President and Chief Executive Officer of
LLC. Employee's duties and responsibilities and powers as set from time to time
by WRP's Board of Directors (the "Board") or a committee thereof, shall be
commensurate with Employee's positions. During the Employment Period, Employee
agrees to perform his duties hereunder faithfully and to the best of his ability
and to devote his full professional working time, attention and energies to the
transaction of the Employers' business, in each case subject to the terms
hereof. During the Employment Period, Employee shall not be employed or
otherwise engaged in any other business or enterprise without the written
consent of the Employers. Notwithstanding any other term hereof but subject to
the terms and provisions of Sections 8 and 9, nothing contained herein shall
preclude Employee from (i) serving on the boards of a reasonable number of other
trade associations and/or civic or charitable organizations and businesses which
do not compete with the business of the Employers, (ii) engaging in charitable
activities and community affairs, (iii) managing his personal investments and
affairs, in each case as long as such activities do not materially interfere
with the discharge of his duties and responsibilities under this Section 1(b).
2. Compensation.
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(a) Salary. As compensation for the services to be rendered by
Employee hereunder, the Employers are jointly and severally obligated to pay to
Employee for each year of the Employment Period, commencing on the Employment
Date, a gross annual base salary of $375,000 per year (the "Gross Annual Base
Salary"), payable in accordance with the payroll practices of the Employers in
effect from time to time.
(b) Bonus. Promptly following the Effective Date, WRP shall
establish an executive incentive plan, which shall provide bonuses to senior
executive employees of the Employers ("Executive Incentive Plan"). Employee
shall be eligible to receive an annual bonus (the "Annual Bonus") under such
Executive Incentive Plan, in accordance with the terms of such plan; provided,
however, that for (i) the period beginning on the Employment Date and ending 12
months thereafter, Employee's minimum Annual Bonus shall be $270,000 (the "2007
Minimum Annual Bonus"), (ii) for the period beginning on the first anniversary
of the Employment Date and ending 12 months thereafter, Employee's minimum
Annual Bonus shall be $270,000 (the "2008 Minimum Annual Bonus") and (iii) for
the period beginning on the second anniversary of the Employment Date and ending
12 months thereafter, Employee's minimum Annual Bonus shall be $270,000 (the
"2009 Minimum Annual Bonus"; and each such 12-month period referred to in
clauses (i) and (ii) and this clause (iii), an "Employment Year"). (In the event
that the Executive Incentive Plan awards bonuses which are based on a calendar
year or fiscal year that is not congruent with an Employment Year, any Minimum
Annual Bonus shall be attributed to the Executive Incentive Plan award period on
a pro rata basis.) The minimum Annual Bonuses referred to in each of clause (i),
(ii) and (iii) above shall be paid 30 days from the end of the period in which
it was earned. All Annual Bonus payments shall be subject to deduction and
withholding required by applicable law. For purposes of clarity, each of the
parties hereto acknowledges and agrees that the 2007 Minimum Annual Bonus, the
2008 Minimum Annual Bonus and the 2009 Minimum Annual Bonus are the minimum
guaranteed Annual Bonus for such periods and that the Compensation Committee of
the Board may, in its discretion, pay a higher amount as an Annual Bonus.
Further, the Executive Incentive Plan, as such plan is adopted or amended from
time to time by the Compensation Committee of the Board, may provide for a bonus
in excess of the 2007 Minimum Annual Bonus, the 2008 Minimum Annual Bonus and
the 2009 Minimum Annual Bonus.
(c) Benefits. During the Employment Period, Employee shall be
entitled to the benefits which senior executives of the Employers become
entitled under the terms of any benefit plans or programs instituted by
Employers, as in effect from time to time (it being understood that WRP or LLC
may amend or terminate such benefit plans or programs in accordance with such
plans or programs at any time during the Employment Period). For purposes of
determining Employee's eligibility for participation in employee benefit plans
and for other fringe benefits, Employee shall be deemed to be a full time
employee of whichever Employer provides more favorable benefits, in the
aggregate, to its senior executives. In addition, Employee shall be entitled to
four weeks paid vacation per year, which shall be taken in accordance with the
policies of WRP governing vacation of senior executive employees.
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(d) Stock Options and Restricted Stock.
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(i) WRP shall, as soon as practicable following the Effective
Date (A) amend the Wellsford Real Properties, Inc. 1997 Management Incentive
Plan (the "1997 Option Plan) and the Wellsford Real Properties, Inc. 1998
Management Incentive Plan (the "1998 Option Plan") or take such other action,
including adoption of a new plan, as may be necessary to provide for the grant
of restricted stock units of WRP (the 1998 Option Plan together with the 1997
Option Plan and any new plan, the "WRP Option Plans") and (B) register with the
Securities and Exchange Commission any securities which will be issued to settle
the grants of restricted stock units contemplated by this Agreement if such
securities have not previously been registered.
(ii) As of the Employment Date, Employee shall be granted
100,000 restricted stock units of WRP (the "Initial Units") pursuant to the WRP
Option Plans, which shall provide for customary adjustment provisions in the
event of a stock split, reverse stock split, merger or other change in the
capitalization of WRP similar to the adjustment provisions in the 1998 Option
Plan. The Initial Units shall be equally divided among three separate tranches,
hereinafter defined as, "Xxxxxxx 0", "Xxxxxxx 0" and "Tranche 3", respectively.
(A) Tranche 1 shall vest on the first anniversary of
the Employment Date if the growth in EBITDA (as defined on Schedule 2(d)(ii)),
for the Tranche 1 Measuring Period (as defined on Schedule 2(d)(ii)) exceeds
10%. If Tranche 1 has not vested by the first anniversary of the Employment
Date, it shall vest on the second anniversary of the Employment Date if the
cumulative growth in EBITDA for the Tranche 1 Measuring Period and the Tranche 2
Measuring Period (as defined on Schedule 2(d)(ii)), exceeds 20%. If Tranche 1
has not vested on the first or second anniversary of the Employment Date, it
shall vest on the third anniversary of the Employment Date if the cumulative
growth in EBITDA for the Tranche 1 Measuring Period, the Tranche 2 Measuring
Period and the Tranche 3 Measuring Period (as defined on Schedule 2(d)(ii)),
exceeds 30%.
(B) Tranche 2 shall vest on the second anniversary
of the Employment Date if either (1) the growth in EBITDA for the Tranche 2
Measuring Period exceeds 10% or (2) the cumulative growth in EBITDA for the
Tranche 1 Measuring Period and the Tranche 2 Measuring Period exceeds 20%. If
Tranche 2 has not vested by the second anniversary of the Employment Date, it
shall vest on the third anniversary of the Employment Date if either (x) the
cumulative growth in EBITDA for the Tranche 2 Measuring Period and the Tranche 3
Measuring Period, exceeds 20% or (y) if the cumulative growth in EBITDA for the
Tranche 1 Measuring Period, the Tranche 2 Measuring Period and the Tranche 3
Measuring Period exceeds 30%.
(C) Tranche 3 shall vest on the third anniversary of
the Employment Date if either (1) the growth in EBITDA for the Tranche 3
Measuring Period exceeds 10% or (2) the cumulative growth in EBITDA for the
Tranche 1 Measuring Period, the Tranche 2 Measuring Period and the Tranche 3
Measuring Period exceeds 30%.
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In the event a change of control (as defined herein) occurs before the third
anniversary of the employment date, then the requirements for ebitda growth (as
described in this section 2(d)(ii)) shall be deemed to be satisfied for any
tranche of the initial units which had not vested as of the effective date of
such change of control, and any tranche that was scheduled to vest on any
anniversary date before the effective date of such change of control shall vest
on the effective date of the change of control.
The Employee must be employed as of each anniversary date for vesting to occur
on that date. Notwithstanding the foregoing, the Initial Units shall vest
immediately (1) upon termination of the Employment Period other than for Cause,
or (2) if Employee leaves for Good Reason. The restricted stock of WRP to be
delivered pursuant to the terms of the Initial Units shall be delivered to
Employee on the third anniversary of the Employment Date or at such earlier time
as (x) termination of the Employment Period other than for Cause, or (y)
Employee leaves for Good Reason; provided, however, that delivery shall be
delayed to the first date such delivery can be made without incurring additional
tax under ss. 409A of the Code.
(iii) Employee shall be eligible to be considered for
participation in any other incentive compensation methods or programs
established by the Compensation Committee and offered to senior executives of
WRP or LLC.
3. Termination. Employee's employment may be terminated prior to the
expiration of the Employment Period under the following conditions, in each
case subject to the terms of Section 4. In the event any party or parties
(in the case of the Employers) elect to terminate the Employment Period, such
party or parties shall deliver written notice thereof (other than a termination
pursuant to clause (a) below) in accordance with the terms of this Section 3,
which written notice shall set forth the provision of this Section 3 under
which such termination is effective. A notice of termination hereunder may not
be retracted or withdrawn by the party or parties delivering the same, without
the consent of the other party or parties hereto.
(a) Death. The Employment Period shall terminate automatically,
without notice, effective upon the death of Employee.
(b) Disability. The Employers may terminate the Employment Period
at any time effective upon not less than 10 days prior written notice to
Employee after Employee has been unable to perform the essential duties of his
positions because of Disability (as defined below) for a period of (i) 180
consecutive days in any 12-month period or (ii) 270 days in any 12-month period,
subject to reasonable accommodation provisions of applicable law. For purposes
of this Agreement, "Disability" shall mean that Employee is unable to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12 months.
(c) Cause. The Employers may terminate the Employment Period at
any time for Cause, effective upon delivery of prior written notice to Employee.
For the purposes of this Agreement, "Cause" shall mean Employee's (i) breach of
Section 9, (ii) material breach of any other term or provision of this Agreement
which is not cured by Employee within 20 days written notice thereof from either
Employer (which notice shall specify that such notice is being delivered for
purposes of this clause (c)(ii)), (iii) fraud or dishonesty in the course of his
employment, (iv) continued gross neglect of the duties to be performed by him
hereunder for reasons other than Disability which is not cured by Employee
within 20 days written notice thereof from the Employers (which notice shall
specify that such notice is being delivered for purposes of this clause
(c)(iv)), or (v) conviction or pleading guilty or nolo contendre to any felony
charge. Notwithstanding the foregoing, Employee shall not be deemed to have been
terminated for Cause pursuant to clause (i) through (iv) hereof unless and until
there shall have been delivered to Employee a copy of a resolution duly adopted
by the affirmative vote of not less than either (a) a majority of the members of
the Board or (b) two-thirds of the independent members of the Board, at a
meeting of the Board called and held for such purpose (after reasonable notice
to Employee and an opportunity for Employee, together with counsel of his
choosing, to be heard before the Board not less than 10 business days after the
giving of such notice), finding that in the good faith opinion of the Board,
Employee conducted himself as set forth above in clause (i) through (iv) of this
Section 3(c) and specifying the particulars of such conduct in detail.
Notwithstanding anything contained in this Agreement to the contrary, no failure
to perform by Employee after a notice of termination is given by Employee shall
constitute proper Cause for purposes of this Agreement.
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(d) Change of Control.
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(i) In the event there is a termination by the Employers
without Cause or a termination by Employee for Good Reason, in either case
within the two-year period following a Change of Control (as defined below),
Employee shall be entitled to payment under Section 4(d) of this Agreement. If
Employee remains continuously employed for six months following the effective
date of a Change of Control, Employee shall have the right to resign during the
30-day period which begins on the date 6 months after the effective date of such
Change of Control (such 30-day period, the "Window Period"). Employee's
resignation for any reason during the Window Period shall be deemed to be
treated as a resignation for Good Reason after a Change of Control, and upon his
resignation during the Window Period Employee shall be entitled to payment under
Section 4(d) of this Agreement.
(ii) For purposes of this Agreement, "Change of Control"
shall mean the occurrence of any of the following after the Employment Date,
whether directly or indirectly, voluntarily or involuntarily, whether as part of
a single transaction or a series of transactions: (A) during any period of
twelve consecutive months or less, individuals who at the beginning of such
period constitute the Board cease, for any reason, to constitute at least a
majority of the Board, unless the election or nomination for election of each
new director was approved by at least two-thirds of the directors then still in
office who were directors at the beginning of the period (either by a specific
vote of such directors or by the approval of the Employer proxy statement in
which each such individual is named as a nominee for a director without written
objection to such nomination by such directors); provided, however, that no
individual initially elected or nominated as a director 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 or consents by or on behalf
of any person other than the Board shall be deemed to be approved (solely for
purposes of this Section 3(d)(ii)); or (B) the sale, transfer or other
disposition of all or substantially all of the assets of either Employer (other
than to a wholly owned direct or indirect subsidiary of either Employer or a
benefit plan of either Employer); or (C) any person or entity or group of
affiliated persons or entities (other than Employee, Xxxxxxxx Xxxxxxxx or a
group including either of them) acquiring beneficial ownership (as that term is
used in Rules 13d-3, 13d-5 or 16a-1 under the Securities Exchange Act of 1934,
as amended, whether or not applicable) of 30% or more of the shares of capital
stock or other equity of either Employer, having by the terms thereof voting
power to elect the members of the Board (in the case of WRP only), or,
convertible into shares of such capital stock or other equity of either Employer
(collectively, "Voting Shares"), as the case may be; or (D) the stockholders or
members of either Employer adopting a plan of liquidation providing for the
distribution of all or substantially all of either Employer's assets or
approving the dissolution of either Employer; or (E) the merger, consolidation,
or reorganization of either Employer or any similar transaction which results in
(1) the beneficial owners of the Voting Shares of either Employer immediately
prior to such merger, consolidation, reorganization or transaction beneficially
owning, after giving effect to such merger, consolidation, reorganization or
transaction, interests or securities of the surviving or resulting entity
representing 50% or less of the shares of capital stock or other equity of the
surviving or resulting entity having by the terms thereof voting power to elect
the members of the board or directors (or equivalent thereof) or convertible
into shares of such capital stock or other equity of such entity or (2) any
person or entity or group of affiliated persons or entities (other than
Employee, Xxxxxxxx Xxxxxxxx or a group including either of them) owning, after
giving effect to such merger, consolidation, reorganization or transaction,
interests or securities of the surviving or resulting entity, acquiring
beneficial ownership of 30% or more of the shares of capital stock or other
equity of the surviving or resulting entity having by the terms thereof voting
power to elect the members of the board of directors (or equivalent thereof) or
convertible into shares of such capital stock or other equity of such entity.
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(e) Good Reason. Employee may terminate the Employment Period at
any time for Good Reason, effective upon not less than 10 days prior written
notice to the Employers. For purposes of this Agreement, "Good Reason" means (i)
a material diminution in Employee's duties or responsibilities for either
Employer, demotion of Employee or a change in Employee's direct reporting
relationship to other than the Board or a committee thereof; (ii) Employee's
being removed from, not nominated for re-election to, or not re-elected to the
Board, other than for Cause or at his request; (iii) Employer's material breach
of this Agreement which is not cured within 20 days of written notice thereof to
the Employers (which notice shall specify that such notice is being delivered
for purposes of this clause (e)(iii)); or (iv) Employee's being required to
report to an office to work on a regular basis at a location outside of a
30-mile radius from 000 Xxxxx Xxxxxx, Xxx Xxxx, XX.
(f) Termination of the Employment Period Other Than for Death,
Disability, Cause, Change of Control or Good Reason. The Employers may terminate
Employee's employment at any time, for any or no reason, effective upon not less
than 30 days prior written notice. Employee may terminate his employment, or
resign, from the Employers at any time, for any or no reason, effective upon not
less than 30 days prior written notice.
4. Obligations of the Employers Upon Termination of the Employment
Period.
(a) Termination Pursuant to Section 3(a) (Death). In the event that
the Employment Period terminates pursuant to Section 3(a), no further
compensation shall be paid to Employee following the effective date of
termination, provided, that Employee's estate or other beneficiary(ies), as
applicable, shall be paid, in cash within 30 days of the effective date of
termination, (i) (A) Employee's Gross Annual Base Salary through the effective
date of termination to the extent not theretofore paid, (B) any accrued vacation
pay to the extent not theretofore paid, (C) subject to Section 6, all business
expenses which were incurred by Employee prior to or as of the effective date of
termination but not yet reimbursed by the Employers and (D) the Annual Bonus
payable for each year preceding the year during which termination occurs, to the
extent not theretofore paid (the aggregate amounts set forth in clauses (A),
(B), (C) and (D) above, collectively the "Accrued Obligations"), and (ii) the
Termination Bonus. For purposes of this Agreement, (1) the "Termination Bonus"
shall mean the excess of $810,000 over the sum of the 2007 Minimum Annual Bonus,
the 2008 Minimum Annual Bonus and the 2009 Minimum Annual Bonus paid through the
date of termination or payable as an Accrued Obligation, and (2) the "Present
Value Termination Bonus" shall mean the sum of the present value of (i) the
unpaid 2007 Minimum Annual Bonus, plus (ii) the unpaid 2008 Minimum Annual
Bonus, plus (iii) the unpaid 2009 Minimum Annual Bonus: in each case present
value shall be calculated using a discount rate of 5% and assuming each bonus
would otherwise be paid on the last day of the applicable Employment Year.
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(b) Termination Pursuant to Section 3(b) (Disability). In the event
that the Employment Period is terminated pursuant to Section 3(b), no further
compensation shall be paid to Employee following the effective date of
termination, provided, that Employee or his legal representative, as applicable
shall be paid, in cash, within 30 days of the effective date of termination (i)
the Accrued Obligations and (ii) the Termination Bonus.
(c) Termination Pursuant to Section 3(c) (Cause). In the event
that the Employment Period is terminated pursuant to Section 3(c), no further
compensation shall be paid to Employee following the effective date of
termination, provided, that Employee shall be paid, in cash within 30 days of
the effective date of termination, the Accrued Obligations.
(d) Termination Pursuant to Section 3(d) (Change of Control). In
the event that the Employment Period is terminated following a Change of Control
(i) by the Employers for any reason (other than Employee's death or Disability,
or with Cause), or (ii) by Employee for Good Reason, no further compensation
shall be paid to Employee under this Agreement following the effective date of
termination, provided, that, the Employers shall pay to Employee in cash, (x)
within 30 days of the effective date of termination, the Accrued Obligations,
and (y) as soon as practicable following the first date such payment can be made
without incurring additional tax under ss. 409A of the Internal Revenue Code of
1986, as amended (the "Code"), (1)2.5 times the Gross Annual Base Salary payable
to Employee for the year during which employment terminated plus (2) a pro rata
portion (based on the number of days that Employee was employed by the Employers
during the year in which employment terminated) of the Annual Bonus in excess of
the minimum Annual Bonus actually paid or payable for the immediately preceding
year plus (3) the Present Value Termination Bonus. In addition, Employee and any
of his dependents who as on the date of Employee's termination of employment
were covered under an employee benefit plan of the Employers which provides
medical, dental and hospitalization coverage, will be entitled for a period of
eighteen months, or if less the period during which Employee and such dependents
are entitled to COBRA continuation coverage, to COBRA continuation coverage at
the rates paid by active employees for coverage as active employees; provided,
however, that if such continued participation would result in additional tax
under ss. 409A of the Code, Employee will be required to pay his own premiums
for COBRA continuation coverage and then, as soon as practicable following the
first date such payment can be made without incurring additional tax under ss.
409A of the Code, will be paid an amount such that, after payment of income
taxes, Employee is fully reimbursed for the cost of such premiums.
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(e) Termination by Employee Without Good Reason. In the event that
the Employment Period is terminated by Employee without Good Reason, no further
compensation shall be paid to Employee following the effective date of
termination, provided that the Employers shall pay to Employee, in cash within
30 days of the effective date of termination, the Accrued Obligations.
(f) Termination by the Employers Without Cause or Employee for Good
Reason. In the event that the Employment Period is terminated either (i) by the
Employers for any reason (other than Employee's death or Disability, or with
Cause), or (ii) by Employee for Good Reason, no further compensation shall be
paid to Employee under this Agreement following the effective date of
termination, provided, that, the Employers shall pay to Employee, in cash (A)
within 30 days of the effective date of termination the Accrued Obligations, and
(B) as soon as practicable following the first date such payment can be made
without incurring additional tax under ss. 409A of the Code, (1) the greater of
(x) the sum of the Gross Annual Base Salary payable for each year (or portion
thereof) remaining to be paid through the third anniversary of the Employment
Date, and (y) $375,000, plus (2) the Present Value Termination Bonus, plus (3) a
pro rata portion (based on the number of days that Employee was employed by the
Employers during the year in which employment terminated) of the Annual Bonus in
excess of the minimum Annual Bonus actually paid or payable for the immediately
preceding year. In addition, during the period of time after termination through
the third anniversary of the Employment Date, Employee and any of his dependents
who as on the date of Employee's termination of employment were covered under an
employee benefit plan of the Employers which provides medical, dental and
hospitalization coverage, will be entitled for a period of eighteen months, or
if less the period during which Employee and such dependents are entitled to
COBRA continuation coverage, to COBRA continuation coverage at the rates paid by
active employees for coverage as active employees; provided, however, that if
such continued participation would result in additional tax under ss. 409A of
the Code, Employee will be required to pay his own premiums for COBRA
continuation coverage and then, as soon as practicable following the first date
such payment can be made without incurring additional tax under ss. 409A of the
Code, will be paid an amount such that, after payment of income taxes, Employee
is fully reimbursed for the cost of such premiums.
5. Change of Control. If Employee receives any payment which is an
"excess parachute payment" within the meaning of ss. 280G(b)(1) of the Code,
Employee shall either be entitle9d to either (a) the full amount of the payment
to which he is entitled under this Agreement or (b) an amount reduced to be
equal to 299% of his "base amount" if payment of such reduced amount will result
in greater after-tax proceeds to Employee.
6. Reimbursement of Expenses. The applicable Employer shall reimburse
Employee for any and all reasonable expenses incurred by him in the performance
of his duties hereunder, subject to the presentment of appropriate vouchers in
accordance with the applicable Employer's normal policies for expense
verification.
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7. No Mitigation/No Offset. All amounts paid or due Employee under
Section 4 shall be paid without regard to whether Employee has taken or takes
actions to mitigate damages. Accordingly, there shall be no offset against
amounts due to Employee under this Agreement, or otherwise, on account of any
remuneration attributable to any subsequent employment that he may obtain or on
account of any claim that either Employer may have against him.
8. Ownership of Materials. All records, materials, lists, files, manuals,
tapes and all other written or recorded data and information in whatever form
("Materials") that may be used by, or made available to Employee in connection
with his employment hereunder are and shall remain the sole property of the
Employers. As soon as practicable following the voluntary or involuntary
termination of Employee's employment hereunder, Employee shall return or cause
to be returned to the Employers Materials in Employee's possession and/or under
his control.
9. Covenant Not to Compete; Confidentiality. Employee expressly
recognizes and acknowledges that:
(a) The Employers have developed and established a valuable and
extensive clientele for its real estate information reporting services.
(b) The Employers' business connections and clients have been
established and maintained at great expense and are of great value to the
Employers.
(c) Employee has and will become familiar with and possessed of the
manner, method, secrets, and confidential and proprietary information pertaining
to the Employers' business methods and the business requirements and needs of
theirclients (collectively, "Confidential Information").
(d) By virtue of this Agreement and predecessor agreements,
Employee has and will become personally acquainted with the clients, business
methods, and trade secrets of the Employers.
(e) In recognition and in consideration of the foregoing, Employee
expressly covenants and agrees as follows:
(i) During the term of this Agreement and continuing until the
Non-Competition Termination Date (as hereinafter defined), Employee shall not in
any way, directly or indirectly, for himself or on behalf of or in conjunction
with any other person or entity, solicit for the benefit of a Competitive
Business (as defined below), divert, take away, or attempt to take away, any of
Employers' clients or the business or patronage of any such clients. For
purposes of applying this provision after the termination or expiration of the
Employment Period, "clients" shall mean any person or entity to whom the
Employers provided their services within six months prior to such effective date
of termination or expiration.
(ii) During the term of this Agreement and continuing until
the Non-Competition Termination Date, Employee shall not in any way, directly or
indirectly, for himself or on behalf of or in connection with any other person
or entity, solicit, entice, hire, employ, or endeavor to employ, any of
Employers' employees. For purposes applying this provision after the termination
or expiration of the Employment Period, "employees" shall mean any person
employed by the Employers within six months prior to such effective date of
termination or expiration.
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(iii) During the term of this Agreement and continuing until
the Non-Competition Termination Date, Employee shall not, directly or
indirectly, for himself or on behalf of or in connection with any other person
or entity, engage in the United States in any Competitive Business. For purposes
hereof, "Competitive Business" shall mean the business of developing data,
analysis or forecasts pertaining to the construction, absorption, occupancy,
rents, automated valuation, or automated credit risk analysis for United States
commercial office, industrial, retail, multi-family, or hotel properties or real
estate markets. Nothing in this clause (iii) shall be deemed to prohibit
Employee from engaging in research related to any of the foregoing for persons
or entities developing such data incidental to their businesses.
(iv) During the term of this Agreement and thereafter,
Employee shall not divulge to others or use for his own benefit, or assist
others in using such information for their benefit, any Confidential Information
obtained prior to or after the date hereof from the Employers by virtue of the
relationship created hereunder or otherwise, unless such Confidential
Information is or becomes generally available to the public (other than by
reason of Employee's breach of this clause (iv)) and except in connection with
(A) the performance of Employee's duties hereunder (B) enforcement of Employee's
rights under this Agreement and (C) as required by law. Notwithstanding anything
in the foregoing, the parties hereto hereby acknowledge and agree that, subject
to the terms and conditions of this Section 9(e), Employee's employment or
retention as a consultant in the real estate information industry does not, in
and of itself, constitute a breach of this clause (iv).
(v) Employee acknowledges that damages resulting from the
breach of the provisions of this Section 9(e) may be difficult to calculate. In
the event of a breach or threatened breach by Employee of the provisions of this
Section 9(e), the Employers shall be entitled to apply to any court of competent
jurisdiction for an injunction against such breach, actual or threatened.
Notwithstanding the foregoing, the Employers shall at all times retain their
right to recover from Employee, or any other person or entity that may be held
liable, their damages resulting from such breach.
For purposes of this Agreement, "Non-Competition Termination Date" shall mean
the date employment ends for any reason, provided, however, that (a) in the
event that the Employment Period is terminated by the Employers for Cause or by
Employee without Good Reason following a Change of Control, twelve months
following the effective date of termination and (b) in the event that the
Employment Period is terminated by the Employers for Cause or by Employee
without Good Reason before a Change of Control, six months following the
effective date of termination. The parties acknowledge and agree that the terms
of this Section 9(e) shall not apply to or be effective against Employee in
respect of any period following Employee's (A) termination without Cause, (B)
resignation for Good Reason or (C) termination for Disability.
10. Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests, or obligations hereunder shall be assigned by either of the
parties hereto.
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11. Representations. Employee represents and warrants to both Employers
that (a) the execution, delivery, and performance of this Agreement by Employee
does not, with or without the giving of notice or the passage of time, or both,
conflict with, result in a default, right to accelerate, or loss of rights under
any provision of any agreement of understanding to which Employee or, to the
best knowledge of Employee, any of Employee's affiliates is a party or by which
Employee, or to the best knowledge of Employee, any of Employee's affiliates may
be bound or affected and (b) this Agreement is the legal, valid and binding
obligation of Employee, enforceable against him in accordance with its terms
(except to the extent enforcement may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability affecting the rights of creditors). Each Employer
represents and warrants to Employee that the execution, delivery, and
performance of this Agreement by Employer does not, with or without the giving
of notice or the passage of time, or both, conflict with, result in a default,
right to accelerate, or loss of rights under any provision of any agreement or
understanding to which each Employer, or, to the best knowledge of each
Employer, any of Employers' affiliates is a party or by which Employer, or to
the best knowledge of each Employer, any of Employers' affiliates may be bound
or affected. Each Employer further represents and warrants to Employee that (i)
it has full power and authority to enter into and perform its obligations under
this Agreement, (ii) the execution and delivery of this Agreement by such
Employer has been duly authorized by all necessary corporate or limited
liability company actions, as applicable and (iii) this Agreement is the legal,
valid and binding obligation of each Employer, enforceable against it in
accordance with its terms (except to the extent enforcement may be limited by
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability affecting the rights of
creditors).
12. Attorney's Fees. In the event that Employee obtains a non-appealable
judgment against either Employer in a litigation with respect to this Agreement,
Employee shall be entitled to recover from either Employer reasonable attorneys'
fees and expenses incurred by Employee in connection therewith, and each
Employer hereby agrees to pay such fees and expenses.
13. Indemnification. (a) To the fullest extent authorized by applicable
law, the Employers shall indemnify and hold harmless Employee from and against
any and all claims, liabilities, judgments, fines, penalties, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses)
reasonably incurred by Employee in connection with any threatened or pending
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that Employee was or is a director, officer
or employee of the Employers, whether the basis of such proceeding is alleged
action or inaction in an official capacity as a director, officer or employee
while serving as a director, officer or employee. The right to indemnification
hereunder shall include the right to be paid by the Employers the expenses
(including reasonable attorneys' fees) incurred in defending any such proceeding
in advance of its final disposition; provided, however, that such advance shall
be made to Employee only upon delivery to the Employers of an undertaking by
Employee to repay all amounts so advanced if it shall ultimately be determined
by final judicial decision from which there is no further right to appeal that
Employee is not entitled to indemnification and to such advancement under this
Section 13 or otherwise. The rights of Employee hereunder shall survive the
termination or expiration of this Agreement.
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(b) On or after a Change of Control, the Employers shall pay all
legal fees and related expenses (including the costs of experts, evidence and
counsel) incurred by Employee as they become due as a result of (i) the
termination of Employee's employment (including all such fees and expenses, if
any, incurred in contesting or disputing any such termination of employment),
(ii) Employee's seeking to obtain or enforce any right or benefit provided by
this Agreement or by any other plan or arrangement maintained by the Employers
under which Employee is or may be entitled to receive benefits, (iii) Employee's
hearing before the Board as contemplated in subsection 3(c) hereof or (iv) any
action taken by the Employers against Employee, until such time as (A) the
dispute is settled by the parties or resolved pursuant to a binding arbitration
award in a manner that is more favorable to Employee than offered by the
Employers or (B) a final judgment, order or decree of a court of competent
jurisdiction has been rendered in favor of the Employers and the time for appeal
therefrom has expired and no appeal has been perfected. In no event shall
Employee be required to reimburse the Employers for any legal fees or related
expenses paid by the Employers pursuant to this subsection 13(b).
14. Captions. The captions, headings and arrangements used in this
Agreement are for convenience only and do not in any way affect, limit, or
amplify the provisions hereof.
15. Notices. All notices required or permitted to be given hereunder shall
be in writing and shall be deemed delivered when actually received or, if
mailed, whether or not actually received, five days after deposited in the
United States mail, postage prepaid, registered or certified mail, return
receipt requested, addressed to the party to whom notice is being given at the
following address or at such other address as such party may designate by
notice:
To the Employers: Wellsford Real Properties, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: The Board of Directors
with a copy to: King & Spalding LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Employee: Xxxxx Xxxxxxx
0 Xxxxxx Xxxx Xxxxx Xxxx
Xxxxxx-Xx-Xxxxxx, XX 00000
16. Invalid Provisions. If any provision of this Agreement is held to
be illegal, invalid, or unenforceable under present or future laws, such
provision shall be fully severable, and, provided that the rights, duties and
obligations of the parties are not materially altered by such severance, this
Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provision had never constituted a part of this Agreement.
17. Entire Agreement; Amendments. This Agreement contains the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, if any, relating to the
subject matter hereof (including, without limitation, the Original Agreement).
This Agreement may be amended only by an instrument in writing duly executed by
an officer of the Employers and by Employee.
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18. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original, and all of which together shall
constitute one and the same agreement.
19. Governing Law. This Agreement shall be construed and enforced
according to the laws of the State of New York except that indemnification
obligations owed to Employee in his capacity as an officer or director of WRP,
or as an officer of LLC shall be governed by Maryland law.
[Signature Page to Follow]
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first written above.
WELLSFORD REAL PROPERTIES, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
--------------------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Chief Financial Officer and Vice
President
XXXX SERVICES LLC
By: /s/ Xxxx X. Xxxxxxxxxx
--------------------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Chief Financial Officer and Vice
President
/s/ Xxxxx Xxxxxxx
----------------------------------------------------
Xxxxx Xxxxxxx
SCHEDULE 2(d)(ii)
EBITDA and Measuring Period
EBITDA Definition
The definition of EBITDA and how to measure and consistently apply the period to
period change in EBITDA (as so defined) to be used to determine the vesting of
the RSUs shall be mutually agreed upon by the parties hereto prior to the
Effective Time.
Measuring Period
Tranche 1 Measuring Period -- 2006 fiscal year of Xxxx, ending 10/31/06,
compared to the 2007 calendar year of LLC
Tranche 2 Measuring Period -- 2007 calendar year of LLC compared to 2008
calendar year of LLC
Tranche 3 Measuring Period -- 2008 calendar year of LLC compared to 2009
calendar year of LLC
