SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT is dated as of August 1, 1997 and is made
by and between XXXXX X. XXXXXXX ("Xxxxxxx"), an individual who resides at 000
Xxxxxxx Xxxxx, Xxxxxxxxx Xxxx, XX 00000, as well as each and every
dependent, heir, executor and assign of Xxxxxxx, and BRANDYWINE REALTY TRUST
("BRT"), a Maryland real estate investment trust, having its headquarters at
00 Xxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000, together with each
and every one of its predecessors, successors (by merger or otherwise),
parents, subsidiaries (including but not limited to Brandywine Realty
Services Corporation ("BRSC")), affiliates, divisions, trustees, directors,
officers, employees and agents, whether present or former.
WHEREAS, Xxxxxxx entered into an Employment Agreement dated as of
July 31, 1996 (the "Employment Agreement") with BRSC;
WHEREAS, BRSC assigned its rights and delegated its obligations
under the Employment Agreement to BRT;
WHEREAS, the parties intend that Xxxxxxx'x employment with BRT will
terminate on August 1, 1997 and that the Employment Agreement will terminate
on that date;
WHEREAS, Xxxxxxx and BRT desire to part on an amicable basis.
NOW, THEREFORE, in consideration of the mutual promises hereinafter
set forth, Xxxxxxx and BRT, acting of their own free will and intending to be
legally and irrevocably bound, hereby agree as follows:
1. Employment Termination. Xxxxxxx agrees that his employment
with BRT is terminated, effective as of August 1, 1997, and Xxxxxxx resigns
from all positions with BRT, effective as of August 1, 1997. Without
limiting the generality of the foregoing, all rights and obligations of BRT
and Xxxxxxx under the Employment Agreement shall terminate, effective as of
August 1, 1997. Xxxxxxx waives any and all rights to reinstatement and/or
consideration for future employment with BRT.
2. Salary Continuation. BRT agrees to pay Xxxxxxx salary
continuation in the total amount of One Hundred Twenty-Five Thousand Dollars
($125,000.00) for the period from August 1, 1997 to August 1, 1998. This
salary continuation will be paid in the same manner and with the same
federal, state and local tax withholdings as Xxxxxxx'x current salary.
3. COBRA. For the one-year period commencing August 1, 1997, BRT
will provide, at its expense, Xxxxxxx with family coverage under the
Company's group medical plan subject to the terms of the plan as in effect
from time to time. All co-pays, deductibles and uninsured amounts will be
the responsibility of Xxxxxxx. Xxxxxxx'x employment, for purposes of
continuation of benefits for himself and eligible dependents at his (or
their) own cost under COBRA, shall terminate on August 1, 1997. Accordingly,
Xxxxxxx'x statutory right under COBRA to continue participation in BRT's
group medical coverage for a period of up to eighteen (18) months, at his own
cost, shall commence on August 1, 1997. Xxxxxxx agrees to promptly notify BRT
by written notice to the President and Chief Executive Officer of BRT if he
becomes eligible to participate in a comparable medical plan with a new
employer.
4. Transfer of Partnership Interest. Xxxxxxx hereby transfers,
effective automatically on August 1, 1997, all of his right, title and
interest as a partner in Brandywine Realty Services Partnership ("BRSP") to
BRSP in exchange for $25.00 and shall, on such date, withdraw as a partner of
XXXX.
0. Fee Sharing. If at any time prior to April 30, 1998 Xxxxxxx
renders services to Safeguard Scientifics, Inc. ("SSI") or any affiliate of
SSI as of the date of this Agreement (an "SSI Affiliate"), then he shall
remit to BRT forty percent (40%) of all fees earned on account of such
services promptly following his receipt of payment, whether or not he
receives payment before or after April 30, 1998. The foregoing obligation
shall not apply to services rendered by Belcher to SSI or an SSI Affiliate on
or after April 30, 1998.
6. Confidentiality.
(a) Xxxxxxx agrees that he will not disclose or use, for his
direct or indirect benefit or the direct or indirect benefit of any third
party, any Confidential Information (as hereinafter defined) of BRT.
"Confidential Information" means any and all proprietary or non-public
information of BRT, including without limitation, information as to BRT's
business and financial strategy and BRT's relationships with actual and
prospective sellers or buyers of real estate or tenants of real estate.
Confidential Information does not include information that is generally known
or readily accessible in the real estate industry.
(b) Xxxxxxx agrees that he will, effective as of August 1,
1997: (i) discontinue all use of Confidential Information; (ii) return to BRT
all material furnished by BRT that contains Confidential Information; and
(iii) erase any Confidential Information contained in computer memory under
his ownership or control.
(c) Xxxxxxx agrees to return to BRT on August 1, 1997 any
documents and material whatsoever relating to the business of BRT. He also
agrees that he will not make or retain copies of the foregoing.
7. Restricted Activities. Between August 1, 1997 and August 22,
1998: (A) Xxxxxxx agrees that he will not accept employment with, or act as a
consultant to: (i) any real estate investment trust or real estate company
that owns, purchases or sells office or industrial properties within any of
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the counties in which BRT (or any subsidiary) currently owns a property or
(ii) any of the companies (and any their respective subsidiaries and
affiliates) listed on Exhibit A attached hereto and (B) Xxxxxxx agrees that
he will not act as a broker or tenant representative for any of the tenants
(or any of their subsidiaries or affiliates) of the Company or any of its
subsidiaries that have leases that are scheduled to expire on or before
December 31, 1998. The foregoing sentence shall not restrict Belcher from
acting as a broker or tenant representative to any person or entity not
covered by clause (B) thereof. In the event that, prior to August 22, 1998,
any tenant with a lease scheduled to expire on or before December 31, 1998
contacts Xxxxxxx regarding his provision of services to it, Xxxxxxx will
promptly notify either the Chairman of the Board or the President and Chief
Executive Officer of the Company as to the substance of such contact.
Xxxxxxx acknowledges that his agreement in this Paragraph 7 is reasonable in
time and scope and is necessary to protect the business interests of BRT.
Xxxxxxx further acknowledges that irreparable harm would be suffered by BRT
if he were to violate such agreement and, accordingly, agrees that, in
addition to legal relief and remedies, BRT will be entitled to equitable
relief and remedies to enforce his compliance with such agreement. Xxxxxxx
further acknowledges the adequacy of the consideration he is receiving under
this Agreement in consideration for his agreement contained in this Paragraph
7. Without limiting the foregoing, and in addition to all other rights and
remedies available to BRT, if Xxxxxxx violates his agreement in this
Paragraph 7, he will immediately be required to pay to BRT an amount equal to
all amounts paid to him by BRT pursuant to Paragraph 2 and BRT will have no
further obligation to make payments to him pursuant to Paragraph 2 or to
provide, at its expense, medical coverage for him or his family pursuant to
Paragraph 3.
8. Waiver and Release of Claims. Xxxxxxx completely releases,
relinquishes, waives and discharges BRT, its officers, trustees, directors,
employees, agents, successors and assigns from all claims, liabilities,
demands and causes of action, known or unknown, filed or contingent, which he
may have or claim to have against BRT as of the date of termination of his
employment arising out of or in any way related to his employment with BRT or
the termination of that employment. Xxxxxxx agrees that he has executed this
Agreement on his own behalf, and also on behalf of his dependents, heirs,
agents, representatives and assigns. This release includes, but is not
limited to, a release of any rights or claims he may have under:
(a) the Age Discrimination in Employment Act, which prohibits
age discrimination in employment;
(b) Title VII of the Civil Rights Act of 1964, as amended by
the Civil Rights Act of 1991, which prohibits discrimination in employment
based on race, color, national origin, religion or sex;
(c) the Americans with Disabilities Act, which prohibits
discrimination on the basis of a covered disability;
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(d) the Employer Retirement and Income Security Act,
which prohibits discrimination on the basis of entitlement to certain
benefits;
(e) any other federal, state or local laws or regulations
prohibiting employment discrimination;
(f) breach of any express or implied contract claims;
(g) wrongful termination or any other tort claims, including
claims for attorney's fees, whether based on common law or otherwise;
(h) all claims to acquire or exercise any other rights or
entitlements of stock, warrants, options, or other securities of BRT;
provided that nothing contained herein shall terminate or restrict Xxxxxxx'x
rights under the warrants held by him on the date hereof exercisable for an
aggregate of 40,000 common shares of beneficial interest of BRT at any time
before 5:00 p.m. on August 22, 2002, as more fully provided in said warrants,
or under the units of limited partnership interest held by him in Brandywine
Operating Partnership, L.P.
BRT agrees to release, relinquish, waive and discharge Xxxxxxx of
all claims, liabilities, demands and causes of action, known or unknown,
which it may have or claim to have against Belcher as of the date of the
signing of this Agreement.
The foregoing releases do not waive Xxxxxxx'x or BRT's respective
rights to enforce claims arising under this Agreement or any claims which by
law may not be waived.
9. Cooperation. Xxxxxxx agrees to cooperate with BRT and its
executives in facilitating an orderly transition with respect to matters
relating to his responsibilities as a BRT executive, and, in furtherance of
such agreement, agrees to provide, at no additional compensation, reasonable
consultation to BRT's Chairman of the Board, President and Chief Executive
Officer and such other executives, including BRT's Chief Financial Officer,
as they may identify from time to time. Xxxxxxx agrees that he will not in
the future voluntarily assist any individual or entity in preparing, or
prosecuting any action or proceeding against BRT, its trustees, directors,
officers, employees, or affiliates, including but not limited to, any
administrative agency claims. Xxxxxxx also agrees that he will, at BRT's
expense (and subject to payment to Xxxxxxx of reasonable compensation and
without unreasonably interfering with his future employment obligations),
cooperate with and assist BRT in its defense of any such action or proceeding.
10. Arbitration of Disputes Under this Agreement. The parties
agree that any and all disputes arising out of the performance or breach of
this Agreement or any promise or covenant herein shall be resolved by
submission to arbitration in Philadelphia, Pennsylvania under, and in
accordance with, the rules and procedures of the American Arbitration
Association.
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11. Enforcement. All remedies at law and equity shall be available
for the enforcement of this Agreement. This Agreement may be pleaded as a
full bar to the enforcement of any claim in any way related to or arising out
of Xxxxxxx'x employment with BRT and/or the termination of his employment to
the extent of the waivers set forth in Paragraph 8 above.
All sums due to Belcher hereunder shall be paid without reduction
for compensation earned by Belcher in any subsequent employment and shall be
payable to Xxxxxxx or his estate notwithstanding Xxxxxxx'x death, disability
or any other factor.
12. Opportunity to Review and Right to Revoke. Xxxxxxx
acknowledges that he is acting of his own free will, that he has been
afforded twenty-one (21) days to read and review the terms of this Agreement,
that he has been advised to, and has had an opportunity to, seek the advice
of counsel, and that he is voluntarily entering into this Agreement with full
knowledge of its respective provisions and effects. Xxxxxxx also
acknowledges that he has seven (7) days following his signing of this
Agreement to revoke this Agreement in which case BRT will have no obligation
to make any payment to him.
13. Contractual Effect. The parties understand and acknowledge
that the terms of this Agreement are contractual and not a mere recital.
Consequently, they expressly consent that this Agreement shall be given full
force and effect according to each and all of its express terms and
provisions, and that it shall be binding upon the respective parties as well
as their heirs, executors, successors, administrators and assigns.
14. Invalidity. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be illegal or
unenforceable in any respect, such illegality or unenforceability shall not
affect the validity of any other provision of this Agreement.
15. Governing Law. This Agreement shall be governed by the laws of
the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, Xxxxxxx and BRT each acknowledge that they are
acting of their own free will, that they have had a sufficient opportunity to
read and review the terms of this Agreement, they have each received the
advice of their respective counsel with
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respect hereto, and that they have voluntarily caused the execution of this
Agreement and by reference herein as of the day and year set forth below.
/s/ Xxxxx X. Xxxxxxx Witness: /s/ Xxxxxxx X. Xxxxxxx, Xx.
--------------------------------- ---------------------------
Xxxxx X. Xxxxxxx
On behalf of Brandywine Realty Trust:
By: /s/ Xxxxxx X. Xxxxxxx Witness: /s/ Xxxxxxx X. Xxxxxxx, Xx.
------------------------- ---------------------------
Title: President and Chief Executive Officer
JOINDER
Pursuant to Paragraph 4 of the above agreement, Brandywine Realty
Services Partnership ("BRSP") hereby pays to Xxxxx X. Xxxxxxx the sum of
$25.00 in exchange for his entire right, title and interest as a partner in
BRSP.
BRANDYWINE REALTY SERVICES
PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx, a General Partner
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Exhibit A
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- Pitcairn Companies
- Berwind Companies
- Partnerships/Corporations affiliated with Xxx Xxxxxx
- Preferred Properties
- O'Neil Properties
- LCOR, Inc.
- Xxxxx X. Xxxxxxx & Co.
- Xxxx Atlantic Properties
- Advanta Corporation
- GMAC
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