Exhibit 10.8
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement (this "Amendment") is entered
into between Pennsylvania Real Estate Investment Trust, a Pennsylvania business
trust ("Company"), and Xxxxx X. Xxxxxx ("Executive"), effective as of January 1,
2004.
BACKGROUND
Executive is currently Senior Vice President - Finance and Treasurer of
Company. Executive and Company are party to an Amended and Restated Employment
Agreement, dated as of March 22, 2002 (the "Employment Agreement"), which sets
forth the terms and conditions of Executive's employment with Company. Executive
and Company wish to amend the terms of the Employment Agreement as set forth
herein, and hereafter, references to the "Employment Agreement," "Agreement,"
"herein," or words of like import in the Employment Agreement shall refer to the
Employment Agreement as amended hereby or by any written subsequent amendment
thereto.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and intending to be legally bound hereby, the
parties hereto agree as follows:
1. All capitalized terms used herein and not defined herein shall have
the respective meanings assigned to them in the Employment Agreement.
2. Schedule 1.2(c) to the Employment Agreement is amended to read, in
its entirety, as set forth of Exhibit A hereto.
3. Section 2.1 of the Employment Agreement is amended to read, in its
entirety, as follows:
"2.1 Term. The initial term of Executive's employment hereunder shall
begin on the date hereof and last until December 31, 2006 (the "Expiration
Date"), unless sooner terminated in accordance with the other provisions hereof.
Except as hereinafter provided, on the Expiration Date and on each subsequent
anniversary thereof, the Term (as hereinafter defined) shall be automatically
extended for one year unless either party shall have given to the other party
notice of non-renewal of this Agreement at least 120 days prior to the
expiration of the Term. The initial term of employment hereunder and each Term
as extended is a "Term." If a non-renewal notice is given as provided above,
Executive's employment under this Agreement shall terminate on the last day of
the Term."
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4. Section 4.3(a) of the Employment Agreement is amended to read, in
its entirety, as follows:
"(a) (i) fraud in connection with Executive's employment, (ii) theft,
misappropriation or embezzlement of funds of Company or any of its Affiliates,
or (iii) an act resulting in termination pursuant to the provisions of the Code
of Conduct (as defined in Section 6.15);"
5. Section 4.4(b) of the Employment Agreement is amended to add a new
subsection (iv) that reads, in its entirety, as follows:
"(iv) Company shall amend, modify or repeal Paragraph 14 of its Trust
Agreement or Article 5 of its By-Laws, each as currently in effect, if the
effect of such amendment, modification or repeal would be to alter, to the
detriment of Executive, the rights of Executive to indemnification or advance of
expenses based on an act or failure to act that took place during Executive's
employment hereunder."
6. Subsection (i) of Section 4.4(c) of the Employment Agreement is
amended to read, in its entirety, as follows:
"(i) an unconditional release by Executive of all claims, charges,
complaints and grievances, whether known or unknown to Executive, against
Company and any Affiliate (including, with respect to matters relating to his
employment hereunder, any trustee, officer, employee or agent of Company or any
Affiliate) through the date of Executive's termination of employment;"
7. Section 4.4(d) of the Employment Agreement is amended to read, in
its entirety, as follows:
"If Executive's employment is terminated by Executive for Good Reason
within six months before or 12 months after a Change of Control of Company,
Section 4.5 hereof shall govern the rights and obligations of the parties and
this Section 4.4 shall be of no effect."
8. The initial clause of Section 4.5(a) of the Employment Agreement is
amended to read, in its entirety, as follows:
"If, during a Term, there should be a Change of Control (as defined
herein), and within six months before such Change of Control or 12 months
thereafter either (1) Executive's employment shall be terminated by Company for
any reason other than for death, disability, or Cause or (2) Executive's
employment is terminated by Executive for Good Reason:"
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9. Section 4.5(c) of the Employment Agreement is amended to read, in
its entirety, as follows:
"(c) Notwithstanding anything to the contrary in this Section 4.5, if
the amounts otherwise payable to Executive would, in the opinion of Company's
regularly engaged independent certified public accountants, constitute "excess
parachute payments" within the meaning of Section 280G of the Internal Revenue
Code of 1986, as amended, and if the net payment to Executive (after giving
effect to the excise tax imposed by Section 4999 of the Internal Revenue Code
and to federal, state and local income and employment taxes payable by Executive
on such amounts) would be increased by reducing the total compensation payable
pursuant to this Section 4.5 to the maximum amount that may be paid to Executive
without such payment constituting an "excess parachute payment," then the
compensation payable under this Section 4.5 shall be so reduced. In the event
Company determines such a reduction is necessary, it shall promptly notify
Executive of the amount of the required reduction. Executive shall have the
right to request, in writing, within ten days after receipt of Company's notice
to him, that the reduction be effected through either a reduction in restricted
shares that would otherwise vest and/or changes in cash payments, or any
combination thereof, provided, however, that, in the event Executive does not
deliver such request to Company within such ten day period, then, to the fullest
extent possible, such reduction shall first be effected through a reduction in
the number of restricted shares that would otherwise vest and thereafter by cash
payments being reduced to the extent of the balance."
10. The first sentence of Section 4.5(d)(2) of the Employment Agreement
is amended to insert "or by a majority of the members of a committee authorized
by the Incumbent Board to approve such appointment, election, or nomination"
immediately after the words "Incumbent Board" and immediately prior to the
parenthetical that begins "other than an appointment".
11. Section 6.11 of the Employment Agreement is amended to read, in its
entirety, as follows:
"6.11 DELEGATION. Any action hereunder that may be taken or directed by
the Board or by the Committee may be delegated by (a) the Board to a committee
of the Board or to an individual trustee or officer, or (b) the Committee to one
or more members of the Committee or officers, and the determination of any such
delegee or delegees shall have the same effect hereunder as a determination of
the Board or the Committee, as applicable."
12. The Employment Agreement is amended to include a new Section 6.15,
which reads, in its entirety, as follows:
"6.15 CODE OF BUSINESS CONDUCT. Executive acknowledges that he is and
shall be subject to the provisions of the Company's Code of Business Conduct and
Ethics for Employees and Officers (as modified, amended or supplemented from
time to time, the "Code of Conduct"), including, without limitation, the
enforcement provisions set forth in the Code of Conduct. Executive agrees to
comply with the provisions of the Code of Conduct."
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13. Effective as of January 1, 2004, Executive's Base Salary under the
Employment Agreement shall be $195,000.
14. Except as amended hereby, all terms and conditions as set forth in
the Employment Agreement shall remain in full force and effect.
15. Company agrees to pay all reasonable legal fees and expenses that
Executive has incurred in the preparation and negotiation of this Amendment.
16. This Amendment may be executed in a number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument.
IN WITNESS WHEREOF, Executive and Company have caused this Amendment to
be executed as of the date first above written on this 30th day of July, 2004.
PENNSYLVANIA REAL ESTATE
INVESTMENT TRUST
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice Chairman
/s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx
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EXHIBIT A
SCHEDULE 1.2(C)
PERMITTED ACTIVITIES
1. TRO Liquidating LLC (TROL)
2. Concord Pike (TROL)
3. Xxxxxxx-Xxxxxxxxx Realty Investments, Inc. (TRO Liquidating LLC) - TROL
4. Metromarket Management LLC (TRO Liquidating LLC)
5. Phonlynx Partnership (TRO Liquidating LLC)
6. Sports World/Stadium Complex (TRO Liquidating LLC)
7. Personal Property (Artwork) (TROL)
8. Cherry Hill (Xxxxx-Oxford, LP) ROVA
9. Six Penn Center (Broker Associates)
