AGREEMENT
This Agreement (this Agreement) is made as of October 24, 2003
(the Effective Date) by and between Xxxxxxx X. Xxxxxx, an individual
residing at 000 Xxxxx Xxxxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxxx
00000 (Xxxxxx) and ElderTrust, a Maryland real estate investment
trust, with a principal place of business at 0000 Xxxxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 (the Company)
WHEREAS, Xxxxxx and the Company desire to set forth the terms under
which the Company shall appoint Xxxxxx as its Executive Chairman of the
Board of Directors and Acting President, Chief Executive Officer, Chief
Financial Officer and Corporate Secretary, as set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Engagement. The Company hereby appoints Xxxxxx as its Executive
Chairman of the Board of Directors and Acting President, Chief Executive
Officer, Chief Financial Officer and Corporate Secretary and Xxxxxx
hereby accepts such appointments by the Company, for the period and
upon the terms and conditions contained in this Agreement.
2. Services.
(a) Executive Chairman. In his capacity as Executive Chairman
of the Companys Board of Directors, Xxxxxx shall prepare
agendas for, and Chair, the Companys Board of Directors
Meetings and conduct such other activities as may reasonably
be requested by the Companys Board of Directors consistent
with such position.
(b) Management Positions. During the Term, in his capacity as
Acting President, Chief Executive Officer, Chief Financial
Officer and Corporate Secretary of the Company, Xxxxxx will
diligently and competently perform the duties and
responsibilities consistent with all such positions and in
accordance with the Companies policies and authorities.
(c) Time Devoted to Service. During the term of this Agreement,
Xxxxxx agrees to devote a reasonable amount of time to the
Company to fulfill the duties reasonably requested of him
by the Companys Board of Directors. The Company
acknowledges and agrees that, during the term of this
Agreement, Xxxxxx shall be entitled to engage in other
activities and hold positions and interests with other
business.
3. Term; Extension of Term; Termination.
(a) The term of this Agreement shall extend from the Effective
Date until December 31, 2004 (the Term), unless sooner
terminated by the parties. Notwithstanding the foregoing,
the provisions of Sections 5, 6, 7, and 9 shall survive any
termination of this Agreement.
4. Compensation. As compensation for Xxxxxx performing services for
the Company, the Company shall:
(a) issue 100,000 Share Options and Distribution Equivalent Rights
with respect to 50,000 of the share options under the Companys
2003 Share Option and Incentive Plan (the Plan) as follows:
(i) 50,000 Share Options shall vest immediately and shall
include Distribution Equivalent Rights (as defined in
the Plan); and
(ii) 50,000 Share Options shall vest on the earlier to occur
of: (x) December 31, 2004; (y) the termination of Xxxxxx
as President and Chief Executive Officer by the Company,
for any reason and (z) a Change of Control (as defined
in the Plan). For purposes of this Agreement,
termination shall be deemed to occur upon a material
change in Mr. Walkers responsibilities hereunder.
(b) a one-time, conditional amount of One Hundred and Fifty
Thousand Dollars ($150,000) which shall only be payable
and paid upon the final closing of any strategic transaction
of the Company entered into during the term of this Agreement
as determined in the reasonable and good faith judgment of
the Companys Board of Directors (a Strategic Transaction).
5. Expenses. During the term of this Agreement, the Company shall
provide Xxxxxx with an office and administrative support at its
corporate headquarters location at 0000 Xxxxxxxxxxx Xxxx, Xxxxx
000, Xxxxxxxxxx, XX. In the event the Company no longer maintains
its principal corporate headquarters location, with a comparable
level of administrative support, within five miles of its present
location, then the Company shall pay Xxxxxx, on the first day of
each month, the amount of Ten Thousand Dollars ($10,000). Further,
the Company shall reimburse Xxxxxx for any reasonable, ordinary
and necessary business expenses incurred by Xxxxxx in the
performance by Xxxxxx of his duties hereunder upon receipt of
vouchers therefore.
6. Indemnification and Non-Competition Agreements. The Company
reaffirms its obligations to Xxxxxx under the terms of that
certain Indemnification Agreement, dated effective as of January
30, 1998 and reexecuted on October 7, 2003 (the Indemnification
Agreement). Xxxxxx reaffirms his obligations to the Company under
the terms of that certain Non-Competition Agreement, made January
30, 1998 (the Non-Competition Agreement). The terms of the
Indemnification Agreement and Non-Competition Agreement are
incorporated herein and made part hereof.
7. Confidential Information.
(a) Confidentiality of Information Furnished to Xxxxxx. Unless
authorized or instructed in writing by the Company, Xxxxxx
shall not, during or at any time after the Term of this
Agreement, disclose to others, or use, or permit to be
disclosed to others or used, any Confidential Information.
As used herein, Confidential Information shall mean all data,
reports, interpretations, forecasts and records and other
documents and information, whether written or oral, that the
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Company furnishes or otherwise discloses to Xxxxxx, whether
furnished or otherwise disclosed before or after the date of
this Agreement, regardless of whether it relates to the Company
or another entity and regardless of the manner in which it is
furnished, together with all analyses, compilations, studies
or documents, records or data prepared by the Company or any
of its representatives or by Xxxxxx, to the extent they
contain or otherwise reflect such information and documents.
(b) Requirement of Non-Disclosure. Xxxxxx acknowledges (i) that
the use, misappropriation or disclosure of the Confidential
Information would constitute a breach of trust and would cause
irreparable injury to the Company, (ii) that all such
Confidential Information is the property of the Company and
(iii) that it is essential to the protection of the Company
that the Confidential Information be kept confidential and
that the Confidential Information may not be disclosed by
Xxxxxx, to others or used by Xxxxxx for his own advantage or
the advantage of others. Xxxxxx further acknowledges that the
provisions of this Section and the enforceability of such
provisions against Xxxxxx are an essential element of this
Agreement and that, absent such provisions and the
enforceability thereof, the Company would not (i) engage
Xxxxxx nor (ii) permit Xxxxxx access to and use of the
Confidential Information. Xxxxxx further acknowledges that
he is aware that the United States securities laws prohibit
any person in possession of material non-public information
concerning an issuer from purchasing or selling securities of
such issuer or from communicating such information to any
other person under circumstances in which it is reasonably
foreseeable that such person is likely to purchase or sell
securities.
(c) Return of Information. Upon expiration or termination of
this Agreement, Xxxxxx agrees to return to the Company any
and all documents or materials constituting or, directly or
indirectly, relating to any Confidential Information.
8. Representations. Xxxxxx represents to the Company that (a) there
are no restrictions, agreements or understandings whatsoever to
which Xxxxxx is a party which would prevent or make unlawful his
execution and delivery of this Agreement or his appointment
hereunder, (b) his execution and delivery of this Agreement and
his engagement hereunder does not constitute a breach of any
contract, agreement or understanding, oral or written, to which
he is a party or by which he is bound, and (c) he is free and
able to execute and deliver this Agreement and to become an
officer of the Company.
9. Miscellaneous.
(a) Controlling Law. This Agreement, and all questions relating
to its validity, interpretation, performance and enforcement,
shall be governed by and construed in accordance with the laws
of the Commonwealth of Pennsylvania.
(b) Notices. All notices, requests, demands and other
communications required or permitted under this Agreement
shall be in writing and shall be deemed to have been duly
given, made and received when delivered in person against
receipt, or when sent by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as
set forth below:
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(i) If to Xxxxxx:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxxx, XX 00000
(ii) If to the Company:
Little Falls Centre One
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Board of Trustees
Any party may alter the address to which communications or copies
are to be sent by giving notice of such change of address in conformity
with the provisions of this paragraph for the giving of notice.
(c) Binding Nature of Agreement. This Agreement shall be binding
upon and inure to the benefit of the Company and Xxxxxx and
their respective successors and permitted assigns.
(d) Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be
an original as against any party who executes the same, and all
of which shall constitute one and the same instrument. This
Agreement shall become binding when one or more counterparts
hereof, individually or taken together, shall bear the
signatures of each of the parties reflected hereon as the
signatories.
(e) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision
shall be affected or rendered invalid or unenforceable by
virtue of the fact that for any reason any other or others of
them may be invalid or unenforceable in whole or in part.
(f) Entire Agreement. This Agreement contains the entire
understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings, inducements or
conditions, express or implied, oral or written, except as
herein contained. This Agreement may not be modified or amended
other than by an agreement in writing.
(g) Section and Paragraph Headings. The section and paragraph
headings in this Agreement are for convenience only; they
form no part of this Agreement and shall not affect its
interpretation.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered on the date first above-written.
/s/ Xxxxxxx X. Xxxxxx
____________________________________
Xxxxxxx X. Xxxxxx
ELDERTRUST
By: Xxxxxx X. Xxxxxxxx, III
_______________________________
Name: Xxxxxx X. Xxxxxxxx, III
Title: Chairman of Compensation Committee
Attest:_____________________________
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