1
EXHIBIT 10.39
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of September 17, 1998 ("Agreement Date"), by and
between Excel Realty Trust, Inc., a Maryland corporation ("Company"), and
Xxxxxxx Xxxxxx ("Xxxxxx").
RECITALS
X. Xxxxxx is currently Chief Executive Officer and Chairman of the
Board of Directors of New Plan Realty Trust, a Massachusetts business trust
("East").
B. The Company, ERT Merger Sub, Inc., a wholly owned subsidiary of
the Company ("Sub"), and East entered into an Agreement and Plan of Merger
("Merger Agreement"), pursuant to which Sub shall merge with and into East
("Merger").
C. The Company desires to employ Xxxxxx, effective as of the time
the Merger is consummated ("Effective Time"), on the terms and conditions set
forth in this Agreement, and Xxxxxx desires to be so employed.
AGREEMENT
IN CONSIDERATION of the premises and the mutual covenants set forth
below, the parties hereby agree as follows:
1. Employment. The Company hereby agrees to employ Xxxxxx and
Xxxxxx hereby accepts such employment, on the terms and conditions hereinafter
set forth. Notwithstanding the employment of Xxxxxx by the Company, the Company
shall be entitled to pay Xxxxxx from the payroll of East.
2. Term. The period of employment of Xxxxxx by the Company
("Employment Period") shall commence at the Effective Time of the Merger
("Commencement Date") and shall continue through the fifth anniversary of the
Effective Time; provided, that, commencing on the day following the fifth
anniversary of the Effective Time and on the day following the sixth anniversary
of the Effective Time, the Employment Period shall automatically be extended for
one (1) additional year unless, in either case, either party gives written
notice not to extend this Agreement prior to six (6) months before such
extension would be effectuated; provided, further, that the Employment Payment
for such two one-year extension periods shall be determined mutually by Xxxxxx
and the Board of Directors of Company ("Board") at the time of each such
extension. The Employment Period may be sooner terminated in accordance with
Section 5 of this Agreement.
3. Position and Duties.
(a) Employment. During the Employment Period, Xxxxxx will at
such times as may be convenient to the Company and Xxxxxx, render to the Company
such services of an
2
executive advisory or consultative nature as the Company may reasonably request,
to enable the Company to continue to have the benefit of his experience and
knowledge of the affairs of the Company and of his reputation, experience and
contacts in the industry. Xxxxxx will, during the Employment Period, be
available for advice and counsel to the officers and directors of the Company at
mutually convenient times by telephone, letter, or in person in New York City,
provided, however, that his failure to render such services or to give such
advice and counsel by reason of his illness or other incapacity shall not affect
his right to receive his compensation during the Employment Period. It is
understood that Xxxxxx'x duties during the Employment Period shall not require
his full-time attention and subject to Section 10, Xxxxxx can engage in any
other activities, including membership on other boards of directors, as he
desires. Xxxxxx shall not be required to provide services in person in New York
City more than one (1) day per calendar month.
(b) Director. During the Employment Period, Xxxxxx shall be
nominated by the Board to serve as a director of the Company and the Company
shall use its best efforts to cause Xxxxxx to be elected as a director of the
Company throughout the Employment Period. For the period Xxxxxx is a director of
the Company during the Employment Period, Xxxxxx shall serve as Chairman of the
Board. Subject to the first sentence of this Section 3(b), for any period Xxxxxx
is not elected as a director of the Company during the Employment Period, Xxxxxx
shall serve as Chairman Emeritus of the Board and shall be entitled to attend
all Board meetings in such status.
4. Compensation and Related Matters.
(a) Compensation. During the Employment Period, the Company
shall pay Xxxxxx, at least semi-monthly, at an annual rate equal to three
hundred fifty thousand dollars ($350,000) during the first five years of the
Employment Period and such amount as determined mutually by Xxxxxx and the Board
for any extension period pursuant to Section 2 ("Employment Payment").
(b) Perquisites and Benefits. During the Employment Period,
Xxxxxx shall be entitled to all perquisites and benefits he had or was entitled
to from East prior to the Effective Time except the use of a New York City
apartment. The foregoing sentence shall not prevent the Company from changing
benefit programs provided Xxxxxx (and to the extent applicable, his spouse and
dependents) are treated at least as well under the benefit program as the
Company's senior executives (and to the extent applicable, their spouses and
dependents) and Xxxxxx (and to the extent applicable, his spouse and dependents)
are provided with equivalent benefits or the economic equivalent of such
benefits he (and to the extent applicable, his spouse and dependents) had or was
entitled to immediately prior to the Effective Time. Without limitation on the
foregoing Xxxxxx (and his spouse and dependents to the extent provided therein)
shall be entitled during the Employment Period to participate in and be covered
under all the welfare benefit plans or programs maintained by the Company from
time to time for the benefit of its senior executives including, without
limitation, all medical, hospitalization, dental, disability, accidental death
and dismemberment and travel accident insurance plans and programs. The
2
3
Company shall at all times during the Employment Period provide to Xxxxxx (and
his spouse and dependents to the extent provided under the applicable plans or
programs) (subject to modifications affecting all senior executive officers) the
same type and levels of participation and benefits as are being provided to the
Company's senior executives (and their spouses and dependents to the extent
provided under the applicable plans or programs) during the Employment Period.
In addition, during the Employment Period, Xxxxxx shall be eligible to
participate in all pension, retirement, savings and other employee benefit plans
and programs maintained from time to time by the Company for the benefit of its
senior executives. With respect to each such employee benefit plan, program,
policy or arrangement, service with East or any of its subsidiaries (as
applicable) shall be included for purposes of determining eligibility to
participate (including waiting periods, and without being subject to any entry
date requirement after the waiting period has been satisfied), vesting (as
applicable) and entitlement to benefits. The medical plan or plans maintained by
the Company after the Effective Time shall waive all limitations as to
pre-existing conditions, exclusions and waiting periods with respect to
participation and coverage requirements. Notwithstanding anything to the
contrary herein, Xxxxxx'x participation in any annual incentive, long-term
performance or other incentive plan or stock option, restricted stock or other
equity incentive plan shall be in the sole discretion of the Board except for
entitlement to any options, restricted stock or equity incentives provided
solely because of director status. Notwithstanding anything to the contrary
herein, if Xxxxxx, his spouse or his dependents cannot continue to participate
in the Company programs providing such benefits, the Company shall arrange to
provide Xxxxxx, his spouse and his dependents with equivalent benefits or the
economic equivalent of such benefits which they otherwise would have been
entitled to receive under such programs. Furthermore, notwithstanding anything
to the contrary herein, the Split Dollar Agreement made as of October 4, 1993
between the Company and Xxxxx Xxxxxxxxx and Xxxxxx Xxxxxx, as trustees under the
Xxxxxxx Xxxxxx Trust shall remain in effect even after the Employment Period.
(c) Services Furnished. During the Employment Period, the
Company shall furnish Xxxxxx with office space, stenographic and secretarial
assistance substantially the same as provided on the Agreement Date.
Notwithstanding the foregoing, Xxxxxx shall be furnished with the same office
space provided to Xxxxxx on the Agreement Date if the Company has such office
space and Xxxxxx shall be entitled to the same secretarial assistance from
Xxxxxx'x secretary on the Agreement Date for so long as she is employed by the
Company.
(d) Expenses. The Company shall promptly reimburse Xxxxxx
for all business expenses incurred in accordance with the Company's past
practice with respect to Xxxxxx, including, without limitation, expenses for
Xxxxxx and his spouse in connection with conferences, seminars and meetings
Xxxxxx believes are beneficial for the Company whether directly or by virtue of
maintaining his reputation and contacts in the industry and business community.
5. Termination. Xxxxxx'x employment hereunder may be terminated
during the Employment Period under the following circumstances:
3
4
(a) Death. Xxxxxx'x employment hereunder shall terminate
upon his death.
(b) Disability. If, as a result of Xxxxxx'x incapacity due
to a physical or mental illness, Xxxxxx shall have been substantially unable to
perform his duties hereunder for an entire period of six (6) consecutive months,
and within thirty (30) days after written Notice of Termination (as set forth in
Section 6(a)) is given after such six (6) month period, Xxxxxx shall not have
returned to the performance of his duties, the Company shall have the right to
terminate Xxxxxx'x employment hereunder for "Disability", and such termination
in and of itself shall not be, nor shall it be deemed to be, a breach of this
Agreement.
(c) By Xxxxxx. Xxxxxx shall have the right to terminate his
employment hereunder by providing the Company with a Notice of Termination, and
such termination shall not in and of itself be, nor shall it be deemed to be, a
breach of this Agreement.
6. Termination Procedure.
(a) Notice of Termination. Any termination of Xxxxxx'x
employment by the Company under Section 5(b) or by Xxxxxx under Section 5(c)
during the Employment Period shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 14.
(b) Date of Termination. "Date of Termination" shall mean
(i) if Xxxxxx'x employment is terminated by his death, the date of his death,
(ii) if Xxxxxx'x employment is terminated pursuant to Section 5(b), thirty (30)
days after Notice of Termination (provided that Xxxxxx shall not have returned
to the performance of his duties hereunder during such thirty (30) day period),
and (iii) if Xxxxxx'x employment is terminated by Xxxxxx pursuant to Section
5(c), the date on which a Notice of Termination is given by Xxxxxx or any later
date (within thirty (30) days after the giving of such notice) set forth in such
Notice of Termination.
7. Compensation Upon Termination or During Disability. In the event
Xxxxxx is disabled or his employment terminates as provided under this Agreement
during the Employment Period, the Company shall provide Xxxxxx with the payments
and benefits set forth below. Xxxxxx acknowledges and agrees that, subject to
Section 8, the payments set forth in this Section 7 constitute liquidated
damages for termination of his employment during the Employment Period.
(a) By Xxxxxx. If Xxxxxx'x employment is terminated by
Xxxxxx:
(i) the Company shall pay Xxxxxx his Employment
Payment through the Date of Termination, as soon as practicable
following the Date of Termination;
(ii) the Company shall reimburse Xxxxxx pursuant to
Section 4(d) for reasonable expenses incurred, but not paid prior to
such termination of employment; and
4
5
(iii) Xxxxxx shall be entitled to any other rights,
compensation and/or benefits as may be due to Xxxxxx in accordance with
the terms and provisions of any agreements, plans or programs of the
Company.
(b) Disability. During any period that Xxxxxx fails to
perform his duties hereunder as a result of incapacity due to physical or mental
illness ("Disability Period"), Xxxxxx shall continue to receive his full
Employment Payment set forth in Section 4(a) until his employment is terminated
pursuant to Section 5(b). In the event Xxxxxx'x employment is terminated for
Disability pursuant to Section 5(b):
(i) the Company shall pay to Xxxxxx (A) his
Employment Payment through the Date of Termination, as soon as
practicable following the Date of Termination, and (B) continued
Employment Payment (as provided for in Section 4(a)) and prerequisites
and benefits pursuant to Section 4(b) for the longer of (i) six (6)
months or (ii) the date on which Xxxxxx becomes entitled to long-term
disability benefits under the applicable plan or program of the Company
paying the benefits described in Section 4(b), up to a maximum of three
(3) years of Employment Payment continuation;
(ii) the Company shall reimburse Xxxxxx pursuant to
Section 4(d) for reasonable expenses incurred, but not paid prior to
such termination of employment; and
(iii) Xxxxxx shall be entitled to any other rights,
compensation and/or benefits as may be due to Xxxxxx in accordance with
the terms and provisions of any agreements, plans or programs of the
Company.
(c) Death. If Xxxxxx'x employment is terminated by his
death:
(i) the Company shall pay in a lump sum to Xxxxxx'x
beneficiary, legal representatives or estate, as the case may be,
Xxxxxx'x Employment Payment through the Date of Termination and one (1)
times Xxxxxx'x annual rate of Employment Payment, and shall provide
Xxxxxx'x spouse and dependents with benefits pursuant to Section 4(b)
for one (1) year;
(ii) the Company shall reimburse Xxxxxx'x
beneficiary, legal representatives or estate, as the case may be,
pursuant to Section 4(d) for reasonable expenses incurred, but not paid
prior to such termination of employment; and
(iii) Xxxxxx'x beneficiary, legal representatives or
estate, as the case may be, shall be entitled to any other rights,
compensation and benefits as may be due to any such persons or estate in
accordance with the terms and provisions of any agreements, plans or
programs of the Company.
8. Breach by Company. If there is any material breach of this
Agreement by the Company which is not corrected to Xxxxxx'x reasonable
satisfaction within ten (10) days after written notice by Xxxxxx to the Company,
the Company shall pay the Employment Payment for
5
6
the remainder of the Employment Period in one lump sum cash payment (without
regard to any discount for early payment) as soon as practicable after such
material breach but in no event later than twenty (20) days after such material
breach. This lump sum payment shall not affect the Company's obligation
hereunder other than the obligation to provide compensation pursuant to Section
4(a). The Company has no right to terminate this Agreement.
9. Mitigation. Xxxxxx shall not be required to mitigate amounts
payable under this Agreement by seeking other employment or otherwise, and there
shall be no offset against amounts due Xxxxxx under this Agreement on account of
subsequent employment. Additionally, amounts owed to Xxxxxx under this Agreement
shall not be offset by any claims the Company may have against Xxxxxx, and the
Company's obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any
other circumstances, including, without limitation, any counterclaim,
recoupment, defense or other right which the Company may have against Xxxxxx or
others.
10. Confidential Information, Ownership of Documents;
Non-Competition.
(a) Confidential Information. Xxxxxx shall hold in a
fiduciary capacity for the benefit of the Company all trade secrets and
confidential information, knowledge or data relating to the Company and its
businesses and investments, which shall have been obtained by Xxxxxx during
Xxxxxx'x employment by the Company and which is not generally available public
knowledge (other than by acts by Xxxxxx in violation of this Agreement). Except
as may be required or appropriate in connection with his carrying out his duties
under this Agreement, Xxxxxx shall not, without the prior written consent of the
Company or as may otherwise be required by law or any legal process, or as is
necessary in connection with any adversarial proceeding against the Company (in
which case Xxxxxx shall use his reasonable best efforts in cooperating with the
Company in obtaining a protective order against disclosure by a court of
competent jurisdiction), communicate or divulge any such trade secrets,
information, knowledge or data to anyone other than the Company and those
designated by the Company or on behalf of the Company in the furtherance of its
business or to perform duties hereunder.
(b) Removal of Documents; Rights to Products. All records,
files, drawings, documents, models, equipment, and the like relating to the
Company's business, which Xxxxxx has control over shall not be removed from the
Company's premises without its written consent, unless such removal is in the
furtherance of the Company's business or is in connection with Xxxxxx'x carrying
out his duties under this Agreement and, if so removed, shall be returned to the
Company promptly after termination of Xxxxxx'x employment hereunder, or
otherwise promptly after removal if such removal occurs following termination of
employment. Notwithstanding anything to the contrary herein, Xxxxxx has the
right to remove his personal art work, sculptures, awards and memorabilia.
Xxxxxx shall assign to the Company all rights to trade secrets and other
products relating to the Company's business developed by him alone or in
conjunction with others at any time while employed by the Company.
6
7
(c) Protection of Business. During the Employment Period and
until the first anniversary of Xxxxxx'x Date of Termination, Xxxxxx will not (i)
develop, pursue or attempt to develop any project known to Xxxxxx and which the
Company or any of its Affiliates (the "Designated Entities") are developing,
pursuing, or attempting to develop as of the Date of Termination, unless such
project has been inactive for over nine (9) months (a "Project"), directly or
indirectly, alone, in association with or as a shareholder, principal, agent,
partner, officer, director, employee or consultant of any other organization,
(ii) divert to any entity, any Project of any of the Designated Entities, or
(iii) solicit any officer, employee (other than secretarial staff) or consultant
of any of the Designated Entities to leave the employ of any of the Designated
Entities. If, at any time, the provisions of this Section 10(c) shall be
determined to be invalid or unenforceable, by reason of being vague or
unreasonable as to area, duration or scope of activity, this Section 10(c) shall
be considered divisible and shall become and be immediately amended to only such
area, duration and scope of activity as shall be determined to be reasonable and
enforceable by the court or other body having jurisdiction over the matter; and
Xxxxxx agrees that this Section 10(c) as so amended shall be valid and binding
as though any invalid or unenforceable provision had not been included herein.
(d) Injunctive Relief. In the event of a breach or
threatened breach of this Section 10, Xxxxxx agrees that the Company shall be
entitled to injunctive relief in a court of appropriate jurisdiction to remedy
any such breach or threatened breach, Xxxxxx acknowledging that damages would be
inadequate and insufficient.
(e) Continuing Operation. Except as specifically provided in
this Section 10, the termination of Xxxxxx'x employment or of this Agreement
shall have no effect on the continuing operation of this Section 10.
11. Indemnification.
(a) General. The Company agrees that if Xxxxxx is made a
party or a threatened to be made a party to any action, suits or proceeding,
whether civil, criminal, administrative or investigative (a "Proceeding"), by
reason of the fact that Xxxxxx is or was a trustee, director or officer of the
Company or any subsidiary of the Company or is or was serving at the request of
the Company or any subsidiary as a trustee, director, officer, member, employee
or agent of another corporation or a partnership, joint venture, trust or other
enterprise, including, without limitation, service with respect to employee
benefit plans, whether or not the basis of such Proceeding is alleged action in
an official capacity as a trustee, director, officer, member, employee or agent
while serving as a trustee, director, officer, member, employee or agent, Xxxxxx
shall be indemnified and held harmless by the Company to the fullest extent
authorized by Maryland law, as the same exits or may hereafter be amended,
against all Expenses incurred or suffered by Xxxxxx in connection therewith, and
such indemnification shall continue as to Xxxxxx even if Xxxxxx has ceased to be
an officer, director, trustee or agent, or is no longer employed by the Company
and shall inure to the benefit of this heirs, executors and administrators.
7
8
(b) Expenses. As used in his Agreement, the term "Expenses"
shall include, without limitation, damages, losses, judgments, liabilities,
fines, penalties, excise taxes, settlements, and costs, attorneys' fees,
accountants' fees, and disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to indemnification
under this Agreement.
(c) Enforcement. If a claim or request under this Agreement
is not paid by the Company or on its behalf, within thirty (30) days after a
written claim or request has been received by the Company, Xxxxxx may at any
time thereafter bring suit against the Company to recover the unpaid amount of
the claim or request and if successful in whole or in part, Xxxxxx shall be
entitled to be paid also the expenses of prosecuting such suit. All obligations
for indemnification hereunder shall be subject to, and paid in accordance with,
applicable Maryland law.
(d) Partial Indemnification. If Xxxxxx is entitled under any
provision of this Agreement of indemnification by the Company for some or a
portion of any Expenses, but not, however, for the total amount thereof, the
Company, shall nevertheless indemnify Xxxxxx for the portion of such Expenses to
which Xxxxxx is entitled.
(e) Advances of Expenses. Expenses incurred by Xxxxxx in
connection with any Proceeding shall be paid by the Company in advance upon
request of Xxxxxx that the Company pay such Expenses; but, only in the event
that Xxxxxx shall have delivered in writing to the Company (i) an undertaking to
reimburse the Company for Expenses with respect to which Xxxxxx is not entitled
to indemnification and (ii) an affirmation of his good faith belief that the
standard of conduct necessary for indemnification by the Company has been met.
(f) Notice of Claim. Xxxxxx shall give to the Company notice
of any claim made against him for which indemnification will or could be sought
under this Agreement. In addition, Xxxxxx shall give the Company such
information and cooperation as it may reasonably required and as shall be within
Xxxxxx'x power and at such times and places as are convenient for Xxxxxx.
(g) Defense of Claim. With respect to any Proceeding as to
which Xxxxxx notifies the Company of the commencement thereof:
(i) The Company will be entitled to participate
therein at its own expense;
(ii) Except as otherwise provided below, to the
extent that it may wish, the Company will be entitled to assume the
defense thereof, with counsel reasonably satisfactory to Xxxxxx which in
the Company's sole discretion may be regular counsel to the Company and
may be counsel to other officers and directors of the Company or any
subsidiary. Xxxxxx also shall have the right to employ his own counsel
in such action, suit or proceeding if he reasonably concludes that
failure to do so would involve a
8
9
conflict of interest between the Company and Xxxxxx, and under such
circumstances the fees and expenses of such counsel shall be at the
expense of the Company; and
(iii) The Company shall not be liable to indemnify
Xxxxxx under this Agreement for any amounts paid in settlement of any
action or claim effected without its written consent. The Company shall
not settle any action or claim in any manner which would impose any
penalty or limitation on Xxxxxx without Xxxxxx'x written consent.
Neither the Company nor Xxxxxx will unreasonably withhold or delay their
consent to any proposed settlement.
(h) Non-exclusivity. The right to indemnification and the
payment of expenses incurred in defending a Proceeding in advance of its final
disposition conferred in this Section 11 shall not be exclusive of any other
right which Xxxxxx may have or hereafter may acquire under any statute,
provision of the declaration of trust or certificate of incorporation or by-laws
of the Company or any subsidiary, agreement, vote of shareholders or
disinterested directors or trustees or otherwise.
12. Legal Fees and Expenses. If any contest or dispute shall arise
between the Company and Xxxxxx regarding any provision of this Agreement, the
Company shall reimburse Xxxxxx for all legal fees and expenses reasonably
incurred by Xxxxxx in connection with such contest or dispute, but only if
Xxxxxx is successful in respect of substantially all of Xxxxxx'x claims brought
and pursued in connection with such contest or dispute. Such reimbursement shall
be made as soon as practicable following the final resolution of such contest or
dispute to the extent the Company receives reasonable written evidence of such
fees and expenses.
13. Successors; Binding Agreement.
(a) Company's Successors. No rights or obligations of the
Company under this Agreement may be assigned or transferred except that the
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as herein before defined and any
successor to its business and/or assets (by merger, purchase or otherwise) which
executes and delivers the agreement provided for in this Section 13 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
(b) Xxxxxx'x Successors. No rights or obligations of Xxxxxx
under the Agreement may be assigned or transferred by Xxxxxx other than his
rights to payments or benefits hereunder, which may be transferred only by will
or the laws of descent and distribution. Upon Xxxxxx'x death, this Agreement and
all rights of Xxxxxx hereunder shall inure to the benefit of and be enforceable
by Xxxxxx'x beneficiary or beneficiaries, personal or legal representatives, or
estate, to the event any such person succeeds to Xxxxxx'x interests under this
9
10
Agreement. Xxxxxx shall be entitled to select and change a beneficiary or
beneficiaries to receive any benefit or compensation payable hereunder following
Xxxxxx'x death by giving the Company written notice thereof. In the event of
Xxxxxx'x death or a judicial determination of his incompetence, reference in
this Agreement to Xxxxxx shall be deemed, where appropriate, to refer to his
beneficiary(ies), estate or other legal representative(s). If Xxxxxx should die
following his Date of Termination while any amounts would still be payable to
him hereunder if he had continued to live, all such amounts unless otherwise
provided herein shall be paid in accordance with the terms of this Agreement to
such person or persons so appointed in writing by Xxxxxx, or otherwise to his
legal representatives or estate.
14. Notice. For the purposes of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered either personally or by
United States certified or registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to Xxxxxx:
Xxxxxxx Xxxxxx
000 Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
If to the Company:
Excel Realty Trust
1120 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
15. Miscellaneous. No provisions of this Agreement may be amended,
modified, or waived unless such amendment or modification is agreed to in
writing signed by Xxxxxx and by a duly authorized officer of the Company, and
such waiver is set forth in writing and signed by the party to be charged. No
waiver by either party hereto at any time of any breach by the other party
hereto of any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. The respective rights and obligations of the
parties hereunder of this Agreement shall survive Xxxxxx'x termination of
employment and the termination of this Agreement to the extent necessary for the
intended preservation of such rights and obligations. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of New York without regard to its conflicts of law
principles.
10
11
16. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of the Agreement, which shall remain in full force and
effect.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
18. Entire Agreement. This Agreement sets forth the entire agreement
of the parties hereto in respect of the subject matter contained herein and
supersede all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto in respect of such
subject matter. Any prior agreement of the parties hereto in respect of the
subject matter contained herein is hereby terminated and canceled.
19. Shareholder Approval. The Company represents and warrants to
Xxxxxx that no shareholder approval is required for the Company to enter into
this Agreement and provide the benefits hereunder and to enter into the
agreements described in Section 4.
20. Withholding. All payments under this Agreement shall be subject
to any required withholding of Federal, state and local taxes pursuant to any
applicable law or regulation.
21. Noncontravention. The Company represents that the Company is not
prevented from entering into, or performing this Agreement by the terms of any
law, order, rule or regulation, its by-laws or certificate of incorporation, or
any agreement to which it is a party, other than which would not have a material
adverse effect on the Company's ability to enter into or perform this Agreement.
22. Section Heading. The section headings in this Employment
Agreement are for convenience of reference only, and they form no part of this
Agreement and shall not affect its interpretation.
23. Resignation and Termination. As of the Effective Date, Xxxxxx
shall resign as Chief Executive Officer of East.
11
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
EXCEL REALTY TRUST, INC.
a Maryland corporation
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
/s/ Xxxxxxx Xxxxxx
-----------------------------------------
Xxxxxxx Xxxxxx
