Exhibit 10.9
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 Xxxxxxx ("Executive"), effective as of January 1,
2004.
BACKGROUND
Executive is currently Executive Vice President and General Counsel of
Company. Executive and Company are party to an 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. The first sentence of Section 1.2(a) of the Employment Agreement is
hereby amended to read, in its entirety, as follows:
"Executive shall serve as Executive Vice President and General Counsel
of Company and, subject to the supervision and control of the Chief Executive
Officer, shall serve as Company's chief legal officer responsible for management
and oversight of Company's legal staff, governance and related corporate
compliance activities, and shall have such other duties and authority generally
consistent with such offices."
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. The first sentence of Section 3.5 of the Employment Agreement is
amended to change "20 days" to "25 days."
5. The Employment Agreement is amended to include a new Section 3.7,
which reads, in its entirety, as follows:
"3.7 NONQUALIFIED RETIREMENT PLAN. Company shall enter into a
nonqualified supplemental executive retirement plan with Executive whereby
Company shall agree to credit a bookkeeping account maintained by Company for
Executive with a deemed contribution of $25,000 per fiscal year. Such deemed
contribution shall be credited during the term of Executive's employment with
the Company as of the first day of each fiscal year of Company beginning with
its 2003 fiscal year, and shall earn interest at the rate of 10% compounded
annually. Executive shall at all times be fully vested in such account, and such
account shall be paid to Executive in a single sum within 60 days after
termination of Executive's employment with Company for any reason."
6. 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);"
7. Section 4.4(a)(i) of the Employment Agreement is amended to insert
the words "two times" immediately after "(y)" and immediately prior to the
subclause that begins "(A) Executive's then current annual Base Salary."
8. Section 4.4(b) of the Employment Agreement is amended to add new
subsections (iv) and (v) that read, in their entirety, as follows:
"(iv) Company changes the job description, office title and/or
responsibilities provided for in this Agreement, excluding promotions or
increased responsibilities; or
(v) 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."
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9. 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;"
10. 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."
11. 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:"
12. Section 4.5(a)(i) of the Employment Agreement is amended to insert
the words "two times" immediately after "(y)" and immediately prior to the
subclause that begins "(A) Executive's then current annual Base Salary."
13. The last sentence of Section 4.5(c) is deleted in its entirety and
replaced with the following:
"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."
14. 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".
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15. 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."
16. 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."
17. Effective as of January 1, 2004, Executive's Base Salary under the
Employment Agreement shall be $235,000.
18. Except as amended hereby, all terms and conditions as set forth in
the Employment Agreement shall remain in full force and effect.
19. Company agrees to pay all reasonable legal fees and expenses that
Executive has incurred in the preparation and negotiation of this Amendment.
20. 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 28th day of July, 2004.
PENNSYLVANIA REAL ESTATE
INVESTMENT TRUST
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Vice Chairman
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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