EMPLOYMENT AGREEMENT
--------------------
AGREEMENT, dated as of May 30, 1997, between WELLSFORD REAL
PROPERTIES, INC., a Maryland corporation with offices at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Company"), and XXXXXXX X. XXXXXXX, an individual
residing at 00 Xxxxx Xxxxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000 (the "Executive").
WHEREAS, the Executive is an executive of Wellsford Residential
Property Trust, a Maryland real estate investment trust ("Wellsford
Residential");
WHEREAS, Equity Residential Properties Trust, a Maryland real estate
investment trust ("EQR"), is merging with and into Wellsford Residential as of
the date hereof (the "Merger");
WHEREAS, immediately prior to the Merger, Wellsford Residential is
distributing to its common shareholders, pro rata, all of the shares of common
stock that it owns in the Company (the "Distribution"); and
WHEREAS, the Company desires to employ the Executive, and the
Executive desires to be employed by the Company.
IT IS AGREED:
1. Duties. (a) During the term of the Executive's employment
hereunder the Executive shall serve and the Company shall employ the Executive
as Chairman of the Board to perform such executive or administrative services
for the Company consistent with those of a Chairman of the Board as may be
assigned to the Executive by the directors of the Company. The Executive
hereby accepts such employment and agrees to perform such services.
(b) The Executive shall devote such time, attention and energies
during business hours to the performance of his duties hereunder as is
necessary to properly carry out the responsibilities of his office.
(c) The Executive shall cooperate with the Company, including
taking such medical examinations as the Company reasonably shall deem
necessary, if the Company shall desire to obtain medical, disability or life
insurance with respect to the Executive. Where reasonably possible, the
Company shall cooperate with the Executive's request to have such examinations
performed by the Executive's personal physician or another physician
reasonably acceptable to the Executive.
(d) The Executive shall not be required to relocate or conduct the
Company's business outside the New York, New York area in order to perform his
duties under this Agreement but shall undertake such reasonable business
travel as may be necessary to perform said duties (for which the Executive
shall be reimbursed pursuant to Section 4 below for costs and expenses
incurred in connection therewith).
2. Employment Term. This Agreement shall commence on May 30, 1997
and shall continue in effect through December 31, 2002; provided, however,
that, on January 1, 2003 and on each January 1 thereafter, the term of this
Agreement shall automatically be extended for one additional year beyond such
January 1 unless, not later than June 30 of the preceding year, either the
Executive or the Company shall have given notice to the other not to extend
this Agreement.
3. Compensation. For all services rendered by the Executive
pursuant to this Agreement:
(a) The Company shall pay to the Executive an annual base salary at
the following rates:
(i) for the period from May 30, 1997 through December 31,
1997 - $275,000;
(ii) for the period from January 1, 1998 through December 31,
1998 - $283,250;
(iii) for the period from January 1, 1999 through December 31,
1999 - $291,748;
(iv) for the period from January 1, 2000 through December 31,
2000 - $300,500;
(v) for the period from January 1, 2001 through December 31,
2001 - $309,515;
(vi) for the period from January 1, 2002 through December 31,
2002 - $318,800; and
(vii) for each additional year thereafter, the annual base
salary for the immediately preceding year plus 3% of
such annual base salary.
All such compensation shall be paid bi-weekly or at such other regular
intervals, not less frequently than monthly, as the Company may establish from
time to time for executive employees of the Company.
(b) In addition to the compensation set forth in subsection 3(a)
above, the Executive shall be awarded such bonus for each calendar year or
partial calendar year of his employment hereunder as the directors of the
Company shall determine in their sole discretion. In determining such bonus,
the Executive understands that the directors will consider, without
limitation, the following factors with respect to the applicable calendar year
or partial calendar year: the Company's financial performance, business
performance and growth during such period; Executive's responsibilities as an
officer of the Company (including his participation in transactions of
particular financial or business significance to the Company) during such
period; the total compensation package paid to executive officers having
similar responsibilities as the Executive who are employed by entities which
are similar to the Company; and such other factors as the directors may deem
appropriate in their sole discretion. Such bonus may consist of cash; grants
of shares ("Shares") of Common Stock of the Company; options to purchase
Shares; loans to purchase Shares; share appreciation rights (whether
independent of or in conjunction with awards of options); and such other
awards as the directors in their sole discretion may deem appropriate and
which they believe are in furtherance of the growth of long-term stockholder
value of the Company.
4. Expenses. (a) The Company shall pay for all legal and
accounting fees and expenses incurred by the Executive in connection with the
structuring, negotiation and preparation of this Agreement. The Company shall
reimburse the Executive for all out-of-pocket expenses actually and
necessarily incurred by him in the conduct of the business of the Company
against reasonable substantiation submitted with respect thereto.
(b) Unless the provisions of subsection 4(c) below shall apply, the
Company shall reimburse the Executive for all legal fees and related expenses
(including the costs of experts, evidence and counsel) paid by the Executive
as a result of (i) the termination of Executive's employment (including all
such fees and expenses, if any, incurred in contesting or disputing any such
termination of employment), (ii) the Executive seeking to obtain or enforce
any right or benefit provided by this Agreement or by any other plan or
arrangement maintained by the Company under which the Executive is or may be
entitled to receive benefits, (iii) the Executive's hearing before the
directors as contemplated in subsection 6(c) of this Agreement or (iv) any
action taken by the Company against the Executive; provided, however, that the
Company shall reimburse the legal fees and related expenses described in this
subsection 4(b) only if and when a final judgement has been rendered in favor
of the Executive and all appeals related to any such action have been
exhausted.
(c) The Company shall pay all legal fees and related expenses
(including the costs of experts, evidence and counsel) incurred by the
Executive as they become due as a result of (i) the termination of Executive's
employment (including all such fees and expenses, if any, incurred in
contesting or disputing any such termination of employment), (ii) the
Executive seeking to obtain or enforce any right or benefit provided by this
Agreement or by any other plan or arrangement maintained by the Company under
which the Executive is or may be entitled to receive benefits, (iii) the
Executive's hearing before the directors as contemplated in subsection 6(c) of
this Agreement or (iv) any action taken by the Company against the Executive,
unless and until such time that a final judgement has been rendered in favor
of the Company and all appeals related to any such action have been exhausted;
provided, however, that the circumstances set forth above occurred on or after
a change in control of the Company.
(d) For purposes of this Agreement, a "change in control of the
Company" shall be deemed to occur if:
(i) there shall have occurred a change in control of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), as in effect on the date hereof,
whether or not the Company is then subject to such reporting requirement,
provided, however, that there shall not be deemed to be a "change in control"
of the Company if immediately prior to the occurrence of what would otherwise
be a "change in control" of the Company (a) the Executive is the other party
to the transaction (a "Control Event") that would otherwise result in a
"change in control" of the Company or (b) the Executive is an executive
officer, trustee, director or more than 5% equity holder of the other party to
the Control Event or of any entity, directly or indirectly, controlling such
other party,
(ii) the Company merges or consolidates with, or sells all
or substantially all of its assets to, another company (each, a
"Transaction"), provided, however, that a Transaction shall not be deemed to
result in a "change in control" of the Company if (a) immediately prior
thereto the circumstances in (i)(a) or (i)(b) above exist, or (b) (1) the
shareholders of the Company, immediately before such Transaction own, directly
or indirectly, immediately following such Transaction in excess of fifty
percent (50%) of the combined voting power of the outstanding voting
securities of the corporation or other entity resulting from such Transaction
(the "Surviving Corporation") in substantially the same proportion as their
ownership of the voting securities of the Company immediately before such
Transaction and (2) the individuals who were members of the Company's Board of
Directors immediately prior to the execution of the agreement providing for
such Transaction constitute at least a majority of the members of the board of
directors or the board of trustees, as the case may be, of the Surviving
Corporation, or of a corporation or other entity beneficially directly or
indirectly owning a majority of the outstanding voting securities of the
Surviving Corporation, or
(iii) the Company acquires assets of another company or a
subsidiary of the Company merges or consolidates with another company (each,
an "Other Transaction") and (a) the shareholders of the Company, immediately
before such Other Transaction own, directly or indirectly, immediately
following such Other Transaction 50% or less of the combined voting power of
the outstanding voting securities of the corporation or other entity resulting
from such Other Transaction (the "Other Surviving Corporation") in
substantially the same proportion as their ownership of the voting securities
of the Company immediately before such Other Transaction or (b) the
individuals who were members of the Company's Board of Directors immediately
prior to the execution of the agreement providing for such Other Transaction
constitute less than a majority of the members of the board of directors or
the board of trustees, as the case may be, of the Other Surviving Corporation,
or of a corporation or other entity beneficially directly or indirectly owning
a majority of the outstanding voting securities of the Other Surviving
Corporation, provided, however, that an Other Transaction shall not be deemed
to result in a "change in control" of the Company if immediately prior thereto
the circumstances in (i)(a) or (i)(b) above exist.
5. Benefits. The Executive shall be entitled to six weeks of paid
vacation each year and such other medical and other benefits as are afforded
from time to time to all executive employees of the Company. The Company
shall indemnify the Executive in the performance of his duties pursuant to the
bylaws of the Company and to the fullest extent allowed by applicable law,
including, without limitation, legal fees.
6. Earlier Termination. (a) If the Executive shall fail, because
of illness or incapacity, to render the services contemplated by this
Agreement for six successive months or for shorter periods aggregating nine
months in any calendar year, the directors of the Company may determine, on
the basis of medical evidence satisfactory to the Company, in the Company's
sole discretion, that the Executive has become disabled. If within thirty
(30) days after the date on which written notice of such determination is
given to the Executive, the Executive shall not have returned to the full-time
performance of his duties hereunder, this Agreement and the employment of the
Executive hereunder shall be deemed terminated in accordance with Section 8
hereof.
(b) Except as otherwise provided in this Agreement, if the
Executive shall die during the term of this Agreement, this Agreement shall be
deemed to have been terminated as of the date of death of the Executive.
(c) The Company, by notice to the Executive, may terminate this
Agreement for proper cause. As used herein, "proper cause" shall mean (i) the
willful and continued failure by the Executive to substantially perform his
duties with the Company (other than any such failure resulting from the
Executive's incapacity due to physical or mental illness or any such actual or
anticipated failure resulting from termination by the Executive for Good
Reason (as defined below)) after a written demand for substantial performance
is delivered to the Executive by the directors of the Company, which demand
specifically identifies the manner in which the directors believe that the
Executive has not substantially performed his duties, or (ii) the willful
engaging by the Executive in conduct which is demonstrably and materially
injurious to the Company, monetarily or otherwise. For purposes of this
subsection 6(c), no act, or failure to act, on the Executive's part shall be
deemed "willful" unless done, or omitted to be done, by the Executive
otherwise than in good faith and in a manner that the Executive reasonably
believed was in or not opposed to the best interests of the Company and its
shareholders. Notwithstanding the foregoing, the Executive shall not be
deemed to have been terminated for proper cause unless and until there shall
have been delivered to the Executive a copy of a resolution duly adopted by
the affirmative vote of not less than three-quarters (3/4) of all of the
directors of the Company at a meeting of the directors called and held for
such purpose (after reasonable notice to the Executive and an opportunity for
the Executive, together with counsel of his choosing, to be heard before the
directors not less than 10 business days after the giving of such notice),
finding that in the good faith opinion of the directors, the Executive
conducted himself as set forth above in clause (i) or (ii) of the first
sentence of this subsection 6(c) and specifying the particulars of such
conduct in detail.
(d) The Executive may terminate this Agreement for "Good Reason" if
any of the following events occurs:
(i) the assignment to the Executive of any duties materially
inconsistent with his status as a senior executive officer of the
Company or a substantial alteration in the nature or status of his
responsibilities;
(ii) the Company's breach of any of its agreements or
obligations under this Agreement;
(iii) the failure by the Company to pay the Executive any
annual installment of a previous award under any bonus or incentive
compensation arrangement;
(iv) the failure of the Company to obtain a satisfactory
agreement from any successor to assume and agree to perform this
Agreement, as contemplated in Section 14 hereof;
(v) any purported termination of the Executive's employment
which is not effected pursuant to a Notice of Termination (defined
below) satisfying the requirements of Section 7 below; or
(vi) any change in control of the Company.
7. Notice of Termination. Any purported termination of the
Executive's employment by the Company or by the Executive shall be
communicated by a written Notice of Termination to the other party hereto in
accordance with Section 16 hereof. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
8. Date of Termination, Etc. "Date of Termination" shall mean (a)
if the Executive's employment is terminated for disability, thirty (30) days
after Notice of Termination is given (provided that the Executive shall not
have returned to the full-time performance of his duties during such thirty
(30) day period), and (b) if the Executive's employment is terminated pursuant
to subsection 6(c) or 6(d) above or for any other reason (other than
disability), the date specified in the Notice of Termination (which, in the
case of a termination pursuant to subsection 6(c) above shall not be less than
thirty (30) days, and in the case of a termination pursuant to subsection 6(d)
above shall not be less than thirty (30) nor more than sixty (60) days,
respectively, from the date such Notice of Termination is given); provided,
however, if within thirty (30) days after any Notice of Termination is given
the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, the Date of Termination shall be
the date on which the dispute is finally resolved, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (which is not
appealable or the time for appeal therefrom having expired and no appeal
having been perfected), except that with respect to a termination of this
Agreement by reason of expiration of its term as provided in Section 2, the
Date of Termination shall be the date the term hereof expires pursuant to
Section 2, regardless of whether a dispute exists with respect thereto;
provided, further, that the Date of Termination shall be extended by a notice
of dispute only if such notice is given in good faith and the party giving
such notice pursues the resolution of such dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Company will continue to
pay the Executive his full compensation in effect when the notice giving rise
to the dispute was given (including, but not limited to, base salary and
installments under any bonus or incentive compensation plan) and continue the
Executive as a participant in all compensation, benefit and insurance plans in
which he was participating when the notice giving rise to the dispute was
given, until the dispute is finally resolved in accordance with this Section.
Amounts paid under this Section 8 are in addition to all other amounts due
under this Agreement and shall not be offset against or reduce any other
amounts due under this Agreement. If it is finally determined by a binding
arbitration award, or by a final judgment, order or decree of a court of
competent jurisdiction (which is not appealable or the time for appeal
therefrom having expired and no appeal having been perfected), that the
Executive was terminated for proper cause, the Executive shall promptly remit
to the Company the amount of any cash payments and the value of any non-cash
benefits paid pursuant to this Section 8 to which the Executive would not
otherwise have been entitled.
9. Compensation Upon Termination or During Disability. Upon
termination of the Executive's employment or during a period of disability the
Executive shall be entitled to the following compensation and benefits:
(a) During any period that the Executive fails to perform his
duties hereunder as a result of incapacity due to physical or mental illness,
the Executive shall continue to receive his base salary at the rate in effect
at the commencement of any such period until his employment is terminated
pursuant to subsection 6(a) hereof, together with any bonus that may be
payable pursuant to subsection 3(b). Thereafter, the compensation provided in
Section 3 hereof shall continue to be paid to the Executive for the longer of
(i) a period of 36 months after such termination and (ii) the remaining term
of this Agreement pursuant to Section 2 hereof, in either case at the annual
base salary in effect at the time his employment is terminated, and the
Executive shall continue to be covered by the Company's health, dental and
life insurance benefits for such period.
(b) If the Executive's employment shall be terminated, at any time
prior to a change in control of the Company, for proper cause or by him other
than for Good Reason, the Executive shall be paid the Executive's full base
salary through the Date of Termination at the rate in effect at the time
Notice of Termination is given and the Company shall thereafter have no
further obligations to the Executive under this Agreement.
(c) If the Executive's employment shall be terminated by reason of
the Executive's death, the compensation provided in subsection 3(a) hereof
shall be paid to the person designated from time to time in writing by the
Executive and, if not so designated, to the Executive's estate for the longer
of (i) a period of 36 months following such termination and (ii) the remaining
term of this Agreement pursuant to Section 2 hereof, in either case at the
annual base salary in effect at the time of his death. The person designated
by the Executive and, if not so designated, the Executive's estate shall also
receive (i) any bonus awarded pursuant to subsection 3(b) and not yet paid and
(ii) with respect to the year in which the Executive dies (in the event the
directors of the Company have not yet determined whether to award the
Executive a bonus for such calendar year), a bonus equal to the product of (x)
the annual base salary payable to the Executive pursuant to subsection 3(a)
from January 1 of the year in which the Executive shall have died through the
last day of the month during which the Executive shall have died and (y) the
Deemed Bonus Fraction (as defined in subsection 9(d) below).
(d) If the Executive's employment shall be terminated (I) by the
Company other than for proper cause or disability or (II) by the Executive for
Good Reason, then the Executive shall be entitled to the benefits provided
below:
(i) the Company shall pay as severance pay to the Executive,
not later than the Date of Termination, a lump sum severance payment
(the "Severance Payment") equal to (A) the aggregate of all
compensation due to the Executive hereunder had his employment not
been so terminated, including, without limitation, all bonus
payments which would have been due to the Executive pursuant to
subsection 3(b), assuming that the Executive would have received a
bonus for each calendar year equal to the product of (x) the annual
base salary that would be payable to the Executive pursuant to
subsection 3(a) for such calendar year and (y) the greater of (i)
1/2 or (ii) the percentage of the Executive's base salary for the
immediately preceding fiscal year that was paid to the Executive as
a bonus for the immediately preceding fiscal year, expressed as a
fraction (the greater of clauses (i) and (ii) being herein referred
to as the "Deemed Bonus Fraction"), through the expiration of this
Agreement, plus (B) the greater of (x) the aggregate of all
compensation due to the Executive hereunder had his employment not
been so terminated, including, without limitation, all bonus
payments which would have been due to the Executive pursuant to
subsection 3(b), assuming that the Executive would have received a
bonus for each calendar year equal to the product of (i) the annual
base salary that would be payable to the Executive pursuant to
subsection 3(a) for such calendar year and (ii) the Deemed Bonus
Fraction, through the expiration of this Agreement (assuming, solely
for purposes of this subsection 9(d)(i)(B)(x), that this Agreement
expires on the last day of the thirty-sixth month following the end
of the calendar year in which the Date of Termination occurs), or
(y) 2.99 times the "base amount" within the meaning of Sections
280G(b)(3) and 280G(d) of the Internal Revenue Code of 1986, as
amended (the "Code"), and any applicable temporary or final
regulations promulgated thereunder, or its equivalent as provided in
any successor statute or regulation; provided, however, if the
Executive's employment shall be terminated other than pursuant to
subsection 6(d)(vi), the Severance Payment shall equal only the
greatest of the amounts set forth in subsection 9(d)(i)(A),
9(d)(i)(B)(x) or 9(d)(i)(B)(y) above. If Section 280G of the Code
(and any successor provisions thereto) shall be repealed or
otherwise be inapplicable, then the Severance Payment under clause
(i)(B)(y) above shall equal 2.99 times the average of the
Executive's annual compensation (from the Company or from Wellsford
Residential, as the case may) during the three calendar year period
preceding the calendar year in which the Date of Termination occurs.
For purposes of determining annual compensation in the preceding
sentence, compensation payable to the Executive by the Company or by
Wellsford Residential shall include every type and form of
compensation includible in the Executive's gross income in respect
of his employment by the Company or by Wellsford Residential
(including, without limitation, all income reported on an Internal
Revenue Service Form W-2), compensation income recognized as a
result of the Executive's exercise of stock options or sale of the
stock so acquired and including, without limitation, any annual
bonus payments previously paid to such Executive. For purposes of
calculating the "base amount" within the meaning of Sections
280G(b)(3) and 280G(d) of the Code and annual compensation in the
second preceding sentence, any income of the Executive that
constitutes a "parachute payment" within the meaning of Section
280G(b)(2) of the Code shall not be taken into account in making
such calculations; and
(ii) an amount equal to the Additional Amount pursuant to
Section 10 below.
(e) If the Executive's employment shall be terminated, at any time
following a change in control of the Company, for proper cause, the Company
shall pay the Executive his full base salary through the Date of Termination
at the higher of the rate in effect at the time Notice of Termination is given
and the rate in effect immediately prior to the change in control of the
Company and the Company shall have no further obligations to the Executive
under this Agreement.
(f) In addition to all other amounts payable to the Executive under
this Section 9, the Executive shall be entitled to receive all benefits
payable to him under the Company's Pension Plans applicable to him and any
other plan or agreement relating to retirement benefits as in effect upon the
occurrence of a change in control.
(g) The Executive shall not be required to mitigate the amount of
any payment provided for in this Section 9 by seeking other employment or
otherwise, nor shall the amount of any payment or benefit provided for in this
Section 9 be reduced by any compensation earned by him as the result of
employment by another employer or by retirement benefits after the Date of
Termination, or otherwise, except as specifically provided in this Section 9.
10. Additional Amount. Whether or not Section 9 is applicable, if
in the opinion of tax counsel selected by the Executive and reasonably accept-
able to the Company, the Executive has or will receive any compensation or
recognize any income (whether or not pursuant to this Agreement or any plan or
other arrangement of the Company and whether or not the Executive's employment
with the Company has terminated) which constitute an "excess parachute
payment" within the meaning of Section 280G(b)(1) of the Code (or for which a
tax is otherwise payable under Section 4999 of the Code), then the Company
shall pay the Executive an additional amount (the "Additional Amount") equal
to the sum of (i) all taxes payable by the Executive under Section 4999 of the
Code with respect to (a) all such excess parachute payments (or otherwise),
and (b) the Additional Amount, plus (ii) all federal, state and local income
taxes payable by Executive with respect to the Additional Amount. The amounts
payable pursuant to this Section 10 shall be paid by the Company to the
Executive within 30 days of the written request therefor made by the
Executive, but in all events (whether or not there has been a written request
by the Executive) not later than the date of the "change in control of the
Company", unless otherwise agreed to in writing by the Executive.
11. Income Tax Payment. Whether or not Section 9 is applicable, if
(i) the Executive has or will receive any compensation or recognize any income
(whether or not pursuant to this Agreement or any plan or other arrangement of
the Company and whether or not the Executive's employment with the Company has
terminated) in connection with a "change in control" of the Company (as that
term may be interpreted in this Agreement and any plan or other arrangement of
the Company), and (ii) such compensation or income represents non-cash
compensation or income, then the Company shall pay the Executive in cash an
amount (the "Income Tax Payment") equal to all federal, state and local income
taxes payable by Executive with respect to such non-cash compensation or
income. The Income Tax Payment shall be paid by the Company to the Executive
not later than the date of the "change in control of the Company", unless
otherwise agreed to in writing by the Executive.
12. Indemnification. The Company shall indemnify and hold harmless
the Executive for and against, and shall pay to the Executive an amount (the
"Indemnified Amount") equal to, the sum of (i) all taxes payable by the
Executive under Section 4999 of the Code with respect to (a) any compensation
received and any income recognized by the Executive in connection with the
Merger and Distribution as described in the Joint Proxy Statement/
Prospectus/Information Statement, dated April 25, 1997, of Wellsford
Residential and EQR and (b) the Indemnified Amount, plus (ii) all federal,
state and local income taxes payable by Executive with respect to the
Indemnified Amount; provided, however, that the Company shall have no
obligations under this Section 12 with respect to items comprising the
Indemnified Amount to the extent already paid on behalf of the Executive by
Wellsford Residential or the surviving trust in the Merger.
13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
14. Entire Agreement. This Agreement sets forth the entire
agreement of the parties and is intended to supersede all prior employment
negotiations, understandings and agreements. No provision of this Agreement
may be waived or changed, except by a writing signed by the party to be
charged with such waiver or change.
15. Successors; Binding Agreement. (a) This Agreement shall inure
to the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any amount 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 the Executive's devisee, legatee or other
designee or, if there is no such designee, to the Executive's estate.
(b) 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 in writing 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. Failure of the Company to obtain and deliver to
Executive such assumption and agreement prior to (but effective only upon)
such succession shall be a breach of this Agreement, except that for purposes
of implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any successor to
its business and/or assets as aforesaid which assumes and agrees to perform
this Agreement, expressly, by operation of law, or otherwise.
16. Notices. All notices provided for in this Agreement shall be
in writing, and shall be deemed to have been duly given when delivered
personally to the party to receive the same, when given by telex, telegram or
mailgram, or when mailed first class postage prepaid, by registered or
certified mail, return receipt requested, addressed to the party to receive
the same at his or its address above set forth, or such other address as the
party to receive the same shall have specified by written notice given in the
manner provided for in this Section 16. All notices shall be deemed to have
been given as of the date of personal delivery, transmittal or mailing
thereof.
17. Severability. If any provision in this Agreement is determined
to be invalid, it shall not affect the validity or enforceability of any of
the other remaining provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
WELLSFORD REAL PROPERTIES, INC.
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
