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EXHIBIT 10.39
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of September 25, 1998, by and between Excel Realty
Trust, Inc., a Maryland corporation (the "Company"), and Xxxx Xxxxxxxxx
("Executive").
RECITALS
A. Executive is currently Vice President-Administration and Finance
of New Plan Realty Trust, a Massachusetts business trust ("New Plan").
B. The Company, a wholly owned subsidiary of the Company ("Sub"),
and New Plan have entered into an Agreement and Plan of Merger (as amended, the
"Merger Agreement"), pursuant to which Sub shall merge with and into New Plan
with New Plan surviving as a wholly-owned subsidiary of the Company (the
"Merger").
C. The Company desires to employ Executive, effective as of the
time the Merger is consummated (the "Effective Time"), on the terms and
conditions set forth in this Agreement, and Executive 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 Executive as
Senior Vice President-Finance and Multifamily, and Executive hereby accepts such
employment, on the terms and conditions hereinafter set forth. Notwithstanding
the employment of Executive by the Company, the Company shall be entitled to pay
Executive from the payroll of New Plan.
2. Term. The period of employment of Executive by the Company
hereunder (the "Employment Period") shall commence on the Effective Time of the
Merger (the "Commencement Date") and shall continue through December 31, 2001;
provided, that, commencing on January 1, 2002, and on each anniversary date
thereafter, the Employment Period shall automatically be extended for one (1)
additional year unless either party gives written notice not to extend this
Agreement prior to six (6) months before such automatic extension would be
effectuated. The Employment Period may be sooner terminated by either party in
accordance with Section 6 of this Agreement. Employment hereunder and entering
into this Agreement shall not be deemed to constitute termination of employment
of Executive with New Plan and shall not trigger any obligations or result in
the loss of any benefits resulting from an employment termination. Therefore,
without
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limiting the generality of the foregoing, any promissory note(s) of Executive
payable to New Plan shall not be accelerated as a result of this Agreement or
any action taken in accordance with the terms hereof.
3. Position and Duties. During the Employment Period, Executive
shall serve as Senior Vice President-Finance and Multifamily of the Company.
Executive shall have those powers and duties normally associated with the
position of a Senior Vice President and such other powers and duties as may be
prescribed by the Board of Directors of the Company (the "Board"). Executive
shall devote such time, attention and energies to Company affairs as are
necessary to fully perform his duties (other than absences due to illness or
vacation) for the Company. Notwithstanding the above, Executive shall be
permitted, to the extent such activities do not materially and adversely affect
the ability of Executive to fully perform his duties and responsibilities
hereunder, to (i) manage Executive's personal, financial and legal affairs, and
(ii) serve on civic or charitable boards or committees.
4. Place of Performance. The principal place of employment of
Executive shall be at the Company's corporate offices in New York, New York.
5. Compensation and Related Matters.
(a) Salary. During the Employment Period, the Company shall pay
Executive an annual base salary of $175,000 ("Base Salary"). Executive's Base
Salary shall be paid in approximately equal installments in accordance with the
Company's customary payroll practices. If Executive's Base Salary is increased
by the Company, such increased Base Salary shall then constitute the Base Salary
for all purposes of this Agreement.
(b) Bonus. The Board's compensation committee (the "Compensation
Committee") shall review Executive's performance at least annually during each
year of the Employment Period and cause the Company to award Executive a cash
bonus of up to 50% of his Base Salary which the Compensation Committee shall
reasonably determine as fairly compensating and rewarding Executive for services
rendered to the Company and/or as an incentive for continued service to the
Company, but in no event shall Executive's aggregate bonus and Base Salary for
the first full calendar year after the Effective Time be less than the aggregate
of Executive's New Plan salary immediately prior to the Effective Time and
Executive's 1997 New Plan bonus. The amount of Executive's cash bonus shall be
determined in the reasonable discretion of the Compensation Committee and shall
be dependent upon, among other things, the achievement of certain performance
levels by the Company, including, without limitation, growth in funds from
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operations, and Executive's performance and contribution to increasing the funds
from operations.
(c) Expenses. The Company shall promptly reimburse Executive for all
reasonable business expenses upon the presentation of reasonably itemized
statements of such expenses in accordance with the Company's policies and
procedures now in force or as such policies and procedures may be modified with
respect to all senior executive officers of the Company.
(d) Vacation. Executive shall be entitled to the number of weeks of
vacation per year provided to the Company's senior executive officers, but in no
event less than four (4) weeks annually.
(e) Welfare, Pension and Incentive Benefit Plans. During the
Employment Period, Executive (and his spouse and dependents to the extent
provided therein) shall be entitled 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, accidental death and dismemberment and travel
accident insurance plans and programs. In addition, Executive shall be entitled
to receive the most extensive disability coverage provided by the Company to any
other senior executive of the Company. In addition, during the Employment
Period, Executive 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, or any annual
incentive or long-term performance plans. With respect to each such employee
benefit plan, program, policy or arrangement, service with New Plan 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. With respect to vacation benefits
provided by the Company, the vacation benefit of Executive shall include all
hours of accrued but unused vacation and sick time hours, respectively, with New
Plan or its affiliates.
(f) During the Employment Period, the Company shall provide
Executive with the use of an automobile (including the payment of vehicle
insurance) substantially comparable to the automobile currently provided to
Executive by New Plan; however, at the Company's option, Company may in lieu
thereof provide Executive with an automobile allowance in an amount sufficient
for Executive to have the use of (and pay vehicle insurance on, if not so
provided by the Company) a
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vehicle substantially comparable to the automobile currently provided to
Executive by New Plan.
6. Termination. Executive's employment hereunder may be terminated
during the Employment Period under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate upon his
death.
(b) Disability. If, as a result of Executive's incapacity due to
physical or mental illness, Executive 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 defined in
Section 7(a)) is given after such six (6) month period, Executive shall not have
returned to the substantial performance of his duties on a full-time basis, the
Company shall have the right to terminate Executive's 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) Cause. The Company shall have the right to terminate Executive's
employment for Cause, and such termination in and of itself shall not be, nor
shall it be deemed to be, a breach of this Agreement. For purposes of this
Agreement, the Company shall have "Cause" to terminate Executive's employment
upon Executive's:
(i) conviction of, or plea of guilty or nolo contendere to, a
felony; or
(ii) willful and continued failure to use reasonable best efforts to
substantially perform his duties hereunder (other than such failure resulting
from Executive's incapacity due to physical or mental illness or subsequent to
the issuance of a Notice of Termination by Executive for Good Reason (as defined
in Section 6(d)) after demand for substantial performance is delivered by the
Company in writing that specifically identifies the manner in which the Company
believes Executive has not used reasonable best efforts to substantially perform
his duties; or
(iii) willful misconduct (including, but not limited to, a willful
breach of the provisions of Section 10) that is materially economically
injurious to the Company or to any entity in control of, controlled by or under
common control with the Company ("Affiliate").
For purposes of this Section 6(c), no act, or failure to act, by
Executive shall be considered "willful" unless committed in bad faith and
without a reasonable belief that the act or omission was in the best interests
of the Company or any Affiliates thereof; provided, however, that the willful
requirement outlined in
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paragraphs (ii) or (iii) above shall be deemed to have occurred if the
Executive's action or non-action continues for more than ten (10) days after
Executive has received written notice of the inappropriate action or non-action.
Cause shall not exist under paragraph (ii) or (iii) above unless and until the
Company has delivered to Executive a copy of a resolution duly adopted by a
majority of the Board (excluding Executive for purposes of determining such
majority) at a meeting of the Board called and held for such purpose (after
reasonable (but in no event less than thirty (30) days) notice to Executive and
an opportunity for Executive, together with his counsel, to be heard before the
Board), finding that in the good faith opinion of the Board, Executive was
guilty of the conduct set forth in paragraph (ii) or (iii) and specifying the
particulars thereof in detail. This Section 6(c) shall not prevent Executive
from challenging in any court of competent jurisdiction the Board's
determination that Cause exists or that Executive has failed to cure any act (or
failure to act) that purportedly formed the basis for the Board's determination.
(d) Good Reason. Executive may terminate his employment for "Good
Reason" within thirty (30) days after Executive has actual knowledge of the
occurrence, without the written consent of Executive, of one of the following
events that has not been cured within thirty (30) days after written notice
thereof has been given by Executive to the Company; provided, however, that with
respect to Section 6(d) the Company shall have the right to challenge in any
court of competent jurisdiction the Executive's determination that he has the
right to terminate his employment for "Good Reason.":
(i) the termination of the Employment Agreement
between Xxxxxx Xxxxxxx, the Chief Executive Officer of the Company as of
the Effective Time, and the Company dated as of May 14, 1998, pursuant
to Section 6(d) thereof by Laubich or by the Company without Cause;
(ii) the assignment to Executive of duties materially
and adversely inconsistent with Executive's status as a Senior Vice
President of the Company or a material and adverse alteration in the
nature of Executive's duties and/or responsibilities, reporting
obligations, titles or authority;
(iii) a reduction by the Company in Executive's Base
Salary or a failure by the Company to pay any such amounts when due;
(iv) the relocation of the Company's executive
offices or Executive's own office location to a location that is more
than fifty (50) miles from New York, New York;
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(v) any purported termination of Executive's
employment for Cause which is not effected pursuant to the procedures of
Section 6(c) (and for purposes of this Agreement, no such purported
termination shall be effective);
(vi) the Company's failure to substantially provide
any material employee benefits due to be provided to Executive;
(vii) the Company's failure to provide in all material
respects the indemnification set forth in Section 11 of this Agreement;
(viii) a Change in Control (as defined below) of the
Company; or.
(ix) Failure of the Company to provide, by giving
appropriate written notice to Executive, for two automatic one (1) year
renewals following the replacement of Xxxxxx Xxxxxxx as Chief Executive
Officer of the Company.
Executive's right to terminate his employment hereunder for Good Reason
shall not be affected by his incapacity due to physical or mental illness.
Executive's continued employment during the thirty (30) day period referred to
above in this paragraph (d) shall not constitute consent to, or a waiver of
rights with respect to, any act or failure to act constituting Good Reason
hereunder.
For purposes of this Agreement, a "Change in Control" of the Company
means the occurrence of one of the following events:
(1) individuals who, on the Commencement Date,
constitute the Board (the "Incumbent Directors") cease for any reason to
constitute at least a majority of the Board, provided that any person
becoming a director subsequent to the Commencement Date whose election
or nomination for election was approved by a vote of a majority of the
Incumbent Directors then on the Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person is
named as a nominee for director, without objection to such nomination)
shall be an Incumbent Director; provided, however, that no individual
initially elected or nominated as a director of the Company as a result
of an actual or threatened election contest with respect to directors or
as a result of any other actual or threatened solicitation of proxies by
or on behalf of any person other than the Board shall be an Incumbent
Director;
(2) any "person" (as such term is defined in Section
3(a)(9) of the Securities Exchange Act of 1934 (the "Exchange Act") and
as used in
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Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes, after
the Commencement Date, a "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the
Company representing 30% or more of the combined voting power of the
Company's then outstanding securities eligible to vote for the election
of the Board (the "Company Voting Securities"); provided, however, that
an event described in this paragraph (2) shall not be deemed to be a
Change in Control if any of following becomes such a beneficial owner:
(A) the Company or any majority-owned subsidiary (provided, that this
exclusion applies solely to the ownership levels of the Company or the
majority-owned subsidiary), (B) any tax-qualified, broad-based employee
benefit plan sponsored or maintained by the Company or any
majority-owned subsidiary, (C) any underwriter temporarily holding
securities pursuant to an offering of such securities, (D) any person
pursuant to a Non-Qualifying Transaction (as defined in paragraph (3)),
or (E) Executive or any group of persons including Executive (or any
entity controlled by Executive or any group of persons including
Executive);
(3) the consummation of a merger, consolidation,
share exchange or similar form of transaction involving the Company or
any of its subsidiaries, or the sale of all or substantially all of the
Company's assets (a "Business Transaction"), unless immediately
following such Business Transaction (i) more than 50% of the total
voting power of the entity resulting from such Business Transaction or
the entity acquiring the Company's assets in such Business Transaction
(the "Surviving Corporation") is beneficially owned, directly or
indirectly, by the Company's shareholders immediately prior to any such
Business Transaction, and (ii) no person (other than the persons set
forth in clauses (A), (B), or (C) of paragraph (2) above or any
tax-qualified, broad-based employee benefit plan of the Surviving
Corporation or its Affiliates) beneficially owns, directly or
indirectly, 30% or more of the total voting power of the Surviving
Corporation (a "Non-Qualifying Transaction"); or
(4) Board approval of a liquidation or dissolution
of the Company, unless the voting common equity interests of an ongoing
entity (other than a liquidating trust) are beneficially owned, directly
or indirectly, by the Company's shareholders in substantially the same
proportions as such shareholders owned the Company's outstanding voting
common equity interests immediately prior to such liquidation and such
ongoing entity assumes all existing obligations of the Company to
Executive under this Agreement and the Stock Option Agreements pursuant
to which the Stock Options were granted.
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(e) Without Good Reason. Executive shall have the right to terminate
his employment hereunder without Good Reason 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.
7. Termination Procedure.
(a) Notice of Termination. Any termination of Executive's employment
by the Company or by Executive during the Employment Period (other than
termination pursuant to Section 6(a)) shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 14. 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 Executive's employment under the provision so
indicated.
(b) Date of Termination. "Date of Termination" shall mean (i) if
Executive's employment is terminated by his death, the date of his death, (ii)
if Executive's employment is terminated pursuant to Section 6(b), thirty (30)
days after Notice of Termination (provided that Executive shall not have
returned to the substantial performance of his duties on a full-time basis
during such thirty (30) day period), and (iii) if Executive's employment is
terminated for any other reason, the date on which a Notice of Termination is
given or any later date (within thirty (30) days after the giving of such
notice) set forth in such Notice of Termination.
8. Compensation Upon Termination or During Disability. In the event
Executive is disabled or his employment terminates during the Employment Period,
the Company shall provide Executive with the payments and benefits set forth
below. Executive acknowledges and agrees that the payments set forth in this
Section 8 constitute liquidated damages for termination of his employment during
the Employment Period.
(a) Termination By Company Without Cause or By Executive for Good
Reason. If Executive's employment is terminated by the Company without Cause or
by Executive for Good Reason:
(i) the Company shall pay to Executive (A) his Base
Salary and accrued vacation pay through the Date of Termination, as soon
as practicable following the Date of Termination, and (B) a payment
equal to two times Executive's average total compensation (Base Salary
plus bonus) for the two (2) preceding fiscal years of the Company ending
prior to termination as soon as practicable following the Date of
Termination (for this purpose Executive's compensation earned with New
Plan shall be used to the extent necessary); provided, however, if the
Executive has previously given a
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notice not to extend the Employment Period pursuant to Section 2, the
payment referred to in this subsection (i) shall not be made;
(ii) the Company shall maintain in full force and
effect, for the continued benefit of Executive, his spouse and his
dependents for a period of three (3) years following the Date of
Termination the medical, hospitalization, dental, and life insurance
programs in which Executive, his spouse and his dependents were
participating immediately prior to the Date of Termination at the level
in effect and upon substantially the same terms and conditions
(including without limitation contributions required by Executive for
such benefits) as existed immediately prior to the Date of Termination;
provided, that if Executive, his spouse or his dependents cannot
continue to participate in the Company programs providing such benefits,
the Company shall arrange to provide Executive, his spouse and his
dependents with the economic equivalent of such benefits which they
otherwise would have been entitled to receive under such plans and
programs ("Continued Benefits"), provided, that such Continued Benefits
shall terminate on the date or dates Executive receives substantially
equivalent coverage and benefits, without waiting period or pre-existing
condition limitations, under the plans and programs of a subsequent
employer (such coverage and benefits to be determined on a
coverage-by-coverage, or benefit-by-benefit, basis); and
(iii) the Company shall reimburse Executive pursuant
to Section 5(c) for reasonable expenses incurred, but not paid prior to
such termination of employment;
(iv) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance
with the terms and provisions of any agreements, plans or programs of
the Company;
(v) all stock options and other pension or
employment benefits granted to Executive more than one year prior to the
Date of Termination shall fully vest as of the Date of Termination
(inclusive of any granted to Executive by New Plan prior to the
Effective Time);
(vi) the Company shall forgive and cancel all loans
made by the Company or any Affiliate to Executive during the Employment
Period, if any, and shall take all actions and execute all documents
necessary to evidence the forgiveness and cancellation of such loans;
and
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(vii) the Company shall eliminate any and all
restrictions on Executive's ability either to engage in any activities,
directly or indirectly, in competition with the Company (including,
without limitation, the restrictions set forth in Section 10(c) of this
Agreement but not the restrictions set forth in Sections 10(a) and (b)),
or to make any investment in competition with the Company, and shall
execute all documents necessary or reasonably requested by Executive to
reflect such elimination of restrictions.
The foregoing notwithstanding, the total of the severance payments
payable under this Section 8(a) shall be reduced to the extent the payment of
such amounts would cause Executive's total termination benefits (as determined
by Executive's tax advisor) to constitute an "excess" parachute payment under
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and
by reason of such excess parachute payment Executive would be subject to an
excise tax under Section 4999(a) of the Code, but only if Executive determines
that the after-tax value of the termination benefits calculated with the
foregoing restriction exceed those calculated without the foregoing restriction.
(b) Cause or By Executive Without Good Reason. If Executive's
employment is terminated by the Company for Cause or by Executive (other than
for Good Reason):
(i) the Company shall pay Executive his Base Salary
and, to the extent required by law or the Company's vacation policy, his
accrued vacation pay through the Date of Termination, as soon as
practicable following the Date of Termination; and
(ii) the Company shall reimburse Executive pursuant
to Section 5(c) for reasonable expenses incurred, but not paid prior to
such termination of employment, unless such termination resulted from a
misappropriation of Company funds; and
(iii) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance
with the terms and provisions of any agreements, plans or programs of
the Company.
(c) Disability. During any period that Executive fails to perform
his duties hereunder as a result of incapacity due to physical or mental illness
("Disability Period"), Executive shall continue to receive his full Base Salary
set forth in Section 5(a) until his employment is terminated pursuant to Section
6(b). In the event Executive's employment is terminated for Disability pursuant
to Section 6(b):
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(i) the Company shall pay to Executive (A) his Base
Salary and accrued vacation pay through the Date of Termination, as soon
as practicable following the Date of Termination, and (B) continued Base
Salary (as provided for in Section 5(a)) and Continued Benefits for the
longer of (i) six (6) months or (ii) the date on which Executive becomes
entitled to long-term disability benefits under the applicable plan or
program of the Company paying the benefits described in Section 5(h), up
to a maximum of three (3) years of Base Salary continuation; and
(ii) the Company shall reimburse Executive pursuant
to Section 5(c) for reasonable expenses incurred, but not paid prior to
such termination of employment; and
(iii) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance
with the terms and provisions of any agreements, plans or programs of
the Company.
(d) Death. If Executive's employment is terminated by his death:
(i) the Company shall pay in a lump sum to
Executive's beneficiary, legal representatives or estate, as the case
may be, Executive's Base Salary through the Date of Termination and one
(1) times Executive's annual rate of Base Salary, and shall provide
Executive's spouse and dependents with Continued Benefits for one (1)
year;
(ii) the Company shall reimburse Executive's
beneficiary, legal representatives, or estate, as the case may be,
pursuant to Section 5(c) for reasonable expenses incurred, but not paid
prior to such termination of employment; and
(iii) Executive's 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.
(e) Failure to Extend. Subject to Section 6(d)(ix), a failure to
extend the Agreement pursuant to Section 2 by either party shall not be treated
as a termination of Executive's employment for purposes of this Agreement.
9. Mitigation. Executive 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 Executive under this Agreement on account
of subsequent employment. Additionally, amounts owed to Executive under this
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Agreement shall not be offset by any claims the Company may have against
Executive, 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 Executive or others.
10. Confidential Information, Ownership of Documents:
Non-Competition.
(a) Confidential Information. Executive 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 Executive during Executive's
employment by the Company and which is not generally available public knowledge
(other than by acts by Executive in violation of this Agreement). Except as may
be required or appropriate in connection with his carrying out his duties under
this Agreement, Executive 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 Executive 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 Executive 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 Executive's
carrying out his duties under this Agreement and, if so removed, shall be
returned to the Company promptly after termination of Executive's employment
hereunder, or otherwise promptly after removal if such removal occurs following
termination of employment. Executive 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.
(c) Protection of Business. During the Employment Period and until
the first anniversary of Executive's Date of Termination (but only in the event
Executive is terminated by the Company for Cause or Executive terminates
employment without Good Reason), the Executive will not (i) engage, anywhere
within the geographical areas in which the Company or any of its Affiliates (the
"Designated Entities") are conducting their business operations or providing
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services as of the Date of Termination, in any business which is being engaged
in by the Designated Entities as of the Date of Termination or pursue or attempt
to develop any project known to Executive and which the Designated Entities are
pursuing, developing 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 which is engaged in any business
conducted by the Designated Entities in the same geographic area as the
Designated Entities, any Project or any customer 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. Notwithstanding the preceding sentence, Executive shall
not be prohibited from owning less than three (3%) percent of any publicly
traded corporation, whether or not such corporation is in competition with the
Company, and Executive shall not be prohibited from owning equity securities of,
and acting as an officer and director of, Legacy. 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 Executive 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, Executive agrees that the Company shall be entitled to
injunctive relief in a court of appropriate jurisdiction to remedy any such
breach or threatened breach, Executive acknowledging that damages would be
inadequate and insufficient.
(e) Continuing Operation. Except as specifically provided in this
Section 10, the termination of Executive's 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 Executive is made a party or
a threatened to be made a party to any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "Proceeding"), by reason of
the fact that Executive 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
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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, Executive shall be indemnified and
held harmless by the Company to the fullest extent authorized by Maryland law,
as the same exists or may hereafter be amended, against all Expenses incurred or
suffered by Executive in connection therewith, and such indemnification shall
continue as to Executive even if Executive 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 his heirs, executors and administrators.
(b) Expenses. As used in this 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, Executive 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, Executive 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 Executive is entitled under any
provision of this Agreement to 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 Executive for the portion of such Expenses
to which Executive is entitled.
(e) Advances of Expenses. Expenses incurred by Executive in
connection with any Proceeding shall be paid by the Company in advance upon
request of Executive that the Company pay such Expenses; but, only in the event
that Executive shall have delivered in writing to the Company (i) an undertaking
to reimburse the Company for Expenses with respect to which Executive 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. Executive shall give to the Company notice of
any claim made against him for which indemnification will or could be sought
under
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this Agreement. In addition, Executive shall give the Company such information
and cooperation as it may reasonably require and as shall be within Executive's
power and at such times and places as are convenient for Executive.
(g) Defense of Claim. With respect to any Proceeding as to which
Executive notifies the Company of the commencement thereof:
(i) The Company will be entitled to participate
therein at its own expense; and
(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 Executive,
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. Executive 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 conflict of interest
between the Company and Executive, and under such circumstances the fees
and expenses of such counsel shall be at the expense of the Company.
(iii) The Company shall not be liable to indemnify
Executive 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 Executive without Executive's written consent.
Neither the Company nor Executive 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
Executive 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 Executive regarding any provision of this Agreement, the
Company shall reimburse Executive for all legal fees and expenses reasonably
incurred by Executive in connection with such contest or dispute, but only if
Executive is successful in respect of substantially all of Executive's claims
brought and pursued in connection with such contest or dispute. Such
reimbursement shall
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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) Executive's Successors. No rights or obligations of Executive
under this Agreement may be assigned or transferred by Executive other than his
rights to payments or benefits hereunder, which may be transferred only by will
or the laws of descent and distribution. Upon Executive's death, this Agreement
and all rights of Executive hereunder shall inure to the benefit of and be
enforceable by Executive's beneficiary or beneficiaries, personal or legal
representatives, or estate, to the extent any such person succeeds to
Executive's interests under this Agreement. Executive shall be entitled to
select and change a beneficiary or beneficiaries to receive any benefit or
compensation payable hereunder following Executive's death by giving the Company
written notice thereof. In the event of Executive's death or a judicial
determination of his incompetence, reference in this Agreement to Executive
shall be deemed, where appropriate, to refer to his beneficiary(ies), estate or
other legal representative(s). If Executive 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 Executive, or otherwise to his legal representatives or
estate.
14. Notice. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if delivered
personally, or sent by nationally-recognized, overnight courier or by registered
or certified mail, return receipt requested and postage prepaid, addressed as
follows:
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If to Executive:
Xxxx Xxxxxxxxx
c/o New Plan Excel Realty Trust, Inc.
0000 Xxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
If to the Company:
New Plan Excel Realty Trust, Inc.
0000 Xxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: CEO
or to such other address as any party may have furnished to the others in
writing in accordance herewith. All such notices and other communications shall
be deemed to have been received (a) in the case of personal delivery, on the
date of such delivery, (b) in the case of a telecopy, when the party receiving
such telecopy shall have confirmed receipt of the communication, (c) in the case
of delivery by nationally-recognized, overnight courier, on the business day
following dispatch and (d) in the case of mailing, on the third business day
following such mailing.
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 Executive 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 Executive's 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.
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 this Agreement, which shall remain in full force and
effect.
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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
Executive 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 5.
20. Withholding. All payments hereunder 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 Headings. 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.
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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/ Xxxxxxx X. Xxxx
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Name: XXXXXXX X. XXXX
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Title: EXECUTIVE VICE PRESIDENT
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/s/ Xxxx Xxxxxxxxx
-----------------------------------
Xxxx Xxxxxxxxx
00
