EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into by and among SIMON
PROPERTY GROUP, Inc., a Maryland corporation (the "Parent"), SIMON PROPERTY
GROUP ADMINISTRATIVE SERVICES PARTNERSHIP, L.P., an indirect majority owned
subsidiary of the Parent (the "Company") and XXXXXXX X. XXXXXXX (the
"Executive"), as of March 26, 1996, and made effective as of the Effective
Date, as defined in Section 3.1 hereof, subject to Section 3.2 hereof.
WHEREAS, Executive previously served as President and Chief Executive
Officer of XxXxxxxxx Realty Corporation ("DC") and XxXxxxxxx Properties
Management, Inc. ("DC SUB")'
WHEREAS, pursuant to the Agreement and Plan of Merger (the "Merger
Agreement") dated as of March 26, 1996 among the Parent, DAY Acquisition
Corp. and DC, DC will, as of the Effective Date, become a wholly-owned
subsidiary of the Parent (the "Merger");
WHEREAS, each of the Parent and the Company considers it essential to
its best interests and the best interests of its stockholders to xxxxxx the
continued employment of Executive by the Parent and the Company from and after
the Effective Date;
WHEREAS, Executive is willing so to continue his employment on the terms
hereinafter set forth in this Agreement (the "Agreement"); and
WHEREAS, Executive has agreed that from and after the Effective Date,
this Agreement shall supersede in all respects the Employment Agreement among
DC, DC SUB and the Executive dated as of April 15, 1994 (the "Prior
Agreement") and any other agreements, arrangements or understandings relating
to the subject matter hereof.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the parties agree as
follows:
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ARTICLE I
EXECUTIVE REPRESENTATIONS
1.1 EXECUTIVE REPRESENTATIONS AND AGREEMENT
(a) Executive represents and warrants that, as of the date hereof
and as of the Effective Date, no event has occurred that constitutes grounds
for "Good Reason" under the Prior Agreement and Executive agrees and
acknowledges that as of the Effective Date (i) this Agreement shall supersede
the Prior Agreement in all respects and (ii) except as otherwise expressly
provided in this Agreement, neither the Executive nor the Parent, the Company
or their affiliates shall have any further rights, claims or obligations
under any provisions of the Prior Agreement or any other existing agreements,
arrangements or understandings relating to the subject matter hereof.
(b) Executive represents and warrants to the Parent and the
Company, that to the best of his knowledge, neither the execution and
delivery of this Agreement nor the performance of his duties hereunder
violates or will violate the provisions of any other agreement to which he is
a party or by which he is bound.
ARTICLE II
EMPLOYMENT, DUTIES AND RESPONSIBILITIES
2.1 EMPLOYMENT. During the term of Executive's employment hereunder,
Executive shall serve as the President and Chief Operating Officer of the
Parent and agrees to serve, if elected, for no additional compensation as a
trustee or director of the Parent and/or in the position of officer, trustee
or director of any subsidiary or affiliate of the Parent. Executive hereby
accepts such employment. Executive agrees to devote his full time and
efforts to promote the interests of the Parent and its affiliates. In
addition, during the term of Executive's employment hereunder, the Parent
shall use its best efforts to nominate Executive for election to, and to
cause Executive to be elected to, the Board of Directors of Parent (the
"Board") and to the Executive Committee of the Board and shall nominate
Executive for re-election to the Board at each annual meeting of the Parent's
shareholders at which directors of the Parent are to be elected.
2.2 DUTIES AND RESPONSIBILITIES. During the term of Executive's
employment hereunder, Executive shall perform such duties and exercise such
supervision and authority over and with regard to the business of the Parent
as are similar in nature to those duties and services customarily associated
with the position of President and Chief Operating Officer, including
authority, subject to the oversight of the Chief Executive Officer of the
Parent and the Board, with respect to the day-to-day operations of the
Parent, and development and implementation of business strategies. In
exercising such authority the Executive shall routinely consult with, and
report directly and only to the Chief Executive Officer of the Parent and the
Board.
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2.3 BASE OF OPERATION. Executive's principal base of operation for the
performance of his duties and responsibilities under this Agreement shall
initially be in Youngstown, Ohio; PROVIDED, HOWEVER that Executive shall
perform such duties and responsibilities not involving a permanent transfer
of his base of operation outside of Youngstown, Ohio at such other places as
shall from time to time be reasonably necessary to fulfill his obligations
hereunder; and PROVIDED FURTHER that, at any time after the first anniversary
of the Effective Date, the Executive may, if requested by the Chief Executive
Officer of Parent, be required to devote at least a majority of his business
time to duties performed by Executive at the Parent's corporate offices in
Indianapolis, Indiana.
ARTICLE III
TERM, EFFECTIVENESS
3.1 TERM. The term of this Agreement (the "Term") shall commence as of
the closing date of the merger contemplated by Section 1.2 of the Merger
Agreement (the "Effective Date") and shall continue for a period of one year
thereafter; PROVIDED, HOWEVER, that the Term shall be automatically renewed
for successive one-year periods on each of the first two anniversaries of the
Effective Date unless either party hereto gives at least 90 days prior
written notice to the other of its election not to so renew the Term. Unless
earlier terminated by either party as described in the immediately preceding
sentence or pursuant to Article VI below, the Term shall expire on the third
anniversary of the Effective Date.
3.2 EFFECTIVENESS. Except for the representations and warranties made
by Executive in Section 1.1 above which shall be deemed effective as of the
date hereof, this Agreement shall become effective only upon the Effective
Date. In the event the Merger Agreement is terminated for any reason without
the Effective Time (as defined therein) having occurred, this Agreement shall
be terminated without further obligation or liability of either party.
ARTICLE IV
COMPENSATION AND EXPENSES
4.1 SALARY, BONUSES AND BENEFITS. As compensation and consideration
for the performance by Executive of his obligations under this Agreement,
Executive shall be entitled to the following (subject, in each case, to the
provisions of ARTICLE VI hereof):
(a) BASE SALARY. The Company shall pay Executive a base salary
during the Term, payable in accordance with the normal payment procedures of
the Company, at the rate of $508,500 per annum. The Parent and the Company
agree to review such compensation not less frequently than annually during
the Term.
(b) RETIREMENT, WELFARE AND OTHER BENEFITS. Executive shall
participate during the Term in such pension, savings, profit sharing, life
insurance,
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health, disability and major medical insurance plans, and in such other
employee benefit plans and programs, for the benefit of the employees of the
Parent and its affiliates, as may be maintained from time to time during the
Term, in each case to the extent and in the manner available to other
officers of the Parent and subject to the terms and provisions of such plans
or programs. In addition, Executive will be afforded the same indemnity
provisions regarding directors and officers liability that the parent
provides to its other senior executive officers and directors and Executive
will be covered by any directors and officers liability policy generally in
force for the Parent's senior executive officers and directors.
(c) EQUITY ARRANGEMENTS.
(i) Executive shall participate during each calendar year
during the Term commencing with fiscal year 1999, in the Parent's stock and
performance incentive plans (or such plans of the Parent's affiliates
maintained for the benefit of other officers of Parent) on the same basis as
is made available to other executives of the Parent; it being understood that
Executive's entitlement to performance based compensation in respect of
fiscal years 1996, 1997 and 1998 shall be as set forth in Section
4.1(c)(iii)(2) and (3) below.
(ii) Executive and the Parent hereby acknowledge and agree
that the Deferred Stock award with respect to 15,868 shares of DC's common
stock granted to Executive under the DC 1994 Stock Incentive Plan (the "DC
Incentive Plan") in connection with DC's initial public offering which will
not have vested prior to the Effective Date shall be deemed fully vested
immediately prior to the Effective Date, such shares to be converted into
shares of common stock of Parent pursuant to the Merger Agreement.
(iii) Executive and Parent hereby acknowledge and agree that
with respect to the Long-Term Incentive Deferred Stock award relating to
533,000 shares of DC's common stock previously granted to Executive under the
DC Incentive Plan, of which 35,534 shares have previously vested and been
issued:
(1) an aggregate of 97,616 shares of DC common stock,
(relating to 1994 and 1995 fiscal year performance) shall be deemed fully
vested immediately prior to the Effective Date, such shares to be converted
into shares of common stock of Parent pursuant to the Merger Agreement;
PROVIDED that if Executive determines that such vesting would result in the
imposition of any excise tax on Executive under Section 4999 of the Internal
Revenue Code of 1986, as amended, at Executive's request, Parent will provide
that such shares will be deemed to vest over a period of time, as agreed by
Parent and Executive, in consideration of Executive's future performance of
services so as to avoid the imposition of any such excise tax by the
Executive;
(2) 106,600 shares of DC common stock (relating to
1996 fiscal year performance), subject to conversion into shares of common
stock of Parent pursuant to the Merger Agreement, will no longer be subject
to vesting on the basis of performance but will vest, subject to Executive's
continued
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employment with the Parent, in equal 1/3 portions on each of the first,
second and third anniversaries of the Effective Date; and
(3) the remaining 293,150 shares of DC common stock,
133,250 relating to 1997 fiscal year performance and 159,900 shares relating
to 1998 fiscal year performance, shall be converted into shares of common
stock of Parent pursuant to the Merger Agreement and shall be earned upon the
Parent's achievement of Funds From Operations growth targets for fiscal years
1997 and 1998, respectively, established by the committee then administering
the DC Incentive Plan which, as provided in Section 5.12 of the Merger
Agreement, shall not exceed $2.58 per share for fiscal year 1997 and $2.79
per share for fiscal year 1998, (the "FFO Targets"), calculated in a manner
consistent with that proposed by the National Association of Real Estate
Investment Trusts. Once earned, such shares shall vest, subject to
Executive's continued employment with the Parent, in equal 1/3 portions on
each of the first three April 1sts that occur after the last day of the
fiscal year to which such earned shares relate.
(d) BONUS OPPORTUNITY. Executive shall participate during
the Term in the Parent's (or its affiliates') annual cash bonus plan for
senior executives of the Parent as in effect from time to time, with a
maximum annual bonus for each year during the Term equal to at least 75% of
Executive's base salary.
(e) VACATION. Executive shall be entitled to a reasonable
paid vacation period (but not necessarily consecutive vacation weeks) during
the Term.
(f) CAR LEASE ASSIGNMENT. Parent shall assign or cause to be
assigned to Executive the existing automobile lease relating to the
automobile currently made available to Executive by DC; PROVIDED that
Executive shall reimburse Parent for any costs incurred by Parent or its
affiliates in connection with such assignment.
4.2 EXPENSES. The Parent will reimburse, or will cause the Company to
reimburse, Executive for reasonable business-related expenses incurred by him
in connection with the performance of his duties hereunder during the Term,
subject, however, to the Parent's and the Company's policies relating to
business-related expenses as in effect from time to time during the Term.
ARTICLE V
EXCLUSIVITY, ETC.
5.1 EXCLUSIVITY. Executive agrees to perform his duties,
responsibilities and obligations hereunder efficiently and to the best of his
ability. Executive agrees that he will devote his entire working time, care
and attention and best efforts to such duties, responsibilities and
obligations throughout the Term. Executive also agrees that he will not
engage in any other business activities, whether charitable or pursued for
gain, profit, other pecuniary advantage or otherwise, that are competitive
with the activities of the Parent or its affiliates or that would adversely
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effect Executive's ability to perform his duties hereunder. Executive agrees
that all of his activities as an employee and/or trustee or director of the
Parent or its affiliates shall be in conformity with all present and future
policies, rules and regulations and directions of the Parent and its
affiliates not inconsistent with this Agreement.
5.2 OTHER BUSINESS VENTURES. Executive agrees that for so long as he
is employed by the Parent, and for a period of one year thereafter, he will
not, directly or indirectly, become an employee, shareholder, owner, officer,
agent, director of, or otherwise associate with, any firm, person, business
enterprise or other entity which is engaged in or competitive with, any
business engaged in by the Parent or its affiliates. Notwithstanding the
foregoing, Executive may own, directly or indirectly, up to 5% of the
outstanding capital stock of any business having a class of capital stock
which is traded on any national stock exchange or in the over-the-counter
market.
5.3 CONFIDENTIALITY; NON-SOLICITATION. (a) Executive agrees that he
will not, at any time during or after the Term, make use of or divulge to any
other person, firm, business enterprise or other entity, any trade or
business secret, process, method or means, or any other confidential
information concerning the business or policies of the Parent or its
affiliates including, without limitation, any information, data, or other
confidential information relating to customers, development programs, costs,
marketing, trading, investment, sales activities, promotion, credit and
financial data, manufacturing processes, financing methods, plans or the
business and affairs of the Parent or its affiliates generally; PROVIDED that
the foregoing shall not apply to information which is not unique to the
Parent or its affiliates or which is generally known to the industry or the
public other than as a result of the Executive's breach of this covenant.
Executive agrees not to remove from the premises of the Parent or its
affiliates, except as an employee of the Parent or its affiliates in pursuit
of the business of the Parent or its affiliates or except as specifically
permitted in writing by the Parent, any document or other object containing
or reflecting any such confidential information. Executive recognizes that
all such documents and objects, whether developed by him or by someone else,
will be the sole exclusive property of the Parent and its affiliates. Upon
termination of his employment hereunder, Executive shall forthwith deliver to
the Parent all such confidential information, including without limitation
all lists of customers, correspondence, accounts, records and any other
documents or property made or held by him or under his control in relation to
the business or affairs of the Parent or its affiliates, and no copy of any
such confidential information shall be retained by him.
(b) Executive agrees that for so long as he is employed by the
Parent and for a period of one year thereafter, Executive shall not, directly
or indirectly, whether as an employee, consultant, independent contractor,
partner, joint venturer or otherwise, (A) solicit or induce, or in any manner
attempt to solicit or induce, any person employed by, or as agent of, the
Parent or its affiliates to terminate such person's contract of employment or
agency, as the case may be, with the Parent or its affiliates, (B) employ or
offer employment to any person who was employed by the Parent or its
affiliates in other than a purely administrative capacity unless such person
shall have ceased to be employed by the Parent or its affiliates for
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a period of at least 12 months, or (C) divert, or attempt to divert, any
person, concern, or entity from doing business with the Parent or its
affiliates, nor will he attempt to induce any such person, concern or entity
to cease being a customer or supplier of the Parent or its affiliates.
(c) Executive agrees that, at any time and from time to time
during and after the Term, he will execute any and all documents which the
Parent may deem reasonably necessary or appropriate to effectuate the
provisions of this Section 5.3.
5.4 SPECIFIC PERFORMANCE. Executive acknowledges and agrees that the
Parent's remedies at law for a breach or threatened breach of any of the
provisions of this Article V would be inadequate and, in recognition of this
fact, Executive agrees that, in the event of such a breach or threatened
breach, in addition to any remedies at law, the Parent, without posting any
bond, shall be entitled to seek equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction
or any other equitable remedy which may then be available.
ARTICLE VI
TERMINATION
6.1 TERMINATION BY THE PARENT. The Parent shall have the right to
terminate this Agreement and Executive's employment hereunder at any time
during the Term with or without "Cause." For purposes of this Agreement,
"Cause" shall mean (i) a substantial and continued failure by Executive to
perform his duties hereunder or (ii) Executive's conviction of a felony;
PROVIDED that no termination for Cause as a result of any of the events
described in clause (i) shall be deemed effective unless and until the Parent
shall have provided Executive with written notice specifying in detail the
action(s) or event(s) allegedly constituting grounds for the Cause
termination and the Executive shall have failed to cure such action(s) or
event(s) within 10 days of receipt of such notice. Any such termination
without cause or due to Executive's conviction of a felony shall be effective
upon the giving of notice thereof to Executive in accordance with Section 7.3
hereof, and any termination which is based on any of the action(s) or
events(s) described in clause (i) shall be effective as of the 10th day
following Executive's receipt of such notice if Executive shall have failed
to cure the applicable action(s) or event(s).
6.2 DEATH. In the event Executive dies during the Term, this Agreement
shall automatically terminate, such termination to be effective on the date
of Executive's death.
6.3 DISABILITY. In the event that Executive shall suffer a disability
during the Term which shall have prevented him from performing satisfactorily
his obligations hereunder for a period of at least 90 consecutive days, the
Parent shall have the right to terminate this Agreement and Executive's
employment hereunder, such termination to be effective upon the giving of
notice thereof to Executive in accordance with Section 7.3 hereof.
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6.4 TERMINATION BY EXECUTIVE FOR GOOD REASON. This Agreement and
Executive's employment hereunder may be terminated during the Term by
Executive with or without Good Reason, by giving 30 days advance written
notice to the Parent in accordance with Section 7.3. For purposes of this
Agreement, the following circumstances shall constitute "Good Reason":
(a) the assignment to Executive of any duties inconsistent in any
material respect with Executive's position (including status, offices, titles
and reporting requirements), or with his authority, duties or
responsibilities as contemplated by Sections 2.1 and 2.2 of this Agreement,
or any other action by the Parent or its successor which results in a
material diminution or material adverse change in Executive's titles,
position, status, authority, duties or responsibilities (including, without
limitation, removal of Executive from, or failure to secure the Executive's
election or appointment to, the Board or the Executive Committee of the Board
without the Executive's written consent during any period when the number of
directors constituting the entire Board equals or exceeds 13, other than as a
result of Executive's death or disability);
(b) any material breach by the Parent or its successor of the
provisions of this Agreement;
(c) any failure by the Parent to comply with and satisfy Section
7.2(b) of this Agreement; or
(d) a relocation of Executive's principal base of operation to any
location other than Youngstown, Ohio during the term of Executive's
employment hereunder; PROVIDED that the requirement that Executive devote at
least a majority of his business time to duties performed at the Parent's
corporate offices in Indianapolis, Indiana at any time after the first
anniversary of the Effective Date shall not constitute a relocation of
Executive's principal base of operation for purposes of this Agreement;
PROVIDED that no termination by Executive for Good Reason shall be
deemed effective unless and until the Executive shall have provided the
Parent with written notice specifying in detail the action(s) or event(s)
allegedly constituting grounds for the Good Reason termination and the Parent
shall have failed to cure such action(s) or event(s) within 10 days of
receipt of such notice.
6.5 EFFECT OF TERMINATION.
(a) In the event of termination of this Agreement during the Term
by either party for any reason, or by reason of the Executive's death, the
Company shall pay to Executive (or his beneficiary in the event of his death)
any base salary earned but not paid to Executive prior to the effective date
of such termination, together with any other earned and currently payable,
but then unpaid, compensation.
(b) In the event of the termination of this Agreement during the
Term (i) by the Parent without Cause (other than due to Executive's death or
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disability), (ii) by Executive for Good Reason or (iii) by reason of the
Parent's election not to renew the Term through the third anniversary of the
Effective Date as provided in Section 3.1 hereof (each, a "Wrongful
Termination"), the Company shall pay to Executive, in addition to the amounts
described in Section 6.5(a) hereof, an amount equal to one-year's then
current base salary and bonus, in twelve equal monthly installments following
the date of such termination (the "Cash Severance"). For this purpose,
Executive's then current bonus shall be Executive's maximum target bonus for
the Parent's fiscal year within which such termination occurs. In addition,
the deferred stock award shares described in Section 4.1(c)(iii)(2) shall (to
the extent not then vested) be deemed fully vested as of the date of such
termination of employment and (x) the deferred stock award shares described
in Section 4.1(c)(iii)(3) which have been earned as of the date of such
termination, if any, shall (to the extent not then vested) be deemed fully
vested as of the date of such termination of employment and (y) the deferred
stock award shares described in Section 4.1(c)(iii)(3) which are "deemed"
earned as described in the next succeeding sentence shall be deemed fully
vested as of the last day of the fiscal year in which such Wrongful
Termination occurs. For purposes of this Section 6.5(b), deferred stock
awards described in Section 4.1(c)(iii)(3) shall be "deemed" earned with
respect to a fiscal year if the Wrongful Termination occurs after August 31
of such fiscal year and the FFO Targets for such fiscal year are subsequently
determined to have been met.
(c) Unless otherwise agreed among the parties in writing, in the
event of the termination of this Agreement due to the expiration of the Term
(i) on the third anniversary of the Effective Date or (ii) as a result of
Executive's notice to the Parent electing not to renew the Term pursuant to
Section 3.1, Executive shall be entitled to no further benefits hereunder,
other than those described in Section 6.5(a), and any continuation of
Executive's employment with the Parent beyond the expiration of the Term shall
be deemed an employment at will and shall not be deemed to extend any of the
provisions of this Agreement, and Executive's employment may thereafter be
terminated at will by Executive or the Parent; PROVIDED that (x) if Executive
shall remain employed with the Parent through the third anniversary of the
Effective Date and Executive shall resign his employment upon the expiration
of the Term due to the Parent's failure to offer Executive continued
employment with the Parent for at least an additional one year period (the
"Extension Period") on terms substantially equivalent in all material
respects to those set forth in this Agreement (other than principal base of
operation for performance), including, without limitation, each of the
termination provisions set forth in this Section 6.5 (including this
Section 6.5(c) which shall apply at the expiration of the Extension Period
should Executive remain employed by the Parent through the conclusion of such
Extension Period) (such terms of continued employment being hereinafter
referred to a "Substantially Equivalent Terms"), then such resignation shall
be treated under this Agreement as a Wrongful Termination and the provisions
of Section 6.5(b) shall apply and (y) if the Executive shall remain employed
with the Parent through the third anniversary of the Effective Date and the
Executive shall resign his employment upon the expiration of the Term due to
the Parent's offer to Executive of continued employment on Substantially
Equivalent Terms but which would require Executive's relocation to an area
outside of Youngstown, Ohio, then Executive shall be entitled to elect, by
delivery of written notice to the Parent coincident with; or within 15 days
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following, such resignation of employment, EITHER (A) to cause the Parent to
provide that the vesting of the deferred stock award shares described in
Section 4.1(c)(iii)(2) and Section 4.1(c)(iii)(3) shall be accelerated in the
same manner and to the same extent described in Section 6.5(b) or (B) to
require that the Company pay Executive the Cash Severance.
(d) In the event of Executive's termination of employment by
Parent due to Executive's disability or as a result of Executive's death, in
addition to Executive's entitlement to the amounts described in Section
6.5(a), the vesting of the deferred stock award shares described in Section
4.1(c)(iii)(2) and Section 4.1(c)(iii)(3) shall be accelerated in the same
manner and to the same extent described in Section 6.5(b).
(e) Except as expressly provided in this Article VI, the Parent
shall have no further obligations to Executive under this Agreement following
Executive's termination of employment with the Parent. Any other benefits
due Executive following Executive's termination of employment with the Parent
shall be determined in accordance with the plans, policies and practices of
the Parent; PROVIDED that any severance benefits otherwise payable to
Executive in connection with Executive's termination of employment under any
plan or policy of the Parent or its affiliates shall be reduced by the
aggregate amount payable to Executive pursuant to Section 6.5(b).
(f) Upon the termination of Executive's employment with the Parent
for any reason, Executive agrees to promptly resign, effective as of the date
of such termination of employment, from the Board (and any committee thereof)
as well as from participation as a member of the Board of Directors or
trustee or committee member of any of the Parent's affiliates and will take
all action reasonably requested by the Parent in order to evidence such
resignation.
ARTICLE VII
MISCELLANEOUS
7.1 LIFE INSURANCE. Executive agrees that the Parent and/or its
affiliates may apply for and secure and own insurance on Executive's life (in
amounts determined by the Parent or its affiliates). Executive agrees to
cooperate fully in the application for and securing of such insurance,
including the submission by Executive to such physical and other
examinations, and the answering of such questions and furnishing of such
information by Executive, as may be required by the carrier(s) of such
insurance. Notwithstanding anything to the contrary contained herein, the
Parent and its affiliates shall not be required to obtain any insurance for
or on behalf of Executive, except as provided in Section 4.1(b) hereof.
7.2 BENEFIT OF AGREEMENT: ASSIGNMENT: BENEFICIARY.
(a) This Agreement shall inure to the benefit of and be binding
upon the Parent, the Company and its successors and assigns, including
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without limitation, any corporation or person which may acquire all or
substantially all of the Parent's assets or business, or with or into which
the Parent may be consolidated or merged. This Agreement shall also inure to
the benefit of, and be enforceable by, the Executive and his personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If Executive should die while any
amount would still be payable to the Executive pursuant to Section 6.5(a),
all such amounts shall be paid in accordance with the terms of this Agreement
to the Executive's beneficiary, devisee, legatee or other designee, or if
there is no such designee, to the Executive's estate.
(b) The Parent shall require any successor (whether direct or
indirect, by operation of law, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Parent to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Parent would be required to perform it
if no such succession had taken place.
7.3 NOTICES. Any notice required or permitted hereunder shall be in
writing and shall be sufficiently given if personally delivered or if sent by
telegram or telex or by registered or certified mail, postage prepaid, with
return receipt requested, addressed: (a) in the case of the Parent to its
principal corporate offices in Indianapolis, Indiana, Attention: GENERAL
COUNSEL, or to such other address and/or to the attention of such other
person as the Parent shall designate by written notice to Executive; and (b)
in the case of Executive, to the then most current address of the Executive
as recorded in the personnel records of the Parent, or to such other address
as Executive shall designate by written notice to the Parent. Any notice
given hereunder shall be deemed to have been given at the time of receipt
thereof by the person to whom such notice is given.
7.4 ENTIRE AGREEMENT: AMENDMENT.
(a) As of the Effective Date, this Agreement shall constitute the
entire agreement of the parties hereto with respect to the terms and
conditions of Executive's employment during the Term and supersede any and
all prior agreements and understandings, whether written or oral, between the
parties hereof with respect to compensation due for services rendered
hereunder. Executive, the Parent and the Company further hereby expressly
agree that from and after the Effective Date, (i) this Agreement shall
supersede the Prior Agreement in all respects, (ii) Executive's rights with
respect to the vesting and payment of awards under the DC Incentive Plan
shall be limited to those expressly provided in Section 4.1(c), and (iii)
neither the Executive nor the Parent or its affiliates shall have any further
rights, claims or obligations under any provisions of the Prior Agreement or
any then existing agreements, arrangements or understandings relating to the
subject matter hereof.
(b) This Agreement may not be changed or modified except by an
instrument in writing signed by both of the parties hereto.
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7.5 WAIVER. The waiver by either part of a breach of any provision of
this Agreement shall not operate or be construed as a continuing waiver or as
a consent to or waiver of any subsequent breach hereof.
7.6 HEADINGS. The Article and Section headings are for convenience of
reference only, do not constitute a part of this Agreement and shall not be
deemed to limit or affect any of the provisions hereof.
7.7 GOVERNING LAW. This Agreement shall be governed by, and construed
and interpreted in accordance with, the internal laws of the State of Indiana
without reference to the principles of conflict in laws.
7.8 AGREEMENT TO TAKE ACTIONS. Each party hereto shall execute and
deliver such documents, certificates, agreements and other instruments, and
shall take such actions, as may be reasonably necessary or desirable in order
to perform his or its obligations under this Agreement or to effectuate the
purposes hereof.
7.9 ARBITRATION. Except for disputes with respect to Article V hereof,
any dispute between the parties hereto respecting the meaning and intent of
this Agreement or any of its terms and provisions shall be submitted to
arbitration in Indianapolis, Indiana in accordance with the Commercial Rules
of the American Arbitration Association then in effect, and the arbitration
determination resulting from any such submission shall be final and binding
upon the parties hereto. Judgment upon any arbitration award may be entered
in any court of competent jurisdiction.
7.10 ATTORNEYS' FEES. In the event of any arbitration or legal
proceeding between the parties hereto arising out of the subject matter of
this Agreement, including any such proceeding to enforce any right or
provision hereunder, which proceeding shall result in the rendering by an
arbitration panel or court of a decision in favor of Executive, the Parent
shall pay to Executive all costs and expenses incurred therein by Executive,
including, without limitation, reasonable attorneys' fees, which costs,
expenses and attorneys' fees shall be included in and as a part of any award
or judgment rendered in such arbitration or legal proceeding.
7.11 NOTIFICATION REQUIREMENT. During the term of Executive's
employment hereunder and for the one year period following Executive's
termination of employment with the Parent for any reason, the Executive shall
give notice to the Parent of any change in the Executive's address and of
each new employment that the Executive plans to undertake, at least seven (7)
days prior to beginning any such new employment. Such notice shall state the
nature of the new employment, the name and address of the person for whom
such new employment is undertaken and the Executive shall provide the Parent
with such other pertinent information concerning such new employment as the
Parent may reasonably request in order to determine the Executive's continued
compliance with the Executive's obligations under Article V.
7.12 WITHHOLDING TAXES. The Parent and its affiliates may withhold from
any amounts payable under this Agreement such Federal, state and local taxes
as
13
are required to be withheld pursuant to any applicable law or regulation and
the Parent and its affiliates shall be authorized to take such action as may
be necessary in the opinion of the Parent's counsel (including, without
limitation, withholding amounts from any compensation or other amount owing
from the Parent (or its affiliates) to the Executive) to satisfy all
obligations for the payment.
7.13 SURVIVORSHIP. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
7.14 VALIDITY. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability
of any other provision or provisions of this Agreement, which shall remain in
full force and effect.
7.15 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.
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IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement as of this 26 day of March, 1996.
SIMON PROPERTY GROUP, INC.
By /s/ Xxxxx Xxxxx
__________________________________
Name: XXXXX XXXXX
Title: PRESIDENT
SIMON PROPERTY GROUP
ADMINISTRATIVE
SERVICES PARTNERSHIP, L.P.
By its General Partner:
M.S. MANAGEMENT ASSOCIATES
(INDIANA), INC.
By: /s/ Xxxxx Xxxxx
________________________________
Name: XXXXX XXXXX
Title: PRESIDENT
/s/ Xxxxxxx X. Xxxxxxx
________________________________
XXXXXXX X. XXXXXXX
Agreed and acknowledged
as of the date first above
written.
XXXXXXXXX REALTY CORPORATION
By: /s/ Xxx X. Xxxxx
________________________
Name: XXX X. XXXXX
Title: SENIOR VICE PRESIDENT
XXXXXXXXX PROPERTIES MANAGEMENT, INC.
By: /s/ Xxx X. Xxxxx
________________________
Name: XXX X. XXXXX
Title: SENIOR VICE PRESIDENT
