CONSULTING AGREEMENT
EXHIBIT
10.3
This Consulting Agreement (“Agreement”)
is entered into as of the 11th day of
April 2008, by and between Urstadt Xxxxxx Properties
Inc., a Maryland corporation with offices at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 (“Company”), and Xxxxx X. Xxxxx, an individual
residing at 0 Xxxxxxxxxxx Xxxxx Xxxx, Xxxxxxxx, XX 00000
(“Consultant”). Company and Consultant hereinafter are sometimes
collectively referred to as the “Parties”.
WITNESSETH
WHEREAS,
Consultant previously was employed by the Company, most recently in the capacity
of Executive Vice President, Chief Financial Officer and Treasurer
(collectively, “Former Employment Roles”); and
WHEREAS,
Company desires to benefit from Consultant’s expertise by retaining Consultant
as a financial consultant and Consultant desires to furnish financial consulting
services to Company.
NOW
THEREFORE, in consideration of the mutual covenants hereinafter set forth and
for other good and valuable consideration, the receipt and sufficiency of which
is acknowledged, the Parties agree as follows:
Article
1. Services/Term
Section
1.01. Consultant agrees to provide advice and consulting
services to the Company regarding such matters as may be requested from time to
time by the Company (each an “Assignment” and collectively, the
“Assignments”). The Assignments will require expertise consistent
with that required in Consultant’s Former Employment Roles including, but not
necessarily limited to, advice and assistance concerning public company
accounting and reporting requirements, Securities and Exchange disclosure and
reporting requirements and assistance in evaluating the effectiveness of the
design and operation of the Company’s internal controls over financial reporting
and related disclosure controls and procedures.
Section
1.02. Consultant shall be engaged by the Company for the
exchange of ideas only and shall not direct employees of the Company or the
Company’s independent or internal auditors.
Section
1.03. The Parties agree that on average Consultant will not be
required to provide services in excess of forty (40) hours in any calendar month
and Consultant agrees that he will not provide consulting services in excess of
such amount without the prior written consent of Company. If
requested by the Company, Consultant shall provide a written report to Company
of the Assignments addressed by Consultant and the number of hours provided by
Consultant on each Assignment during the preceding month.
Section
1.04. Term. This Agreement shall commence on July
1, 2008 and, except as hereinafter provided, shall terminate on July 1,
2010. Company shall have the right to terminate this Agreement in the
event of Consultant’s dishonesty, conviction of a felony, gross negligence or
breach of the covenants contained in Articles 3 or 4. In the event of
such termination, the Company shall pay the Consultant the pro-rata portion of
any fees earned but not paid prior to the date of termination and shall have no
other payment obligations to Consultant hereunder. The Agreement
shall terminate automatically upon Consultant’s death or permanent disability
and, in either such event, Company shall pay to Consultant’s estate the pro-rata
portion of fees earned to the date of Consultant’s death or permanent disability
plus a sum equal to one-half of the amount of fees scheduled to be paid during
any remaining term of the Agreement.
Article
2. Compensation
Section
2.01. Compensation. Company shall pay Consultant a
base annual fee of One
Hundred Thirty-six Thousand and 00/100 Dollars ($136,000), payable in
arrears, in quarterly installments commencing on October 1, 2008 and continuing
on the first day of January, April, July and October in each succeeding year
until the end of the term of the Agreement.
Section.
2.02. Additional Services. In the event that
Company shall have authorized, and Consultant shall have provided, more than
forty (40) hours of consulting services in any calendar month (“Monthly
Threshold”), Company shall pay to Consultant an additional consulting fee at the
rate of Sixty Dollars ($60.00) per hour plus reasonable out of pocket expenses
for Consultant’s services in excess of the Monthly Threshold. Such
additional fee shall be paid within thirty (30) days following Consultant’s
submission of an accounting of such services.
Section
2.03. Taxes. At
all times during the term of the Agreement, the relationship of Consultant to
the Company shall be that of an independent contractor. Contractor
shall not receive benefits from the Company and Contractor shall be solely
responsible for paying state and federal income, disability and social security
taxes, as applicable. No provision contained herein shall create an
employer/employee relationship between the Parties.
Article
3. Proprietary Information
Section
3.01. Records. (a) All records of the accounts of
Company of any nature, whether existing at the time of Consultant’s engagement,
procured through the efforts of Consultant, or obtained by Consultant from any
other source, and whether prepared by Consultant or otherwise (collectively,
“Records”), shall be the exclusive property of Company regardless of who
actually created or purchased such Records or the means by which such
information was recorded. (b) All Records shall be immediately
returned to Company by Consultant on any termination of engagement, with or
without cause, whether or not any dispute exists between Company and Consultant
at or following the termination of this Agreement.
Section
3.02. Confidentiality. Consultant hereby
acknowledges that it has received, or from time to time during the term of this
Agreement may receive, information regarding the Company’s business, including
but not limited to business strategies, stock offerings or stock transactions,
property acquisitions and sales, earnings reports and projections, property
expense records, environmental information, work papers and reports of auditors,
insurance and vendor contracts, tenant lists and tenant sales reports, all of
which information is confidential information (the “Confidential
Information”). Consultant recognizes and acknowledges that the
Confidential Information is proprietary and integral to Company’s business and
agrees to keep such Confidential Information confidential and, except with
Company’s prior written consent, shall not at any time or in any manner, either
directly or indirectly, divulge, disclose or communicate to any person,
corporation or other entity or utilize in any manner whatsoever any information
(including but not limited to the Confidential Information) concerning any
matters affecting or relating to Company’s business. Consultant
further agrees not to disclose Confidential Information to any third person,
corporation and/or entity subsequent to the termination of this Agreement,
whether such termination is with or without cause.
Consultant
agrees and stipulates that all information characterized as Confidential
Information is important, material and confidential and, if conveyed to any
third party, could adversely impact the effective and successful conduct of
Company’s business. Consultant agrees that monetary damages may not
be a sufficient remedy for any breach of this Agreement by
Consultant. In addition to all other remedies at law or in equity,
Company shall be entitled to seek injunctive relief or other equitable remedies
for any such breach without proving actual damages or posting a
bond.
Company
agrees that Confidential Information shall not include information that is: (i)
available, or later becomes available, to the public through no breach of this
Agreement by Consultant or the recipient; (ii) obtained by the recipient from a
third party who had the legal right to disclose the information to the
recipient; (iii) already in the possession of the recipient on the date this
Agreement becomes effective; or (iv) required to be disclosed by law, government
regulation or court order.
Section
3.03 Material Non-public Information. Consultant is
aware of the requirements of the United States securities laws regarding the use
of material non-public information and will handle any material non-public
information in accordance with such securities laws and shall not trade
securities of the Company in violation of such laws.
Section
3.04. Work Product. All ideas relating in any way
to Company’s business, whether designed, improved, planned, proposed, altered,
modified, refined or enhanced by Consultant shall be considered work for hire to
the fullest extent permitted under applicable law and shall remain at all times
the sole property of Company. Consultant’s obligations hereunder
shall survive the termination of Consultant’s engagement with respect to
discoveries, enhancements and improvements conceived or made by Consultant
during the term of Consultant’s engagement described in this
Agreement.
Article
4. Non Competition
Section 4.01 Non
Competition. During Consultant’s term of engagement set forth
in this Agreement, and for a period of one (1) year thereafter, Consultant will
not directly or indirectly be an owner, partner, director, manager, officer or
Consultant or otherwise render services or be associated with any business that
is engaged in the ownership and/or management or brokerage of shopping centers
located within a seventy-five mile radius of Company’s offices in Greenwich, CT;
provided, however, that such radius shall be deemed to exclude Suffolk County,
New York. The Parties agree that a breach of the covenants contained
in this Article will cause damage to Company that may be difficult to
measure. In acknowledgement thereof, Consultant agrees that in the
event it breaches such covenants, Company may terminate this Agreement and
Consultant will pay to the Company, as liquidated damages, an amount equal to
any fees theretofore paid by Company to Consultant.
Article
5. General Provisions
Section
5.01. Entire Agreement. This Agreement contains the
entire understanding between the Parties with respect to the engagement of
Consultant by Company for the purposes set forth herein, and contains all of the
covenants and agreements between the Parties with respect to such consulting
work whatsoever. The Parties agree that any promises or
representations which are not embodied herein shall not be valid or binding and
shall not have any force or effect. Any modification of this
Agreement will be effective only if it is writing signed by the party whose
rights or obligations have been changed.
Section 5.02. Arbitration. Any
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration in New York City in accordance with the
rules of the American Arbitration Association then in effect. The
parties shall attempt to select a mutually agreeable arbitrator who shall
promptly convene a hearing to resolve submitted disputes. If the
parties are unable to agree upon such an arbitrator within 20 days from initial
contact, the American Arbitration Association shall be requested by either party
to submit a list of at least seven arbitrators from which the parties shall
attempt to select one by agreement. In the event they do not so
agree, they shall alternately strike names from this list beginning with the
Consultant, until a single name remains. The remaining person shall
be appointed to hear and decide the parties' disputes, drawing his authority and
the bases for decision from this Agreement. The arbitrator will
resolve all submitted matters in a written decision with
expedition. Judgment may be entered on the arbitrator's award in any
court having jurisdiction.
Section
5.03. Notices. Any notices to be given by either
party to the other shall be in writing and shall be deemed given three days
after mailing in the continental United States by registered or certified mail,
or upon personal receipt after delivery, facsimile or telegram, to the party
entitled thereto at the address stated below or to such changed address as the
addressee may have given by a similar notice:
To the
Company: Urstadt
Xxxxxx Properties Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attn: President
To the
Consultant: Xxxxx
X. Xxxxx
0 Xxxxxxxxxxx Xxxxx Xxxx
Xxxxxxxx,
XX 00000
Section
5.04. Severability. In
the event that any provision of this Agreement shall be determined to be invalid
or unenforceable, such provision shall be enforceable in any other jurisdiction
in which valid and enforceable and in any event the remaining provisions hereof
shall remain in full force and effect to the fullest extent permitted by
law.
Section
5.05. Binding
Agreement. This Agreement shall be binding upon and inure to
the benefit of the Parties and be enforceable by the Parties’ respective legal
representatives or successors. This Agreement shall not otherwise be
assignable by the Consultant.
Section
5.06. Amendment or Modification;
Waiver. This Agreement may not be amended unless agreed to in
writing by the Consultant and the Company. No waiver by either party
of any breach of this Agreement shall be deemed a waiver of a subsequent
breach.
Section 5.07. Governing
Law. The validity, interpretation, performance and enforcement
of this Agreement shall be governed by the laws of the State of New
York.
IN WITNESS WHEREOF, this Agreement has
been executed as of the date first set forth above.
COMPANY: CONSULTANT:
Urstadt
Xxxxxx Properties Inc.
By: /s/Xxxxxxx X.
Xxxxxxx By:
/s/ Xxxxx X.
Xxxxx
Xxxxxxx
X.
Xxxxxxx Xxxxx
X. Xxxxx
Chairman
& Chief Executive Officer
