Exhibit 10.8
[FORM OF EMPLOYMENT AGREEMENT]
AGREEMENT, dated as of ______ __, 1998 ("Agreement Date"), by and between
Excel Realty Trust, Inc., a Maryland corporation ("Company"), and Xxxxxxx Xxxxxx
("Xxxxxx").
RECITALS
X. Xxxxxx is currently Chief Executive Officer and Chairman of the Board
of Directors of New Plan Realty Trust, a Massachusetts business trust ("New
Plan").
B. The Company, ERT Merger Sub, Inc., a wholly owned subsidiary of the
Company ("Sub"), and New Plan entered into an Agreement and Plan of Merger
("Merger Agreement"), pursuant to which Sub shall merge with and into New Plan
("Merger").
C. The Company desires to employ Xxxxxx, effective as of the time the
Merger is consummated ("Effective Time"), on the terms and conditions set forth
in this Agreement, and Xxxxxx 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 Xxxxxx and Xxxxxx
hereby accepts such employment, on the terms and conditions hereinafter set
forth. Notwithstanding the employment of Xxxxxx by the Company, the Company
shall be entitled to pay Xxxxxx from the payroll of New Plan.
2. Term. The period of employment of Xxxxxx by the Company ("Employment
Period") shall commence at the Effective Time of the Merger ("Commencement
Date") and shall continue through the fifth anniversary of the Effective Time;
provided, that, commencing on the day following the fifth anniversary of the
Effective Time and on the first day following each anniversary of the Effective
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 extension would be effectuated.
The Employment Period may be sooner terminated in accordance with Section 5 of
this Agreement.
3. Position and Duties.
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(a) Employment. During the Employment Period, Xxxxxx will at such
times as may be convenient to the Company and Xxxxxx, render to the Company such
services of an executive advisory or consultative nature as the Company may
reasonably request, to enable the Company to continue to have the benefit of his
experience and knowledge of the affairs of the
Company and of his reputation, experience and contacts in the industry. Xxxxxx
will, during the Employment Period, be available for advice and counsel to the
officers and directors of the Company at mutually convenient times by telephone,
letter, or in person in New York City, provided, however, that his failure to
render such services or to give such advice and counsel by reason of his illness
or other incapacity shall not affect his right to receive his compensation
during the Employment Period. It is understood that Xxxxxx'x duties during the
Employment Period shall not require his full-time attention and subject to
Section 10, Xxxxxx can engage in any other activities, including membership on
other boards of directors, as he desires. Xxxxxx shall not be required to
provide services in person in New York City more than one (1) day per calendar
month.
(b) Director. During the Employment Period, Xxxxxx shall be nominated
by the Board of Directors of the Company ("Board") to serve as a director of the
Company and the Company shall use its best efforts to cause Xxxxxx to be elected
as a director of the Company throughout the Employment Period. For the period
Xxxxxx is a director of the Company during the Employment Period, Xxxxxx shall
serve as Chairman of the Board. Subject to the first sentence of this Section
3(b), for any period Xxxxxx is not elected as a director of the Company during
the Employment Period, Xxxxxx shall serve as Chairman Emeritus of the Board and
shall be entitled to attend all Board meetings in such status.
4. Compensation and Related Matters.
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(a) Compensation. During the Employment Period, the Company shall pay
Xxxxxx, at least semi-monthly, at an annual rate equal to three hundred fifty
thousand dollars ($350,000) ("Employment Payment").
(b) Perquisites and Benefits. During the Employment Period, Xxxxxx
shall be entitled to all perquisites and benefits he had or was entitled to from
East prior to the Effective Time except the use of a New York City apartment.
The foregoing sentence shall not prevent the Company from changing benefit
programs provided Xxxxxx (and to the extent applicable, his spouse and
dependents) are treated at least as well under the benefit program as the
Company's senior executives (and to the extent applicable, their spouses and
dependents) and Xxxxxx (and to the extent applicable, his spouse and dependents)
are provided with equivalent benefits or the economic equivalent of such
benefits he (and to the extent applicable, his spouse and dependents) had or was
entitled to immediately prior to the Effective Time. Without limitation on the
foregoing Xxxxxx (and his spouse and dependents to the extent provided therein)
shall be entitled during the Employment Period 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, disability, accidental death
and dismemberment and travel accident insurance plans and programs. The Company
shall at all times during the Employment Period provide to Xxxxxx (and his
spouse and dependents to the extent provided under the applicable plans or
programs) (subject to modifications affecting all senior executive officers) the
same type and levels of participation and
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benefits as are being provided to the Company's senior executives (and their
spouses and dependents to the extent provided under the applicable plans or
programs) during the Employment Period. In addition, during the Employment
Period, Xxxxxx 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. With respect to
each such employee benefit plan, program, policy or arrangement, service with
East 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. Notwithstanding
anything to the contrary herein, Xxxxxx'x participation in any annual incentive,
long-term performance or other incentive plan or stock option, restricted stock
or other equity incentive plan shall be in the sole discretion of the Board
except for entitlement to any options, restricted stock or equity incentives
provided solely because of director status. Notwithstanding anything to the
contrary herein, if Xxxxxx, his spouse or his dependents cannot continue to
participate in the Company programs providing such benefits, the Company shall
arrange to provide Xxxxxx, his spouse and his dependents with equivalent
benefits or the economic equivalent of such benefits which they otherwise would
have been entitled to receive under such programs. Furthermore, notwithstanding
anything to the contrary herein, the Split Dollar Agreement made as of October
4, 1993 between the Company and Xxxxx Xxxxxxxxx and Xxxxxx Xxxxxx, as trustees
under the Xxxxxxx Xxxxxx Trust shall remain in effect even after the Employment
Period.
(c) Services Furnished. During the Employment Period, the Company
shall furnish Xxxxxx with office space, stenographic and secretarial assistance
substantially the same as provided on the Agreement Date. Notwithstanding the
foregoing, Xxxxxx shall be furnished with the same office space provided to
Xxxxxx on the Agreement Date if the Company has such office space and Xxxxxx
shall be entitled to the same secretarial assistance from Xxxxxx'x secretary on
the Agreement Date for so long as she is employed by the Company.
(d) Expenses. The Company shall promptly reimburse Xxxxxx for all
business expenses incurred in accordance with the Company's past practice with
respect to Xxxxxx, including, without limitation, expenses for Xxxxxx and his
spouse in connection with conferences, seminars and meetings Xxxxxx believes are
beneficial for the Company whether directly or by virtue of maintaining his
reputation and contacts in the industry and business community.
5. Termination. Xxxxxx'x employment hereunder may be terminated during
the Employment Period under the following circumstances:
(a) Death. Xxxxxx'x employment hereunder shall terminate upon his
death.
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(b) Disability. If, as a result of Xxxxxx'x incapacity due to a
physical or mental illness, Xxxxxx 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 set forth in
Section 6(a)) is given after such six (6) month period, Xxxxxx shall not have
returned to the performance of his duties, the Company shall have the right to
terminate Xxxxxx'x 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) By Xxxxxx. Xxxxxx shall have the right to terminate his
employment hereunder 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.
6. Termination Procedure.
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(a) Notice of Termination. Any termination of Xxxxxx'x employment by
the Company under Section 5(b) or by Xxxxxx under Section 5(c) during the
Employment Period shall be communicated by written Notice of Termination to the
other party hereto in accordance with Section 14.
(b) Date of Termination. "Date of Termination" shall mean (i) if
Xxxxxx'x employment is terminated by his death, the date of his death, (ii) if
Xxxxxx'x employment is terminated pursuant to Section 5(b), thirty (30) days
after Notice of Termination (provided that Xxxxxx shall not have returned to the
performance of his duties hereunder during such thirty (30) day period), and
(iii) if Xxxxxx'x employment is terminated by Xxxxxx pursuant to Section 5(c),
the date on which a Notice of Termination is given by Xxxxxx or any later date
(within thirty (30) days after the giving of such notice) set forth in such
Notice of Termination.
7. Compensation Upon Termination or During Disability. In the event
Xxxxxx is disabled or his employment terminates as provided under this Agreement
during the Employment Period, the Company shall provide Xxxxxx with the payments
and benefits set forth below. Xxxxxx acknowledges and agrees that, subject to
Section 8, the payments set forth in this Section 7 constitute liquidated
damages for termination of his employment during the Employment Period.
(a) By Xxxxxx. If Xxxxxx'x employment is terminated by Xxxxxx:
(i) the Company shall pay Xxxxxx his Employment Payment through
the Date of Termination, as soon as practicable following the Date of
Termination;
(ii) the Company shall reimburse Xxxxxx pursuant to Section 4(d)
for reasonable expenses incurred, but not paid prior to such termination of
employment; and
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(iii) Xxxxxx shall be entitled to any other rights, compensation
and/or benefits as may be due to Xxxxxx in accordance with the terms and
provisions of any agreements, plans or programs of the Company.
(b) Disability. During any period that Xxxxxx fails to perform his
duties hereunder as a result of incapacity due to physical or mental illness
("Disability Period"), Xxxxxx shall continue to receive his full Employment
Payment set forth in Section 4(a) until his employment is terminated pursuant to
Section 5(b). In the event Xxxxxx'x employment is terminated for Disability
pursuant to Section 5(b):
(i) the Company shall pay to Xxxxxx (A) his Employment Payment
through the Date of Termination, as soon as practicable following the Date
of Termination, and (B) continued Employment Payment (as provided for in
Section 4(a)) and prerequisites and benefits pursuant to Section 4(b) for
the longer of (i) six (6) months or (ii) the date on which Xxxxxx becomes
entitled to long-term disability benefits under the applicable plan or
program of the Company paying the benefits described in Section 4(b), up to
a maximum of three (3) years of Employment Payment continuation;
(ii) the Company shall reimburse Xxxxxx pursuant to Section
4(d) for reasonable expenses incurred, but not paid prior to such
termination of employment; and
(iii) Xxxxxx shall be entitled to any other rights, compensation
and/or benefits as may be due to Xxxxxx in accordance with the terms and
provisions of any agreements, plans or programs of the Company.
(c) Death. If Xxxxxx'x employment is terminated by his death:
(i) the Company shall pay in a lump sum to Xxxxxx'x
beneficiary, legal representatives or estate, as the case may be, Xxxxxx'x
Employment Payment through the Date of Termination and one (1) times
Xxxxxx'x annual rate of Employment Payment, and shall provide Xxxxxx'x
spouse and dependents with benefits pursuant to Section 4(b) for one (1)
year;
(ii) the Company shall reimburse Xxxxxx'x beneficiary, legal
representatives or estate, as the case may be, pursuant to Section 4(d) for
reasonable expenses incurred, but not paid prior to such termination of
employment; and
(iii) Xxxxxx'x 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.
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8. Breach by Company. If there is any material breach of this Agreement
by the Company which is not corrected to Xxxxxx'x reasonable satisfaction within
ten (10) days after written notice by Xxxxxx to the Company, the Company shall
pay the Employment Payment for the remainder of the Employment Period in one
lump sum cash payment (without regard to any discount for early payment) as soon
as practicable after such material breach but in no event later than twenty (20)
days after such material breach. This lump sum payment shall not affect the
Company's obligation hereunder other than the obligation to provide compensation
pursuant to Section 4(a). The Company has no right to terminate this Agreement.
9. Mitigation. Xxxxxx 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 Xxxxxx under this Agreement on account of
subsequent employment. Additionally, amounts owed to Xxxxxx under this
Agreement shall not be offset by any claims the Company may have against Xxxxxx,
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 Xxxxxx or
others.
10. Confidential Information, Ownership of Documents; Non-Competition.
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(a) Confidential Information. Xxxxxx 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 Xxxxxx during Xxxxxx'x employment
by the Company and which is not generally available public knowledge (other than
by acts by Xxxxxx in violation of this Agreement). Except as may be required or
appropriate in connection with his carrying out his duties under this Agreement,
Xxxxxx 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
Xxxxxx 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 Xxxxxx 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 Xxxxxx'x carrying out his
duties under this Agreement and, if so removed, shall be returned to the Company
promptly after termination of Xxxxxx'x employment hereunder, or otherwise
promptly after removal if such removal occurs following termination of
employment. Notwithstanding anything to the contrary herein, Xxxxxx has the
right to remove his personal art work, sculptures, awards and memorabilia.
Xxxxxx shall assign to the Company all rights to
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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 Xxxxxx'x Date of Termination, Xxxxxx will not (i)
develop, pursue or attempt to develop any project known to Xxxxxx and which the
Company or any of its Affiliates (the "Designated Entities") are developing,
pursuing, 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, any Project 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. 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
Xxxxxx 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, Xxxxxx agrees that the Company shall be entitled to
injunctive relief in a court of appropriate jurisdiction to remedy any such
breach or threatened breach, Xxxxxx acknowledging that damages would be
inadequate and insufficient.
(e) Continuing Operation. Except as specifically provided in this
Section 10, the termination of Xxxxxx'x employment or of this Agreement shall
have no effect on the continuing operation of this Section 10.
11. Indemnification.
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(a) General. The Company agrees that if Xxxxxx is made a party or a
threatened to be made a party to any action, suits or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact that Xxxxxx 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 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, Xxxxxx shall
be indemnified and held harmless by the Company to the fullest extent authorized
by Maryland law, as the same exits or may hereafter be amended, against all
Expenses incurred or suffered by Xxxxxx in connection therewith, and such
indemnification shall continue as to
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Xxxxxx even if Xxxxxx 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 this
heirs, executors and administrators.
(b) Expenses. As used in his 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, Xxxxxx 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, Xxxxxx 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 Xxxxxx is entitled under any
provision of this Agreement of 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 Xxxxxx for the portion of such Expenses to
which Xxxxxx is entitled.
(e) Advances of Expenses. Expenses incurred by Xxxxxx in connection
with any Proceeding shall be paid by the Company in advance upon request of
Xxxxxx that the Company pay such Expenses; but, only in the event that Xxxxxx
shall have delivered in writing to the Company (i) an undertaking to reimburse
the Company for Expenses with respect to which Xxxxxx 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. Xxxxxx shall give to the Company notice of any
claim made against him for which indemnification will or could be sought under
this Agreement. In addition, Xxxxxx shall give the Company such information and
cooperation as it may reasonably required and as shall be within Xxxxxx'x power
and at such times and places as are convenient for Xxxxxx.
(g) Defense of Claim. With respect to any Proceeding as to which
Xxxxxx notifies the Company of the commencement thereof:
(i) The Company will be entitled to participate therein at its
own expense;
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(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 Xxxxxx 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. Xxxxxx 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 Xxxxxx, and under such
circumstances the fees and expenses of such counsel shall be at the expense
of the Company; and
(iii) The Company shall not be liable to indemnify Xxxxxx 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 Xxxxxx without Xxxxxx'x written consent. Neither the Company nor Xxxxxx
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 Xxxxxx 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 Xxxxxx regarding any provision of this Agreement, the
Company shall reimburse Xxxxxx for all legal fees and expenses reasonably
incurred by Xxxxxx in connection with such contest or dispute, but only if
Xxxxxx is successful in respect of substantially all of Xxxxxx'x claims brought
and pursued in connection with such contest or dispute. Such reimbursement
shall 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.
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(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.
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(b) Xxxxxx'x Successors. No rights or obligations of Xxxxxx under the
Agreement may be assigned or transferred by Xxxxxx other than his rights to
payments or benefits hereunder, which may be transferred only by will or the
laws of descent and distribution. Upon Xxxxxx'x death, this Agreement and all
rights of Xxxxxx hereunder shall inure to the benefit of and be enforceable by
Xxxxxx'x beneficiary or beneficiaries, personal or legal representatives, or
estate, to the event any such person succeeds to Xxxxxx'x interests under this
Agreement. Xxxxxx shall be entitled to select and change a beneficiary or
beneficiaries to receive any benefit or compensation payable hereunder following
Xxxxxx'x death by giving the Company written notice thereof. In the event of
Xxxxxx'x death or a judicial determination of his incompetence, reference in
this Agreement to Xxxxxx shall be deemed, where appropriate, to refer to his
beneficiary(ies), estate or other legal representative(s). If Xxxxxx 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 Xxxxxx, or otherwise to his
legal representatives or estate.
14. Notice. For the purposes of this Agreement, notices, demands and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered either personally or by
United States certified or registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to Xxxxxx:
Xxxxxxx Xxxxxx
000 Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
If to the Company:
Excel Realty Trust
1120 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
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 Xxxxxx 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
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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 Xxxxxx'x 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 the Agreement, which shall remain in full force and
effect.
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 Xxxxxx
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 4.
20. Withholding. All payments under this Agreement 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 Heading. 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.
23. Resignation and Termination. As of the Effective Date, Xxxxxx shall
resign as Chief Executive Officer of East.
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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:
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Name:
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Title:
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Xxxxxxx Xxxxxx
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