AMENDED AND RESTATED CHANGE OF CONTROL AGREEMENT
AMENDED
AND RESTATED CHANGE OF CONTROL
AGREEMENT
This
Agreement is dated as of December __, 2007 between Urstadt Xxxxxx Properties
Inc. (“Company”) and __________________________ ("Employee").
The
Employee is currently employed by the Company and the Employee's services are
valued by the Company.
The
Company recognizes that the possibility of a change of control of the Company
may result in the departure or distraction of the Employee, to the detriment
of
the Company and its shareholders.
The
Company wishes to assure the Employee of fair severance should his employment
terminate in certain specified circumstances following a change of
control.
The
Company and the Employee entered into that certain Change of Control Agreement
dated _______________________ (the “Original Agreement”) and the
Company and Employee desire to amend and restate the Original Agreement in
response to the guidance provided by the regulations issued under Section 409A
of the Internal Revenue Code of 1986, as amended.
In
consideration of the Employee's continued employment by the Company, and for
other good and valuable consideration, the parties hereto hereby agree as
follows:
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1.
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Termination
Benefits. If the employment of the Employee is terminated by the
Employee for Good Reason or by the Company for any reason other
than for
Cause, within 18 months following a Change of
Control,
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(a)
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the
Company shall pay Employee an amount equal to 12 months of Employee's
rate
of base salary (exclusive of any bonus or other benefit) in effect
at the
date of the Change of Control. Such amount shall be payable in
cash in a lump sum within 45 days after such termination; and
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(b)
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the
Company shall continue in force and effect for 12 months after
termination
(the "Continuation of Benefits Period") and at the same level and
for the
benefit of the Employee's family, where applicable, all life insurance,
disability, medical and other benefit programs or arrangements
in which
the Employee is participating or to which the Employee is entitled
at the
date of the Change of Control, provided that the Employee's continued
participation is possible under such programs and arrangements.
In the
event that such continued participation is not possible, the Company
shall
arrange to provide the Employee with benefits similar to those
which
Employee would be entitled to receive under such programs and
arrangements. Without limiting the foregoing, the benefits continuation
shall include a lump sum cash payment to the Employee within 45
days of
such termination in lieu of Company contributions on behalf of
the
Employee under the Urstadt Xxxxxx Properties Inc. Profit Sharing
and
Savings Plan. The amount of such payment shall be the product of
(i) the
number of months in the Continuation of Benefits Period and (ii)
1/12 of
5% (or such other percentage reflected in the Company’s most recent annual
contribution determined prior to the Change of Control) times the
Employee's annual salary rate in effect immediately prior to the
termination date or, if greater, the Employee's annual salary rate
in
effect immediately prior to the Change of Control.
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1
Payments
under this Section 1 shall be reduced to the extent, but only to the extent,
necessary to provide that no "payment in the nature of compensation" to (or
for
the benefit of) the Employee which is "contingent" on the Change of Control
would fail to be deductible for federal income tax purposes by reason of section
280G of the Internal Revenue Code of 1986, as amended (the
"Code"). As used in this Section, the words "payment in the nature of
compensation" and "contingent" shall be construed and applied in a manner
consistent with the meaning of those words under section 280G of the Code and
regulations thereunder. The determination as to whether and to what extent
a
reduction in payments under this Section 1 is necessary to avoid the
non-deductibility of any payment under section 280G of the Code shall be made
at
the Company’s expense by PKF, Certified Public Accountants, A Professional
Corporation (“PKF”), or by such other certified public accounting firm as the
Compensation Committee of the Directors may designate prior to a Change of
Control. In the event of any underpayment or overpayment under this
Section 1, as determined by PKF (or such other firm as may have been designated
in accordance with the preceding sentence), the amount of such underpayment
or
overpayment shall forthwith be paid to the Employee or refunded to the Company,
as the case may be, with interest at the applicable federal rate provided for
in
section 7872(f)(2) of the Code.
Notwithstanding
anything to the contrary hereunder, if any payment, compensation or other
benefit provided to the Employee in connection with his employment termination
(other than termination on account of Employee’s death) is determined, in whole
or in part, to constitute “nonqualified deferred compensation” within the
meaning of Section 409A of the Code and the Employee is a “specified employee”
as defined in Section 409A(2)(B)(i) thereof, no part of such payments shall
be
paid before the day that is six (6) months plus one (1) day after the date
of
termination (the “New Payment Date”). The aggregate of any payments
that otherwise would have been paid to the Employee during the period between
the date of termination and the New Payment Date shall be paid to the Employee
in a lump sum on such New Payment Date. Thereafter, any payments that
remain outstanding as of the day immediately following the New Payment Date
shall be paid without delay over the time period originally scheduled, in
accordance with the terms of this Agreement.
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2.
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Definitions.
The definitions in Appendix A are hereby incorporated in this
Agreement.
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3.
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No
Duty to Mitigate Damages. The Employee's benefits under this Agreement
shall be considered severance pay in consideration of his past service
and
his continued service from the date of this Agreement, and his entitlement
thereto shall neither be governed by any duty to mitigate his damages
by
seeking further employment nor offset by any compensation which he
may
receive from future employment.
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4.
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Withholding.
Anything herein to the contrary notwithstanding, all payments required
to
be made by the Company hereunder to the Employee shall be subject
to the
withholding of such amounts, if any, relating to tax and other payroll
deductions as the Company may reasonably determine it should withhold
pursuant to any applicable law or regulation.
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5.
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Legal
Fees and Expenses; Interest. The Company shall pay all reasonable
legal fees and expenses incurred by the Employee in successfully
obtaining
any right or benefit to which the Employee is entitled under this
Agreement. Any amount payable under this Agreement that is not
paid when due shall accrue interest at the prime rate as from time
to time
in effect at The Bank of New York Mellon, until paid in full.
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2
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6.
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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 Employee,
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.
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7.
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Notices.
All notices shall be in writing and shall be deemed given five 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:
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To
the Company:
Urstadt
Xxxxxx Properties
Inc.
000
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
To
the Employee:
At
his home address,
as
last shown on the
records
of the
Company
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8.
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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.
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9.
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Binding
Agreement. This Agreement shall be binding upon and inure to the
benefit of the parties and be enforceable by the Employee's personal
or
legal representatives or successors. If the Employee dies while
any amounts would still be payable to him hereunder, such amounts
shall be
paid to the Employee's estate. This Agreement shall not otherwise
be
assignable by the Employee.
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10.
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Successors.
This Agreement shall inure to and be binding upon the Company’s
successors. The Company will require any successor to all or substantially
all of the businesses and/or assets of the Company by sale, merger
(where
the Company is not the surviving entity), lease or otherwise, to
assume
expressly this Agreement. If the Company shall not obtain such
agreement prior to the effectiveness of any such succession, the
Employee
shall have all rights resulting from termination of the Employee's
employment under this Agreement. This Agreement shall not
otherwise be assignable by the
Company.
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3
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11.
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Amendment
or Modification; Waiver. This Agreement may not be amended unless
agreed to in writing by the Employee and the Company. No waiver
by either party of any breach of this Agreement shall be deemed a
waiver
of a subsequent breach.
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12.
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Continued
Employment. This Agreement shall not confer upon the Employee any
right of continued or future employment by the Company or any right
to
compensation or benefits from the Company except the right specifically
stated herein to certain severance benefits, and shall not limit
the right
of the Company to terminate the Employee's employment at any time,
except
as may be otherwise provided in a written employment agreement between
the
Company and the Employee.
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13.
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Governing
Law. The validity, interpretation, performance and enforcement of
this
Agreement shall be governed by the laws of the State of New
York.
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14.
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Liability
of Shareholders. This Agreement is executed by or on behalf of the
Directors of the Company solely in their capacity as such Directors,
and
shall not constitute their personal obligation either jointly or
severally
in their individual capacities. The shareholders, Directors,
officers or agents of the Company shall not be personally liable
for any
obligations of the Company under this Agreement and all parties hereto
shall look solely to the property of the Company for the payment
of any
claim hereunder.
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15.
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Entire
Agreement. This Agreement, including the attached Appendix, represents
the entire agreement between the parties concerning the subject matter
of
payment of severance upon the Employee’s termination of employment
following a change of control of the Company and supersedes and
incorporates any and all prior agreements, both written or oral,
including
but not limited to the Original
Agreement.
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IN
WITNESS WHEREOF the parties have duly executed the Agreement as of the above
date.
EMPLOYEE:
______________________________
COMPANY:
Urstadt
Xxxxxx Properties Inc.
By:
______________________________
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APPENDIX
A TO CHANGE OF CONTROL AGREEMENT
"Change
of Control" shall mean the occurrence of any one of the following
events:
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(a)
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any
Person becomes the owner of Common Shares which represent more
than 20% of
the combined voting power of the Common Shares outstanding and
thereafter
individuals who were not Directors of the Company prior to the
date such
Person became a 20% owner are elected as Directors pursuant to
an
arrangement or understanding with, or upon the request of or
nomination
by, such Person and constitute at least two of the Directors;
or
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(b)
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there
occurs a change of control of the Company of a nature that would
be
required to be reported in response to Item 5.01 of Form 8-K
pursuant to
Section 13 or 15 under the Securities Exchange Act of 1934 ("Exchange
Act"), or in any other filing by the Company with the Securities
and
Exchange Commission (the "Commission");
or
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(c)
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there
occurs any solicitation of proxies by or on behalf of any Person
other
than the Directors of the Company and thereafter individuals
who were not
Directors prior to the commencement of such solicitation are
elected as
Directors pursuant to an arrangement or understanding with, or
upon the
request of or nomination by, such Person and constitute at least
two of
the Directors.
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(d)
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the
Company executes an agreement of acquisition, merger or consolidation
which contemplates that (i) after the effective date provided
for in the agreement, all or substantially all of the business
and/or
assets of the Company shall be owned, leased or otherwise controlled
by
another corporation or other entity and (ii) individuals who
are Directors
of the Company when such agreement is executed shall not constitute
a
majority of the board of directors of the survivor or successor
entity
immediately after the effective date provided for in such agreement;
provided, however, for purposes of this paragraph (d) that if
such
agreement requires as a condition precedent approval by the Company’s
shareholders of the agreement or transaction, a Change of Control
shall
not be deemed to have taken place unless and until such approval
is
secured.
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"Common
Shares" shall mean all shares of the then outstanding Common stock and Class
A
Common stock of the Company plus, for purposes of determining the ownership
of
any Person, the number of unissued Common Shares which such Person has the
right
to acquire (whether such right is exercisable immediately or only after the
passage of time) upon the exercise of conversion rights, exchange rights,
warrants or options or otherwise.
“Person”
shall have the meaning used in Section 13(d) of the Exchange Act, as in effect
on October 31, 2007. A Person shall be deemed to be the "owner" of
any Common Shares:
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(a)
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of
which such Person would be the "beneficial owner", as such term
is defined
in Rule 13d-3 promulgated by the Commission under the Exchange
Act, as in
effect on October 31, 2007; or
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(b)
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of
which such Person would be the "beneficial owner", as such term
is defined
under Section 16 of the Exchange Act and the rules of the Commission
promulgated thereunder, as in effect on October 31, 2007; or
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A-1
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(c)
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which
such Person or any of its Affiliates or Associates (as such terms
are
defined in Rule 12b-2 promulgated by the Commission under the Exchange
Act, as in effect on October 31, 2007), has the right to acquire
(whether
such right is exercisable immediately or only after the passage
of time)
pursuant to any agreement, arrangement or understanding or upon
the
exercise of conversion rights, exchange rights, warrants or options
or
otherwise.
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Termination
for "Cause" shall mean termination of the Employee's employment by the Company
because of dishonesty, conviction of a felony, gross neglect of duties (other
than as a result of disability or death), or conflict of interest (other
than
any conflict of interest which has been fully disclosed to the Directors
and has
been determined by them not to be material), which, in the case of gross
neglect
or conflict, shall continue for 30 days after the Company gives written notice
to the Employee requesting the cessation of such gross neglect or conflict,
as
the case may be.
Termination
for "Good Reason" shall have the following meanings:
Termination
for "Good Reason" shall mean the voluntary termination by the Employee of
his
employment within 180 days following the occurrence of any of the events
listed
below by written notice (setting forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination for Good Reason)
given
within ninety (90) days after the occurrence, without the Employee’s express
consent, of any one of such events unless they are fully corrected within
30
days after receipt of notice thereof:
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(a)
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a
change in the Employee’s authority, duties or responsibilities which
represents a material diminution in his authority, duties or
responsibilities immediately prior to a Change of Control; or
a change in
the authority, duties or responsibilities of the person to whom
the
Employee reports (including, if applicable, requiring the Employee
to
report to an officer or employee instead of the Board of Directors)
which
represents a material diminution of such person’s authority, duties or
responsibilities immediately prior to a Change of Control;
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(b)
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a
material reduction in the Employee's base salary for any fiscal
year below
the level of the Employee’s base salary in the completed fiscal year
immediately preceding the Change of Control;
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(c)
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any
relocation of the Employee outside a 50 mile radius of the Employee’s work
site on the date hereof;
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(d)
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the
Company sells or otherwise disposes of, in one transaction or
a series of
related transactions, assets or earning power aggregating more
than 50% of
the assets (taken at asset value as stated on the books of
the Company determined in accordance with generally accepted
accounting principles consistently applied) of the Company over
which the
Employee has authority to any other Person or Persons; or
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(e)
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any
other material breach by the Company of any provision of this
Agreement.
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A-2
