EMPLOYMENT AGREEMENT
XXXX X. XXXXXX, III
This Employment Agreement (this "Agreement"), is made and entered into as
of the 14th day of October, 1997 (the "Effective Date"), by and between FCO,
L.P., a Delaware limited partnership (the "Employer"), and Xxxx X. Xxxxxx, III
(the "Executive").
RECITALS
A. The Employer desires to employ the Executive as an officer of the
Employer for a specified term, and the Executive is willing to accept such
employment upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter contained, it is covenanted and agreed by and between the
parties hereto as follows:
AGREEMENTS
1. POSITION AND DUTIES. The Employer hereby employs the Executive as the
President and Chief Executive Officer of the Employer, or in such other capacity
as shall be mutually agreed between the Employer and the Executive. During the
period of the Executive's employment hereunder, the Executive shall devote his
best efforts and full business time, energy, skills and attention to the
business and affairs of the Employer. The Executive's duties and authority shall
consist of and include all duties and authority customarily performed and held
by persons holding equivalent positions with business organizations similar in
nature and size to the Employer, as such duties and authority are reasonably
defined, modified and delegated from time to time by the Board of Directors of
the Employer (the "Board"). The Executive shall have the powers necessary to
perform the duties assigned to him, and shall be provided such supporting
services, staff, secretarial and other assistance, office space and
accouterments as shall be reasonably necessary and appropriate in the light of
such assigned duties.
2. COMPENSATION. As compensation for the services to be provided by the
Executive hereunder, the Executive shall receive the following compensation and
other benefits:
-2-
(a) BASE SALARY. The Executive shall receive an aggregate annual
minimum "Base Salary" at the rate of Ninety Thousand dollars ($90,000) per
annum, payable in periodic installments in accordance with the regular
payroll practices of the Employer. Such Base Salary shall be subject to
review annually by the Compensation Committee of the Board during the term
hereof, in accordance with the Employers established compensation policies.
(b) PERFORMANCE BONUS. The Executive shall receive an annual cash
"Performance Bonus," payable within forty-five (45) days after the end of
the fiscal year of the Employer, which for the initial year shall depend
upon achievement of the Company's minimum no - growth budget, and also
shall be based upon company-wide and individual performance criteria
mutually agreed upon from time to time by the Executive and the Board, and
which shall be determined by the Board based upon the recommendation of the
Compensation Committee thereof.
(c) BENEFITS. The Executive shall be entitled to all perquisites
extended to similarly situated executives, as such are stated in the
Employer's Executive Perquisite Policy (the "Perquisite Policy")
promulgated for the Board by the Compensation Committee of the Board, and
which Perquisite Policy is hereby incorporated by reference, as amended
from time to time. In addition, the Executive shall be entitled to
participate in all plans and benefits generally, from time to time,
accorded to employees of the Employer ("Benefit Plans"), all as determined
by the Board from time to time based upon the input of its Compensation
Committee.
(d) WITHHOLDING. The Employer shall be entitled to withhold from
amounts payable to the Executive hereunder, any federal, state or local
withholding or other taxes or charges which it is from time to time
required to withhold. The Employer shall be entitled to rely upon the
opinion of its independent accountants, with regard to any question
concerning the amount or requirement of any such withholding.
3. TERM AND TERMINATION.
(a) BASIC TERM. The Executive's employment hereunder shall be for a
continuous and self-renewing two (2) year term, commencing as of the
Effective Date, unless terminated by either party, with or without cause,
effec-
-3-
tive as of the first (1st) business day after written notice to that effect
is delivered to the other party.
(b) PREMATURE TERMINATION.
(i) In the event of the termination of the employment of the
Executive under this Agreement by the Employer because of failure to
meet the minimum no-growth budget (attached hereto) or for any reason
other than expiration of the term hereof or a "for-cause" termination
in accordance with the provisions of paragraph (d) of this Section 3,
then notwithstanding any actual or allegedly available alternative
employment or other mitigation of damages by or available to the
Executive, the Executive shall be entitled to a "Lump Sum Payment"
equal to the sum of: (w) his monthly Base Salary then payable,
multiplied by the remaining number of months or partial months until
expiration of the Basic Term or renewal term, if any, and an
annualized and proportional amount equal to the average of the two (2)
most recent annual Performance Bonuses that the Executive received;
For purposes of calculating the Lump Sum Payment amounts due, the
Executive's employment with the Employer shall be agreed to have
commenced on October , 1997. In the event of a termination governed by
this subparagraph (b)(i) of Section 3, the Employer shall also: (y)
notwithstanding the vesting schedule otherwise applicable, fully vest
all of Executive's options outstanding under any option or stock
incentive plan herein after established by Employer ("Option Plan")
and allow a period of eighteen (18) months following the termination
of employment for the Executive to exercise any such options; and (z)
continue for the Executive (provided that such items are not available
to him by virtue of other employment secured after termination) the
perquisites. plans and benefits provided under the Employer's
Perquisite Policy and Benefit Plans as of and after the date of
termination, [all items in (z) being collectively referred to as
"Post-Termination Perquisites and Benefits"], for the lesser of the
number of full months the Executive has theretofore been employed by
the Employer or twenty four (24) months following such termination.
The payments and benefits provided under (w), (x), (y) and (z) above
by the Employer shall not be offset against or diminish any other
compensa-
-4-
tion or benefits accrued as of the date of termination.
(ii) Payment to the Executive under this Section 3(b) will be
made monthly over twelve (12) months.
(c) CONSTRUCTIVE TERMINATION. If at any time during the term of this
Agreement, except in connection with a "for-cause" termination pursuant to
paragraph (d) of this Section 3, the Executive is Constructively Discharged
(as hereinafter defined), then the Executive shall have the right, by
written notice to the Employer given within one hundred and twenty (120)
days of such Constructive Discharge, to terminate his services hereunder,
effective as of thirty (30) days after such notice, and the Executive shall
have no rights or obligations under this Agreement other than as provided
in Section 5 hereof. The Executive shall in such event be entitled to a
Lump Sum Payment of Base Salary and Performance Bonus compensation as well
as all of the Post-Termination Prerequisites and Benefits, as if such
termination of his employment had been effectuated pursuant to paragraph
(b) of this Section 3.
For purposes of this Agreement, the Executive shall be deemed to have been
"Constructively Discharged" upon the occurrence of any one of the following
events.
(i) The Executive is not re-elected to, or is removed from, both
of the positions with the Employer set forth in Section I hereof,
other than as a result of the Executive's election or appointment to
positions of equal or superior scope and responsibility; or
(ii) The Executive shall fail to be vested by the Employer with
the powers, authority and support services normally attendant to any
of said offices; or
(iii) The Employer shall notify the Executive that the employment
of the Executive will be terminated or materially modified in the
future or that the Executive will be Constructively Discharged in the
future; or
(iv) The Employer changes the primary employment location of the
Executive to a place that is more
-5-
than fifty (50) miles from the primary employment location as of the
Effective Date of this Agreement; or
(v) The Employer otherwise commits a material breach of its
obligations under this Agreement.
(d) TERMINATION FOR CAUSE. The employment of the Executive and this
Agreement may be terminated "for-cause" as hereinafter defined. Termination
"for-cause" shall mean the termination of employment on the basis or as a
result of: (i) the Executive's death or his permanent disability, which
latter term shall mean the Executive's inability, as a result of physical
or mental incapacity, substantially to perform his duties hereunder for a
period of either six (6) consecutive months, or one hundred and twenty
(120) business days within a consecutive twelve (12) month period; (ii) a
material violation by the Executive of any applicable material law or
regulation respecting the business of the Employer, (iii) the Executive
being found guilty of, or being publicly associated with, to the Employer's
detriment, a felony or an act of dishonesty in connection with the
performance of his duties as an officer of the Employer, or the Executive's
commission of an act which disqualifies the Executive from serving as an
officer or director of the Employer, or (iv) the willful or negligent
failure of the Executive to perform his duties hereunder in any material
respect. The Executive shall be entitled to at least thirty (30) days'
prior written notice of the Employer's intention to terminate his
employment for any cause (except the Executive's death), specifying the
grounds for such termination, affording the Executive a reasonable
opportunity to cure any conduct or act (if curable) alleged as grounds for
such termination and a reasonable opportunity to present to the Board his
position regarding any dispute relating to the existence of such cause.
(e) TERMINATION UPON DEATH. In the event payments are due and owing
under this Agreement at the death of the Executive, such payments shall be
made to such beneficiary, designee or fiduciary as Executive may have
designated in writing, or failing such designation, to the executor or
administrator of his estate, in full settlement and satisfaction of all
claims and demands on behalf of the Executive. Such payments shall be in
addition to any other death benefits of the Employer made available for the
benefit of the Executive, and in full settlement and
-6-
satisfaction of all payments provided for in this Agreement.
(f) TERMINATION UPON DISABILITY. The Employer may terminate the
Executive's employment after the Executive is determined to be disabled
under the current Employer program or by a physician engaged by the
Employer. In the event of a dispute regarding the Executive's "disability,"
such dispute shall be resolved through arbitration as provided in paragraph
(d) of Section 9 hereof except that the arbitrator appointed by the
American Arbitration Association shall be a duly licensed medical doctor.
The Executive shall be entitled to the compensation and benefits provided
for under this Agreement during any period of incapacitation occurring
during the term of this Agreement, and occurring prior to the establishment
of the Executive's "disability" during which the Executive is unable to
work due to a physical or mental infirmity. Notwithstanding anything
contained in this Agreement to the contrary, until the date specified in a
notice of termination relating to the Executive's disability, the Executive
shall be entitled to return to his positions with the Employer as set forth
in this Agreement, in which event no disability of the Executive will be
deemed to have occurred.
(g) TERMINATION UPON CHANGE OF CONTROL.
(i) In the event of a Change in Control (as defined below) of the
Employer and the termination of the Executive's employment by
Executive or by the Employer under either 1 or 2 below, the Executive
shall be entitled to a Lump Sum Payment equal to the sum of: (w) his
monthly Base Salary then payable, multiplied by the lesser of the
number of full months the Executive has theretofore been employed by
the Employer or twenty-four (24); plus (x) two (2) times the average
of the two (2) most recent annual Performance Bonuses that the
Executive received; provided, however, that if the Executive has been
employed by the Employer for fewer than two (2) years, then the amount
set forth in (x) above shall be equal to two (2) times the average of
the annual Performance Bonuses that the Executive has theretofore
received from the Employer. The Employer shall also: (y)
notwithstanding the vesting schedule otherwise applicable, fully vest
all of Executive's options outstanding under any Option Plan and allow
a period
-7-
of eighteen (18) months following the termination of employment of the
Executive for the Executive's exercise of such options; and (z)
continue for the Executive (provided that such items are not available
to him by virtue of other employment secured after termination) all of
the perquisites, plans and benefits provided under paragraph (c) of
Section z, for the lesser of the number of full months the Executive
has been employed by the Employer or twenty-four (24) months following
such termination. The payments and benefits provided under (w), (x),
(y) and (z) above by the Employer shall not be offset against or
diminish any other compensation or benefits accrued as of the date of
termination. The following shall constitute termination under this
paragraph:
1. The Executive terminates his employment under this Agreement
pursuant to a written notice to that effect delivered to the
Board within six (6) months after the occurrence of the
Change in Control.
2. Executive's employment is terminated, including
Constructively Discharged, by the Employer or its successor
either in contemplation of or after Change in Control, other
than on a for-cause basis.
(ii) For Purposes of this paragraph, the term "Change in Control"
shall mean the following occurring after the date of this Agreement:
1. The Consummation of the acquisition by any person (as such
term is defined in Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the " 1934 Act")) of
beneficial ownership (within the meaning of Rule l3d-3
promulgated under the 0000 Xxx) of forty percent (40%) or
more of the combined voting power embodied in the
then-outstanding voting securities of the Employer; or
2. Approval by the stockholders of the Employer of: (1) a
merger or xxxxxxx-
-8-
dation of the Employer, if the stockholders of the Employer
immediately before such merger or consolidation do not, as a
result of such merger or consolidation, own, directly or
indirectly, more than fifty percent (500%) of the combined
voting power of the then outstanding voting securities of
the entity resulting from such merger or consolidation in
substantially the same proportion as was represented by
their ownership of the combined voting power of the voting
securities of the Employer outstanding immediately before
such merger or consolidation; or (2) a complete or
substantial liquidation or dissolution or an agreement for
the sale or other disposition, of all or substantially all
of the assets of the Employer.
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because forty percent (40%) or more of the combined voting
then-outstanding securities is acquired by: (1) a trustee or other fiduciary
holding securities under one or more employee benefit plans maintained for
employees of the entity; or (2) any corporation or other entity which,
immediately prior to such acquisition, is owned directly or directly or
indirectly by the stockholders of the Employer immediately prior to such
acquisition.
(iii) If it is determined, in the opinion of the Employer's
independent accountants, in consultation with the Employer's
independent counsel, that any amount payable to the Executive by
the Employer under this Agreement, or any other plan or agreement
under which the executive participates or is a party, would
constitute an "Excess Parachute Payment" within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code") and be subject to the excise tax imposed by Section
4999 of the Code (the "Excise Tax"), the Employer shall pay to
the Executive a "grossing-up" amount equal to the amount of such
Excise Tax and all federal and state income or other taxes with
respect payment of the amount of such Excise Tax, including all
such taxes with respect to any such grossing-up amount. If at a
later date, the Internal Revenue Service assesses a defi-
-9-
ciency against the Executive for the Excise Tax which is greater
than that which was determined at the time such amounts were
paid, the Employer shall pay to the Executive the amount of such
unreimbursed Excise Tax plus any interest, penalties and
professional fees or expenses, incurred by the Executive as a
result of such assessment, including all such taxes with respect
to any such additional amount. The highest marginal tax rate
applicable to individuals at the time of payment of such amounts
will be used for purposes of determining the federal and state
income and other taxes with respect thereto. The Employer shall
withhold from any amounts paid under this Agreement the amount of
any Excise Tax or other federal, state or local taxes then
required to be withheld. Computations of the amount of any
grossing-up supplemental compensation paid under this
subparagraph shall be made by the Employer's independent
accountants, in consultation with the Employer's independent
legal counsel. The Employer shall pay all accountant and legal
counsel fees and expenses.
4. CONFIDENTIALITY AND LOYALTY. The Executive acknowledges that heretofore
or hereafter during the course of his employment he has produced and received,
and may hereafter produce, receive and otherwise have access to various
materials, records, data trade secrets and information not generally available
to the public (collectively, "Confidential Information") regarding the Employer
and its subsidiaries and affiliates. Accordingly, during and subsequent to
termination of this Agreement, the Executive shall hold in confidence and not
directly or indirectly disclose, use, copy or make lists of any such
Confidential Information, except to the extent that such information is or
thereafter becomes lawfully available from public sources, or such disclosure is
authorized in writing by the Employer, required by law or by any competent
administrative agency or judicial authority, or otherwise as reasonably
necessary or appropriate in connection with the performance by the Executive of
his duties hereunder. All records, files, documents, computer diskettes,
computer programs and other computer-generated material , as well as all other
materials or copies thereof relating to the Employer's business, which the
Executive shall prepare or use, shall be and remain the sole property of the
Employer, shall not be removed from the Employer's premises without its written
consent, and shall be promptly returned to the Employer upon termination of the
Executive's employment hereunder. The Executive agrees to abide by the
Employer's reasonable policies, as in effect from time
-10-
to time, respecting confidentiality and the avoidance of interests conflicting
with those of the Employer.
5. NON-COMPETITION OF COVENANT.
(a) RESTRICTIVE COVENANT. The Employer and the Executive have jointly
reviewed the tenant lists, property submittals, logs, broker lists, and
operations of the Employer, and have agreed that as an essential ingredient
of and in consideration of this Agreement and the payment of the amounts
described in Sections 2 and 3 hereof, the Executive hereby agrees that,
except with the express prior written consent of the Employer, for a period
equal to the lesser of the number of full months the Executive has at any
time been employed by the Employer or twenty-four (24) months after the
termination of the Executive's employment with the Employer (the
"Restrictive Period"), he will not directly or indirectly compete with the
business of the Employer, including, but not by way of limitation, by
directly or indirectly owning, managing, operating, controlling, financing,
or by directly or indirectly serving as an employee, officer or director of
or consultant to, or by soliciting or inducing, or attempting to solicit or
induce, any employee or agent of Employer to terminate employment with
Employer and become employed by any person, firm, partnership, corporation,
trust or other entity which owns or operates a business similar to that of
the Employer (the "Restrictive Covenant"). For purposes of this
subparagraph (a) a business shall be considered "similar" to that of the
Employer if it is engaged in the acquisition, development, ownership,
operation, management or leasing of office or net leased retail property
(i) in any geographic market or territory in which the Employer owns
properties either as of the date hereof or as of the date of termination of
the Executive's employment; or (ii) in any market in which an acquisition
is pending at the time of the termination of the Executive's employment. If
the Executive violates the Restrictive Covenant and the Employer brings
legal action for injunctive or other relief, the Employer shall not, as a
result of the time involved in obtaining such relief, be deprived of the
benefit of t he full period of the Restrictive Covenant. Accordingly, the
Restrictive Covenant shall be deemed to have the duration specified in this
paragraph (a) computed from the date the relief is granted but reduced by
the time between the period when the Restrictive Period began to run and
the date of the first violation of the Restrictive Covenant by the
Executive. In the event that a suc-
-11-
cessor of the Employer assumes and agrees to perform this Agreement or
otherwise acquires the Employer, this Restrictive Covenant shall continue
to apply only to the primary service area of the Employer as it existed
immediately before such assumption or acquisition and shall not apply to
any of the successor's other offices or markets. The foregoing Restrictive
Covenant shall not prohibit the Executive from owning directly or
indirectly, capital stock or similar securities which are listed on a
securities exchange or quoted on the National Association of Securities
Dealers Automated Quotation System which do not represent more than five
percent (5%) of the outstanding capital stock of any corporation.
(b) REMEDIES FOR BREACH OF RESTRICTIVE COVENANT. The Executive
acknowledges that the restrictions contained in Sections 4 and 5 of this
Agreement are reasonable and necessary for the protection of the legitimate
proprietary business interests of the Employer, that any violation of these
restrictions would cause substantial injury to the Employer and such
interests; that the Employer would not have entered into this Agreement
with the Executive without receiving the additional consideration offered
by the Executive in binding himself to these restrictions; and that such
restrictions were a material inducement to the Employer to enter into this
Agreement. In the event of any violation or threatened violation of these
restrictions, the Employer shall be relieved of any further obligations
under this Agreement, shall be entitled to any rights, remedies or damages
available at law, in equity or otherwise under this Agreement, and shall be
entitled to preliminary and temporary injunctive relief granted by a court
of competent jurisdiction to prevent or restrain any such violation by the
Executive and any and all persons directly or indirectly acting for or with
him, as the case may be, while awaiting the decision of the arbitrator
selected in accordance with paragraph (d) of Section 9 of this Agreement,
which decision, if rendered adverse to the Executive, may include permanent
injunctive relief to be granted by the court.
6. INTERCORPORATE TRANSFERS. If the Executive shall be voluntarily
transferred to an affiliate of the Employer, such transfer shall not be deemed
to terminate or modify this Agreement, and the employing corporation to which
the Executive shall have been transferred shall, for all purposes of this
Agreement, be construed as standing in the same place and stead as the Employer
as of the date of such transfer. For all rele-
-12-
vant purposes hereof, the tenure of the Executive shall be deemed to include the
aggregate term of his employment by the Employer or its affiliate.
7. INTEREST IN ASSETS. Neither the Executive nor his estate shall acquire
hereunder any rights in funds or assets of the Employer, otherwise than by and
through the actual payment of amounts payable hereunder; nor shall the Executive
or his estate have any power to transfer, assign, anticipate, hypothecate or
otherwise encumber in advance any of said payments; nor shall any of such
payments be subject to seizure for the payment of any debt, judgment, alimony,
separate maintenance or be transferable by operation of law in the event of
bankruptcy, insolvency or otherwise of the Executive.
8. INDEMNIFICATION.
(a) The Employer shall provide the Executive (including his heirs,
personal representatives, executors and administrators), during the term of
this Agreement and thereafter throughout all applicable limitations
periods, with coverage under the Employer's then-current directors' and
officers' liability insurance policy, at the Employer's expense.
(b) In addition to the insurance coverage provided for in paragraph
(a) of this Section 8, the Employer shall defend, hold harmless and
indemnify the Executive (and his heirs, executors and administrators) to
the fullest extent permitted under applicable law, and subject to the
requirements, limitations and specifications set forth in the Bylaws and
other organization documents of the Employer, against all expenses and
liabilities reasonably incurred by him in connection with or arising out of
any action, suit or proceeding in which he may be involved by reason of his
having been an officer of the Employer (whether of not he continues to be
an officer at the time of incurring such expenses or liabilities), such
expenses and liabilities to include, but not be limited to, judgments,
court costs and attorney's fees and the cost of reasonable settlements.
(c) In the event the Executive becomes a party, or is threatened to be
made a party, to any action, suit or proceeding for which other Employer
has agreed to provide insurance coverage or indemnification under Section
8, the Employer shall, to the full extent permitted under applicable law,
advance all expenses (including the reasonable
-13-
attorneys' fees of the attorneys selected by Employer and approved by
Executive for the representation of the Executive), judgments, fines and
amounts paid in settlement (collectively "Expenses") incurred by the
Executive in connection with the investigation, defense, settlement, or
appeal of any threatened, pending or completed action, suit or proceeding,
subject to receipt by the Employer of a written undertaking from the
Executive covenanting: (i) to reimburse the Employer for all Expenses
actually paid by the Employer to or on behalf of the Executive in the event
it shall be ultimately determined that the Executive is not entitled to
indemnification by the Employer for such Expenses; and (ii) to assign to
the Employer all rights of the Executive to insurance proceeds, under any
policy of directors' and officers' liability insurance or otherwise, to the
extent of the amount of Expenses actually paid by the Employer to or on
behalf of the Executive.
9. GENERAL PROVISIONS.
(a) SUCCESSORS; ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Executive, the Employer and his and its
respective personal representatives, successors and assigns, and any
successor or assign of the Employer shall be deemed the "Employer"
hereunder. The Employer shall require any successor to all or substantially
all of the business and/or assets of the Employer, whether directly or
indirectly, by purchase, merger, consolidation, acquisition of stock, or
otherwise, by an agreement in form and substance satisfactory to the
Executive, expressly to assume and agree to perform this Agreement in the
same manner and to the same extent as the Employer would be required to
perform if no such succession had taken place. (b) ENTIRE AGREEMENT;
MODIFICATIONS. This Agreement constitutes the entire agreement between the
parties respecting the subject matter hereof, and supersedes all prior
negotiations, undertakings, agreements and arrangements with respect
thereto, whether written or oral. Except as otherwise explicitly provided
herein, this Agreement may not be amended or modified except by written
agreement signed by the Executive and the Employer.
(c) ENFORCEMENT AND GOVERNING LAW. The provisions of this Agreement
shall be regarded as divisible and separate; if any of said provisions
should be declared invalid
-14-
or unenforceable by a court of competent jurisdiction, the validity and
enforceability of the remaining provisions shall not be affected thereby.
This Agreement shall be construed and the legal relations of the parties
hereto shall be determined in accordance with the laws of the State of
Pennsylvania as it constitutes the situs of the corporation and the
employment hereunder, without reference to the law regarding conflicts of
law.
(d) ARBITRATION. Except as provided in paragraph (b) of Section 5, any
dispute or controversy arising under or in connection with this Agreement
or the Executive's employment by the Employer shall be settled exclusively
by arbitration, conducted by a single arbitrator sitting in Philadelphia,
Pennsylvania in accordance with the rules of the American Arbitration
Association (the "AAA") then in effect. The arbitrator shall be selected by
the parties from a list of eleven (11) arbitrators provided by the AAA,
provided that no arbitrator shall be related to or affiliated with either
of the parties. No later than ten (10) days after the list of proposed
arbitrators is received by the parties, the parties, or their respective
representatives, shall meet at a mutually convenient location in
Philadelphia, Pennsylvania, or telephonically. At that meeting, the party
who sought arbitration shall eliminate one (1) proposed arbitrator and then
the other party shall eliminate one (1) proposed arbitrator. The parties
shall continue to alternatively eliminate names from the list of proposed
arbitrators in this manner until each party has eliminated five (5)
proposed arbitrators. The remaining arbitrator shall arbitrate the dispute.
Each party shall submit, in writing, the specific requested action or
decision it wishes to take, or make, with respect to the matter in dispute,
and the arbitrator shall be obligated to choose one (i) party's specific
requested action or decision, without being permitted to effectuate any
compromise or "new" position, provided, however, that the arbitrator is
authorized to award amounts not in dispute during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
The Employer shall beat the cost of all counsel, experts or other
representatives that are retained by both parties, together with all costs
of the arbitration proceeding, including, without limitation, the fees,
costs and expenses imposed or incurred by the arbitrator. Judgment may be
entered on the arbitrator's award in any court having jurisdiction;
including, if applicable, entry of a permanent injunction under paragraph
(b) of Section 5-
-15-
(e) PRESS RELEASES AND PUBLIC DISCLOSURE. Any press release or other
public communication by either the Executive or the Employer with any other
person concerning the terms, conditions or circumstances of Executive's
employment, or the termination of such employment, shall be subject to
prior written approval of both the Executive and the Employer, subject to
the proviso that the Employer shall be entitled to make requisite and
appropriate public disclosure of the terms of this Agreement, without the
Executive's consent or approval, as required under applicable statutes, and
the rules and regulations of the Securities and Exchange Commission and the
Stock Exchange on which the shares of Employer may from time to time be
listed.
(f) WAIVER. No waiver by either party at any time of any breach by the
other party of, or compliance with, any condition or provision of this
Agreement to be performed by the other party, shall be deemed a waiver of
any similar or dissimilar provisions or conditions at the same time or any
prior or subsequent time.
(g) NOTICES. Notices given pursuant to this Agreement shall be in
writing, and shall be deemed given when received, and, if mailed, shall be
mailed by United States registered or certified mail, return receipt
requested, postage prepaid. Notices to the Employer shall be addressed to
the principal headquarters of the Employer, Attention: Chairman. Notices to
the Executive, shall be sent to the address set forth below the Executives
signature on this Agreement, or to such other address as the party to be
notified shall have given to the other.
-16-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
FCO, X.X. XXXX X. XXXXXX, III
a Delaware limited partnership
by its general partner,
Royale Investment Inc.
By: _______________________ ____________________
Xxxx X. Xxxxxx, III
