EMPLOYMENT AGREEMENT
Exhibit –
10.1
This EMPLOYMENT AGREEMENT (this
“Agreement”)
is made this 14th day of July 2009, by and between AGREE REALTY CORPORATION, a
Maryland corporation (the “Company”),
and XXXXXXX AGREE (the
“Executive”).
WITNESSETH
:
WHEREAS, the Executive is
expected to make certain contributions to the financial strength of the
Company;
WHEREAS, the Company desires
to assure itself of the continuity of management and desires to establish
certain compensation rights of certain of its key senior executive officers,
including the Executive; and
WHEREAS, the Company desires
to employ the Executive and the Executive desires to accept such employment on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in
consideration of the mutual covenants hereinafter contained, the parties hereto
hereby agree as follows:
1. Employment;
Term. The Company hereby employs the Executive as Chief
Executive Officer of the Company and the Executive agrees to serve the Company
in such capacity for the period commencing on July 1, 2009 (the “Effective
Date”) and ending on June 30, 2014 (the period during which the Executive
is employed by the Company hereunder is referred to as the “Employment
Period”); provided that, upon
any expiration of the Employment Period, the Employment Period will
automatically be extended for one year unless either the Company or Executive
gives written notice of non-extension to the other at least 120 days prior to
the expiration of the Employment Period. The Executive shall also
serve as Chairman of the Board of Directors of the Company (the “Board”)
to the extent requested by the Board.
2. Termination. Subject
to the terms and conditions set forth herein, the Executive’s employment may be
terminated by either party hereto upon thirty (30) days’ written notice to the
other party hereto.
1
3. Duties. The
Executive shall be responsible for the supervision, control and conduct of all
the business and affairs of the Company and shall have such additional duties
and any additional responsibilities as are normally assigned to a Chief
Executive Officer which may from time to time be reasonably designated by the
Board, provided that the scope of his duties and the extent of his
responsibilities shall not be substantially different from the duties and
responsibilities customarily associated with such positions in a publicly-held
corporation of similar size and business. At all times, the Executive
shall be subject to the direction of the Board. During the Employment
Period, the Executive shall devote his full business time and best efforts to
the business and affairs of the Company and its
subsidiaries. Notwithstanding the foregoing, the Executive may: (i)
engage in any civic or charitable activity for which the Executive receives de
minimis compensation or other pecuniary advantage; (ii) invest his personal
assets in any business that is not competitive with the Company or any of its
subsidiaries, provided that such investment will not require any services on the
part of the Executive which would unreasonably interfere with his obligations
hereunder; (iii) purchase securities that are listed on a national securities
exchange of any entity that is competitive with the Company or any of its
subsidiaries, provided that the Executive may not beneficially own five percent
(5%) or more of any class of such securities; (iv) serve as a director of up to
three publicly traded entities that are not competitive with the Company or any
of its subsidiaries; and (v) participate in any other activity approved in
advance in writing by the Board. For purposes of this Section 3, a business
or entity is “competitive in retail real estate” with the Company or any of its
subsidiaries if such business or entity consists of or includes any type or line
of business engaged in by the Company or any of its subsidiaries and such
business is conducted, in whole or in part, within a one-hundred (100) mile
radius of the Company’s principal executive headquarters.
4. Compensation. The
Company shall pay the Executive a minimum salary of two hundred and eighty
thousand dollars ($280,000.00) per annum as
compensation to the Executive for the services rendered by the Executive
hereunder, including, but not limited to, all services rendered by the Executive
as an officer or director of the Company and its subsidiaries. Such
compensation shall be payable in regular installments in accordance with the
customary payroll practices of the Company. The Compensation
Committee shall review the Executive’s salary at least annually to determine
whether the Executive’s salary shall be adjusted based on such criteria as the
Compensation Committee shall from time to time establish. For
purposes of this Agreement, “salary”
means the amount established and adjusted from time to time pursuant to this
Section
4.
5. Benefits.
(a) The
Company agrees to reimburse the Executive for all reasonable and necessary
travel, business entertainment and other business expenses incurred by the
Executive in connection with the performance of his duties under this
Agreement. Such reimbursements shall be made by the Company on a
timely basis, but no later than 60 days from the date such expenses are
incurred, upon submission by the Executive of documentation in accordance with
the Company’s standard procedures. All such reimbursements shall be
subject to reasonable limitations, which may from time to time be prescribed by
the Board. The reimbursement policies, practices and procedures
applicable to Executive shall be the most favorable policies, practices and
procedures of the Company relating to reimbursement of employment expenses
incurred by Company directors, officers or employees in effect at any time
during the twelve month period preceding the date Executive incurs the
expenses. The expense reimbursement or any in-kind benefits provided
for any calendar year shall not affect the expenses eligible for reimbursement
or any in-kind benefits provided in any other calendar year, and the Executive’s
right to expense reimbursement or in-kind benefits cannot be liquidated or
exchanged for any other benefit.
2
(b) The
Executive shall be entitled to participate in any and all life insurance,
medical insurance, disability insurance, and other benefit plans which are made
generally available during the Employment Period by the Company to executives of
the Company, including, but not limited to, the Company’s 2005 Equity Incentive
Plan, Profit Sharing Plan, performance Bonus Plan (to the extent that the
Executive qualifies under the eligibility provisions of such plan or plans) or
other similar plans. Additionally, the Executive shall be entitled to
receive annual paid vacation and paid holidays made available pursuant to
Company policy to all of the executives of the Company.
6. Termination. The
amounts described in Sections 6 and 7 hereof will be in
lieu of any termination or severance payments required by the Company’s policies
or applicable law (other than as required under applicable law), and will
constitute Executive’s sole and exclusive rights and remedies with respect to
the termination of Executive’s employment with the Company. The
Company may withhold from any payments hereunder all federal, state, city or
other taxes to the extent required by applicable law.
(a) Death;
Disability. In the event of the death or Disability of the
Executive, the Executive’s employment hereunder shall terminate, and the Company
shall pay to the Executive or the Executive’s personal representative or estate,
as the case may be, in cash (i) any accrued and unpaid salary through the date
of termination, (ii) any accrued and unpaid cash bonus with respect to the
fiscal year preceding the termination, (iii) a pro-rata portion of the cash
bonus with respect to the fiscal year in which the termination occurs, and (iv)
any reimbursable expenses under Section 5(a) hereof
that have not been reimbursed as of the date of termination. Subject
to Section
19(d) hereof, the
payments under this Section 6(a) shall be
paid within ten (10) days of such termination. In addition, all
unvested securities of the Company issued to the Executive under the Company’s
2005 Equity Incentive Plan or any similar plan shall become fully vested as of
the date of termination.
For purposes of this Agreement, “Disability”
shall mean the inability of the Executive to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
that can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months.
For
purposes of this Agreement, “Bonus”
shall mean (i) the annual cash bonus from the Company plus (ii) the grant date
fair value, in accordance with generally accepted accounting principles, of
share-based compensation by the Company.
(b) Good Reason or Other Than
for Cause, Death or Disability. Except with respect to a
Change in Control (which is covered by Section 7 hereof), in
the event that Executive’s employment is terminated by the Company for any
reason other than death, Disability or Cause, or the Executive’s employment is
terminated by Executive for Good Reason, the Company shall pay to the Executive
in cash (i) any accrued and unpaid salary through the date of termination, (ii)
any accrued and unpaid cash bonus with respect to the fiscal year preceding the
termination, (iii) a pro-rata portion of the cash bonus with respect to the
fiscal year in which the termination occurs, (iv) an amount equal to two (2)
times Executive’s “compensation” (as defined in Section 7(b) hereof)
, and (v) any reimbursable expenses under Section 5(a) hereof
that have not been reimbursed as of the date of termination. The
Executive shall also continue to participate in all benefit plans made generally
available by the Company to its executives for the remaining portion of the
Employment Period (as if such termination had not occurred). Subject
to Section
19(d) hereof, the payments under clauses (i), (ii), (iii) and (v) hereof
shall be paid within ten (10) days of such termination. In addition,
all unvested securities of the Company issued to the Executive under the
Company’s 2005 Equity Incentive Plan or any similar plan shall become fully
vested as of the date of such termination.
3
For purposes of this Agreement, “Cause”
shall mean: (i) the Executive’s willful failure or refusal to perform
specific reasonable written directives of the Board, which directives are
consistent with the scope and nature of the Executive’s duties and
responsibilities under this Agreement, and which are not remedied by the
Executive within sixty (60) days after written notice of his failure by the
Board; (ii) a felony conviction of the Executive; (ii) any act of dishonesty
involving the Company which results in a material unjust gain or enrichment to
the Executive at the expense of the Company; (iv) any act involving moral
turpitude of the Executive which materially and adversely affects the business
of the Company; or (v) a material breach by the Executive of his obligations
under Section 8
hereof. No act or failure to act on the part of the Executive shall
be deemed “willful” if it was due primarily to an error in judgment or
negligence, but shall be deemed “willful” only if done or omitted to be done by
the Executive not in good faith and without reasonable belief that his action or
omission was in the best interests of the Company.
For
purposes of this Agreement, “Good
Reason” shall mean: (i) a material breach of this Agreement by
the Company; (2) other than for Cause, a material reduction in the nature or
scope of the Executive’s title, authority, powers, functions, duties, or
responsibilities; (3) other than for Cause or related to a general reduction
that is not limited to any executive of the Company, a material reduction in the
salary and Bonus paid to Executive or benefits provided to Executive; or (4)
without Executive’s written consent, a transfer of the place of employment of
more than thirty (30) miles from the Company’s principal executive
headquarters.
(c) Cause or Without Good
Reason. In the event Executive’s employment is terminated by
the Company for Cause, or is terminated by Executive without Good Reason, the
Company shall pay the Executive in cash (i) any accrued and unpaid salary
through the date of termination, (ii) any accrued and unpaid cash bonus with
respect to the fiscal year preceding the termination, and (iii) any reimbursable
expenses under Section
5(a) hereof that have not been reimbursed as of the date of
termination. Subject to Section 19(d) hereof,
the foregoing payments shall be made within ten (10) days of such
termination. Except as set forth in this Section 6(c) or as
required by law, (i) any and all other benefits which the Executive would
otherwise have been entitled to receive pursuant to the terms of this Agreement
or applicable law shall be forfeited and (ii) any unvested securities of the
Company issued to the Executive under the Company’s 2005 Equity Incentive Plan
or any similar plan shall be forfeited.
The Executive shall not be deemed to
have been terminated for Cause hereunder unless and until there shall have been
delivered to the Executive a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the Board then in office
(excluding Executive or any immediate family member of Executive) at a meeting
of the Board called and held for such purpose, after reasonable notice to the
Executive and an opportunity for the Executive, together with his counsel (if
the Executive chooses to have counsel present at such meeting), to be heard
before the Board, finding that, in the good faith opinion of the Board, the
Executive had committed an act constituting Cause as herein defined and
specifying the particulars thereof in detail.
4
(d) Retirement. Notwithstanding
any of the foregoing, if the Executive retires from employment with the Company
at any time after he reaches the age of 65, except if such employment is
terminated for Cause, all unvested securities of the Company issued to the
Executive under the Company’s 2005 Equity Incentive Plan or any similar plan
shall become fully vested as of the date of such retirement; provided, however,
if the Executive and Company agree that Executive will provide consulting
services thereafter, the unvested securities of the Company issued to the
Executive under the Company’s 2005 Equity Incentive Plan or any similar plan
shall vest in accordance with their respective terms for as long as
such consulting services are provided by Executive. If the consulting
period is terminated following retirement, then all unvested securities of the
Company issued to the Executive under the Company’s 2005 Equity Incentive Plan
or any similar plan shall become fully vested as of the date of the termination
of such consulting period.
(e) Timing. To
the extent not set forth in Section 6(a)-(c)
hereof or otherwise provided in Section 19(d) hereof,
any amounts under Section 6(a)-(c) will
be paid, and the certificates, if any, for the vested securities will be
delivered, as soon as reasonably possible, but in no event later than 30 days
after the termination occurs.
7. Change in Control of the
Company.
(a) If
a Change in Control of the Company occurs prior to the end of the Employment
Period and (a) Executive’s employment is terminated by the Company for reasons
other than death, Disability or Cause, or (b) the Executive terminates
employment with the Company for Good Reason, in each case within 18 months after
such Change in Control, subject to Section 19(d) hereof,
the Company, or any successor thereto, will pay to the Executive in cash, (i)
any accrued and unpaid salary through the date of termination, (ii) any accrued
and unpaid cash bonus with respect to the fiscal year preceding the termination,
(iii) a pro-rata portion of the cash bonus with respect to the fiscal year in
which the termination occurs, (iv) an amount equal to three (3) times
Executive’s “compensation” (as defined below); and (v) any reimbursable expenses
under Section
5(a) hereof that have not been reimbursed as of the date of
termination. The Executive shall also continue to participate in all
benefit plans made generally available by the Company to its executives for the
remaining portion of the Employment Period (as if such termination had not
occurred). Subject to Section 19(d) hereof,
the payments under clauses (i), (ii), (iii) and (v) hereof shall be paid within
ten (10) days after such termination. In addition, all unvested
securities of the Company issued to the Executive under the Company’s 2005
Equity Incentive Plan or any similar plan shall become fully vested as of the
date of such termination. Subject to Section 19(d) hereof,
any amounts under clause (iv) will be paid, and the certificates, if any, for
the vested securities will be delivered, as soon as reasonably possible, but in
no event later than 30 days after such termination.
5
(b) The
Executive’s “compensation”
shall be determined as follows: (i) in respect of salary, an amount equal to the
highest annualized rate of the Executive’s salary during the Employment Period;
(ii) in respect of Bonus, the Executive’s average Bonus over the previous three
calendar years; and (iii) in respect of other benefits set forth in this
Agreement or otherwise made available generally to executives of the Company
pursuant to Company policy (excluding grants of Company securities), an amount
equal to the fair market value of such benefits.
(c) Notwithstanding
any other provision of this Agreement, in the event that the Company or
Executive determines, based upon the advice of its tax advisors, (i) that part
or all of the consideration, compensation or benefits to be paid to Executive
under Section
7(a) or any other provision hereof constitute payments “contingent on a
change in ownership or control” of the Company within the meaning of the
Treasury Regulations under Section 280G(b)(2) (or a successor provision) of the
Internal Revenue Code of 1986, as amended (“parachute payments”), and (ii) that
the aggregate present value of such parachute payments, singularly or together
with the aggregate present value of any consideration, compensation or benefits
to be paid to Executive under any other plan, arrangement or agreement which
constitute parachute payments (collectively, the "Parachute
Amount"), exceeds 2.99 times the Executive's "base amount" as defined in
Section 280G(b)(3) of the Code (the "Executive
Base Amount"), then the amounts constituting parachute payments which
would otherwise be payable to or for the benefit of Executive shall be reduced
to the extent necessary so that the Parachute Amount is equal to 2.99 times the
Executive Base Amount (the "Reduced
Amount"); provided, however, that the Company shall pay to Executive the
Parachute Amount without reduction if it is determined that payment of the
Parachute Amount would generate more after−tax income to Executive than the
Reduced Amount. In the event of a reduction of the payments that
would otherwise be paid to Executive, then the Company may elect which and how
much of any particular entitlement shall be eliminated or reduced and shall
notify Executive promptly of such election; provided, however that the
aggregate reduction shall be no more than as set forth in the preceding sentence
of this Section
7(c).
(d) For
purposes of this Agreement, a “Change in
Control” shall mean the occurrence of any of the following events at any
time during the Employment Period:
(i) The
Company is merged, consolidated or reorganized into or with another corporation
or other legal person and as a result of such merger, consolidation or
reorganization less than a majority of the combined voting power of the
then-outstanding securities of the entity resulting from such merger,
consolidation or reorganization immediately after such transaction are held in
the aggregate by holders of the combined voting power of the then-outstanding
securities of the Company entitled to vote generally in the election of
directors of the Company (“Voting
Stock”) immediately prior to such transaction;
(ii) The
Company sells all or substantially all of its assets to any other corporation or
other legal person, and less than a majority of the combined voting power of the
then-outstanding voting securities of the purchaser immediately after such
transaction are held in the aggregate by the holders of Voting Stock of the
Company immediately prior to such sale;
6
(iii) If
a report is filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), disclosing that any person (as the term “person” is used in
Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), other than Xxxxxxx
Agree, and his immediate family and affiliates, in aggregate, is the beneficial
owner (as the term “beneficial owner” is defined under Rule 13d-3 or any
successor rule or regulation promulgated under the Exchange Act) of securities
representing 25% or more of the Voting Stock;
(iv) Any
time at which individuals who, as of the date hereof, constitute the directors
of the Company cease for any reason to constitute at least a majority thereof,
provided that any individual becoming a director subsequent to the date hereof
whose election, or nomination for election by the Company’s stockholders, was
approved by a vote of at least a majority of the directors then comprising the
incumbent Board will be considered as though such individual were a member of
the incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on behalf of a
person other than the Board.
Notwithstanding the foregoing provision
of Section
7(d)(iii) hereof, a Change in Control shall not be deemed to have
occurred for purposes of this Agreement solely because the Company, an entity in
which the Company directly or indirectly beneficially owns 50% or more of the
voting securities of such entity, any Company-sponsored employee stock ownership
plan or any other employee benefit plan of the Company either files or becomes
obligated to file a report with the Securities and Exchange Commission under the
Exchange Act disclosing beneficial ownership by such entity of Voting Stock in
excess of 25% or otherwise or that a change in control of the Company has or may
have occurred or will or may occur in the future by reason of such
beneficial ownership. Notwithstanding the foregoing provisions of
this Section
7(d), a transaction or occurrence identified in Section 7(d) (i), (ii),
(iii) or (iv) shall not be deemed to be a Change in Control unless it
constitutes a “change in control event” within the meaning of Treasury
Regulations Section 1.409A-3(i)(5)(i).
8. Non-Competition;
Non-Solicitation. The Executive agrees that if the Executive’s
employment is terminated by the Company for Cause or Executive terminates such
employment without Good Reason, that for a one (1) year period following the
termination date:
(a) The
Executive shall not engage in any business which is competitive with the
business of the Company or any of its subsidiaries as of the termination
date. For the purposes of this Section 8, a business
shall be deemed “competitive” if it consists of or includes any type or line of
business engaged in by the Company or any of its subsidiaries as of the date of
such termination and which is conducted, in whole or in part, within a
one-hundred (100) mile radius of the Company’s principal executive headquarters
as of the date of such termination. For purposes of this Agreement,
the executive shall be deemed to “engage in
a business” if he: (i) participates, directly or indirectly, in such
business as a director, officer, stockholder, employee, salesman, partner or
individual proprietor; (ii) acts as a paid consultant, representative or advisor
to such business; (iii) participates in such business as an investor (whether
through loans, contributions to capital or otherwise) or has a controlling
influence over such business; or (iv) permits his name to be used by or in
connection with such business, provided that nothing herein contained shall be
deemed to preclude the purchase of securities that are listed on a national
securities exchange of any entity that is competitive with the Company or any of
its subsidiaries, provided that the Executive may not beneficially own five
percent (5%) or more of any class of such securities.
7
(b) The
Executive will not directly, or indirectly through another person or entity, (i)
solicit any employee of the Company or its subsidiaries to leave the employ of
the Company or its subsidiaries, or in any way interfere with the relationship
between the Company or its subsidiaries, on the one hand, and any employee
thereof, on the other hand, (ii) hire any person who was an employee of the
Company or its subsidiaries until one year after such individual’s employment
relationship with the Company or its subsidiaries has been terminated or (iii)
induce or attempt to induce any customer, supplier or other business relation of
the Company or its subsidiaries to cease doing business with the Company or its
subsidiaries, or in any way interfere with the relationship between any such
customer, supplier or business relation, on the one hand, and the Company or its
subsidiaries, on the other hand.
9. Confidentiality. The
Executive shall not at any time use or divulge, furnish or make accessible to
anyone (other then in the regular course of the business of the Company or any
of its subsidiaries) any information regarding trade secrets, proprietary
information or other confidential information (including, but not limited to,
any information concerning customers or accounts) with respect to the business
affairs of the Company or any of its subsidiaries. This Section 9 shall not
apply to information that is or becomes generally available (i) to the public
other than as result of a disclosure by Executive or any of its representatives,
or (ii) to Executive or its representatives on a non-confidential basis from a
source (other than the Company or its representatives) which Executive
reasonably believes is not prohibited from disclosing such information to
Executive by a contractual, legal or fiduciary obligation to the Company or any
of its representatives.
10. Notices. All
notices relating to this Agreement shall be in writing and shall be deemed to
have been given (i) when delivered personally, (ii) three days after the date of
mailing, if sent in the United States by registered or certified first-class
mail, or (iii) one day after the date of mailing, if sent by nationally
recognized overnight courier, and shall be sent return receipt requested in a
postpaid envelope, addressed to the other party at the address set forth below,
or to such changed address as the other party may have fixed by written notice;
provided, however, that any notice of change of address shall be effective only
upon receipt:
To the
Company Agree
Realty Corporation
00000 Xxxxxxxxxxxx
Xxxxxxx
Xxxxxxxxxx Xxxxx, XX
00000
Attention: Board of
Directors
To the
Executive Agree
Realty Corporation
00000 Xxxxxxxxxxxx
Xxxxxxx
Xxxxxxxxxx Xxxxx, XX
00000
Attention: Xxxxxxx
Agree
11. Assignability, Binding
Effect. This Agreement shall inure to the benefit of and be
binding upon the Company, its successors and assigns, including without
limitation any corporation which may acquire all or substantially all of the
Company’s assets and business or with or into which the Company may be
consolidated or merged, and shall inure to the benefit of and be binding upon
the Executive, his heirs, executors, administrators and legal representatives,
provided that the obligations of the Executive hereunder may not be assigned or
delegated.
8
12. Survival. Notwithstanding
the expiration or termination of this Agreement, Sections 5-18 hereof
shall survive and continue in full force and effect in accordance with their
respective terms.
13. Complete Understanding; Amendment;
Waiver. This Agreement constitutes the complete understanding
between the parties with respect to the employment of the Executive hereunder,
and no statement, representation, warranty or covenant has been made by either
party with respect thereto except as expressly set forth herein. This
Agreement shall not be altered, modified, amended or terminated except by
written instrument signed by each of the parties hereto. Waiver by
either party hereto of any breach hereunder by the other party shall not operate
as a waiver of any other breach, whether similar to or different from the breach
waived. No delay on the part of the Company or the Executive in the
exercise of any of their respective rights or remedies shall operate as a waiver
thereof, and no single or partial exercise by the Company or the Executive of
any such right or remedy shall preclude other or further exercise
thereof.
To the extent permitted by applicable
law or the Company’s benefit plans, this Agreement shall supersede any other
plan, agreement or arrangement with the Company regarding the Executive’s
employment and termination of employment.
14. Severability. If
any provision of this Agreement or the application of any such provision to any
party or circumstances shall be determined by any court of competent
jurisdiction to be invalid and unenforceable to any extent, the remainder of
this Agreement or the application of such provision to such person or
circumstances other than those to which it is so determined to be invalid and
unenforceable, shall not be affected thereby, and each provision hereof shall be
enforced to the fullest extent permitted by law.
15. Governing Law. This
Agreement shall be governed and construed in accordance with the internal laws
of the State of Michigan, without giving effect to any choice of law or conflict
or law provisions or rules that would cause the application of the laws of any
jurisdiction other than the State of Michigan.
16. Indemnification. The
Company shall indemnify and hold harmless the Executive against judgments,
fines, amounts paid in settlement and reasonable expenses, including attorneys’
fees actually and necessarily incurred, in any action or proceeding to which the
Executive is made a party by reason of the fact that he is or was an officer or
director of the Company, to the fullest extent permitted by law, the Bylaws of
the Company and the Articles of Incorporation of the Company.
17. Counterparts. This
Agreement may be executed in counterparts, all of which together shall
constitute one agreement binding on all parties hereto.
9
18. Titles and
Captions. All paragraph, article or section titles or captions
in this Agreement are for convenience only and in no way define, limit, extend
or describe the scope or intent of any provisions hereof.
19. Code Section 409A
Compliance.
(a) The
intent of the parties is that payments and benefits under this Agreement comply
with Internal Revenue Code Section 409A and the regulations and guidance
promulgated thereunder (collectively "Code Section
409A") and, accordingly, to the maximum extent permitted, this Agreement
shall be interpreted to be in compliance therewith. In no event whatsoever shall
the Company be liable for any additional tax, interest or penalty that may be
imposed on Executive by Code Section 409A or damages for failing to comply with
Code Section 409A.
(b) In
the event that any provision of this Agreement is determined by the Company or
the Executive to not comply with Code Section 409A, the Company shall fully
cooperate with Executive to reform this Agreement to correct such noncompliance
to the extent permitted under any guidance, procedure, or method promulgated by
the Internal Revenue Service now or in the future that provides for such
correction as a means to avoid or mitigate any taxes, interest, or penalties
that would otherwise be incurred by Executive on account of such
noncompliance.
(c) A
termination of employment shall not be deemed to have occurred for purposes of
any provision of this Agreement providing for the payment of any amounts or
benefits upon or following a termination of employment unless such termination
is also a "separation from service" within the meaning of Code Section 409A and,
for purposes of any such provision of this Agreement, references to a
"termination," "termination of employment" or like terms shall mean "separation
from service."
(d) Notwithstanding
any other payment date or schedule provided herein to the contrary, if the
Executive is deemed on the date of termination to be a "specified employee"
within the meaning of that term under Code Section 409A(a)(2)(B), then each of
the following shall apply:
(i) With
regard to any payment that is considered deferred compensation under Code
Section 409A payable on account of a "separation from service," to the extent
required under Code Section 409A such payment shall be made on the date which is
the earlier of (A) the expiration of the six (6)-month period measured from the
date of such "separation from service" of the Executive, and (B) the date of
Executive's death (the "Delay
Period"). Upon the expiration of the Delay Period, all payments delayed
pursuant to the preceding sentence shall be paid to Executive in a lump sum;
and
(ii) To
the extent that any benefits to be provided during the Delay Period are
considered deferred compensation under Code Section 409A provided on account of
a "separation from service," and such benefits are not otherwise exempt from
Code Section 409A, Executive shall pay the cost of such benefits during the
Delay Period, and the Company shall reimburse Executive (to the extent that such
costs would otherwise have been paid by the Company or to the extent that such
benefits would otherwise have been provided by the Company at no cost to
Executive) the Company's share of the cost of such benefits upon expiration of
the Delay Period, and any remaining benefits shall be reimbursed or provided by
the Company in accordance with the procedures specified herein.
10
(e) Notwithstanding
any other provision of this Agreement to the contrary, in no event shall any
payment under this Agreement that constitutes "deferred compensation" for
purposes of Code Section 409A be subject to offset, counterclaim or recoupment
by any other amount payable to Executive unless otherwise permitted by Code
Section 409A.
(f) Whenever
a provision of this Agreement specifies a payment period with reference to a
number of days (e.g., “payment shall
be made within ten (10) days of such termination”), the actual date of payment
within the specified period shall be within the sole discretion of the
Company.
IN WITNESS WHEREOF, each of
the parties hereto has duly executed this Agreement as of the date first above
written.
|
AGREE REALTY CORPORATION
|
|
|
By:
|
/s/ Xxxx Xxxxxxxxx
|
|
Name:
Xxxx Xxxxxxxxx
|
|
|
Title:
Chairman Executive Compensation
Committee
|
|
|
EXECUTIVE
|
|
|
/s Xxxxxxx Agree
|
|
|
Xxxxxxx
Agree
|
|
11
