EXHIBIT 10.77
EMPLOYMENT AGREEMENT
BY AND BETWEEN
KRAMONT OPERATING PARTNERSHIP, L.P.,
KRAMONT REALTY TRUST
AND
XXXXXX X. XXXXXX
Dated: Effective June 16, 2000
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is dated effective June 16, 2000,
by, between and among KRAMONT OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership ("Company"), KRAMONT REALTY TRUST, a Maryland Trust, (together with
any successor entity that elects to be taxed as a real estate investment trust
under the Code, "Kramont") and XXXXXX X. XXXXXX ("Executive").
BACKGROUND:
WHEREAS, Company desires to employ Executive as its Executive Vice
President and Chief Operating Officer and Executive desires to accept such
employment. Company and Executive intend, by this Employment Agreement, to
establish the terms and conditions of Executive's employment.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained and intending to be legally bound hereby, the parties hereto
agree as follows:
Definitions.
As used in this Agreement, the following terms shall have the following
meanings (such terms to be equally applicable to both the singular and plural
forms):
"Affiliate" means, with respect to a Person, any other Person which
directly or indirectly, through one or more intermediaries, controls, is
controlled by or under common control with such Person and in the case of
Executive, includes, without limitation, such Executive's immediate family and
any trust or other Person owned of for the benefit of any foregoing and any
Executive Affiliated Entity, and in the case of Company, includes, without
limitation, Kramont and CV Operating Partnership.
"Base Salary" shall have the meaning ascribed to it in Paragraph 4.
"Cause" means an act or omission: (a) causing material injury to Company
or any of its Affiliates and involving financial gain or benefit to Executive
and Executive's Affiliates; (b) involving repeated material breach of
Executive's material obligations; (c) whereby the Executive is charged with or
indicted of a crime constituting a felony, (d) involving any material financial
defalcation by Executive; (e) involving public intoxication or use of controlled
substances without a prescription; or (f) causing material damage to the
reputation of Company or any of its Affiliates; PROVIDED, HOWEVER, that, before
the Company may terminate the Executive for the reasons provided in (a), (b) and
(f) of this definition, the President shall deliver to Executive a written
notice of the Company's intent to terminate him for Cause, including the reasons
for such termination, and the Company will provide him an opportunity to meet
once with the President prior to such termination.
"Change of Control" means the closing of a transaction or a series of
related transactions which involves one of the following: (a) a sale of all or
substantially all of Kramont's or the Company's assets; (b) (i) a merger,
consolidation or similar transaction of Kramont or the Company (not involving a
sale of assets); and (ii) more than half of the members of the Board of Trustees
of Kramont immediately prior to closing of the transaction are no longer
Trustees of Kramont upon closing of such transactions, or (c) (i) an exchange of
equity securities of Kramont for assets or stock of another entity or Person;
and (ii) after such transaction less than 50% of the equity (regardless of the
form of the equity interests) of Kramont (or surviving entity, as the case may
be) is owned by the persons and entities who were the shareholders of Kramont
immediately prior to the closing of the transaction or (d) upon the acquisition
by any person or group of beneficial ownership (within the meaning of Rule 13d-3
under the Exchange Act) of fifty percent (50%) or more of the combined voting
power of Kramont or the Company's outstanding securities then entitled to vote
generally in the election of trustees, excluding however acquisitions by
Kramont, the Company or any of their Affiliates, or any employee benefit plan
sponsored or maintained by any of them;
"CMSA" shall mean a consolidated Metropolitan Statistical Area as
determined by the United States Census Bureau.
"Code" means the Internal Revenue Code of 1986 as amended.
"Confidential or Proprietary Information" means any secret, confidential
or proprietary information of Company, Kramont, or any of their Affiliates not
otherwise included in the definition of Trade Secret. The term does not include
information that has become generally available to the public by the act of one
who has the right to disclose such information without violating any right of
Company, Kramont or any of their Affiliates.
"Covenant Period" means the longer of the following: (a) six (6) months
from the date the Executive's employment is terminated; or (b) the Severance
Period, if Executive's employment is terminated without Cause or for Good
Reason, or (c) twelve (12) months from the date Executive's employment is
terminated, if Executive's employment is terminated upon a Change of Control.
"CV Operating Partnership" shall mean XXXXXXXXXX XX REALTY, L.P., a
Delaware limited partnership.
"Disability" shall have the meaning ascribed to it in Paragraph 6.
"End Date" means June 30, 2001.
"Executive Affiliated Entity" shall mean any Person which employs
Executive or any Person in which Executive owns a beneficial interest.
"Good Reason" means: (a) a material breach by Company of any material
provision of this Agreement, (b) a material diminution in the level of
responsibilities and authority or compensation of Executive; or (c) Company's
requiring Executive to be based at any office or location outside of 50 miles
from the Plymouth Meeting, Pennsylvania, provided, however, that no event or
condition described in clauses (a) through (c) of this definition shall
constitute Good Reason unless (i) Executive gives the Company written notice of
his objection to such event or condition, (ii) such event or condition is not
corrected by the Company within 20 business days of its receipt of such notice
(the "Cure Period") (or in the event that such event or condition is not
susceptible of correction within such 20 business day Cure Period, the Company
has not taken all reasonable steps within such Cure Period to correct such event
or condition as promptly as practicable thereafter) and (iii) Executive resigns
his employment with the Company and its Affiliates by written notice to the
Company not more than 60 days following the expiration of the Cure Period. The
change in the person or persons to whom Executive reports shall not constitute
"Good Reason" provided such changes do not cause a material diminution in the
level of responsibilities and authority or compensation of Executive.
"Initial Term of Employment" means the term beginning with the Start Date
and ending with the End Date.
"Losses" means, to the extent suffered or incurred, all losses,
liabilities, costs, claims, fines, penalties or damages and expenses, including
without limitation court costs, costs of investigation and fees and
disbursements of counsel.
"Option Agreement" means that certain Option Agreement by and between
Executive and the Company, a copy of which is attached hereto as Exhibit A, and
incorporated herein by reference, as same may be amended, modified, supplemented
or restated from time to time.
"Options" shall have the meaning ascribed to it in Paragraph 5.
"Option Plan" means the Kramont 2000 Incentive Plan or any successor
option plan.
"Person" means an individual, corporation, partnership agreement, business
trust, limited liability company or other entity or governmental authority.
"Plans" shall have the meaning ascribed to it in Paragraph 5.
"Severance Period" shall have the meaning ascribed to it in Paragraph
6(d).
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"Restricted Territory" shall have the meaning ascribed to it in Paragraph
9(b).
"Share" means a common share of beneficial interest of Kramont, par value
$0.01 per share.
"Start Date" means July 1, 2000.
"Term of Employment" means the Initial Term of Employment and any renewal,
extension or continuation thereof, as provided in Paragraph 3, subject to
termination as provided in this Agreement.
"Trade Secret" means information including, but not limited to, technical
or non-technical data, a formula, a pattern, a competition, a program, a device,
a method, a technique, a drawing, a process, financial data, financial plans,
product plans, or a list of actual or potential customers or suppliers which
derives economic value, actual or potential from not being generally known to,
and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use.
1. Employment.
Company hereby offers and Executive hereby accepts employment for the Term
of Employment as the Executive Vice President and Chief Operating Officer of the
Company upon the terms and conditions contained herein. Executive shall also
serve in such capacities with such Affiliate of the Company as the President of
the Company shall from time to time request and initially shall also serve as
the Executive Vice President and Chief Operating Officer of Kramont.
2. Duties.
Executive shall perform all duties consistent with the position of
Executive Vice President and Chief Operating Officer, as well as any other
duties which are assigned to Executive by the President of Company and which
relate to Company or any of its Affiliates. Executive will devote his entire
business time and efforts during the Term of Employment to fulfill faithfully,
responsibly and satisfactorily those duties and to further the best interests of
Company and its Affiliates. Executive shall render his services exclusively to
the Company and its Affiliates during the Term of Employment.
3. Term
Subject to the provisions of Paragraph 6, Executive shall be employed
hereunder for the Initial Term of Employment and, at the expiration of the
Initial Term of Employment, this Agreement shall continue for successive one (1)
year periods unless Executive's employment is terminated as provided in
Paragraph 6 or unless either party shall have given the other party at least
ninety (90) days' written notice prior to the expiration of the then effective
Term of Employment of such party's desire to terminate this Agreement at the
expiration of such effective Term of Employment.
4. Compensation.
(a) Base Salary.
During the Term of Employment, Company shall compensate Executive at the
base salary of $185,000 per annum, ("Base Salary") payable in equal biweekly
installments in accordance with the Company's normal payroll practices.
Executive's Base Salary will be reviewed periodically, but not less than
annually, and may be increased (but not decreased) at the discretion of the
Company.
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(b) Bonus Compensation.
Executive shall be eligible for bonus compensation pursuant to the then
existing bonus plan applicable to similarly situated employees; but in no event
shall Executive's bonus be less than $12,500 per quarter during the Initial Term
of Employment.
5. Employee Benefit Plans and Stock Options.
(a) Benefits. During the term of Employment, Executive shall be
entitled to: (i) participate in any insurance or benefit plans or programs that
are generally available to Company's executive employees of equal status,
including without limitation any health, life, accident or disability insurance
plans or programs, and any profit sharing or retirement plans, subject to all of
the eligibility requirements, terms and conditions of such plans and programs
and the Kramont 2000 Incentive Plan (collectively "Plans"); (ii) three (3) weeks
of vacation subject to Company's vacation policies; (iii) be reimbursed for all
reasonable and necessary business expenses incurred by Executive in performing
the duties hereunder upon presentation by Executive of an itemized accounting of
such expenditures, in accordance with Company practice. Company waives any
initial waiting periods normally imposed under its health plans and programs, to
the extent waivable without cost to Company. Nothing in this Agreement shall
require the Company to institute or maintain any Plans or entitle Executive to
any award under any Plans providing for discretionary awards.
(b) Stock Options. Subject to the terms and conditions of this
Agreement and the Option Agreement, Kramont agrees to grant to Executive options
(the "Options") to purchase 5,000 Shares of Kramont. Simultaneous upon the
execution of this Agreement, Executive agrees to execute and deliver to Company
the Option Agreement in the form attached as Exhibit "A" to this Agreement.
(c) Withholding. Any payments made under this Paragraph 5 or any
other Paragraph of this Agreement shall be made subject to the applicable laws
and regulations governing withholding for the payment by Executive or Company,
as may be applicable, of federal, state and local taxes.
(d) Automobile Allowance. Provided the Executive shall lease an
automobile used in the performance of the Executive's duties hereunder,
Executive shall be entitled to receive an automobile allowance of $715.01 per
month. Executive shall provide to the Company a copy of any lease for such
automobile to be used in the performance of his duties. In addition, upon
presentation by the Executive of an itemized accounting for such expenditures,
the Company shall reimburse the Executive for normal and customary expenses
incurred with respect to the maintenance, repair and insuring of the Executive's
automobile.
(e) Other Benefits. The Company agrees to reimburse Executive
annually for (i) Executive's comprehensive annual medical examination and tests,
to the extent not covered by insurance, and (ii) Executive's annual session with
a financial planner not to exceed $1,500 per calendar year.
6. Termination and Severance Benefits.
(a) Death. Executive's employment under this Agreement shall
immediately terminate and all rights, benefits and obligations hereunder shall
cease in the event of Executive's death except for benefits accrued but unpaid
for any period prior to Executive's death or pursuant to any Plans and the pro
rata portion of any bonus which Executive would have been entitled to pursuant
to subparagraph 4(b) and unreimbursed expenses.
(b) Disability. In the event that a reputable medical doctor
selected by and engaged at the expense of Company determines that Executive, by
reason of physical or mental disability, is and has been unable to perform
substantially Executive's usual and customary duties under this Agreement for a
period of ninety (90) consecutive days or 120 days in the aggregate in any 12
month period ("Disability"), Executive's employment under this Employment
Agreement shall be terminated and all benefits and obligations hereunder shall
cease except for benefits accrued but unpaid for any period prior to the
beginning of such disability or pursuant to any Plans and the pro rata portion
of any bonus which Executive would have been entitled to pursuant to
subparagraph 4(b) and unreimbursed expenses.
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(c) Cause; Without Good Reason. Company shall have the right to
terminate Executive's employment under this Agreement at any time for Cause. The
Executive shall have the right to terminate his employment under this Agreement
without Good Reason. If, prior to the expiration of the Term of Employment,
Executive's employment is terminated by Company for Cause, or Executive resigns
from employment hereunder without Good Reason, Executive shall be entitled only
to payment of the Base Salary as then in effect through and including the date
of such termination or resignation and all accrued but unpaid bonus compensation
and unreimbursed business expenses. Executive shall have no further right to
receive any other compensation or benefits after such termination or resignation
of employment.
(d) Without Cause; Good Reason. Except as provided in subparagraph
6(e), if, prior to the expiration of the Term of Employment, Executive's
employment is terminated by the Company without Cause, or if Executive
terminates employment hereunder for Good Reason: (i) the Company shall pay
Executive the Base Salary then in effect for a period of twelve (12) months
beginning as of the date of termination, at such intervals as the same would
have been paid had Executive remained in the active service of the Company
("Severance Period") and all accrued and unpaid bonus and other awards and
unreimbursed expenses owing as of the date of termination; and (ii) Executive
shall be entitled to continue to participate during the Severance Period in the
Plans in which he participated at the time of such termination and receive any
benefits to which Executive is entitled thereunder; and (iii) all stock options
and other awards subject to vesting periods not then expired shall immediately
become fully vested. Executive shall have no further right to receive any other
compensation or benefits after such termination or resignation of employment. In
the event of Executive's death during the Severance Period, payments of Base
Salary under this Paragraph shall continue to be made during the remainder of
the Severance Period to the beneficiary designated in writing for this purpose
by Executive or, if no such beneficiary is specifically designated, to
Executive's estate. Executive shall have no obligation to mitigate the Company's
severance obligations under this subparagraph 6(d) and no amounts earned by
Executive following such termination shall be deemed to reduce the payments
required under this subparagraph 6(d).
(e) Change in Control. If prior to the expiration of the Term of
Employment, in the event of a Change of Control and Executive's employment is
terminated by the Company, without Cause or by Executive for Good Reason, within
6 months of the closing of the transaction giving rise to the Change in Control:
(i) Executive shall become immediately entitled to receive a lump sum payment by
the Company (or its successor in interest) in an amount equal to two (2) time
his annual Base Salary then in effect, plus all accrued and unpaid bonus and
other awards and unreimbursed expenses; and (ii) Executive shall be entitled for
twelve (12) months after such termination to continue to participate in the
Plans in which he participated at the time of such termination and receive any
benefits to which Executive is entitled thereunder; and (iii) all stock options
and other awards subject to vesting periods not then expired shall, effective
upon such Closing, become fully vested. Executive shall have no obligation to
mitigate the Company's severance obligations under this subparagraph 6(e) and no
amounts earned by Executive following such termination shall be deemed to reduce
the payments required under this subparagraph 6(e).
(f) Date of Termination. The date of termination of Executive's
employment by the Company, with or without Cause, shall be the date specified in
a written notice of termination to Executive. The date of resignation for Good
Reason shall be the date specified in the written notice of resignation from
Executive to Company; provided, however, that no such written notice shall be
effective unless the Cure Period specified in the definition of Good Reason has
expired without Company having reasonably corrected the event or events subject
to cure. If no date of resignation is specified in the written notice from
Executive to Company, the date of termination shall be the first day following
such expiration of such Cure Period. The date of termination in the event of a
Change of Control in connection with which Executive gives a timely notice of
termination shall be the date of the Closing, or, if later, the date of such
notice.
(g) Non-Renewal. If the Company terminates this Agreement at the end
of the Initial Term of Employment pursuant to paragraph 3, the Company shall pay
Executive the Base Salary then in effect for a period of six (6) months
beginning as of the date of termination, at such intervals as the same would
have been paid had Executive remained in the active service of the Company.
Other than amounts owing to Executive, Executive shall have no further right to
receive any other compensation or benefits after such termination of employment.
7. Insurance.
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Subject to Executive performing all of the requirements of the life
insurer which are necessary conditions to obtaining and keeping in force life
insurance and provided it is obtainable for a commercially reasonable premium,
Company shall purchase and maintain in effect, at the expense of the Company,
for the Term of Employment, a term life insurance policy, in the amount of
Executive's annual Base Salary, on the life of. Executive with the right to name
the beneficiaries of the life insurance policy reserved to Executive. If Company
cannot obtain such insurance for a commercially reasonable premium, then, in the
event of Executive's death while employed hereunder, the Company shall pay
Executive's estate in addition to all other amounts payable hereunder, an
additional severance payment in the amount of Executive's annual Base Salary.
8. Indemnification.
Company shall defend and hold Executive harmless to the fullest extent
permitted by the law in connection with any Losses arising out of or relating to
the performance by Executive of services for, or actions of Executive as an
officer or employee of Company, Kramont, any of their Affiliates or of any other
person or enterprise at Company's request.
9. Noncompetition.
(a) During his employment and for a period of one (1) year following
the termination of this employment, Executive agrees not to hire, directly or
indirectly, or entice or participate in any efforts to entice to leave the
Company's or its Affiliates employ, any person who is an employee of Company or
its Affiliates.
(b) During his employment and for the Covenant Period, Executive
agrees not to directly or indirectly solicit, induce or influence any tenant, at
a specific location of any retail shopping center or other commercial real
estate owned, directly or indirectly, in whole or in part, by Company or its
Affiliates (collectively "Tenant") to discontinue or reduce the extent of such
Tenant's relationship with Company or any of its Affiliates (including, without
limitation, to terminate a lease before the stated expiration date, to reduce
the amount of space demised pursuant to a lease, to fail to enter into a
proposed lease or to fail to exercise any renewal or expansion option in any
then existing lease). The restrictions in this subparagraph 9(b) shall be
limited to an area of three (3) miles around any shopping center owned or
managed by the Company or its Affiliates located in a CMSA and shall be limited
to an area of five (5) miles around any such shopping center not located in a
CMSA (collectively "Restricted Territory").
(c) Executive agrees to hold in a fiduciary capacity for the benefit
of the Company and its Affiliates, and not directly or indirectly use or
disclose any Trade Secret, that Executive may have acquired during the term of
employment by the Company for so long as such information remains a Trade
Secret. In addition to the foregoing and not in limitation thereof, Executive
agrees that he will hold in a fiduciary capacity for the benefit of the Company
and its Affiliates and shall not directly or indirectly use or disclose, any
Confidential or Proprietary Information that Executive may have acquired
(whether or not developed or compiled by Executive and whether or not Executive
was authorized to have access to such information) during the term of, in the
course of or as a result of employment by the Company or its Affiliates.
(d) Executive acknowledges that the restrictions, prohibitions and
other provisions hereof, including without limitation the definition of
Restricted Territory are reasonable, fair and equitable in scope, terms and
duration, are necessary to protect the legitimate business interests of Company
and its Affiliates, and are a material inducement to the Company and its
Affiliates to enter into this Agreement. Without intending to limit the remedies
available to the Company, in the event of a breach or attempted breach of this
Paragraph 9, Company shall be entitled to preliminary and permanent injunctive
relief without proof of actual damages or posting of any bond or other security.
Executive hereby waives and covenants not to assert in any action or proceeding
relating to this Agreement, any claim or defense that there exists an adequate
remedy at law for breach of this Agreement.
10. Waiver.
Executive hereby waives any rights to and agrees that neither the Company,
Kramont nor any Affiliate is obligated to pay Executive any amount for any
period or in connection with any compensation or benefits under
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plan, program or agreement entered into or applicable to Executive prior to June
16, 2000 (other than unpaid salary for the current period and rights under stock
options assumed by the Company).
11. Arbitration.
Any determination with respect to Executive's rights pursuant to any Plan
or any award thereunder shall be determined by the administrator or committee
designated by the Company to make determinations with respect to such Plan. Such
determinations as to any Plan or award shall be the final decision of the
Company. The parties hereto will endeavor to resolve in good faith any
controversy, disagreement or claim arising between them, whether as to the
interpretation, performance or operation of this Agreement or any rights or
obligations hereunder. If they are unable to do so, any such controversy,
disagreement or claim will be submitted to binding arbitration, for final
resolution without appeal, by either party giving written notice to the other of
the existence of a dispute which is desired to have arbitrated. The arbitration
will be concluded in Philadelphia, Pennsylvania by a panel of three (3)
arbitrators and will be held in accordance with the rules of the American
Arbitration Association. Of the three arbitrators, one will be selected by the
Company, one will be selected by Executive and the two arbitrators so selected
will select the third. Each party will notify the other party of the arbitrator
selected by Executive within fifteen (15) days after the giving of the written
notice referred by Executive within fifteen (15) days after the giving of the
written notice referred to in this Paragraph 11. The decision and award of the
arbitrators must be in writing and will be final and binding upon the parties
hereto. Judgment upon the award may be entered in any court having jurisdiction
thereof, or application may be made to such court for a judicial acceptance of
the award and an order of enforcement, as the case may be. The expenses of
arbitration will be borne in accordance with the determination of the
arbitrators with respect to the dispute or difference undergoing arbitration.
All other obligations of the parties will continue as stipulated herein, and all
monies not directly involved in such dispute or difference will be paid when
due. Notwithstanding the foregoing, nothing herein shall limit the rights of the
Company to seek injunctive relief as provided in Paragraph 9 of this Agreement.
12. Conflicting Agreements.
Each party hereto hereby represents and warrants to the other party that
the entering into this Agreement, and the obligations and duties undertaken by
such party hereunder, will not conflict with, constitute a breach of, or
otherwise violate the terms of, any other employment or other agreement to which
Executive is a party.
13. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, assigns, heirs and personal
representatives but may not be assigned by Executive.
14. Notices.
All notices, requests, demands and other communications hereunder must be
in writing and shall be deemed to have been duly given when delivered by hand,
overnight mail, or 5 days after being mailed within the continental United
States by first class certified mail, return receipt requested, postage prepaid,
to the other party, addressed as follows:
if to the Company:
Xxxxxxxx Xxxxx
000 X. Xxxxxxxxxx Pike, Suite 200
Plymouth Meeting, PA 19462
Attention: President
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With a copy to:
Xxxxxxx X. Xxxxx, Esquire
Fox, Rothschild, O'Brien & Xxxxxxx
0000 Xxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
If to Executive:
Xxxxxx X. Xxxxxx
000 Xxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
With a copy to:
Xxxxxxxx X. Xxxxx, Esquire
Xxxxxxxx Ronon Xxxxxxx & Xxxxx, LLP
0000 Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Addresses may be changed by written notice sent to the other party at the last
recorded address of that party or by hand delivery to the party.
15. Severability.
If any provision of this Agreement is deemed by a court of competent
jurisdiction to be unenforceable as written, it shall be construed more narrowly
to be as broad as is enforceable. If any provision of this Agreement shall be
adjudged by any court of competent jurisdiction to be invalid or unenforceable
for any reason, such judgment shall not affect, impair or invalidate the
remainder of this Agreement.
16. Prior Understandings.
This Agreement (including the Exhibits hereto) embodies the entire
understanding of the parties hereof, and supersedes all other oral or written
agreements or understandings between them regarding the subject matter hereof.
No change, alteration or modification hereof may be made except in writing,
signed by the parties hereto. The headings in this Agreement are for convenience
and reference only and shall not be construed as part of this Agreement or to
limit or other wise affect the meaning hereof.
17. Execution in Counterparts.
This Agreement may be executed by the parties hereto in counterparts, each
of which shall be, deemed to be original, but all such counterparts shall
constitute one and the same instrument, and all signatures need not appear on
any one counterpart.
18. Governing Law.
This Agreement shall be construed and governed under the laws of the
Commonwealth of Pennsylvania, without regard to its choice of law principles.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Employment Agreement as of the day and year first above written.
KRAMONT OPERATING PARTNERSHIP, L.P.
Attest: /s/ Xxxx Xxxxxx, Secretary By: /s/ Xxxxx X. Xxxxxx, Xx., President
---------------------------------------
KRAMONT REALTY TRUST
Attest: /s/ Xxxx Xxxxxx, Secretary By: /s/ Xxxxx X. Xxxxxx, Xx., President
---------------------------------------
EXECUTIVE:
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
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EXHIBIT A
STOCK OPTION AGREEMENT
(INCENTIVE STOCK OPTION)
PURSUANT TO THE
KRAMONT REALTY TRUST
2000 INCENTIVE PLAN
AGREEMENT, dated effective June 16, 2000 by and between Kramont Realty
Trust (the "Company") and Xxxxxx X. Xxxxxx (the "Participant").
Preliminary Statement
The Participant has been granted, subject to execution of this agreement,
under Kramont Realty Trust 2000 Incentive Plan (the "Plan"), an incentive stock
option (the "Option") on (the "Grant Date") to purchase the number of shares of
the Company's common shares of beneficial interest, par value $.01 per share
(the "Shares") set forth below. A copy of the Plan has been delivered to the
Participant. By signing and returning this Agreement, the Participant
acknowledges having received and read a copy of the Plan and agrees to comply
with it, this Agreement and all applicable laws and regulations.
Accordingly, the parties hereto agree as follows:
1. Tax Matters. The Option granted hereby is intended to qualify as an
"incentive stock option" under Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code"). Notwithstanding the foregoing, the Option will not
qualify as an "incentive stock option," if among other events, (i) the
Participant disposes of the Shares acquired pursuant to the exercise of the
Option at any time during the two-year period following the date of this
Agreement of the one-year period following the date on which the Option is
exercised or (ii) except in the case of a termination of employment as a result
of death, the Participant is not employed by the Company, any subsidiary or
parent (within the meaning of Code Sections 424(f) and 424(e), respectively) at
all times during the period beginning on the date of this Agreement and ending
on the day three months (or one year in the case of the Participant's disability
(within the meaning of Section 22(e)(3) of the Code)) before the date of
exercise of the Option. To the extent that the Option does not qualify as an
"incentive stock option", it shall constitute a separate, non-qualified stock
option.
2. Grant of Option. Subject in all respects to the Plan and the terms and
conditions set forth herein, the Participant is hereby granted an Option to
purchase from the Company Shares, at a price per share of $10.16 (the "Option
Price").
3. Exercise.
Except as otherwise provided in subsection (b) below, the Option shall
become exercisable in installments on the dates provided below, which shall be
cumulative; provided that the Participant is employed by the Company or any of
its Subsidiary's or Affiliates (together, hereinafter referred to as the
"Employer") as of the applicable date. To the extent that the Option has become
vested and exercisable with respect to a number of Shares granted as provided
below, the Option may thereafter be exercised by the Participant, in whole or in
part, at any time or from time to time prior to the expiration of the Option as
provided herein and in accordance with the provisions of Section 9.3 of the
Plan, including without limitation, by the filing of such written form of
exercise notice, if any, as may be required by the Committee and payment in full
of the Option Price multiplied by the number of Shares so exercised. Upon
expiration of the Option, the Option shall be canceled and no longer
exercisable. The following table indicates the dates (the "Vesting Dates") upon
which the Participant shall be entitled to exercise the Option with respect to
the number of shares granted as indicated beside that date:
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Vesting Date Total Number of Shares
------------ ----------------------
1st Anniversary of Grant Date 1000
2nd Anniversary of Grant Date 1000
3rd Anniversary of Grant Date 1000
4th Anniversary of Grant Date 1000
5th Anniversary of Grant Date 1000
Except as provided below, there shall be no proportionate or partial
vesting in the periods prior to each Vesting Date and all vesting shall occur
only on the appropriate Vesting Date.
(a) In the event that Participant's employment with the Company is
terminated: (i) for Good Reason (as defined herein), (ii) without Cause (as
defined herein) or (iii) upon a Change of Control (as defined herein), then all
Options subject to vesting periods not then expired shall become vested.
Notwithstanding the foregoing, the Options
(b) Notwithstanding any other provision to the contrary, to the extent
this Option is not vested upon the Participant's termination of employment with
the Employer, including in the event that the Participant's employment pursuant
to any agreement is not renewed or extended (a "Termination of Employment"), the
Option shall, upon such Termination of Employment, be non-exercisable and shall
be canceled.
4. Option Term. The term of each Option shall be 10 years after the Grant
Date, subject to earlier termination in the event of the Participant's
Termination of Employment as specified in Section 3(c) above and Section 5
below.
5. Termination.
Subject to Section 4 above, the Option, to the extent vested and
exercisable at the time of the Participant's Termination of Employment, shall
remain exercisable as follows:
(a) In the event of the Participant's Termination of Employment by reason
of death or a "Disability" (as defined herein), as provided in Sections 9.6 and
9.7 of the Plan, respectively.
(b) In the event of the Participant's Termination of Employment by the
Company without "Cause" (as defined below) or voluntary Termination of
Employment for any reason, until ninety (90) days after the date of such
Termination of Employment.
(c) In the event of the Participant's Termination of Employment for
"Cause", the Participant's entire Option (whether or not vested) shall be
forfeited and canceled in its entirety upon such termination of employment.
(d) For the purposes of this Option Agreement, the terms "Cause", "Good
Reason" and "Disability" shall have the respective meaning as provided in any
Employment Agreement then in effect for the Participant. In the event that there
no employment agreement then in effect or such term is not defined therein, then
(i) "Cause" shall be defined as actions or inactions by the Participant which
constitute gross negligence, gross misconduct, willful misconduct, dishonest
conduct, malfeasance, misfeasance or nonfeasance, criminal conduct, fraud, a
material breach of any of the Participant's duties, responsibilities or
obligations under any employment agreement entered into between the Participant
and the Company, Kramont Operating Partnership, L.P. or any of their
Subsidiaries or Affiliates, or habitual abuse of drugs or alcohol, and (ii)
"Disability" shall be as defined in Section 22(e)(3) of the Code.
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6. Restriction on Transfer of Option. The Option granted hereby shall not
be transferable otherwise than by will or under the laws of descent and
distribution and during the Participant's lifetime may be exercised only by the
Participant or Participant's guardian or legal representative. In addition, the
Option shall not be assigned, negotiated, pledged or hypothecated in any way
(whether by operation of law or otherwise), and the Option shall not be subject
to execution, attachment or similar process. Upon any attempt to transfer,
assign, negotiate, pledge or hypothecate the Option, or in the event of any levy
upon the Option reason of any execution, attachment or similar process contrary
to the provisions hereof, the Option shall immediately become null and void.
7. Rights as a Stockholder. The Participant shall have no rights as a
stockholder with respect to any Shares covered by the Option unless and until
the Participant has become the holder of record of the Shares, and no
adjustments shall be made for dividends in cash or other property, distributions
or other rights in respect of any such Shares, except as otherwise specifically
provided for in the Plan.
8. Provisions of Plan Control. This Agreement is subject to all the terms,
conditions and provisions of the Plan, including, without limitation, the
amendment provisions thereof, and to such rules, regulations and interpretations
relating to the Plan as may be adopted by the Committee and as may be in effect
from time to time. Unless otherwise indicated, any capitalized term used but not
defined herein shall have the meaning ascribed to such term in the Plan. The
Plan is incorporated herein by reference. If and to the extent that this
Agreement conflicts or is inconsistent with the terms, conditions and provisions
of the Plan, the Plan shall control, and this Agreement shall be deemed to be
modified accordingly.
9. Notices. Any notice or communication given hereunder shall be in
writing and shall be deemed to have been duly given when delivered by United
States mail, to the appropriate party at the address set forth below (or such
other address as the party shall from time to time specify) or in the case of
notice to the Company, by facsimile to the facsimile number set below:
If to the Company, to:
Kramont Realty Trust
Plymouth Plaza
000 X. Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX
Attention: President
(000) 000-0000 Facsimile
If to the Participant, to:
Xxxxxx X. Xxxxxx
000 Xxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
The address indicated after the Participant's signature at the end of this
Agreement.
10. No Obligation to Continue Employment. This Agreement is not an
agreement of employment or any other relationship. This Agreement does not
guarantee that the Employer will employ or otherwise retain the Participant for
any specific time period, nor does it modify in any respect the Employer's right
to terminate or modify the Participant's employment relationship or compensation
at any time.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
KRAMONT REALTY TRUST
By: /s/ Xxxxx X. Xxxxxx, Xx., President
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Accepted:
/s/ Xxxxxx X. Xxxxxx
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Home Address:
000 Xxxxxxxx Xxxx
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Xxxx Xxxx, XX 00000
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EXHIBIT 10.77
EMPLOYMENT AGREEMENT
BY AND BETWEEN
KRAMONT OPERATING PARTNERSHIP, L.P.,
KRAMONT REALTY TRUST
AND
XXXXXX X. XXXXXX
Dated: Effective July 1, 2001
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is dated effective July 1, 2001,
by, between and among KRAMONT OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership ("Company"), KRAMONT REALTY TRUST, a Maryland Trust, (together with
any successor entity that elects to be taxed as a real estate investment trust
under the Code, "Kramont") and XXXXXX X. XXXXXX ("Executive").
BACKGROUND:
WHEREAS, Company desires to employ Executive as its Executive Vice
President and Chief Operating Officer and Executive desires to accept such
employment. Company and Executive intend, by this Employment Agreement, to
establish the terms and conditions of Executive's employment.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained and intending to be legally bound hereby, the parties hereto
agree as follows:
Definitions.
As used in this Agreement, the following terms shall have the following
meanings (such terms to be equally applicable to both the singular and plural
forms):
"Affiliate" means, with respect to a Person, any other Person which
directly or indirectly, through one or more intermediaries, controls, is
controlled by or under common control with such Person and in the case of
Executive, includes, without limitation, such Executive's immediate family and
any trust or other Person owned or for the benefit of any foregoing and any
Executive Affiliated Entity, and in the case of Company, includes, without
limitation, Kramont and CV Operating Partnership.
"Base Salary" shall have the meaning ascribed to it in Paragraph 4.
"Cause" means an act or omission: (a) causing material injury to Company
or any of its Affiliates and involving financial gain or benefit to Executive
and Executive's Affiliates; (b) involving repeated material breach of
Executive's material obligations; (c) whereby the Executive is charged with or
indicted of a crime constituting a felony, (d) involving any material financial
defalcation by Executive; (e) involving public intoxication or use of controlled
substances without a prescription; or (f) causing material damage to the
reputation of Company or any of its Affiliates; PROVIDED, HOWEVER, that, before
the Company may terminate the Executive for the reasons provided in (a), (b) and
(f) of this definition, the President shall deliver to Executive a written
notice of the Company's intent to terminate him for Cause, including the reasons
for such termination, and the Company will provide him an opportunity to meet
once with the President prior to such termination.
"Change of Control" means the closing of a transaction or a series of
related transactions which involves one of the following: (a) a sale of all or
substantially all of Kramont's or the Company's assets; (b) (i) a merger,
consolidation or similar transaction of Kramont or the Company (not involving a
sale of assets) or an exchange of equity of securities of Kramont for assets or
stock of another entity or person, and (ii) more than half of the members of the
Board of Trustees of Kramont immediately prior to the closing of the transaction
are no longer members of the Board of Trustees upon the closing of such
transaction, and (iii) after such transaction less than 50% of the equity
(regardless of the form of the equity interests) of Kramont (or the surviving
entity, as the case may be) is owned by the persons and entities who were the
shareholders of Kramont immediately prior to the closing of the transaction; (c)
the acquisition by any person or group of beneficial ownership (within the
meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of
fifty percent (50%) or more of the combined voting power of Kramont's or the
Company's outstanding securities then entitled to vote generally in the election
of trustees, excluding however acquisitions by Kramont, the Company or any of
their Affiliates, or any employee benefit plan sponsored or maintained by any of
them; or (d) the dissolution or liquidation of Kramont or the Company.
"CMSA" shall mean a Consolidated Metropolitan Statistical Area as
determined by the United States Census Bureau.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidential or Proprietary Information" means any secret, confidential
or proprietary information of Company, Kramont, or any of their Affiliates not
otherwise included in the definition of Trade Secret. The term does not include
information that has become generally available to the public by the act of one
who has the right to disclose such information without violating any right of
Company, Kramont or any of their Affiliates.
"Covenant Period" means the longer of the following: (a) six (6) months
from the date the Executive's employment is terminated; or (b) the Severance
Period, if Executive's employment is terminated without Cause or for Good
Reason; or (c) twelve (12) months from the date Executive's employment is
terminated, if Executive's employment is terminated upon a Change of Control.
"CV Operating Partnership" shall mean XXXXXXXXXX XX REALTY, L.P., a
Delaware limited partnership.
"Disability" shall have the meaning ascribed to it in Paragraph 6.
"End Date" means June 30, 2004.
"Executive Affiliated Entity" shall mean any Person which employs
Executive or any Person in which Executive owns a beneficial interest.
"Good Reason" means: (a) a material breach by Company of any material
provision of this Agreement; (b) a material diminution in the level of
responsibilities and authority or compensation of Executive; or (c) Company's
requiring Executive to be based at any office or location outside of 50 miles
from the Plymouth Meeting, Pennsylvania, provided, however, that no event or
condition described in clauses (a) through (c) of this definition shall
constitute Good Reason unless (i) Executive gives the Company written notice of
his objection to such event or condition, (ii) such event or condition is not
corrected by the Company within 20 business days of its receipt of such notice
(the "Cure Period") (or in the event that such event or condition is not
susceptible of correction within such 20 business day Cure Period, the Company
has not taken all reasonable steps within such Cure Period to correct such event
or condition as promptly as practicable thereafter), and (iii) Executive resigns
his employment with the Company and its Affiliates by written notice to the
Company not more than 60 days following the expiration of the Cure Period. The
change in the person or persons to whom Executive reports shall not constitute
"Good Reason," nor shall a change to the specific mix of responsibilities of
Executives constitute "Good Reason," provided such changes do not cause a
material diminution in the level of responsibilities and authority or
compensation of Executive.
"Initial Term of Employment" means the term beginning with the Start Date
and ending with the End Date.
"Losses" means, to the extent suffered or incurred, all losses,
liabilities, costs, claims, fines, penalties or damages and expenses, including
without limitation court costs, costs of investigation and fees and
disbursements of counsel.
"Person" means an individual, corporation, partnership agreement, business
trust, limited liability company or other entity or governmental authority.
"Plans" shall have the meaning ascribed to it in Paragraph 5.
"Restricted Share Grant Agreement" means that certain Restricted Share
Grant Agreement by and between Executive and the Company, a copy of which is
attached hereto as Exhibit "A", and incorporated herein by reference, as same
may be amended, modified, supplemented or restated from time to time.
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"Severance Period" shall have the meaning ascribed to it in Paragraph
6(d).
"Restricted Territory" shall have the meaning ascribed to it in Paragraph
9(b).
"Share" means a common share of beneficial interest of Kramont, par value
$0.01 per share.
"Start Date" means July 1, 2001.
"Term of Employment" means the Initial Term of Employment and any renewal,
extension or continuation thereof, as provided in Paragraph 3, subject to
termination as provided in this Agreement.
"Trade Secret" means information including, but not limited to, technical
or nontechnical data, a formula, a pattern, a competition, a program, a device,
a method, a technique, a drawing, a process, financial data, financial plans,
product plans, or a list of actual or potential customers or suppliers which
derives economic value, actual or potential from not being generally known to,
and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use.
1. Employment.
Company hereby offers and Executive hereby accepts employment for the Term
of Employment as the Executive Vice President and Chief Operating Officer of the
Company upon the terms and conditions contained herein. Executive shall also
serve in such capacities with such Affiliate of the Company as the President of
the Company shall from time to time request and initially shall also serve as
the Executive Vice President and Chief Operating Officer of Kramont.
2. Duties.
Executive shall perform all duties consistent with the position of
Executive Vice President and Chief Operating Officer, as well as any other
duties which are assigned to Executive by the President of Company and which
relate to Company or any of its Affiliates. Executive will devote his entire
business time and efforts during the Term of Employment to fulfill faithfully,
responsibly and satisfactorily those duties and to further the best interests of
Company and its Affiliates. Executive shall render his services exclusively to
the Company and its Affiliates during the Term of Employment.
3. Term.
Subject to the provisions of Paragraph 6, Executive shall be employed
hereunder for the Initial Term of Employment and, at the expiration of the
Initial Term of Employment, this Agreement shall continue for successive one (1)
year periods unless Executive's employment is terminated as provided in
Paragraph 6 or unless either party shall have given the other party at least
ninety (90) days' written notice prior to the expiration of the then effective
Term of Employment of such party's desire to terminate this Agreement at the
expiration of such effective Term of Employment.
4. Compensation.
(a) Base Salary.
During the Term of Employment, Company shall initially compensate
Executive at the base salary of $192,000.00 per annum ("Base Salary"). The
aforesaid Base Salary shall be payable in equal biweekly installments in
accordance with the Company's normal payroll practices. Executive's Base Salary
will be reviewed periodically, but not less than annually, and may be increased
(but not decreased) at the discretion of the Company.
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(b) Bonus Compensation.
Executive shall be eligible for annual bonus compensation pursuant to
Exhibit "B" attached hereto or other such bonus plan(s) to which the Company and
Executive may hereinafter agree.
5. Employee Benefit Plans and Restricted Share Grants.
(a) Benefits. During the term of Employment, Executive shall be
entitled to: (i) participate in any insurance or benefit plans or programs that
are generally available to Company's executive employees of equal status,
including without limitation any health, life, accident or disability insurance
plans or programs, and any profit sharing or retirement plans, subject to all of
the eligibility requirements, terms and conditions of such plans and programs
and the Kramont 2000 Incentive Plan (collectively "Plans"); (ii) four (4) weeks
of vacation subject to Company's vacation policies; (iii) be reimbursed for all
reasonable and necessary business expenses incurred by Executive in performing
the duties hereunder upon presentation by Executive of an itemized accounting of
such expenditures, in accordance with Company practice. Company waives any
initial waiting periods normally imposed under its health plans and programs, to
the extent waivable without cost to Company. Nothing in this Agreement shall
require the Company to institute or maintain any Plans or entitle Executive to
any award under any Plans providing for discretionary awards.
(b) Restricted Share Grants. Subject to the terms and conditions of
this Agreement and the Restricted Share Grant Agreement, Kramont agrees to grant
to Executive 11,765 restricted shares of Kramont. Simultaneously upon the
execution of this Agreement, Executive agrees to execute and deliver the Company
the Restricted Share Grant Agreement in the Form attached as Exhibit "A" to this
Agreement.
(c) Withholding. Any payments made under this Paragraph 5 or any
other Paragraph of this Agreement shall be made subject to the applicable laws
and regulations governing withholding for the payment by Executive or Company,
as may be applicable, of federal, state and local taxes.
(d) Automobile Allowance. Provided the Executive shall lease an
automobile used in the performance of the Executive's duties hereunder,
Executive shall be entitled to receive an automobile allowance of $830 per
month. Executive shall provide to the Company a copy of any lease for such
automobile to be used in the performance of his duties. In addition, upon
presentation by the Executive of an itemized accounting for such expenditures,
the Company shall reimburse the Executive for normal and customary expenses
incurred with respect to the maintenance, repair and insuring of the Executive's
automobile.
(e) Other Benefits. The Company agrees to reimburse Executive
annually for (i) Executive's comprehensive annual medical examination and tests,
to the extent not covered by insurance, and (ii) Executive's annual session with
a financial planner not to exceed $1,500 per calendar year.
6. Termination and Severance Benefits.
(a) Death. Executive's employment under this Agreement shall
immediately terminate and all rights, benefits and obligations hereunder shall
cease in the event of Executive's death except for benefits accrued but unpaid
for any period prior to Executive's death or pursuant to any Plans and the pro
rata portion of any bonus which Executive would have been entitled to pursuant
to subparagraph 4(b) and unreimbursed expenses.
(b) Disability. In the event that a reputable medical doctor
selected by and engaged at the expense of Company determines that Executive, by
reason of physical or mental disability, is and has been unable to perform
substantially Executive's usual and customary duties under this Agreement for a
period of ninety (90) consecutive days or 120 days in the aggregate in any 12
month period ("Disability"), Executive's employment under this Employment
Agreement shall be terminated and all benefits and obligations hereunder shall
cease except for benefits accrued but unpaid for any period prior to the
beginning of such disability or pursuant to any Plans and the pro rata portion
of any bonus which Executive would have been entitled to pursuant to
subparagraph 4(b) and unreimbursed expenses.
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(c) Cause; Without Good Reason. Company shall have the right to
terminate Executive's employment under this Agreement at any time for Cause. The
Executive shall have the right to terminate his employment under this Agreement
without Good Reason. If, prior to the expiration of the Term of Employment,
Executive's employment is terminated by Company for Cause, or Executive resigns
from employment hereunder without Good Reason, Executive shall be entitled only
to payment of the Base Salary as then in effect through and including the date
of such termination or resignation and all accrued but unpaid bonus compensation
and unreimbursed business expenses. Executive shall have no further right to
receive any other compensation or benefits after such termination or resignation
of employment.
(d) Without Cause; Good Reason. Except as provided in subparagraph
6(e), if, prior to the expiration of the Term of Employment, Executive's
employment is terminated by the Company without Cause, or if Executive
terminates employment hereunder for Good Reason: (i) the Company shall pay
Executive the Base Salary then in effect for a period of twelve (12) months
beginning as of the date of termination, at such intervals as the same would
have been paid had Executive remained in the active service of the Company
("Severance Period") and all accrued and unpaid bonus and other awards and
unreimbursed expenses owing as of the date of termination; (ii) the Company
shall pay Executive an amount equal to the annual bonus compensation he received
during the fiscal year immediately prior to his termination, but not to exceed
$100,000.00; and (iii) Executive shall be entitled to continue to participate
during the Severance Period in the Plans in which he participated at the time of
such termination and receive any benefits to which Executive is entitled
thereunder; and (iii) all stock options and other awards subject to vesting
periods not then expired shall immediately become fully vested. Executive shall
have no further right to receive any other compensation or benefits after such
termination or resignation of employment. In the event of Executive's death
during the Severance Period, payments of Base Salary under this Paragraph shall
continue to be made during the remainder of the Severance Period to the
beneficiary designated in writing for this purpose by Executive or, if no such
beneficiary is specifically designated, to Executive's estate. Executive shall
have no obligation to mitigate the Company's severance obligations under this
subparagraph 6(d) and no amounts earned by Executive following such termination
shall be deemed to reduce the payments required under this subparagraph 6(d).
(e) Change in Control. If prior to the expiration of the Term of
Employment, there is a Change of Control and Executive's employment is
terminated by the Company without Cause or by Executive for Good Reason, within
two (2) years of the transactions giving rise to the Change of Control, then,
effective upon such Closing:
(i) Executive shall become immediately entitled to receive a
lump sum payment by the Company (or its successor in interest) in an amount
equal to two (2) times his annual Base Salary, plus all accrued and unpaid bonus
and extraordinary other awards and reimbursed expenses;
(ii) Executive shall become immediately entitled to receive a
lump sum payment by the Company (or its successor in interest) in an amount
equal to two (2) times his annual bonus received pursuant to subparagraph 4(b)
during the fiscal year immediately prior to the date of such termination;
(iii) Executive shall be entitled to continue the medical,
dental and life insurance coverages (or coverages similar thereto) in which he
participated at the time of such termination, at the Company's expense (provided
that coverage can be obtained at commercially reasonable rates), and receive any
benefits to which Executive is entitled thereunder for a period ending on the
sooner to occur of (a) two (2) years after the date of termination, or (b) the
date upon which Executive obtains new employment which provides him with such
coverage; and
(iv) all stock options and other award subject to vesting
periods not then expired shall, effective upon such Closing, become fully
vested; provided, however, that in no event shall any payment be made under this
subparagraph 6(e) to the extent such payment would constitute an "excess
parachute payment" within the meaning of Section 280G of the Code determined
without regard to Section 280G (b)(4) of the Code. Executive shall have no
obligation to mitigate the Company's severance obligations under this
subparagraph 6(e) and no amounts earned by Executive following such termination
shall be deemed to reduce the payments required under this subparagraph 6(e).
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(f) Date of Termination. The date of termination of Executive's
employment by the Company, with or without Cause, shall be the date specified in
a written notice of termination to Executive. The date of resignation for Good
Reason shall be the date specified in the written notice of resignation from
Executive to Company; provided, however, that no such written notice shall be
effective unless the Cure Period specified in the definition of Good Reason has
expired without Company having reasonably corrected the event or events subject
to cure. If no date of resignation is specified in the written notice from
Executive to Company, the date of termination shall be the first day following
such expiration of such Cure Period. The date of termination in the event of a
Change of Control in connection with which Executive gives a timely notice of
termination shall be the date of the Closing, or, if later, the date of such
notice.
(g) Non-Renewal. If the Company terminates this Agreement at the
end of the Initial Term of Employment pursuant to paragraph 3, the Company shall
pay Executive the Base Salary then in effect for a period of six (6) months
beginning as of the date of termination, at such intervals as the same would
have been paid had Executive remained in the active service of the Company.
Other than amounts otherwise owing to Executive under this Agreement, Executive
shall have no further right to receive any other compensation or benefits after
such termination of employment.
7. Insurance.
Subject to Executive performing all of the requirements of the life
insurer which are necessary conditions to obtaining and keeping in force life
insurance and provided it is obtainable for a commercially reasonable premium,
Company shall purchase and maintain in effect, at the expense of the Company,
for the Term of Employment, a term life insurance policy, in the amount of
Executive's annual Base Salary, on the life of. Executive with the right to name
the beneficiaries of the life insurance policy reserved to Executive. If Company
cannot obtain such insurance for a commercially reasonable premium, then, in the
event of Executive's death while employed hereunder, the Company shall pay
Executive's estate in addition to all other amounts payable hereunder, an
additional severance payment in the amount of Executive's annual Base Salary.
8. Indemnification.
Company shall defend and hold Executive harmless to the fullest extent
permitted by the law in connection with any Losses arising out of or relating to
the performance by Executive of services for, or actions of Executive as an
officer or employee of Company, Kramont, any of their Affiliates or of any other
person or enterprise at Company's request.
9. Noncompetition.
(a) During his employment and for a period of one (1) year following
the termination of this employment, Executive agrees not to hire, directly or
indirectly, or entice or participate in any efforts to entice to leave the
Company's or its Affiliates employ, any person who is an employee of Company or
its Affiliates.
(b) During his employment and for the Covenant Period, Executive
agrees not to directly or indirectly solicit, induce or influence any tenant, at
a specific location of any retail shopping center or other commercial real
estate owned, directly or indirectly, in whole or in part, by Company or its
Affiliates (collectively "Tenant") to discontinue or reduce the extent of such
Tenant's relationship with Company or any of its Affiliates (including, without
limitation, to terminate a lease before the stated expiration date, to reduce
the amount of space demised pursuant to a lease, to fail to enter into a
proposed lease or to fail to exercise any renewal or expansion option in any
then existing lease). The restrictions in this subparagraph 9(b) shall be
limited to an area of three (3) miles around any shopping center owned or
managed by the Company or its Affiliates located in a CMSA and shall be limited
to an area of five (5) miles around any such shopping center not located in a
CMSA (collectively "Restricted Territory").
(c) Executive agrees to hold in a fiduciary capacity for the benefit
of the Company and its Affiliates, and not directly or indirectly use or
disclose any Trade Secret, that Executive may have acquired during the term of
employment by the Company for so long as such information remains a Trade
Secret. In addition to the
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foregoing and not in limitation thereof, Executive agrees that he will hold in a
fiduciary capacity for the benefit of the Company and its Affiliates and shall
not directly or indirectly use or disclose, any Confidential or Proprietary
Information that Executive may have acquired (whether or not developed or
compiled by Executive and whether or not Executive was authorized to have access
to such information) during the term of, in the course of or as a result of
employment by the Company or its Affiliates.
(d) Executive acknowledges that the restrictions, prohibitions and
other provisions hereof, including without limitation the definition of
Restricted Territory are reasonable, fair and equitable in scope, terms and
duration, are necessary to protect the legitimate business interests of Company
and its Affiliates, and are a material inducement to the Company and its
Affiliates to enter into this Agreement. Without intending to limit the remedies
available to the Company, in the event of a breach or attempted breach of this
Paragraph 9, Company shall be entitled to preliminary and permanent injunctive
relief without proof of actual damages or posting of any bond or other security.
Executive hereby waives and covenants not to assert in any action or proceeding
relating to this Agreement, any claim or defense that there exists an adequate
remedy at law for breach of this Agreement.
10. Waiver.
Executive hereby waives any rights to and agrees that neither the Company,
Kramont nor any Affiliate is obligated to pay Executive any amount for any
period or in connection with any compensation or benefits under plan, program or
agreement entered into or applicable to Executive prior to June 16, 2000 (other
than unpaid salary for the current period and rights under stock options assumed
by the Company).
11. Arbitration.
Any determination with respect to Executive's rights pursuant to any Plan
or any award thereunder shall be determined by the administrator or committee
designated by the Company to make determinations with respect to such Plan. Such
determinations as to any Plan or award shall be the final decision of the
Company. The parties hereto will endeavor to resolve in good faith any
controversy, disagreement or claim arising between them, whether as to the
interpretation, performance or operation of this Agreement or any rights or
obligations hereunder. If they are unable to do so, any such controversy,
disagreement or claim will be submitted to binding arbitration, for final
resolution without appeal, by either party giving written notice to the other of
the existence of a dispute which is desired to have arbitrated. The arbitration
will be concluded in Philadelphia, Pennsylvania by a panel of three (3)
arbitrators and will be held in accordance with the rules of the American
Arbitration Association. Of the three arbitrators, one will be selected by the
Company, one will be selected by Executive and the two arbitrators so selected
will select the third. Each party will notify the other party of the arbitrator
selected by Executive within fifteen (15) days after the giving of the written
notice referred by Executive within fifteen (15) days after the giving of the
written notice referred to in this Paragraph 11. The decision and award of the
arbitrators must be in writing and will be final and binding upon the parties
hereto. Judgment upon the award may be entered in any court having jurisdiction
thereof, or application may be made to such court for a judicial acceptance of
the award and an order of enforcement, as the case may be. The expenses of
arbitration will be borne in accordance with the determination of the
arbitrators with respect to the dispute or difference undergoing arbitration.
All other obligations of the parties will continue as stipulated herein, and all
monies not directly involved in such dispute or difference will be paid when
due. Notwithstanding the foregoing, nothing herein shall limit the rights of the
Company to seek injunctive relief as provided in Paragraph 9 of this Agreement.
12. Conflicting Agreements.
Each party hereto hereby represents and warrants to the other party that
the entering into this Agreement, and the obligations and duties undertaken by
such party hereunder, will not conflict with, constitute a breach of, or
otherwise violate the terms of, any other employment or other agreement to which
Executive is a party.
13. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, assigns, heirs and personal
representatives but may not be assigned by Executive.
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14. Notices.
All notices, requests, demands and other communications hereunder must be
in writing and shall be deemed to have been duly given when delivered by hand,
overnight mail, or 5 days after being mailed within the continental United
States by first class certified mail, return receipt requested, postage prepaid,
to the other party, addressed as follows:
If to the Company:
Xxxxxxxx Xxxxx
000 X. Xxxxxxxxxx Pike, Suite 200
Plymouth Meeting, PA 19462
Attention: President
With a copy to:
Xxxxxxx X. Xxxxx, Esquire
Fox, Rothschild, O'Brien & Xxxxxxx
0000 Xxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
If to Executive:
Xxxxxx X. Xxxxxx
000 Xx. Xxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
With a copy to:
Xxxxxxxx X. Xxxxx, Esquire
Stradley, Ronon, Xxxxxxx & Young, LLP
0000 Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Addresses may be changed by written notice sent to the other party at the
last recorded address of that party or by hand delivery to the party.
15. Severability.
If any provision of this Agreement is deemed by a court of competent
jurisdiction to be unenforceable as written, it shall be construed more narrowly
to be as broad as is enforceable. If any provision of this Agreement shall be
adjudged by any court of competent jurisdiction to be invalid or unenforceable
for any reason, such judgment shall not affect, impair or invalidate the
remainder of this Agreement.
16. Prior Understandings.
This Agreement (including the Exhibits hereto) embodies the entire
understanding of the parties hereof, and supersedes all other oral or written
agreements or understandings between them regarding the subject matter hereof.
No change, alteration or modification hereof may be made except in writing,
signed by the parties hereto. The headings in this Agreement are for convenience
and reference only and shall not be construed as part of this Agreement or to
limit or other wise affect the meaning hereof.
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17. Execution in Counterparts.
This Agreement may be executed by the parties hereto in counterparts, each
of which shall be, deemed to be original, but all such counterparts shall
constitute one and the same instrument, and all signatures need not appear on
any one counterpart.
18. Governing Law.
This Agreement shall be construed and governed under the laws of the
Commonwealth of Pennsylvania, without regard to its choice of law principles.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Employment Agreement as of the day and year first above written.
KRAMONT OPERATING PARTNERSHIP, L.P.
Attest: /s/ Xxxx Xxxxxx, Secretary By: /s/ Xxxxx X. Xxxxxx, Xx., President
----------------------------------- ----------------------------------------
KRAMONT REALTY TRUST
Attest: /s/ Xxxx Xxxxxx, Secretary By: /s/ Xxxxx X. Xxxxxx, Xx., President
----------------------------------- ----------------------------------------
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
-9-
EXHIBIT 10.77
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment (this "First Amendment") is dated effective July 1,
2002 by and among Kramont Operating Partnership, L.P., a Delaware limited
partnership (the "Company"), Kramont Realty Trust, a Maryland real estate
investment trust ("Kramont") and Xxxxxx X. Xxxxxx ("Executive").
BACKGROUND
WHEREAS, the parties hereto entered into an Employment Agreement effective
as of July 1, 2001 (herein referred to as "Employment Agreement"), wherein the
parties agreed to the terms and conditions of Executive's employment with the
Company; and
WHEREAS, the parties hereto desire to further amend certain of the terms
and conditions of the Employment Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. All capitalized terms used herein, but not otherwise defined, shall
have the meanings ascribed in the Employment Agreement.
2. Paragraph 4 (a) of the Employment Agreement is hereby amended to show
that the Base Salary of Executive is increased to $200,000.00, effective July 1,
2002.
3. Paragraph 5 (c) of the Employment Agreement is hereby amended to show
that in accordance with the Kramont 2000 Incentive Plan, the Company hereby
grants the Executive 7,937 restricted shares of common stock under the terms and
conditions contained in a share grant letter agreement (the "Share Grant
Agreement"), the form of which is attached hereto and made a part hereof as
Exhibit "A". Simultaneous with the execution of this First Amendment, Executive
agrees to execute and deliver to the Company the Share Grant Agreement.
4. This First Amendment and the Employment Agreement represent the entire
understanding between the parties and supercede all other oral or written
agreements between the parties. The Employment Agreement, as amended by this
First Amendment, is hereby ratified and confirmed and remains in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
First Amendment as of the date and year first above written.
KRAMONT OPERATING PARTNERSHIP, L.P.
By: /s/ Xxxxx X. Xxxxxx, Xx., President
-----------------------------------
KRAMONT REALTY TRUST
By: /s/ Xxxxx X. Xxxxxx, Xx., President
-----------------------------------
Executive
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
