EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
this 15th day of July, 1997, by and between California Real Estate Investment
Trust, a trust organized under the laws of the State of California and
established under a Declaration of Trust dated September 15, 1966, as amended
from time to time (such trust and any successors thereto being hereinafter
referred to as "Capital Trust") and Xxxx Xxxxx (the "Executive"). Capitalized
terms used and not otherwise defined herein shall have the meanings ascribed to
them in Part Five hereof.
RECITALS
WHEREAS, Capital Trust desires to employ the Executive as the Vice
Chairman of the Board and Chief Executive Officer of Capital Trust; and
WHEREAS, the Executive desires to be employed by Capital Trust at the
salary and benefits provided for herein; and
WHEREAS, the Executive acknowledges and understands that during the
course of his employment, the Executive will develop certain strategic business
relationships and become familiar with certain confidential information of
Capital Trust which are exceptionally valuable to Capital Trust and vital to the
success of Capital Trust's business; and
WHEREAS, Capital Trust and the Executive desire to protect such
business relationships and such confidential information from use to the
detriment of Capital Trust or disclosure to third parties.
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties hereto acknowledge
and agree as follows:
TERMS
PART ONE
NATURE AND TERM OF EMPLOYMENT
1.01 Employment. Capital Trust hereby agrees to employ the Executive,
and the Executive hereby accepts such employment, as the Vice Chairman of the
Board and Chief Executive Officer of Capital Trust.
1.02 Term of Employment. The term of the Executive's employment
hereunder shall be for a period of five years beginning on the date of this
Agreement (the "Original Term").
1.03 Term Extension. Immediately as of the expiration of the Original
Term and each Renewal Period, this Agreement will automatically renew and extend
for successive one year periods (the "Renewal Periods"), unless Capital Trust or
Executive shall have delivered to the other written notice of non-renewal at
least ninety (90) days prior to the expiration of the Original Term or the
applicable Renewal Period, in which case the Original Term or the applicable
Renewal Period shall expire effective as of the last day of the Original Term or
the applicable Renewal Period, as the case may be. The period during which
Executive shall be employed by Capital Trust hereunder shall be referred to
herein as the "Employment Period." Notwithstanding anything to the contrary
contained herein, the Original Term and the Renewal Periods are each subject to
termination pursuant to Part Four below.
1.04 Duties. The duties of the Executive shall be as determined by the
Board of Trustees of Capital Trust (the "Board") consistent with the Executive's
title and position with the Company, and the Executive shall report to the Board
and shall be subject to the Board's direction and control. Without limiting the
generality of the foregoing, the Executive shall manage the business of Capital
Trust on a day-to-day basis and shall report to and advise the Board regarding
the management and operation of Capital Trust's business. The Executive agrees
to devote his full business time attention and energies to the diligent
performance of his duties hereunder and will not, during the Employment Period,
engage in, accept employment from or provide services to any other person, firm,
corporation, governmental agency or other entity; provided, however, that
subject to Section 3.04 hereof, Executive may (a) devote a reasonable amount of
time to civic activities, (b) maintain not more than three outside board
positions with companies which do not compete with Capital Trust and serve on
the board of directors of a cooperative apartment in which Executive lives, in
each case subject to the prior consent of the Board, which consent shall not be
unreasonably withheld, and (c) manage his own investments, provided that such
activities do not conflict with or detract from the Executive's diligent
performance of Executive's duties hereunder.
PART TWO
COMPENSATION AND BENEFITS
2.01 Salary. During the Employment Period, the Executive shall receive
a base salary at the rate of $500,000 dollars per annum (the "Base Salary"),
payable in regular installments in accordance with Capital Trust's general
payroll practices for salaried employees. During the Employment Period, the Base
Salary shall be increased as of each anniversary of the date of this Agreement
by a percentage amount not less than any percentage increase in the Consumer
Price Index and may be further increased at the discretion of the Board.
2.02 Bonus. In addition to his Base Salary, Executive may receive
during the Employment Period, as determined annually at the discretion of the
Board, an annual incentive
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cash bonus based upon Executive's performance and the profitability of Capital
Trust during such period.
2.03 Benefits. During the Term of this Agreement, Capital Trust agrees
to provide to Executive such benefits as are provided to other employees of
Capital Trust from time to time, including but not limited to, any health,
disability, life, deferred compensation, profit-sharing, pension, or other
employee benefit policies, programs or plans which Capital Trust provides to its
employees (collectively, the "Employee Benefits"), all at levels determined by
the Board and commensurate with the Executive's position.
2.04 Expenses. During the Term of this Agreement, the Executive shall
be reimbursed by Capital Trust for all ordinary and necessary out-of-pocket
expenses for travel, lodging, meals, entertainment expenses, or any other
similar reasonable expenses incurred by the Executive in performing services for
Capital Trust in accordance with the policies established by the Board.
2.05 Vacations. The Executive shall be entitled to a paid vacation of
four (4) weeks during each twelve month period during the Employment Period,
provided., however, that the Executive's vacation shall be in accordance with
policies established by the Board.
2.06 Life Insurance. During the Employment Period, provided the
Executive passes any necessary health examination and such coverage is
purchasable at commercially reasonable rates, Capital Trust shall provide the
Executive with term life insurance coverage providing a death benefit equal to
not less than $1,500,000, the beneficiary of which shall be designated by the
Executive. Capital Trust agrees to pay all of the premiums required to provide
the aforesaid term life insurance coverage to the Executive.
2.07 Disability Insurance. During the Employment Period, provided the
Executive passes any necessary health examination and such coverage is
purchasable at commercially reasonable rates, Capital Trust shall provide the
Executive with disability insurance coverage equal to sixty percent (60%) of his
Base Salary.
2.08 Share Plan, Executive shall participate in Capital Trust's Share
Plan at a level determined by the Board and commensurate with his position.
2.09 Matching Compensation Level. As long as Executive and Xxxxx
Xxxxxxx ("Hatkoff") are both employed by Capital Trust, the aggregate
compensation payable by Capital Trust to Executive for any period (including the
granting of any equity awards under the Share Plan) shall be equal to the
aggregate compensation payable by Capital Trust to Hatkoff for the same period
(including the granting of any equity awards under the Share Plan); it being
understood that, if Hatkoff's employment is terminated for any reason, any cash
amounts payable to Hatkoff, and any accelerated vesting of any grants under the
Share Plan, as
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a result of the termination of Hatkoff's employment shall not be deemed
compensation payable by Capital Trust to Hatkoff subject to the "equal payment"
requirement of this Section 2.09.
2.10 Withholding. Any amounts payable to the Executive hereunder shall
be paid to the Executive subject to all applicable taxes required to be withheld
by the Company pursuant to federal, state or local law. The Executive or his
beneficiary, if applicable, shall be solely responsible for all taxes imposed on
the Executive or his beneficiary by reason of his receipt of any amount of
compensation or benefits payable to the Executive hereunder.
PART THREE
CONFIDENTIAL INFORMATION AND COMPETITION
3.01 Definition of Confidential Information. For the purposes of this
Agreement, the term "Confidential Information" shall mean all information and
all documents and other tangible items which record information which is
non-public, confidential or proprietary in nature with respect to Capital Trust
or its customers, clients or investors and shall include, but shall not be
limited to: (a) all information, which at the time or times concerned is
protectible as a trade secret under applicable law; (b) business and investment
plans and strategies; (c) marketing plans and strategies; and (d) proprietary
software and business records. Capital Trust and the Executive acknowledge and
agree that the Confidential Information is extremely valuable to Capital Trust
and the information referred to in subparagraphs (b) through (d) inclusive of
this Section 3.01 is especially sensitive and valuable.
3.02 Non-Disclosure of Confidential Information. The Executive will not
during, or for a period of two (2) years after termination of the Executive's
employment for any or no reason, in any form or manner, directly or indirectly,
divulge, disclose or communicate to any person, entity, firm, corporation or any
other third party, or utilize for the Employee's personal benefit of for the
benefit of any person, entity, firm or corporation (other than Capital Trust),
any Confidential Information.
3.03 Delivery Upon Termination. Upon termination of the Executive's
employment with Capital Trust for any or no reason, the Executive will promptly
deliver to Capital Trust all correspondence, manuals, letters, notes, notebooks,
reports, programs, plans, proposals, financial documents, or any other documents
or media concerning Capital Trust and/or which contains Confidential
Information.
3.04 Covenant-Not-To-Compete. The Executive will not during the
Employment Period, and, in the event the Executive's employment is terminated by
Capital Trust for Cause or by Executive voluntarily other than for Good Reason,
for a period of one (1) year following termination of the Executive's
employment, in any form or manner, directly or indirectly, on his own behalf or
in combination with others, engage in or become interested in (as an individual,
partner, member, stockholder, director, officer, principal, agent, independent
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contractor, employee, trustee, or in any other relation or capacity whatsoever,
except as a holder of securities of a corporation whose securities are publicly
traded and which is subject to the reporting requirements of the Securities
Exchange Act of 1934, and then only to the extent of owning not more than five
percent (5%) of the issued and outstanding securities of such corporation) any
business which is competitive with the business of Capital Trust or any Capital
Trust Affiliate, as conducted or proposed to be conducted as of the date of
termination of Executive's employment.
3.05 Restriction Against Employing Capital Trust Employees. The
Executive will not, for a period of (1) one year after termination of
Executive's employment for any or no reason, directly or indirectly, whether
individually, as a director, stockholder, partner, member, owner, employee or
agent of any business, or in any other capacity or solicit for employment or
engagement, any person who is employed or otherwise engaged by Capital Trust on,
or within 180 days prior to, such termination of Executive.
3.06 Continuing Obligation. The obligations, duties and liabilities of
the Executive pursuant to Part Three of this Agreement are continuing, absolute
and unconditional and shall remain in full force and effect as provided therein
despite any termination of the Executive's employment with Capital Trust for any
or no reason, including, but not limited to, the expiration of the Employment
Period.
3.07 Executive Acknowledgment/Injunctive Relief. Executive acknowledges
and agrees that the covenants set forth in Part Three hereof are reasonable and
necessary for the protection of Capital Trust's business interests, that such
covenants will not result in undue economic hardship to Executive, that
irreparable injury will result to Capital Trust if Executive breaches any of the
terms of said covenants, and that in the event of Executive's actual or
threatened breach of any such covenants, Capital Trust will have no adequate
remedy at law. Executive accordingly agrees that in the event of any actual or
threatened breach by him of any of said covenants, Capital Trust shall be
entitled to immediate injunctive and other equitable relief, without bond and
without the necessity of showing any actual monetary damages. If, in any action
by Capital Trust against the Executive to enforce the provisions of this Part
Three, there shall be a final judicial finding that the Executive has committed
a material breach of this Part Three, the Executive shall reimburse Capital
Trust for its reasonable costs and expenses in such action (including court
costs and reasonable attorney's fees). If, in any action by Capital Trust
against the Executive to enforce the provisions of this Part Three, there shall
be a final judicial finding that the Executive has not committed a material
breach of this Part Three, Capital Trust shall reimburse the Executive for his
reasonable costs and expenses in defending such action (including court costs
and reasonable attorney's fees). If in any such action there is no judicial
finding on the issue of a material breach by the Executive of this Part Three,
neither party shall be obligated to reimburse the other for costs and expenses
relating to the action. Nothing herein shall be construed as prohibiting Capital
Trust from pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of any damages which it is able to
prove.
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PART FOUR
TERMINATION
4.01 Termination upon Written Notice. Either Capital Trust or the
Executive may terminate the Executive's employment as provided in Subparagraphs
(a) and (b) below during the Employment Period by delivery to the other party of
a written notice (the "Termination Notice") indicating the date Executive's
employment is terminated (the "Termination Date").
(a) If Capital Trust terminates the Executive's employment other than
for Cause or Disability or if Executive terminates his employment with Capital
Trust for Good Reason and such termination takes place within 90 days of the
later of (i) the latest occurrence of events or omissions comprising Good Reason
and (ii) the discovery by Executive of the grounds for Good Reason, Capital
Trust and Executive shall have the rights and obligations provided in this
Section 4.01 (a). Capital Trust shall be required to pay to the Executive: (i)
the Executive's Base Salary and incentive cash bonus, if any, accrued up to the
Termination Date, and (ii) upon execution and delivery by Executive of the form
of Release attached hereto as Exhibit A, and the expiration of the seven day
revocation period provided in said Release without revocation of said Release by
Executive, a severance payment equal to the greater of (A) the Base Salary
payable to Executive over the remainder of the Employment Period had Executive
not been so terminated and (B) the amount of the Base Salary as of the
Termination Date for one (1) full calendar year (the "Severance"). The Severance
shall be payable over a period of time equal to the greater of (A) the remainder
of the Employment Period had Executive not been so terminated and (B) one (1)
year, in either case, beginning on the Termination Date and in regular
installments in accordance with Capital Trust's general payroll practices for
salaried employees. Furthermore, Capital Trust shall be required to maintain for
the Executive and his spouse and children under the age of 21 medical insurance
coverage to which the Executive and his spouse and children under the age of 21
were entitled immediately preceding the date of the Executive's termination
until the earlier of (x) the two (2) year period expiring on the second
anniversary of the Termination Date or (y) such time as Executive shall obtain
employment or other engagement offering comparable or better medical insurance
coverage. Notwithstanding anything to the contrary in the Share Plan, all
unvested options granted to the Executive under the Share Plan will
automatically vest and become immediately exercisable for the total number of
shares purchasable thereunder. Notwithstanding anything to the contrary in the
Share Plan, such options will expire on the earlier of (i) the expiration date
of such options under the Share Plan and (ii) one year from the Termination
Date. Except as set forth in this Section 4.01 (a), Executive shall not be
entitled to receive any other severance, benefits or compensation of any kind
whatsoever.
(b) If the Executive terminates his employment voluntarily other than
for Good Reason, Capital Trust and Executive shall have the rights and
obligations provided in this Section 4.01 (b). Executive shall be entitled to
receive only his Base Salary accrued through the Termination Date as set forth
in the Termination Notice, and except as set forth in this
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Section 4.01 (b), Executive shall not be entitled to receive any other
severance, benefits or compensation of any kind whatsoever. In addition,
notwithstanding anything to the contrary in the Share Plan, all unvested options
granted to the Executive under the Share Plan will be forfeited. Notwithstanding
anything to the contrary in the Share Plan, vested options granted to the
Executive under the Share Plan will expire on the earlier of (i) the expiration
date of such options and (ii) the date ninety (90) days following the
Termination Date.
4.02 Termination Upon Death. Upon the Executive's death during the
Employment Period, Capital Trust and Executive shall have the rights and
obligations provided in this Section 4.02. This Agreement shall terminate,
except that the Executive's legal representatives shall be entitled to receive
(a) the Executive's Base Salary, accrued up to the date of the Executive's
death, and (b) any death benefits payable under the life insurance policy
maintained for the Executive's benefit referred to in Section 2.06 hereof.
Capital Trust shall continue the medical insurance coverage for the benefit of
Executive's spouse and children under the age of 21 to which they were entitled
immediately preceding the date of the Executive's death for one year from the
date of Executive's death. Upon Executive's death, all unvested options granted
to the Executive under the Share Plan will be forfeited. Notwithstanding
anything to the contrary in the Share Plan, vested options granted to the
Executive under the Share Plan will expire on the earlier of (i) the expiration
date of such options and (ii) the first anniversary of termination of
employment. Except as set forth in this Section 4.02, Executive shall not be
entitled to receive any other severance, benefits or compensation of any kind
whatsoever.
4.03 Termination Upon Disability. If, during the Employment Period, in
the reasonable opinion of the Board, the Executive becomes physically or
mentally disabled, whether totally or partially, so that the Executive is unable
substantially to perform his duties hereunder (a) for a period of ninety (90)
consecutive days or (b) for shorter periods aggregating one hundred and eighty
(180) days during any three hundred and sixty (360) day period, Capital Trust
may at any time thereafter terminate the Executive's employment under this
Agreement. In the event of such termination, Capital Trust and Executive shall
have the rights and obligations provided in this Section 4.03. Executive shall
be entitled to continue to receive his Base Salary until commencement of
payments under Executive's disability insurance policy. Capital Trust shall
continue the medical insurance coverage for the benefit of Executive and his
spouse and children under the age of 21 for a period of one year following such
termination. Notwithstanding anything to the contrary in the Share Plan, all
unvested options under the Share Plan will be forfeited without any payment or
other consideration to the Executive. Notwithstanding anything to the contrary
in the Share Plan, vested options under the Share Plan will expire on (i) the
earlier of the expiration date of such options and the first anniversary of the
termination of employment. Except as set forth in this Section 4.03, Executive
shall not be entitled to receive any other severance, benefits or compensation
of any kind whatsoever.
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4.04 Termination for Cause. Capital Trust has the right, at any time
during the Employment Period, exercisable by serving notice, effective in
accordance with its terms, to terminate the Executive's employment under this
Agreement for "Cause". If such right is exercised, Capital Trust and Executive
shall have the rights and obligations provided in this Section 4.04. Capital
Trust's obligation to the Executive shall be limited to the payment and/or
satisfaction of unpaid Base Salary accrued up to the effective date specified in
Capital Trust's notice of termination. Notwithstanding anything to the contrary
in the Share Plan, all unvested options under the Share Plan will be forfeited
without any payment or other consideration to the Executive. Notwithstanding
anything to the contrary in the Share Plan, vested options under the Share Plan
will expire on the earlier of (a) the expiration date of such options and (b)
the date 90 days following the date of termination of employment. Except as set
forth in this Section 4.04, Executive shall not be entitled to receive any other
severance, benefits or compensation of any kind whatsoever.
4.05 Sole Remedy. The amounts payable to the Executive, if any, under
the applicable provisions of this Part Four in connection with the termination
of the Executive's employment, voluntarily or involuntarily, for any or no
reason, shall be the only remedy, legal or equitable, available to the Executive
in connection with such termination (but not for claims or causes of action not
directly related to such termination, even if arising at the time of
termination), and such amounts shall constitute liquidated damages.
PART FIVE
CERTAIN DEFINITIONS
5.01 Certain Definitions. As used in this Agreement, the following
terms have the following meanings unless the context otherwise requires:
(a) "Affiliate" shall mean, with respect to any Person, any Person that
directly or indirectly controls, is controlled by, or is under common control
with such Person. For purposes of this definition, "control" shall mean the
power to direct, or cause the direction of, the management of policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
(b) "Cause" shall mean:
(i) fraud, embezzlement or conviction of a felony;
(ii) misappropriation of any money, proprietary
information or other assets or properties of Capital
Trust or any affiliate of Capital Trust other than
(A) an isolated, insubstantial and unintentional
misappropriation which is promptly remedied by the
Executive after receipt of notice thereof given
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by Capital Trust or (B) any good faith dispute
regarding reimbursement of expenses or other similar
good faith dispute;
(iii) willful and material breach by the Executive of the
terms of this Agreement;
(iv) any other verifiable misconduct of Executive
materially and adversely affecting the reputation of
Capital Trust; or
(v) the Transfer by Executive other than a Permitted
Transfer, as defined in, and in accordance with the
provisions of that certain Rights Agreement by and
among, Veqtor, V2 Holdings, LLC, a Delaware limited
liability company ("V2"), SZ Investments, LLC, a
Delaware limited liability company ("SZ"), Executive
and Hatkoff of even date herewith.
(c) "Change in Control" shall mean:
(i) a merger or acquisition involving Capital Trust
in which 50% or more of Capital Trust's voting stock
outstanding after the merger or acquisition is held by holders
different from those who held Capital Trust's voting stock
immediately prior to such merger or acquisition;
(ii) the sale, transfer or other disposition of all
or substantially all of the assets of Capital Trust in
liquidation or dissolution of Capital Trust;
(iii) a transfer of all or substantially all of
Capital Trust's assets pursuant to a partnership or joint
venture agreement or similar arrangement where Capital Trust's
resulting interest is or becomes less than 50%;
(iv) on or after the date hereof, a change in
ownership of Capital Trust through an action or series of
transactions, such that any person is or becomes the
beneficial owner, directly or indirectly, of 50% or more of
Capital Trust's voting stock; or
(v) the composition of the Board changes such that,
without the prior written approval of each of the Board
designees of SZ and V2, such designees cease to comprise a
majority of the Board.
(d) "Consumer Price Index" shall mean Index-U.S. City Average
(CPI-U) (Base Year 1987 = 100) as reported by the Bureau of Labor
Statistics, United States Department of Labor for the preceding
twelve-month period ended the immediately prior December 31, or if the
1987 average shall no longer be used as an index of 100, an adjustment
shall be made in such revised index which would have been obtained if
the Consumer Price Index has not been so revised or if said average was
still in use. In
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the event such index is no longer reported, such similar index of the
cost of living as reported by any other United Stated government agency
or if no government agency shall at such time publish such an index, a
comparable index published by a major bank or other financial
institution or by a university or recognized financial publication.
(e) "Good Reason" shall mean:
(i) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's position
(including status, offices, titles and reporting
requirements), authority, duties or responsibilities as
contemplated by Section 1.04 or any other action by Capital
Trust which results in a material diminution of such position,
authority, duties or responsibilities, including hiring by
Capital Trust of an executive to whom Executive reports or who
does not report to Executive or Hatkoff, but excluding for
this purpose an isolated, insubstantial or inadvertent action
not taken in bad faith and which is remedied by Capital Trust
promptly after receipt of notice thereof given by the
Executive;
(ii) Capital Trust's requiring the Executive, without
executives' consent, to be based at any office or location
outside of a 40 mile radius of Midtown Manhattan, New York,
New York;
(iii) a willful and material breach of this Agreement
by Capital Trust; or
(iv) a Change in Control of Capital Trust following
which the acquirer is for any reason not bound by any material
term of this Agreement to the same extent as Capital Trust
immediately prior to such Change in Control.
(f) "Person" means any individual, corporation, association,
partnership, limited liability company, estate, trust and any other
entity or organization, governmental or otherwise.
(g) "Share Plan" means Capital Trust's 1997 Long-Term
Incentive Share Plan, and any successor plan thereto.
(h) "Transfer" means any direct or indirect transfer,
donation, sale, assignment, pledge, hypothecation, grant of security
interest in or other disposal or attempted disposal of all or any
portion of a security.
(i) "Veqtor" means Veqtor Finance Company, LLC, a Delaware
limited liability company.
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PART SIX
MISCELLANEOUS
6.01 Indemnification. The Executive shall be entitled in respect of all
acts or omissions by Executive occurring at any time during the Employment
Period to the benefit of the indemnification provisions contained in the Capital
Trust Amended and Restated Declaration of Trust in the form adopted and approved
by the shareholders of Capital Trust at the annual meeting of shareholders of
Capital Trust next succeeding the date of this Agreement and the bylaws of
Capital Trust in effect on the date hereof (not including any amendments or
additions that limit or narrow, but including any that add to or broaden, the
protection afforded to the Executive by those provisions), to the extent not
prohibited by applicable law.
6.02 Assignment. The Executive and Capital Trust acknowledge and agree
that the covenants, terms and provisions contained in this Agreement constitute
a personal employment contract and the rights of the parties thereunder cannot
be transferred, sold, assigned, pledged or hypothecated, excepting that (a) the
Executive's rights pursuant to Section 4.02 or 4.03 may be transferred by will
or operation of law and the Executive's Employee Benefits may be assigned or
transferred in accordance with such policies, programs, plans or Capital Trust
practices; and (b) the rights and obligations of Capital Trust under this
Agreement may be assigned or transferred by operation of law pursuant to a
merger, consolidation, share exchange, sale of substantially all of Capital
Trust's assets, or other reorganization described in Section 368 of the Code, or
through liquidation, dissolution or otherwise, whether or not Capital Trust is
the continuing entity, provided that the assignee or transferee is the successor
to all or substantially all of the assets of Capital Trust and such assignee or
transferee assumes the rights and duties of Capital Trust, if any, as contained
in this Agreement, either contractually or as a matter of law.
6.03 Capacity. The Executive hereby represents and warrants that, in
entering into this Agreement, he is not in violation of any contract or
agreement, whether written or oral, with any other person, firm, partnership,
corporation, or other entity to which he is a party or by which he is bound and
will not violate or interfere with the rights of any other person, firm,
partnership, corporation or other entity. In the event that such a violation or
interference does occur, or is alleged to occur, notwithstanding the
representation and warranty made hereunder, the Executive shall indemnify
Capital Trust from and against any and all manner of expenses and liabilities
incurred by Capital Trust or any affiliated company of Capital Trust in
connection with such violation or interference or alleged violation or
interference.
6.04 Severability. If any phrase, clause or provision of this Agreement
is declared invalid or unenforceable by a court of competent jurisdiction, such
phrase, clause or provision shall be deemed severed from this Agreement, but
will not affect any other provisions of this Agreement, which shall otherwise
remain in full force and effect. If any restriction or
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limitation in this Agreement is deemed to be unreasonable, onerous and unduly
restrictive by a court of competent jurisdiction, it shall not be stricken in
its entirety and held totally void and unenforceable, but shall remain effective
to the maximum extent permissible within reasonable bounds.
6.05 Notices. Any notice, request or other communication required to be
given pursuant to the provisions hereof shall be in writing and shall be deemed
to have been given when delivered in person or five (5) days after being
deposited in the United States mail, certified or registered, postage pre-paid,
return receipt requested and addressed to the party at its or his last known
addresses. The address of any party may be changed by notice in writing to the
other parties duly served in accordance herewith.
6.06 Waiver. The waiver by Capital Trust or the Executive of any breach
of any term or condition of this Agreement shall not be deemed to constitute the
waiver of any other breach of the same or any other term or condition hereof.
6.07 Governing Law. This Agreement and the enforcement thereof shall be
governed and controlled in all respects by the laws of the State of New York
(applicable to agreements to be performed wholly within such state).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first hereinabove written.
CALIFORNIA REAL ESTATE INVESTMENT TRUST
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Title:
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EXECUTIVE:
/s/ Xxxx Xxxxx
------------------------------------------
XXXX XXXXX
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Exhibit A
RELEASE
1. Pursuant to the terms of the Employment Agreement made as of _______
__, 1997, between California Real Estate Investment Trust, a trust organized
under the laws of the State of California and established under a Declaration of
Trust dated September 15, 1966, as amended from time to time (such trust and any
successors thereto being hereinafter referred to as "Capital Trust"), and the
undersigned (the "Agreement"), and in consideration of the payments made to me
and other benefits to be received by me pursuant thereto, I, Xxxx Xxxxx, being
of lawful age, do hereby release, and forever discharge, Capital Trust and its
trustees, directors, officers, shareholders, subsidiaries, agents, and
employees, from any and all actions, causes of action, claims, or demands for
general, special or punitive damages, attorney's fees, expenses, or other
compensation, which in any way relate to or arise out of my employment with
Capital Trust or any of its subsidiaries or the termination of such employment
(but not for actions, causes of action, claims or demands not directly related
to such employment or termination of employment, even if arising at the time of
termination), which I may now or hereafter have under any federal, state or
local law, regulation or order, including without limitation, under the Age
Discrimination in Employment Act, as amended, through and including the date of
this Release; provided, however, that this Release shall not release Capital
Trust's obligations with respect to (a) payment of the severance payments and
compliance with the other provisions of Section 4.01(a) of the Agreement, (b)
Executive's rights under the Share Plan and any grants to Executive thereunder
(as the terms of such grants have been modified by the provisions of Section
4.01(a) of the Agreement) and (c) paragraph 2 of this Release.
2. Capital Trust agrees that, from and after the date hereof, if asked
about the undersigned's separation from Capital Trust, except as otherwise
required by applicable law, Capital Trust will not make any public statement
regarding such separation other than that the undersigned has left Capital Trust
to pursue other interests. From and after the date hereof, Capital Trust will
not intentionally make any defamatory or disparaging statements about the
undersigned or the undersigned's performance for Capital Trust. For purposes of
this paragraph 2 only, Capital Trust shall mean only Xxxxxx Xxxx, Xxxxx X.
Xxxxxxxxx, Xxxx X. Xxxxxxxxxx (as long as the foregoing persons are still
directly or indirectly affiliated with Capital Trust) and any persons then
holding the position of trustee or director of Capital Trust, and shall
specifically exclude Xxxxx Xxxxxxx.
3. I agree that, from and after the date hereof, if asked about my
separation from Capital Trust, except as otherwise required by applicable law, I
will not make any public statement regarding such separation other than that I
have left Capital Trust to pursue other interests. From and after the date
hereof, I will not intentionally make any defamatory or disparaging statements
about Capital Trust, its subsidiaries or their products, services, trustees,
directors, officers, shareholders, employees, agents, customers or business
relationships.
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4. I further state that I have read this Release and the Agreement
referred to herein, that I know the contents of both and that I have executed
the same as my own free act.
WITNESS my hand this ___ day of _________ __, ____.
__________________________
Xxxx Xxxxx
AGREED AND ACKNOWLEDGED
THIS ____ DAY OF ___________, ____
CAPITAL TRUST
By:________________________________
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