EXHIBIT 10.44
AMENDED AND RESTATED EXECUTIVE AGREEMENT
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THIS AMENDED AND RESTATED AGREEMENT ("Amended and Restated Agreement"),
made and entered into as of this 27th day of February, 1998 between FEDERAL
REALTY INVESTMENT TRUST, an unincorporated business trust organized under the
laws of the District of Columbia ("Trust"), and Xxxxxx X. Xxxxxxx ("Executive").
RECITALS
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WHEREAS, Executive and the Trust have entered into an Executive Agreement
dated April 13, 1989 ("Executive Agreement");
WHEREAS, the Trust continues to recognize the valuable services that
Executive has rendered to the Trust as President and Chief Executive Officer and
desires assurance that Executive will continue his services to the Trust;
WHEREAS, Executive is willing to continue to serve the Trust, but desires
assurance that in the event of any Change in Control of the Trust he will
continue to have the responsibilities and privileges he now has;
WHEREAS, the Board of Trustees of the Trust ("Board of Trustees") has
determined that the best interests of the Trust would continue to be served by
providing Executive with certain protections and benefits following any Change
in Control of the Trust; and
WHEREAS, Executive and Trust wish to amend and restate the Executive
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
herein contained and of other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties, hereto, intended to be
legally bound, agree to amend and restate the Executive Agreement as follows:
PROVISIONS
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1. Change in Control. No benefits shall be payable under this Amended
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and Restated Agreement unless there shall have occurred a Change in Control of
the Trust, as defined below. For purposes of this Amended and Restated Agreement
a "Change in Control" of the Trust shall mean any of the following events:
(a) An acquisition in one or more transactions (other than directly
from the Trust or pursuant to options granted by the Trust) of any voting
securities of the Trust (the "Voting Securities") by any "Person" (as the term
is used for purposes of Section 13(d) or 14(d) of the Securities Act of 1934, as
amended (the "Exchange Act")) immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of the combined voting power of the Trust's then
outstanding Voting Securities; provided, however, in determining whether a
Change in Control has occurred, Voting Securities which are acquired in a "Non-
Control Acquisition" (as hereinafter defined) shall not constitute an
acquisition which would cause a Change in Control. A "Non-Control Acquisition"
shall mean an acquisition by (i) an employee benefit plan (or a trust forming a
part thereof) maintained by (x) the Trust or (y) any corporation or other Person
of which a majority of its voting power or its equity securities or equity
interest is owned directly or indirectly by the Trust (a "Subsidiary"), (ii) the
Trust or any Subsidiary, or (iii) any Person in connection with a "Non-Control
Transaction" (as hereinafter defined);
(b) The individuals who, as of the date of this Amended and Restated
Agreement, are members of the Board of Trustees (the "Incumbent Trustees"),
cease for any reason to constitute at least two-thirds of the Board; provided,
however, that if the election, or nomination for election by the Trust's
shareholders, of any new member was approved by a vote of at least two-thirds of
the Incumbent Trustees, such new member shall, for purposes of this Amended and
Restated Agreement, be considered as a member of the Incumbent Trustees;
provided, further, however, that no individual shall be considered a member of
the Incumbent Trustees if such individual initially assumed office
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as a result of either an actual or threatened "Election Contest" (as described
in Rule 14a-11 promulgated under the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board of Trustees (a "Proxy Contest") including by reason of any agreement
intended to avoid or settle any Election Contest or Proxy Contest; or
(c) Approval by shareholders of the Trust of
(i) A merger, consolidation or reorganization involving the
Trust, unless:
(A) the shareholders of the Trust, immediately before
such merger, consolidation or reorganization, own,
directly or indirectly immediately following such
merger, consolidation or reorganization, at least a
majority of the combined voting power of the
outstanding voting securities of the Person
resulting from such merger or consolidation or
reorganization (the "Surviving Person") in
substantially the same proportion as their ownership
of the Voting Securities immediately before such
merger, consolidation or reorganization,
(B) the individuals who were members of the Incumbent
Trustees immediately prior to the execution of the
agreement providing for such merger, consolidation
or reorganization constitute at least two-thirds of
the members of the board of directors of the
Surviving Person,
(C) no Person (other than the Trust or any Subsidiary,
any employee benefit plan (or any trust forming a
part thereof) maintained by the Trust, or any
Subsidiary, or any Person which, immediately prior
to such merger, consolidation or reorganization had
Beneficial Ownership of 20% or more of the then
outstanding Voting Securities) has Beneficial
Ownership of 20% or more of the combined voting
power of the Surviving Person's then outstanding
voting securities, and
(D) a transaction described in clauses (A) through (C)
shall herein be referred to as a "Non-Control
Transaction;"
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(ii) A complete liquidation or dissolution of the Trust; or
(iii) An agreement for the sale or other disposition of all or
substantially all of the assets of the Trust to any
Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur (i) solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the outstanding Voting
Securities as a result of the acquisition of Voting Securities by the Trust
which, by reducing the number of Voting Securities outstanding, increases the
proportional number of Voting Securities Beneficially Owned by the Subject
Person; provided, however, that if a Change in Control would occur (but for the
operation of this sentence) as a result of the acquisition of Voting Securities
by the Trust, and after such share acquisition by the Trust, the Subject Person
becomes the Beneficial Owner of any additional Voting Securities which increases
the percentage of the then outstanding Voting Securities Beneficially Owned by
the Subject Person, then a Change in Control shall occur; or (ii) if the Trust
(1) establishes a wholly-owned subsidiary ("Holding Company"), (2) causes the
Holding Company to establish a wholly-owned subsidiary ("Merger Sub"), and (3)
merges with Merger Sub, with the Trust as the surviving entity (such
transactions collectively are referred as the "Reorganization"). Immediately
following the completion of the Reorganization, all references to the Voting
Securities shall be deemed to refer to the voting securities of the Holding
Company.
(d) Notwithstanding anything contained in this Amended and Restated
Agreement to the contrary, if Executive's employment is terminated while this
Amended and Restated Agreement is in effect and Executive reasonably
demonstrates that such termination (i) was at the request of a third party who
has indicated an intention or taken steps reasonably calculated to effect a
Change in Control and who effectuates a Change in Control (a "Third Party") or
(ii) otherwise occurred in connection with, or in anticipation of, a Change in
Control which actually occurs, then for all purposes of this
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Amended and Restated Agreement, the date of a Change in Control with respect to
Executive shall mean the date immediately prior to the date of such termination
of Executive's employment.
2. Termination of Employment Following Change in Control. If a Change
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in Control of the Trust occurs, Executive shall be entitled to the benefits
provided in Section 3 upon the subsequent termination of Executive's employment
with the Trust for any reason, either voluntarily or involuntarily, within six
(6) months of such Change of Control, unless such termination is because of
Executive's death, Disability or retirement. The term "Disability" shall have
the meaning assigned to it in the Trust's group long-term disability policy. The
term "Retirement" shall mean termination of employment in accordance with (i) a
qualified employee pension or profit-sharing plan maintained by the Trust, or
(ii) the Trust's retirement policy in effect immediately prior to the Change in
Control. For purposes of this Amended and Restated Agreement, Executive's
employment shall be terminated by written notice delivered by either the Trust
or Executive to the other party. The date of Executive's termination of
employment shall be the earlier of the date of Executive's or the Trust's
written notice terminating Executive's employment with the Trust, unless such
notice shall specify an effective date of termination occurring later than the
date of such notice, in which event such specified effective date shall govern
("Termination Date").
3. Payment of Benefits upon Termination. If, after a Change in Control
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has occurred, Executive's employment with the Trust is terminated for any reason
other than for his death, Disability or Retirement, then the Trust shall pay to
Executive and provide Executive, his beneficiaries and estate, the following:
(a) The Trust shall pay to Executive a single cash payment equal to
299 percent of the sum of his annual basic salary in effect on the day prior to
the Change in Control plus a bonus equal to the greater of (i) the greatest
annual aggregate amount of any cash or stock bonuses paid to Executive in
respect of any of the three (3) fiscal years immediately preceding such
Termination Date (it being understood and agreed that such
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amount shall not include compensation paid pursuant to performance share awards)
or (ii) the amount equal to Executive's maximum aggregate cash or stock bonus
(it being understood and agreed that a bonus shall not include compensation paid
pursuant to performance share awards) which could be awarded for the fiscal year
in which Executive's termination occurs had he continued his employment until
the end of such fiscal year, as if all performance targets and goals (if
applicable) had been fully met by the Trust and by Executive, as applicable, for
such year. If Executive's employment is terminated by Executive by a written
notice which specifies a Termination Date at least five (5) business days later
than the date of such notice, the payment shall be made on the Termination Date.
If Executive gives less than five (5) business days notice, then such payment
shall be made within five (5) business days of the date of such notice;
(b) The Trust shall for a period of three (3) years following the
Termination Date, except as otherwise noted, (i) maintain, at the Trust's
expense, at not less than Executive's highest levels of coverage during the last
twelve (12) months prior to the Change in Control, medical and dental insurance
coverage by paying premiums due in connection with COBRA continuation coverage
or converting its group medical and dental insurance policy to an individual
policy for the benefit of Executive and paying the annual premiums associated
with Executive's continued participation thereunder; (ii) maintain, at the
Trust's expense, at not less than his highest levels of coverage during the last
twelve (12) months prior to the Change in Control, accidental death and
dismemberment policies for the benefit of Executive and pay the annual premiums
associated therewith; (iii) maintain, at the Trust's expense, the split dollar
individual life insurance policy (or policies) for the benefit of Executive for
as long as is necessary so that the Trust shall have made a total of seven (7)
annual premium payments associated therewith; (iv) maintain, at the Trust's
expense, any other individual life insurance policy (or policies) in effect on
the Termination Date for one (1) year following the Termination Date; and (v) to
the extent that the Trust maintains a long-term disability policy (or policies)
that provided coverage to Executive in excess of the coverage provided under
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the Trust's group long-term disability policy, maintain at not less than his
highest levels of coverage during the last twelve (12) months prior to the
Change in Control an individual long-term disability policy for the benefit of
Executive and pay the annual premiums associated therewith. The Trust also
shall convert its group long-term disability policy to an individual policy for
the benefit of Executive and pay the annual premiums associated with Executive's
continued participation thereunder for a period of one (1) year following the
Termination Date. Notwithstanding the foregoing, Executive shall be required to
pay the premiums and any other costs of such benefits in the same dollar amount
that he was required to pay such costs immediately prior to the Termination
Date. If the Trust is unable to provide any of the foregoing benefits directly
for any reason, the Trust shall arrange to provide Executive with benefits
substantially similar to those which Executive is entitled to receive under the
preceding sentences;
(c) The Trust, to the extent legally permissible, shall continue to
provide to Executive for a period of three (3) years following the Termination
Date (i) all other principal executive officer perquisites, allowances,
accommodations of employment, and benefits on the same terms and conditions as
the Trust is required to provide to Executive in the event of the termination of
Executive's employment without Cause under the Employment Agreement between the
Trust and Executive in effect from time to time and (ii) such principal
executive officer perquisites, allowances, accommodations of employment, and
benefits as are set forth in Section 3(d) of this Amended and Restated
Agreement;
(d) For the purposes of this Section (3), Executive's right to
receive executive officer perquisites, allowances and accommodations of
employment is intended to include (i) Executive's right to have the Trust
provide Executive for a period not to exceed three (3) years from Executive's
Termination Date with a telephone number assigned to Executive at the Trust's
offices, telephone mail and a secretary to answer the telephone, (ii)
Executive's right to have the Trust provide Executive for a period not to exceed
three (3) years from Executive's Termination Date with an office at a location
to
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be agreed upon by Executive and the Trust; provided, however, such benefits
described in this Subsection 3(d)(i) shall not include physical access to the
Trust's offices and will cease upon the commencement by Executive of employment
with another employer, and (iii) Executive's right to have the Trust make
available at the Trust's expense to Executive at Executive's option the services
of an employment search/outplacement agency selected by Executive for a period
not to exceed six (6) months.
4. Purchase Loan Forgiveness. Upon the occurrence of a Change in
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Control, the Trust shall accelerate the forgiveness of the repayment of any or
all of the outstanding principal on any and all Purchase Loans pursuant to the
terms of such Purchase Loans as set forth in the agreement or instrument
granting such Purchase Loans.
5. Acceleration of Options. Upon the occurrence of a Change in Control,
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all restrictions on the receipt of any option to acquire or grant of Voting
Securities to Executive shall lapse and such option shall become immediately and
fully exercisable. Notwithstanding any applicable restrictions or any agreement
to the contrary, Executive may exercise any options to acquire Voting Securities
as of the Change in Control by delivery to the Trust of a written notice dated
on or prior to the expiration of the stated term of the option.
6. Redemption.
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(a) Except as provided in paragraph (b) below, the Trust shall
within five (5) business days of receipt of written notice from Executive given
at any time after the occurrence of a Change in Control but prior to the latest
stated expiration date of any option held by Executive on the date of the Change
in Control, redeem any Voting Securities held by Executive (whether acquired by
exercise of any such option or grant or otherwise), at a price equal to the
average closing price of Voting Securities as quoted on the New York Stock
Exchange, or if such Voting Securities are not listed thereon, then the average
of the closing "bid" and "ask" prices per share in the over-the-counter
securities market for the fifteen (15) trading days prior to the date of such
notice;
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(b) If, during the fifteen (15) day trading period, Voting
Securities are not listed, quoted or reported on any publicly traded securities
market for at least two-thirds (2/3) of the days included in such period, then
the redemption price shall be determined as follows: (i) Executive shall
designate in a written notice to the Trust an appraiser to appraise the value of
the Voting Securities to be redeemed; (ii) within ten (10) business days of
receipt of such notice the Trust shall designate an appraiser to appraise the
value of the Voting Securities to be redeemed, (iii) such designated appraisers
shall together designate, within ten (10) business days of the date the
appraiser is designated by the Trust, a third appraiser to appraise the value of
such Voting Securities, (iv) each appraiser shall value such Voting Securities
within twenty (20) business days of the designation of the third appraiser using
generally accepted appraisal methods for valuing such securities based upon the
value of all of the Trust's assets less all of its liabilities without giving
effect for any costs of liquidation or distress sale, if otherwise applicable,
and (v) the average of the three (3) values determined by the three (3)
appraisers shall constitute the price at which the Trust must redeem the Voting
Securities covered by Executive's written notice within five (5) business days
of the completion of this appraisal process. All costs and expenses associated
with any appraisal prepared pursuant to this paragraph (b) shall be borne
entirely by the Trust.
7. Excise Tax Payments.
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(a) In the event that any payment or benefit (within the meaning of
Section 280G(b)(2) of the Code) that are provided for hereunder (other than the
payment provided for in this Section 7(a)) to be paid to or for the benefit of
Executive (including, without limitation, the payments or benefits provided for
under any provision of this Amended and Restated Agreement) or payments or
benefits under any other plan, agreements or arrangement between Executive and
the Trust (a "Payment" or "Payments"), be determined or alleged to be subject to
an excise or similar purpose tax pursuant to Section 4999 of the Code or any
successor or other comparable federal, state, or local tax laws or any interest
or penalties incurred by Executive with respect to such
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excise or similar purpose tax (such excise tax, together with any such interest
and penalties, hereinafter collectively referred to as the "Excise Tax") the
Trust shall pay to Executive such additional compensation as is necessary (after
taking into account all federal, state and local taxes (including any interest
and penalties imposed with respect to such taxes), including any income or
Excise Tax, payable by Executive as a result of the receipt of such additional
compensation) (a "Gross-Up Payment") to place Executive in the same after-tax
position (including federal, state and local taxes) he would have been in had no
such Excise Tax been paid or incurred.
(b) All mathematical determinations, and all determinations as to
whether any of the Total Payments are "parachute payments" (within the meaning
of Section 280G of the Code), that are required to be made under this Section 7,
including determinations as to whether a Gross-Up Payment is required, and the
amount of such Gross-Up Payment, shall be made by an independent accounting firm
selected by the Executive from among the six (6) largest accounting firms in the
United States (the "Accounting Firm"), which shall provide its determination
(the "Determination"), together with detailed supporting calculations regarding
the amount of any Gross-Up Payment and any other relevant matter, both to the
Trust and the Executive by no later than ten (10) days following the Termination
Date, if applicable, or such earlier time as is requested by the Trust or the
Executive (if the Executive reasonably believes that any of the Payments may be
subject to the Excise Tax). If the Accounting Firm determines that no Excise Tax
is payable by the Executive, it shall furnish the Executive and the Trust with a
written statement that such Accounting Firm has concluded that no Excise Tax is
payable (including the reasons therefor) and that the Executive has substantial
authority not to report any Excise Tax on his federal income tax return. If a
Gross-Up Payment is determined to be payable, it shall be paid to the Executive
within twenty (20) days after the Determination (and all accompanying
calculations and other material supporting the Determination) is delivered to
the Trust by the Accounting Firm. The cost of obtaining the Determination shall
be borne by the Trust, any determination by the Accounting Firm shall be binding
upon the
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Trust and the Executive, absent manifest error. Without limiting the obligation
of the Trust hereunder, Executive agrees, in the event that the Trust makes a
Gross-Up Payment to cover any Excise Tax, to negotiate with the Trust in good
faith with respect to procedures reasonably requested by the Trust which would
afford the Trust the ability to contest the imposition of such Excise Tax;
provided, however, that Executive will not be required to afford the Trust any
right to contest the applicability of any such Excise Tax to the extent that
Executive reasonably determines (based upon the opinion of the Accounting Firm)
that such contest is inconsistent with the overall tax interest of Executive.
(c) As a result of the uncertainty in the application of Sections
4999 and 280G of the Code, it is possible that a Gross-Up Payment (or a portion
thereof) will be paid which should not have been paid (an "Excess Payment") or a
Gross-Up Payment (or a portion thereof) which should have been paid will not
have been paid (an "Underpayment"). An Underpayment shall be deemed to have
occurred (i) upon notice (formal or informal) to Executive from any governmental
taxing authority that Executive's tax liability (whether in respect of
Executive's current taxable year or in respect of any prior taxable year) may be
increased by reason of the imposition of the Excise Tax on a Payment or Payments
with respect to which the Trust has failed to make a sufficient Gross-Up
Payment, (ii) upon determination by a court, (iii) by reason of determination by
the Trust (which shall include the position taken by the Trust, together with
its consolidated group, on its federal income tax return) or (iv) upon the
resolution of the Dispute to Executive's satisfaction. If an Underpayment
occurs, Executive shall promptly notify the Trust and the Trust shall promptly,
but in any event, at least five (5) days prior to the date on which the
applicable governmental taxing authority has requested payment, pay to Executive
an additional Gross-Up Payment equal to the amount of the Underpayment plus any
interest and penalties (other than interest and penalties imposed by reason of
Executive's failure to file a timely tax return or pay taxes shown due on
Executive's return where such failure is not due to the Trust's actions or
omissions)
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imposed on the Underpayment. An Excess Payment shall be deemed to have occurred
upon a "Final Determination" (as hereinafter defined) that the Excise Tax shall
not be imposed upon a Payment or Payments (or a portion thereof) with respect to
which Executive had previously received a Gross-Up Payment. A "Final
Determination" shall be deemed to have occurred when Executive has received from
the applicable governmental taxing authority a refund of taxes or other
reduction in Executive's tax liability by reason of the Excess Payment and upon
either (x) the date a determination is made by, or an agreement is entered into
with, the applicable governmental taxing authority which finally and
conclusively binds Executive and such taxing authority, or in the event that a
claim is brought before a court of competent jurisdiction, the date upon which a
final determination has been made by such court and either all appeals have been
taken and finally resolved or the time for all appeals has expired or (y) the
statute of limitations with respect to Executive's applicable tax return has
expired. If an Excess Payment is determined to have been made, the amount of
the Excess Payment shall be treated as a loan by the Trust to Executive and
Executive shall pay to the Trust on demand (but not less than ten (10) days
after the determination of such Excess Payment and written notice has been
delivered to Executive) the amount of the Excess Payment plus interest at an
annual rate equal to the Applicable Federal Rate provided for in Section 1274(d)
of the Code from the date the Gross-Up Payment (to which the Excess Payment
relates) was paid to Executive until date of repayment of the Excess Payment to
the Trust.
(d) Notwithstanding anything contained in this Amended and Restated
Agreement to the contrary, in the event that, according to the Final
Determination, an Excise Tax will be imposed on any Payment or Payments, the
Trust shall pay to the applicable governmental taxing authorities as Excise Tax
withholding, the amount of the Excise Tax that the Trust has actually withheld
from the Payment or Payments.
8. Mitigation. Executive shall not be required to mitigate the amount of
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any payment, benefit, or other Trust obligation provided for in this Agreement
by seeking
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other employment or otherwise and no such payment, benefit or other Trust
obligation shall be offset or reduced by the amount of any compensation or
benefits provided to Executive in any subsequent employment.
9. General Provisions
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(a) Severability. In case any one or more of the provisions of this
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Amended and Restated Agreement shall, for any reason, be held or found by final
judgment of a court of competent jurisdiction to be invalid, illegal or
unenforceable in any respect (i) such invalidity, illegality or unenforceability
shall not affect any other provisions of this Amended and Restated Agreement,
(ii) this Amended and Restated Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein, and (iii) if
the effect of a holding or finding that any such provision is either invalid,
illegal or unenforceable is to modify to Executive's detriment, reduce or
eliminate any compensation, reimbursement, payment, allowance or other benefit
to Executive intended by the Trust and Executive in entering into this Amended
and Restated Agreement, the Trust shall promptly negotiate and enter into an
agreement with Executive containing alternative provisions (reasonably
acceptable to Executive), that will restore to Executive (to the extent legally
permissible) substantially the same economic, substantive and income tax
benefits Executive would have enjoyed had any such provision of this Amended and
Restated Agreement been upheld as legal, valid and enforceable. Failure to
insist upon strict compliance with any provision of this Amended and Restated
Agreement shall not be deemed a waiver of such provision or of any other
provision of this Amended and Restated Agreement.
(b) No Set-Off. After a Change in Control, the Trust shall have no
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right of set-off, reduction or counterclaim in respect of any debt or other
obligation of Executive to the Trust against any payment, benefit or other Trust
obligation to Executive provided for in this Amended and Restated Agreement or
pursuant to any other plan, agreement or policy; provided, however, that the
Trust may reduce any payment provided for in this Amended and Restated Agreement
by the amount of any payment made to
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Executive pursuant to a Restricted Share Award Agreement between Executive and
the Trust in the event of a Change in Control expressly intended to act as a
setoff against any payment provided for in this Amended and Restated Agreement,
such intention to be evidenced only by a written instruction in such Restricted
Share Award Agreement.
(c) Modification and Waiver. No provision of this Amended and
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Restated Agreement may be amended, modified or waived unless such amendment,
modification or waiver shall be agreed to in writing and signed by Executive and
by a person duly authorized by the Board of Trustees.
(d) No Assignment of Compensation. No right to or interest in any
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compensation or reimbursement payable hereunder shall be assignable or divisible
by Executive; provided, however, that this provision shall not preclude
Executive from designating one or more beneficiaries to receive any amount that
may be payable after his death and shall not preclude his executor or
administrator from assigning any right hereunder to the person or persons
entitled thereto.
(e) No Attachments. Except as required by law, no right to receive
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payments under this Amended and Restated Agreement shall be subject to
anticipation, commutation, alienation, sale, assignment, encumbrance, charge,
pledge or hypothecation, or to execution, attachment, levy or similar process or
assignment by operation of law, and any attempt, voluntary or involuntary, to
affect any such action shall be null, void and of no effect.
(f) Headings. The headings of Sections and Subsections hereof are
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included solely for convenience of reference and shall not control the meaning
or interpretation of any of the provisions of this Amended and Restated
Agreement.
(g) Governing Law. This Amended and Restated Agreement has been
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executed and delivered in the State of Maryland shall be construed in accordance
with and governed for all purposes by the laws of the State of Maryland.
(h) No Assignment of Agreement. This Amended and Restated Agreement
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may not be assigned, partitioned, subdivided, pledged, or hypothecated in
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whole or in part without the express prior written-consent of Executive and the
Trust. This Amended and Restated Agreement shall not be terminated either by the
voluntary or involuntary dissolution or the winding up of the affairs of the
Trust, or by any merger or consolidation wherein the Trust is not the surviving
entity, or by any transfer of all or substantially all of the Trust's assets on
a consolidated basis. In the event of any such merger, consolidation or transfer
of assets, the provisions of this Amended and Restated Agreement shall be
binding upon and shall inure to the benefit of the surviving entity or to the
entity to which such assets shall be transferred.
(i) Interest on Amounts Payable. After a Change of Control, if any
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amounts which are required or determined to be paid or payable or reimbursed or
reimbursable to Executive under this Amended and Restated Agreement (or under
any other plan, agreement, policy or arrangement with the Trust) are not so paid
promptly at the times provided herein or therein, such amounts shall accrue
interest, compounded daily at the annual percentage rate which is three
percentage points (3%) above the interest rate which is announced by The Xxxxx
National Bank (Washington, D.C.) from time to time as its prime lending rate,
from the date such amounts were required or determined to have been paid or
payable or reimbursed or reimbursable to Executive until such amounts and any
interest accrued thereon are finally and fully paid; provided, however, that in
no event shall the amount of interest contracted for, charged or received
hereunder exceed the maximum non-usurious amount of interest allowed by
applicable law.
(j) Confidentiality of Employment Relationship. The Trust, except
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to the extent required by law, will not make or publish, without the express
prior written consent of Executive, any written or oral statement concerning the
terms of Executive's employment relationship with the Trust and will not, if for
any reason he xxxxxx his employment with the Trust, make or publish any written
or oral statement concerning Executive including, without limitation, his work-
related performance or the reasons or basis for Executive severing his
employment relationship with the Trust; provided,
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however, that the foregoing restriction is not applicable to information
concerning the Executive's employment relationship with the Trust which was or
became generally available to the public other than as a result of a disclosure
by the Trust.
(k) Termination of Prior Agreements. Except as may otherwise be
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provided herein, this Amended and Restated Agreement shall terminate and
supersede any and all prior written agreements existing between the Trust and
Executive prior to the date hereof which principally concern payments or
benefits in the event of a Change of Control, and the Trust and Executive hereby
mutually release and discharge each other from any further obligation, liability
or responsibility under any of the foregoing.
(l) Notices. Any notice required or permitted to be given under
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this Amended and Restated Agreement shall be in writing and shall be deemed to
have been given when delivered in person or when deposited in the U.S. mail,
registered or certified, postage prepaid, and mailed to the respective addresses
set forth herein, unless a party changes its address for receiving notices by
giving notice in accordance with this Subsection, in which case, to the address
specified in such notice.
(m) Disputes; Payment of Expenses. At any time after a Change of
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Control, all costs and expenses (including legal, accounting and other advisory
fees and expenses of investigation) incurred by Executive in connection with (a)
any dispute as to the validity, interpretation or application of any term or
condition of this Amended and Restated Agreement, (b) the determination in any
tax year of the tax consequences to Executive of any amounts payable (or
reimbursable) under this Amended and Restated Agreement, or (c) the preparation
of responses to an Internal Revenue Service audit of, and other defense of,
Executive's personal income tax return for any year which is the subject of any
such audit or an adverse determination, administrative proceeding or civil
litigation arising therefrom that is occasioned by or related to an audit of the
Internal Revenue Service of the Trust's income tax returns are, upon written
demand by Executive, to be paid by the Trust (and Executive shall be entitled,
upon application to any court of competent jurisdiction, to the entry of a
mandatory injunction, without the
16
necessity of posting any bond with respect thereto, compelling the Trust)
promptly on a current basis (either directly or by reimbursing Executive).
Under no circumstances shall Executive be obligated to pay or reimburse the
Trust for any attorneys' fees, costs or expenses incurred by the Trust.
(n) Federal Income Tax Withholding. The Trust may withhold from any
------------------------------
benefits payable under this Amended and Restated Agreement all federal, state,
city or other taxes (other than any excise tax imposed under Section 4999 of the
Code or any similar tax to which the indemnity provisions of Section 7 of this
Amended and Restated Agreement apply) as shall be required pursuant to any law
or governmental regulation or ruling.
(o) Continued Employment. This Amended and Restated Agreement shall
--------------------
not confer upon the Executive any right with respect to continuance of
employment by the Trust.
(p) Source of Payments. All payments provided under this Amended
------------------
and Restated Agreement shall be paid in cash from the general funds of the
Trust, and no special or separate fund shall be established and no other
segregation of assets shall be made to assure payment.
(q) Exculpatory Clause. Neither the Trust's shareholders nor the
------------------
Trustees, officers, employees or agents of the Trust shall be liable under this
Amended and Restated Agreement, and the Executive shall look solely to the
Trust's estate for the payment of any claim under or for performance of this
Amended and Restated Agreement. The Trust is organized pursuant to a Third
Amended and Restated Declaration of Trust dated as of May 24, 1984.
(r) Counterparts. This Amended and Restated Agreement may be
------------
executed in multiple counterparts with the same effect as if each of the signing
parties had signed the same document. All counterparts shall be construed
together and constitute the same instrument.
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IN WITNESS WHEREOF, the parties have executed and delivered this Amended
and Restated Agreement as of the day and year indicated above.
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
(Executive's Signature)
Executive's Permanent Address:
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
FEDERAL REALTY INVESTMENT TRUST
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chair, Compensation Committee
Address:
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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