SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): April 21, 1999
NEW PLAN EXCEL REALTY TRUST, INC.
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(Exact Name of Registrant as Specified in Charter)
MARYLAND 1-12244 33-0160389
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
1120 AVENUE OF THE AMERICAS
12TH FLOOR
NEW YORK, NEW YORK 10036
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (212) 869-3000
<PAGE>
ITEM 5. OTHER EVENTS.
On April 21, 1999, New Plan Excel Realty Trust, Inc. (the "Company"),
ERT Development Corporation ("EDV") and Excel Legacy Corporation ("Legacy")
entered into a Master Separation Agreement (the "Master Separation Agreement").
Under the terms of the Master Separation Agreement, the Company and Legacy have
agreed, among other things, to modify the terms of certain of their existing
agreements, including the termination of the Intercompany Agreement, dated as of
March 31, 1998 (as amended, the "Intercompany Agreement"), and the
Administrative Services Agreement, dated as of March 31, 1998 (as amended, the
"Administrative Services Agreement"), in each case except as set forth in the
Master Separation Agreement.
In addition, the Master Separation Agreement provides for certain
interim arrangements between the Company and Legacy as to certain office
facilities in California, as well as an agreement with respect to the
non-solicitation of certain Company employees during the 90-day period following
the entering into of the Master Separation Agreement (the "Non-Solicitation
Provision").
The Master Separation Agreement also provides that each of the Company
and Legacy will, on the terms set forth in the Master Separation Agreement,
refrain from acquiring any interest in the other or seeking to influence or
control the other (the "Standstill Provision").
The foregoing description of the Master Separation Agreement is
qualified in its entirety by reference to the Master Separation Agreement, a
copy of which is filed as an exhibit hereto and is incorporated by reference
herein.
Contemporaneously with the Company and Legacy's entering into the
Master Separation Agreement, on April 21, 1999, seven executives of the Company,
including Gary B. Sabin, President, Richard B. Muir, Executive Vice President
and co-Chief Operating Officer, Ronald H. Sabin, S. Eric Ottesen, Mark T.
Burton, Graham R. Bullick and John Visconsi, six of whom also serve as an
executive of Legacy, entered into separate Resignation and Release Agreements
with the Company (the "Resignation and Release Agreements"). The Resignation and
Release Agreements provide for the resignation of the respective executives from
the Company and its subsidiaries and affiliates, the mutual release by the
Company and the executive of certain possible claims against the other, and the
payment by the Company of certain severance benefits, including the payment of
(i) any unpaid base salary and expenses through the resignation date, (ii) a
lump sum severance amount, and (iii) an amount in cash equal to the value of the
medical benefits the executive and his eligible family members would have
otherwise received during the subsequent two years. The aggregate of the lump
sum severance amounts to be paid under the Resignation and Release Agreements
will be approximately $1.7 million.
The Resignation and Release Agreements further provide for the purchase
by the Company of the shares of the Company's common stock owned by the
executives at a purchase price of $21 per share, plus interest as set forth
therein. The aggregate number of shares to be repurchased by the Company under
the Resignation and Release Agreements will be approximately 1.2 million shares,
at an aggregate purchase price of approximately $25.8 million, plus interest, if
<PAGE>
any. In addition, pursuant to the Resignation and Release Agreements each option
to acquire Company common stock held by any of the executives with an exercise
price less than $21 (all of which are have previously vested) will be canceled
in exchange for a lump sum payment equal to the excess, if any, of $21 per share
over the per-share exercise price of each such option (which options,
collectively, had a weighted average exercise price of $15.41 per share). The
aggregate payment for such options will be approximately $5.1 million. The
Resignation and Release Agreements further provide that for options held by the
executives with an exercise price equal to or in excess of $21 per share, (i)
those options granted under the Excel Realty Trust, Inc. 1994 Directors' Stock
Option Plan will terminate and be forfeited, and (ii) those options which are
vested or which would become vested in accordance with the terms of such
executive's employment agreement (had such executive been terminated by the
Company without cause or by such executive for good reason, as contemplated by
such executive's employment agreement) will fully vest ; except that, with
respect to certain options granted to Gary B. Sabin and which would not
otherwise vest in accordance with the provisions described above, 62% of such
options will fully vest while the remaining 38% of such options will terminate
and be forfeited. The options so vested will be exercisable for a period of two
years and, if at any time during such two-year period the executive exercise all
or a portion of such options, the Company will have the right either (x) to
deliver the executive shares upon payment by such executive of the exercise
price therefor, or (y) upon surrender of such options, to pay to the executive a
lump sum in cash equal to the excess of the then fair market value of the
underlying shares of Company common stock over the exercise price for such
options.
The Resignation and Release Agreement also obligates the executive to
abide by certain provisions of the Master Separation Agreement, including the
agreements contained therein in respect of the Intercompany Agreement,
Standstill Provision and the Non-Solicitation Provision.
The foregoing description of the Resignation and Release Agreements is
qualified in its entirety by reference to the Resignation and Release Agreement,
a copy of which is filed as an exhibit hereto and is incorporated by reference
herein.
In connection with the foregoing matters, and in addition to the
resignation of Gary B. Sabin and Richard B. Muir from the Board of Directors of
the Company (as contemplated by their respective Resignation and Release
Agreements), three non-executive directors who formerly were Excel Realty Trust
directors, Boyd A. Lindquist, Robert E. Parsons, Jr. and John H. Wilmot, each
resigned from the Board of Directors of the Company, reducing the Company's
Board of Directors to ten members. In connection with Mr. Wilmot's resignation,
the Company agreed to purchase, and Mr. Wilmot agreed to sell, all of the shares
of Company common stock owned by him at a purchase price of $19.375 per share
(or $2,514,545.63, in the aggregate) and Mr. Wilmot agreed to abide by certain
provisions of the Master Separation Agreement, including the Standstill
provision contained in the Master Separation Agreement applicable to Legacy.
On April 21, 1999, the Company issued a press release announcing the
foregoing matters. A copy of the press release is filed as an exhibit hereto and
is incorporated by reference herein.
<PAGE>
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits. The following exhibits are filed as part of this report:
10.1 Master Separation Agreement, dated as of April 21, 1999,
among New Plan Excel Realty Trust, Inc., ERT Development
Corporation and Excel Legacy Corporation.
10.2 Resignation and Release Agreement, dated as of April 21,
1999, entered into between the Company and Gary B. Sabin.
10.3 Resignation and Release Agreement, dated as of April 21,
1999, entered into between the Company and Richard B.
Muir.*
99.1 Press release, dated April 21, 1999, issued by the
Company.
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* Each of the other resigning executive officers of the Company
(not including Mr. Sabin) have entered into a Resignation and
Release Agreement substantially in the form of the Muir
Resignation and Release Agreement.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
Dated: April 22, 1999
NEW PLAN EXCEL REALTY TRUST, INC.
By /s/ Steven F. Siegel
-------------------------------------
Name: Steven F. Siegel
Title: Senior Vice President
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
10.1 Master Separation Agreement, dated as of April 21, 1999, among
New Plan Excel Realty Trust, Inc., ERT Development Corporation
and Excel Legacy Corporation
10.2 Resignation and Release Agreement, dated as of April 21, 1999,
entered into between the Company and Gary B. Sabin
10.3 Resignation and Release Agreement, dated as of April 21, 1999,
entered into between the Company and Richard B. Muir.*
99.1 Press release, dated April 21, 1999, issued by the Company.
--------------------------
* Each of the other resigning executive officers of the Company (not
including Mr. Sabin) have entered into a Resignation and Release
Agreement substantially in the form of the Muir Resignation and Release
Agreement.
EXHIBIT 10.1
MASTER SEPARATION AGREEMENT
MASTER SEPARATION AGREEMENT, dated as of April 21, 1999 (this
"Agreement"), by and among New Plan Excel Realty Trust, Inc., a Maryland
corporation ("New Plan"), ERT Development Corporation, a Delaware corporation of
which New Plan owns 100% of the outstanding preferred shares ("EDV"), and Excel
Legacy Corporation, a Delaware corporation ("Legacy"). New Plan, EDV and Legacy
are each referred to herein sometimes as a "Party" and collectively as the
"Parties".
WHEREAS, the Parties have previously entered into that certain
Distribution Agreement, dated as of March 31, 1998 (the "Distribution
Agreement"), providing for, among other things, the terms and conditions
pursuant to which Excel Realty Trust, Inc. (the predecessor to New Plan, "ERT")
distributed the outstanding shares of Legacy to ERT's stockholders as of the
record date for such distribution (the "Spin-off").
WHEREAS, in connection with the Spin-off, ERT and Legacy entered
into the following agreements: (i) Administrative Services Agreement, dated as
of March 31, 1998, as amended by the Amendment to Administrative Services
Agreement, dated as of May 14, 1998 (the "Administrative Services Agreement");
(ii) Tax Sharing Agreement, dated as of March 31, 1998 (the "Tax Sharing
Agreement"); and (iii) Intercompany Agreement, dated as of March 31, 1998, as
amended by the Amendment to Intercompany Agreement, dated as of May 14, 1998
(the "Intercompany Agreement").
WHEREAS, in connection with the execution and delivery of this
Agreement, certain directors of New Plan shall resign (the "Resignations") and
certain executive officers shall resign and enter into respective Resignation
and Release Agreements with New Plan (collectively, the "Resignation and Release
Agreements").
WHEREAS, in connection with the execution and delivery of this
Agreement, NNRA, LLC ("NNRA"), EDV and Excel Interfinancial Corporation
("Interfinancial"), will enter into a Stock Purchase Agreement (the "Stock
Purchase Agreement"), pursuant to which, among other things, NNRA shall purchase
the common stock of EDV owned by Interfinancial.
WHEREAS, the parties desire to amend their existing relationships as
set forth herein.
NOW THEREFORE, in consideration of the above premises and mutual
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
intending to be legally bound, and subject to the terms and conditions stated
herein, the Parties hereby agree as follows:
<PAGE>
ARTICLE I
COVENANTS
SECTION 1.1. Intercompany Agreement. The parties hereby agree that
notwithstanding anything in the Intercompany Agreement to the contrary, but
subject to the following proviso, the Intercompany Agreement shall terminate and
be of no further force and effect simultaneously with the execution and delivery
hereof; provided, however, that with respect to all REIT Opportunities (as
defined in the Intercompany Agreement) that have been presented to a meeting of
the New Plan Investment Committee prior to the date hereof, whether or not the
New Plan Investment Committee elected to proceed with the REIT Opportunity at
such time or thereafter (collectively, but excluding the entity known to New
Plan and Legacy as "Nuts", the "New Plan Exclusive REIT Opportunities"), neither
Legacy nor any of its subsidiaries or affiliates, or any of their respective
directors, officers, employees or agents, shall, directly or indirectly, pursue
or enter into negotiations with respect to any New Plan Exclusive REIT
Opportunity or enter into any letter of intent, agreement in principle, or
acquisition or other similar binding agreement to acquire or participate in all
or a portion of such New Plan Exclusive REIT Opportunity, or otherwise take any
action that could result in any of the foregoing as to any New Plan Exclusive
REIT Opportunity. New Plan further agrees that neither it nor any of its
subsidiaries or affiliates, or any of their respective directors, officers,
employees or agents, shall, directly or indirectly, (i) pursue or enter into
negotiations with respect to the transaction relating to the San Diego Naval
Base that has been considered by New Plan and Legacy, or enter into any letter
of intent, agreement in principle, or acquisition or other similar binding
agreement to acquire or participate in all or a portion of such transaction by
New Plan, or otherwise take any action that could result in any of the foregoing
as to such transaction, unless in partnership or other business relationship
with Legacy on an agreed basis, or (ii) raise any objection to Legacy entering
into any letter of intent, agreement in principle, or acquisition or other
similar binding agreement with that entity known to New Plan and Legacy as
"Nuts".
SECTION 1.2. Administrative Services Agreement. The Parties hereby
agree that upon consummation of this Agreement the Administrative Services
Agreement shall terminate and, thereafter shall have no further force and
effect; provided, however, that, notwithstanding anything contained herein to
the contrary, with respect to the Administrative Services Agreement, Legacy
shall promptly, upon receipt of an invoice from New Plan, pay any portion of the
payments and/or other amounts due to New Plan and accrued through the date
hereof, whether for services, salaries or otherwise.
SECTION 1.3. Airplane Interest. (a) New Plan hereby sells, assigns,
conveys, transfers, delivers and confirms to Legacy all of its rights, title and
interest in and to that certain 1/16th fractional interest in an airplane,
acquired and governed by that certain agreement dated as of March 6, 1998,
between Executive Jet Sales, Inc. and Excel Realty Trust, Inc. (the "Airplane
Interest"), in exchange for Legacy's agreement to pay to New Plan the fair
market value of the Airplane Interest (up to $250,000, and provided that if
Legacy shall at any time hereafter sell, assign or transfer the Airplane
Interest to any third party for consideration in excess of the amount paid to
New Plan pursuant to this paragraph, Legacy shall promptly pay over to New
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Plan an amount equal to such excess), together with the amount of any
prepayments, deposits or security previously paid in respect of the Airplane
Interest (the "Airplane Interest Value"), all of which shall be due and payable
on or before the date that is 30 days from the date hereof.
(b) Legacy hereby purchases and acquires the Airplane Interest, and
assumes all of the obligations and liabilities arising from or relating to the
Airplane Interest, on and after the date hereof, and Legacy shall indemnify,
hold harmless and defend New Plan from and against any and all liabilities,
obligations, claims or expenses of whatever kind resulting from or relating to
the Airplane Interest.
SECTION 1.4. Deliveries. (a) At or prior to the execution
of this Agreement, Legacy shall deliver, or shall cause to be delivered, to
New Plan the following:
(i) The Stock Purchase Agreement, executed by
Interfinancial and EDV;
(ii) The Resignation and Release Agreements, signed by each
of the executive officers set forth on Schedule 1.4;
(iii) The Resignations, in the form of Exhibit A hereto, of
each of the directors set forth on Schedule 1.4, signed by such persons;
and
(iv) The Assignment Agreement (as defined in Section 4.2),
signed by Legacy.
(b) At or prior to the execution of this Agreement, New Plan shall
deliver, or shall cause to be delivered, to Legacy the following:
(i) The Stock Purchase Agreement, executed by NNRA;
(ii) The Resignation and Release Agreements, signed by
New Plan; and
(iii) The Assignment Agreement, signed by New Plan.
SECTION 1.5. Public Announcements. The Parties shall not make, or
cause to be made, any press releases or public announcements in respect of this
Agreement or the transactions contemplated hereby without prior notification of
the other, and the parties shall cooperate as to the timing and content of any
such announcement.
ARTICLE II
STANDSTILL AGREEMENT
SECTION 2.1. Legacy Standstill. (A) Legacy (including its
affiliates and any "group" (within the meaning of Section 13(d)(3) of the
Securtities Exchange Act of 1934 (the
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"Exchange Act")) in which it or any of its affilitates is a member) shall not
directly or indirectly acquire beneficial ownership or control of any equity
securities of New Plan, nor shall Legacy or any of its affiliates or any group
in which it or any of its affiliates is a member directly or indirectly
acquire beneficial ownership or control of any equity securities of any
affiliate of New Plan.
(b) Legacy and its affiliates will not, directly or indirectly,
acting alone or in concert with others, unless specifically requested in writing
in advance by the Board of Directors of New Plan: (a) in any manner acquire or
agree, attempt, seek or propose to acquire (or make any request for permission
with respect thereto), by purchase, merger, through the acquisition of control
of another person, by joining a partnership, limited partnership, syndicate or
other group, or otherwise, ownership (including, but not limited to, beneficial
ownership as defined in Rule 13d-3 under the Exchange Act) of any of the assets
or businesses of New Plan or any securities issued by New Plan, or any rights or
options to acquire such ownership (including from a third party), (b) make, or
in any way cause or participate in, any "solicitation" of "proxies" to vote (as
such terms are defined in Regulation 14A under the Exchange Act), or communicate
with, seek to advise, encourage or influence any person or entity, in any
manner, with respect to the voting of, any voting securities of New Plan, or
become a "participant" in any "election contest" (as such terms are defined or
used in Rule 14a-11 promulgated under the Exchange Act) with respect to New
Plan, or execute any written consent with respect to New Plan, (c) make or cause
to be made any proposal for the acquisition of New Plan or any assets or
securities thereof or for any extraordinary transaction involving New Plan,
including any merger, or other business combination, restructuring,
recapitalization, liquidation or similar transaction, (d) initiate, propose or
otherwise solicit stockholders for the approval of one or more stockholder
proposals with respect to New Plan or induce or attempt to induce any other
person to initiate any stockholder proposal, or seek election to or seek to
place a representative on the Board of Directors of New Plan or seek the removal
of any member of the Board of Directors of New Plan, (e) form, join or in any
way participate in a "group" (within the meaning of Section 13(d)(3) of the
Exchange Act) with respect to any voting securities of New Plan, (f) otherwise
act, alone or in concert with others, to seek to control or influence the
management, the Board of Directors or the policies of New Plan, (g) disclose any
intention, plan or arrangement, or make any public announcement inconsistent
with the foregoing, (h) advise, assist or encourage or finance (or assist or
arrange financing to or for) any other person in connection with any of the
foregoing, (i) enter into any discussions, negotiations, arrangements or
understandings with any other person in connection with any of the foregoing, or
(j) request a waiver of any of the foregoing.
SECTION 2.2. New Plan Standstill. (a) New Plan (including its
affiliates and any group in which it or any of its affiliates is a member) shall
not directly or indirectly acquire beneficial ownership or control of any equity
securities of Legacy, nor shall New Plan or any of its affiliates or any group
in which it or any of its affiliates is a member directly or indirectly acquire
beneficial ownership or control of any equity securities of any affiliate of
Legacy.
(b) New Plan and its affiliates will not, directly or indirectly,
acting alone or in concert with others, unless specifically requested in writing
in advance by the Board of Directors of Legacy: (a) in any manner acquire or
agree, attempt, seek or propose to acquire (or
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make any request for permission with respect thereto), by purchase, merger,
through the acquisition of control of another person, by joining a partnership,
limited partnership, syndicate or other group, or otherwise, ownership
(including, but not limited to, beneficial ownership as defined in Rule 13d-3
under the Exchange Act) of any of the assets or businesses of Legacy or any
securities issued by Legacy, or any rights or options to acquire such ownership
(including from a third party), (b) make, or in any way cause or participate in,
any "solicitation" of "proxies" to vote (as such terms are defined in Regulation
14A under the Exchange Act), or communicate with, seek to advise, encourage or
influence any person or entity, in any manner, with respect to the voting of,
any voting securities of Legacy, or become a "participant" in any "election
contest" (as such terms are defined or used in Rule 14a-11 promulgated under the
Exchange Act) with respect to Legacy, or execute any written consent with
respect to Legacy, (c) make or cause to be made any proposal for the acquisition
of Legacy or any assets or securities thereof or for any extraordinary
transaction involving Legacy, including any merger, or other business
combination, restructuring, recapitalization, liquidation or similar
transaction, (d) initiate, propose or otherwise solicit stockholders for the
approval of one or more stockholder proposals with respect to Legacy or induce
or attempt to induce any other person to initiate any stockholder proposal, or
seek election to or seek to place a representative on the Board of Directors of
Legacy or seek the removal of any member of the Board of Directors of Legacy,
(e) form, join or in any way participate in a group (within the meaning of
Section 13(d)(3) of the Exchange Act) with respect to any voting securities of
Legacy, (f) otherwise act, alone or in concert with others, to seek to control
or influence the management, the Board of Directors or the policies of Legacy,
(g) disclose any intention, plan or arrangement, or make any public announcement
inconsistent with the foregoing, (h) advise, assist or encourage or finance (or
assist or arrange financing to or for) any other person in connection with any
of the foregoing, (i) enter into any discussions, negotiations, arrangements or
understandings with any other person in connection with any of the foregoing, or
(j) request a waiver of any of the foregoing.
ARTICLE III
DISPARAGING COMMENTS
SECTION 3.1. Disparaging Comments. From and after the date of this
Agreement, except as may be required by a court or governmental body, each of
New Plan and Legacy shall, and shall cause each of its subsidiaries and
affliates, and use its reasonable efforts to cause each of its directors,
officers and employees, to, refrain from taking actions or making statements,
written or oral, which disparage or defame the goodwill or reputation of the
other Party and its subsidiaries, affiliates, security holders, partners, agents
and former and current directors, officers and employees or which are intended
to, or may be reasonably expected to, adversely affect the morale of the
employees of such Party, its subsidiaries or its affiliates. Each of New Plan
and Legacy shall, and shall cause their respective subsidiaries and affiliates
to, take reasonable steps to advise actively employed executive officers of such
Party and its subsidiaries and affiliates, and members of their respective
boards of directors, not to disparage or defame the reputation of such other
Party.
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ARTICLE IV
REAL PROPERTY MATTERS
SECTION 4.1. Rancho Bernardo. (a) New Plan, as landlord, and
Legacy, as tenant, hereby covenant and agree that certain of the space in the
building owned by New Plan and located at 16955 Via Del Campo, Rancho Bernardo,
California (the "Building"), which space shall be mutually agreed upon by New
Plan and Legacy (the "Demised Premises"), shall be leased by New Plan to Legacy
in accordance with the terms and conditions set forth on Exhibit B hereto.
(b) The existing space lease between New Plan and Legacy, dated as
of June 24, 1998, with respect to approximately 892 rentable square feet in the
Building shall remain in full force and effect in accordance with its terms.
SECTION 4.2. Excel Properties Ltd. (a) Pursuant to the Assignment
and Assumption Agreement attached hereto as Exhibit C (the "Assignment
Agreement"), New Plan shall, as of the date hereof, assign all of its right,
title and interest as a general partner of Excel Properties, Ltd., a California
limited partnership (the "Partnership Interest"), to Legacy or its designee, and
Legacy (or such designee) shall assume all of New Plan's obligations and
liabilities with respect to the Partnership Interest.
(b) To the extent the assignment contemplated in Section 4.2(a)
shall require the consent or waiver of any other party, neither this Agreement
nor the Assignment Agreement shall constitute an agreement to assign such
Partnership Interest without such consent or waiver. If any such required
consent or waiver is not obtained, Legacy and New Plan shall, at Legacy's
expense, cooperate in any reasonable arrangement requested by Legacy or New Plan
and designed to provide Legacy with the benefit of the Partnership Interest (and
all associated obligations or liabilities), including New Plan acting as
Legacy's agent in order to obtain for Legacy the benefits therefor.
Notwithstanding any such consents or assignment, Legacy agrees to indemnify,
hold harmless and defend New Plan from and against any and all liabilities,
obligations, claims or expenses of whatever kind resulting from or related to
the Partnership Interest and the assignment and arrangements contemplated by
this Section and the Assignment Agreement.
SECTION 4.3. New Legacy Building. (a) Legacy agrees to sublease, as
sub-tenant, from New Plan, as sub-landlord, on identical terms to those set
forth in the New Building Lease (as hereinafter defined), all of the space at
those certain premises at the building owned (or to be constructed) by Legacy
and located at Bernardo Center Drive, San Diego, California (the "New Legacy
Building") and which New Plan, as tenant, has agreed to lease from Legacy, as
landlord, pursuant to a lease, license or other occupancy agreement between them
as tenant and landlord (the "New Building Lease"). Legacy, as the lessor under
the New Building Lease, further agrees (i) to waive any and all defaults, events
of default or breaches under such New Building Lease, as such may arise, from
time to time, thereunder, and (ii) to indemnify, hold harmless and defend New
Plan from and against any and all liabilities, obligations, claims or ex-
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penses of whatever kind resulting from or related to the New Building Lease.
Promptly after the date hereof, the parties shall enter into a sublease
reflecting the provisions of this Section 4.3.
(b) Legacy and New Plan agree that, at such time as the termination
of the New Building Lease would not result in a breach or default under the
construction financing for the New Legacy Building, the New Building Lease and
the sublease entered into in paragraph (a) above shall then terminate and be
null, void and of no further force or effect. In addition, Legacy further agrees
that it shall not include, make reference to, rely on or cause any other party
to rely on the existence or continuation of the New Building Lease in connection
with Legacy's procurement of financing for the New Legacy Building (other than
the construction financing existing as of the date hereof).
ARTICLE V
EMPLOYEE MATTERS
SECTION 5.1. Former Excel Employees. Each individual who is
employed as of the date of this Agreement by New Plan at its Rancho Bernardo or
Salt Lake City locations and who agrees to remain employed by New Plan following
the transactions contemplated hereby (each such individual, a "Covered
Employee") but who is terminated by New Plan within 180 days after the date of
this Agreement other than for cause shall be entitled to severance pay (the
"Severance Pay") equal to one week's base pay for each full Year of Service (as
defined below) completed by such individual; provided that this obligation shall
not apply to any of the employees listed on Schedule 5.1, none of whom shall be
Covered Employees, nor to any Covered Employee who subsequently becomes an
employee of Legacy or any of its affiliates or subsidiaries. For purposes of
this Section 5.1, the term "Year of Service" means a period of 12 months of
continuous employment with New Plan and/or any predecessor entities.
SECTION 5.2. Non-Solicitation of Employees. (a) For a period
commencing on the date hereof and continuing through the 90-day period
thereafter, Legacy may offer employment only to any of the New Plan employees
listed on Schedule 5.1, and, during such period, neither Legacy nor any of its
subsidiaries or affiliates, nor any of their respective directors, officers,
employees or agents, shall, directly or indirectly, solicit or induce any other
person who is an employee of New Plan as of the date hereof to become an
employee or consultant of Legacy or any of its affiliates or subsidiaries or to
leave the employ of New Plan.
(b) For purposes of this Section 5.2, the term "employment" shall
include rendering services in any capacity, and the term "employee" shall
include any individual who is rendering services, in each case whether as an
employee, officer, director, agent, consultant or independent contractor or
otherwise.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Notices. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally, or
sent by facsimile transmission or sent by certified, registered or express mail,
postage prepaid. any such notice shall be deemed given when so delivered
personally, or sent by facsimile transmission or, if mailed, three (3) business
days after the date of deposit in the United States mail, by certified mail
return receipt requested (if also sent by facsimile if available at the office
of the recipient), as follows:
If to Legacy, to:
Excel Legacy Corporation
16955 Via Del Campo, Suite 100
San Diego, California 92127
Attention: S. Eric Ottesen
Telecopier: (619) 485-8530
With a copy to:
Latham & Watkins
701 B Street
Suite 2100
San Diego, California 92101-8197
Attention: Scott N. Wolfe, Esq.
Telecopier: (619) 696-7419
If to New Plan or EDV, to:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
Attention: Steven F. Siegel, Esq.
Telecopier: (212) 302-4776
With a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019-6150
Attention: Adam O. Emmerich, Esq.
Telecopier: (212) 403-2000
Any Party, by notice given in accordance with this Section 6.1 to
the other Parties, may designate another address or person for receipt of
notices hereunder.
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SECTION 6.2. Waivers and Amendments; Non-Contractual Remedies;
Preservation of Remedies. This Agreement may be amended, superseded, canceled,
renewed or extended, and the terms hereof may be waived only by a written
instrument signed by the Parties or in the case of a waiver, by the Party
waiving compliance. No delay on the part of any Party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof except as
expressly provided herein. No waiver on the part of any Party of any right,
power or privilege, nor any single or partial exercise of any such right, power
or privilege, shall preclude any further exercise thereof or the exercise of any
other such right, power or privilege. The rights and remedies herein provided
are cumulative and are not exclusive of any rights or remedies that any party
may otherwise have at law or in equity.
SECTION 6.3. Governing Law; Enforcement. (a) This Agreement shall
be governed by and construed in accordance with the substantive and procedural
laws of the State of New York applicable to agreements made and to be performed
entirely within such State (without giving effect to any conflict of laws
principles which might require application of the law of a different
jurisdiction).
(b) Each of the Parties hereto (i) consents to submit itself to the
personal jurisdiction of any federal court located in the State of New York or
any New York State court in the event any dispute arises out of this Agreement
or any of the transactions contemplated by this Agreement, (ii) agrees that it
shall not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court, and (iii) agrees that it shall not
bring any action relating to this Agreement or any of the transactions
contemplated by this Agreement in any court other than a federal court sitting
in the State of New York or a New York State court.
SECTION 6.4. Further Assurances. In addition to the covenants and
agreements provided for in this Agreement, after the date hereof, each Party
shall, and shall cause its affiliates to, from time to time, at the request of
any other Party and without further cost or expense to such requesting Party,
execute and deliver such other documents, instruments or agreements as are
necessary or advisable to carry out the transactions contemplated by this
Agreement.
SECTION 6.5. Binding Effect; No Assignment; No Third Party
Beneficiaries. Except as expressly provided herein, neither this Agreement, nor
any right hereunder, may be assigned by any Party without the written consent of
the other Parties. Any assignment or attempted assignment in violation of the
foregoing shall be void. This Agreement shall be binding upon and inure solely
to the benefit of the Parties hereto and their permitted successors and assigns
and nothing in this Agreement, express or implied, is intended to confer upon
any other person any rights or remedies of any nature whatsoever under or by
reason of this Agreement.
SECTION 6.6. Counterparts. This Agreement may be executed by the
Parties in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument. Each counterpart may consist of a number of copies
hereof each signed by less than all, but together signed by all of the Parties.
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<PAGE>
SECTION 6.7. Headings. The descriptive headings contained
in this Agreement are for convenience of reference only and shall not affect
in any way the meaning or interpretation of this Agreement.
SECTION 6.8. Severability. If any term or other provision of this
Agreement shall be deemed invalid, illegal or unenforceable, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
Party. Upon a determination that any term or other provision is invalid, illegal
or unenforceable, the Parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the Parties as closely as
possible in an acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the maximum extent possible.
SECTION 6.9. Survival. All representations, warranties,
covenants and agreements of the parties shall survive the consummation of the
transactions contemplated by this Agreement.
SECTION 6.10. Entire Agreement. This Agreement, the Stock Purchase
Agreement, the Termination and Release Agreements, the Resignations and the
other instruments or agreements entered into in connection with this Agreement
or the transactions contemplated hereby constitute the entire agreement between
the Parties hereto and supersede all prior agreements and understandings, both
written and oral, among the Parties with respect to the subject matter hereof;
provided, however, that nothing herein shall relieve any Party hereto of any
obligation or liability to any other Party hereto, or otherwise modify, amend or
vary any such obligation or liability, other than as expressly provided herein.
SECTION 6.11. Definitions. As used in this Agreement, the
following terms shall have the meanings set forth below:
(a) "Affiliate" or "affiliates", as applied to any Person, shall
mean any other Person directly or indirectly controlling, controlled by, or
under common control with that Person. For the purposes of this definition,
"control" (including with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as applied to any Person,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of that person, whether through the
ownership of voting securities or by contract or otherwise.
(b) "Beneficially own" and "beneficial ownership" have the meanings
given to these terms in Rule 13d-3 of the Rules and Regulations of the
Securities and Exchange Commission under the Exchange Act, as in effect on the
date hereof.
(c) "Person" means and includes natural persons, corporations,
limited partnerships, general partnerships, joint stock companies, joint
ventures, associations, companies, trusts or other organizations, whether or not
legal entities, and governments and agencies and political subdivisions thereof.
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<PAGE>
SECTION 6.12. Interpretation; Absence of Presumption. As
used in this Agreement, the following terms shall have the meanings set forth
below:
(a) For the purposes hereof, (i) words in the singular shall be
held to include the plural and vice versa and words of one gender shall be held
to include the other genders as the con-text re-quires, (ii) the terms "hereof",
"herein", and "here-with" and words of similar import shall, unless other-wise
stated, be construed to refer to this Agreement as a whole (including all of the
Schedules and Exhibits hereto) and not to any particular provision of this
Agreement, and Article, Section, paragraph, Exhibit and Schedule references are
to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement
unless otherwise specified, (iii) the word "including" and words of similar
import when used in this Agreement shall mean "including, without limitation,"
unless the context otherwise requires or unless otherwise specified, (iv) the
word "or" shall not be exclusive, and (v) provisions shall apply, when
appropriate, to successive events and transactions.
(b) This Agreement shall be construed without regard to any
presumption or rule requiring construction or interpretation against the party
drafting or causing any instrument to be drafted.
SECTION 6.13. Expenses. Unless otherwise indicated in this
Agreement, all costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby, including fees and disbursements of
counsel, financial advisors and accountants, shall be paid by the party
incurring such costs and expenses.
SECTION 6.14. Specific Enforcement. The Parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that, subject to Section 6.3, the
Parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions hereof in
any court of the United States or any State having jurisdiction, this being in
addition to any remedy to which they are entitled at law or in equity.
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<PAGE>
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be duly executed on the date first above written.
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Arnold Laubich
----------------------------------------
Name: Arnold Laubich
Title: Chief Executive Officer
ERT DEVELOPMENT CORPORATION
By: /s/ Richard B. Muir
----------------------------------------
Name: Richard B. Muir
Title: Executive Vice President
EXCEL LEGACY CORPORATION
By: /s/ Gary B. Sabin
----------------------------------------
Name: Gary B. Sabin
Title: Chairman, President and Chief
Executive Officer
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<PAGE>
EXHIBIT A
TO MASTER SEPARATION AGREEMENT
[FORM OF RESIGNATION]
April 21, 1999
Board of Directors
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
Gentlemen:
I hereby resign as a Director of New Plan Excel Realty Trust, Inc.
("New Plan") and from any other office or position I may hold as a Director or
otherwise with New Plan, New Plan Realty Trust, or any of their respective
subsidiaries or affiliates, effective upon acceptance hereof by the Board of
Directors, and after the execution and delivery of the Master Separation
Agreement, dated as of the date hereof, among New Plan, ERT Development
Corporation ("EDV") and Excel Legacy Corporation (the "Master Separation
Agreement") and the consummation of the Closing, as defined in the Stock
Purchase Agreement, dated as of the date hereof, among NNRA, LLC, EDV and Excel
Interfinancial Corporation.
_______________________________________
Name:
<PAGE>
EXHIBIT B
TO MASTER SEPARATION AGREEMENT
TERMS AND CONDITIONS OF SPACE LEASE
1. The term of this Lease shall commence on the date hereof and
shall continue month-to-month at the option of Legacy (based upon calendar
months), but in no event shall the term of this Lease extend beyond May 31,
2000.
2. The rent payable under this Lease shall be $1.75 per rentable
square foot per month. Rent is to be paid by Legacy monthly in advance on the
first day of each calendar month during the term hereof, at the main office of
New Plan or as may be otherwise directed by New Plan in writing. In addition,
Legacy agrees to pay as invoiced any operating expenses and real estate taxes
for the Building on a pro rata basis, based on the relative square footage of
the Demised Premises to the Building.
3. Legacy shall use the Demised Premises for office purposes only.
4. This Lease includes all equipment and furniture located in the
Demised Premises as of the date hereof, and Legacy shall have the option, at the
expiration of this Lease, to acquire, at a price to be mutually agreed between
New Plan and Legacy, all equipment and furniture located in the Demised Premises
and not required by New Plan for the conduct of its business.
5. Legacy shall not sublet the Demised Premises or any portion
thereof, nor shall this Lease be assigned by Legacy, without the prior written
consent of New Plan (which consent may be unreasonably withheld).
6. Legacy has examined the Demised Premises, and accepts them in
their present "as is" condition. Legacy shall keep the Demised Premises in good
repair and condition. Legacy shall quit and surrender the Demised Premises at
the end of the term in as good condition as the reasonable use thereof will
permit. Legacy shall not make any alterations, additions, or improvements to the
Demised Premises without the prior written consent of New Plan. All alterations,
additions, improvements and personal property, whether temporary or permanent in
character, which may be made upon the Demised Premises either by New Plan or
Legacy, except furniture, equipment or moveable trade fixtures installed at the
expense of Legacy, shall be the property of New Plan and shall remain upon and
be surrendered with the Demised Premises as a part thereof at the termination of
this Lease, without compensation to Legacy (but subject to the purchase option
described in Section 4 above).
7. New Plan shall provide utilities and services to the Demised
Premises for the benefit of Legacy in a quality and manner consistent with New
Plan's prior practice with respect to the Demised Premises.
8. Legacy agrees to observe and comply with all laws, ordinances,
rules and regulations of any federal, state, county and municipal authorities
applicable to the business to be conducted by Legacy in the Demised Premises.
<PAGE>
9. In case of a breach or violation by Legacy of any of the
covenants, agreements and conditions of this Lease, or of the rules and
regulations now or hereafter to be reasonably established by New Plan, and upon
failure to cure such breach or violation within ten days after written notice
thereof given to Legacy, in addition to any other rights or remedies available
to New Plan at law or in equity, this Lease shall thenceforth, at the option of
New Plan, become null and void, and New Plan may re-enter the Demised Premises
without further notice or demand.
10. This Lease is subject and is hereby subordinated to all present
and future mortgages, deeds of trust and other encumbrances affecting the
Demised Premises or the property of which said premises are a part.
11. New Plan covenants that Legacy, subject to paying the rental and
performing the covenants and conditions contained in this Lease contained, shall
and may peaceably and quietly have, hold and enjoy the Demised Premises for the
term set forth herein.
B-2
<PAGE>
EXHIBIT C
TO MASTER SEPARATION AGREEMENT
[FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT]
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT, made as of April 21, 1999
(this "Assignment Agreement"), between New Plan Excel Realty Trust, Inc., a
Maryland corporation ("New Plan"), and Excel Legacy Corporation, a Delaware
corporation ("Legacy"), is delivered pursuant to that certain Master Separation
Agreement (the "Agreement"), dated as of April 21, 1999, among New Plan, Legacy
and ERT Development Corporation. Capitalized terms used but not defined herein
shall have their respective meanings as set forth in the Agreement.
WITNESSETH
WHEREAS, pursuant to the terms of the Agreement, New Plan has agreed
to assign, transfer and dispose of, and Legacy has agreed to acquire and accept,
all of New Plan's right, title and interest as a general partner of Excel
Properties, Ltd., a California limited partnership (the "Partnership Interest");
and
WHEREAS, pursuant to the Agreement, Legacy has agreed to assume all
of New Plan's liabilities and obligations arising on or after the date hereof
arising from or relating to the Partnership Interest.
WHEREAS, the execution and delivery of this Assignment Agreement by
the Parties is a condition to the obligation of the Parties to consummate the
transactions contemplated by the Agreement.
NOW, THEREFORE, in consideration of the premises set forth in this
Assignment Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, intending to be legally bound,
and subject to the terms and conditions stated herein, the Parties hereby agree
as follows:
I. Assignment. New Plan hereby assigns to Legacy all of New Plan's
right, title and interest, on and after the date hereof, in and to the
Partnership Interest. To the extent the assignment contemplated hereby shall
require the consent or waiver of any other party, neither this Assignment
Agreement nor the Agreement shall constitute an agreement to assign the
Partnership Interest without such consent or waiver. If any such required
consent or waiver is not obtained, Legacy and New Plan shall, at Legacy's
expense, cooperate in any reasonable arrangement requested by Legacy or New Plan
and designed to provide Legacy with the benefit of the Partnership Interest (and
all associated obligations or liabilities), including New Plan acting as
Legacy's agent in order to obtain for Legacy the benefits therefor.
Notwithstanding any such consents or assignment, Legacy agrees to indemnify,
hold harmless and defend New Plan from and against any and all liabilities,
obligations, claims or expenses of whatever kind resulting from or related to
the Partnership Interest and the assignment and arrangements contemplated by the
Agreement and this Assignment Agreement.
<PAGE>
II. Assumption. Legacy hereby assumes all of the liabilities and
obligations arising on or after the date hereof arising from or relating to the
Partnership Interest, and Legacy shall indemnify, hold harmless and defend New
Plan from and against any and all liabilities, obligations, claims or expenses
of whatever kind resulting from or relating to the Partnership Interest.
III. Remedies. Nothing in this Assignment Agreement, express or
implied, is intended or shall be construed to confer upon, or give to, any
person, firm or corporation other than New Plan and Legacy and their respective
successors and assigns, any remedy or claim under or by reason of this
Assignment Agreement or any terms, covenants or condition hereof, and all the
terms, covenants and conditions, promises and agreements contained in this
Assignment Agreement shall be for the sole and exclusive benefit of New Plan and
Legacy and their respective successors and assigns.
IV. Miscellaneous. The agreements, covenants and terms contained
herein shall be binding upon and inure to the benefit of New Plan and Legacy and
their respective successors and assigns, and shall be construed and enforced
according to the laws of the State of New York (without giving effect to choice
of law principles thereof). Neither of the parties hereto may assign this
Assignment Agreement to any party (other than an Affiliate) without the prior
written consent of the other party. This Assignment Agreement may be executed in
one or more counterparts each of which shall be deemed to be an original, and
all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Assignment
Agreement as of the date first above written.
NEW PLAN EXCEL REALTY TRUST, INC.
By:_____________________________________
Name:
Title:
EXCEL LEGACY CORPORATION
By:_____________________________________
Name:
Title:
C-2
EXHIBIT 10.2
RESIGNATION AND RELEASE AGREEMENT
This RESIGNATION AND RELEASE AGREEMENT (the "Agreement"), dated as
of April 21, 1999, by and between New Plan Excel Realty Trust, Inc., a Maryland
corporation (the "Company") and Gary B. Sabin (the "Executive").
WITNESSETH THAT:
WHEREAS, the Executive has been employed as President of the Company
pursuant to the Employment Agreement between the Executive and the Company dated
as of May 14, 1998 (as amended, the "Employment Agreement"); and
WHEREAS, the Executive and the Company have agreed that the
Executive shall resign from his employment with the Company and each of its
subsidiaries and affiliates, and from the Boards of the Directors of the Company
and each of its subsidiaries and affiliates, on the terms and conditions set
forth in this Agreement;
NOW, THEREFORE, the Company and the Executive, in consideration of
the covenants herein set forth, and for other good and valuable consideration
the receipt and sufficiency of which is hereby acknowledged, hereby agree as
follows:
1. RESIGNATION OF EMPLOYMENT AND DIRECTORSHIPS
The Executive hereby resigns, effective as of the date hereof (the
"Date of Resignation"), from his employment with the Company, from his positions
as President of the Company and a member of the Board of Directors of the
Company and a member of the Investment Committee thereof, as an officer and
member of the Board of Directors of ERT Development
<PAGE>
Corporation, and as an officer and member of the Board of Trustees of New Plan
Realty Trust and a member of the Investment Committee thereof, and from all
other positions the Executive may currently hold as an officer or member of the
board of directors or trustees (or any committee thereof) of the Company or any
of the Company's subsidiaries or affiliates, including without limitation the
entities listed on Schedule I hereto (the Company and all of its subsidiaries
and affiliates being hereinafter referred collectively as the "NXL Entities").
The Executive shall promptly sign and deliver to the Company such other
documents as the Company may reasonably determine to be necessary to effect or
reflect such resignations.
2. SEVERANCE PAYMENTS, BENEFITS AND OBLIGATIONS
(a) On or about the Date of Resignation, the Company shall pay to
the Executive his base salary through the Date of Resignation to the extent it
has not previously been paid. In lieu of and in satisfaction of any severance or
other payments due under any severance or other benefit plans maintained by any
of the NXL Entities, or any individual agreement previously entered into with
the Executive by any of the NXL Entities, including without limitation the
Employment Agreement, the Company shall provide the Executive with the payments
and benefits set forth in Sections 2(b) through (f) below. The Executive will
not be entitled to any additional compensation or benefits from the Company or
any other NXL Entity, except as specifically provided in this Agreement.
(b) On the Effective Date (as defined in Section 2(g) below), the
Company shall pay the Executive a lump sum severance payment in the amount set
forth on Schedule 2, plus the amount of any Company matching contributions that
would have been allocated to the Executive's account in the Company's 401(k)
plan for pay periods ending on or before the Date
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<PAGE>
of Resignation, but for the fact that he has resigned. In addition, in
accordance with and subject to the Company's usual practices with respect to the
reimbursement of ordinary business expenses, the Company shall reimburse the
Executive for ordinary business expenses incurred prior to the date of this
Agreement in an amount not to exceed $5,000.
(c) Promptly following the Date of Resignation, the Company shall
pay the Executive a lump sum payment in cash equal to eight times the current
quarterly value of the benefits that he and his eligible spouse and dependents
have received during the most recent quarterly period under the Company's
medical, hospitalization, dental, and life insurance plans, practices and
programs. Such payment shall be due and payable regardless of whether or not the
Executive should become eligible to receive or should receive benefits under the
plans and programs of any subsequent employer, and shall not be reduced or
offset by any such benefits. The value of the foregoing benefits shall be
computed based on the cost that is currently charged by the Company for
continued health coverage as required under Section 4980B of Internal Revenue
Code of 1986, as amended, plus the Company's current cost of premiums for such
life insurance coverage.
(d) On the Effective Date, the options to acquire shares of Company
stock listed in Schedule 2 to this Agreement with an exercise price less than
$21 per share (whether or not vested) shall be canceled in exchange for the lump
sum payment for such options shown on Schedule 2, which represents a purchase
price equal to the excess, if any, of $21 per share over the per-share exercise
price of each such option. The other options listed on Schedule 2, with an
exercise price equal to or in excess of $21 per share, shall be treated as
follows: (x) those options granted under the Excel Realty Trust, Inc. 1994
Directors Stock Option Plan shall terminate and be forfeited effective on the
Date of Resignation, (y) those options granted under any other plan
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<PAGE>
of the Company or any of its predecessors and which are vested as of the date
hereof, or would become vested in accordance with the terms of the Employment
Agreement if the Executive's employment were to have been terminated by the
Company without Cause or by the Executive for Good Reason (as such terms are
defined in the Employment Agreement) on the Date of Resignation shall fully vest
as of the Date of Resignation, and (z) 62% of those options granted under any
other plan of the Company or any of its predecessors, but which are not vested
as of the date hereof and would not become vested in accordance with the terms
of the Employment Agreement if the Executive's employment were to have been
terminated by the Company without Cause or by the Executive for Good Reason (as
such terms are defined in the Employment Agreement) on the Date of Resignation
shall fully vest as of the Date of Resignation, and the remaining 38% of those
options shall terminate and be forfeited effective on the Date of Resignation.
The options described in the preceding sentence which are not forfeited as of
the Date of Resignation shall be exercisable for a period of two years from the
Date of Resignation. If at any time during such two-year period the Executive
desires to exercise some or all of such options, the Executive shall notify the
Company and the Company shall at its option either (x) upon delivery by the
Executive of the exercise price under such options and surrender of such
options, deliver to the Executive the number of shares of Company stock subject
to such options, or (y) upon surrender of such options, pay over to the
Executive a lump sum in cash equal to the excess of the then fair market value
of the underlying shares over the exercise price for such options.
(e) On the 60th day following the Effective Date, or at such
earlier time as the Company may request upon not less than 3-day's notice to the
Executive, regardless of any breach of this Agreement by the Executive, the
Executive shall surrender or cause to be surrendered to the Company the shares
of Company common stock listed in Schedule 2 to this Agree-
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<PAGE>
ment in exchange for a lump sum cash payment, payable on the date of such
surrender, as shown on said Schedule 2 (representing a purchase price of $21 per
share), plus, if the payment contemplated by this paragraph is not made on or
before the 20th day following the Date of Resignation, an amount equal to
interest on the amount so payable from (x) the later of (i) the date of the most
recent dividend payment on such shares of Company common stock paid or payable
to the Executive and (ii) the Date of Resignation through (y) the payment date
at a rate equal to the Company's dividend rate on its shares of common stock.
(f) As soon as practicable after the Effective Date, the Company
shall cause the title to the Company-owned items of furniture and equipment
which are currently in the Executive's office on the Company's premises, and the
title to the Company-owned 1997 Jaguar and 1993 Infiniti automobiles that are
currently being used by the Executive, together with a sum in cash equal to the
amount of any indebtedness secured by such automobiles, not to exceed $35,000,
to be conveyed to the Executive, and the Executive shall assume all such
indebtedness secured by such automobiles, and shall indemnify, hold harmless and
defend the Company from and against any and all liabilities, obligations, claims
or expenses of whatever kind resulting from or relating to the automobiles and
such debt. In addition, the Executive shall not be required to reimburse the
Company for any prepayments under the automobile insurance policies covering the
foregoing automobiles.
(g) The "Effective Date" shall be the later of the Date of
Resignation and the date the Executive provides the Company with written notice
(i) stating whether a reduction pursuant to this Section 2(g) shall be made
because the Executive's tax advisor has determined the net after-tax value to
the Executive of the payments and benefits provided pursuant to Sections 2(b)
through (f) above, after taking into account the excise tax imposed by Section
4999 of the
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<PAGE>
Code, would be greater if such payments and benefits were reduced, and (ii) if
such a reduction is to be made, specifying which portions of such payments and
benefits shall not be made (the "Foregone Payments"). Notwithstanding any other
provision of this Agreement, any Foregone Payments set forth in such notice
shall not be provided, and the Executive shall be deemed to have waived all of
his rights to receive the Foregone Payments.
(h) Sections 10(a), (b), (d) and (e) and Section 11 of the
Employment Agreement shall survive the execution of this Agreement and remain in
effect after the date hereof in accordance with their terms. Except as specified
in the preceding sentence, this Agreement shall supersede the Employment
Agreement and any other agreement, arrangement or understanding between the
Company and the Executive, each of which shall be terminated and of no further
force or effect from and after the Date of Resignation, without any additional
benefits or payments being paid or made thereunder. Subject to the restrictions
and limitations hereof and of the Master Separation Agreement and the provisions
thereof by which the Executive has hereby agreed to be bound, the Company waives
the continuing application of Section 10(c) of the Employment Agreement to the
Executive.
3. DISPARAGING COMMENTS
From and after the date of this Agreement, except as may be required
by a court or governmental body, each of the Executive and the Company shall,
and the Company shall cause each of its subsidiaries and affiliates, and use its
reasonable efforts to cause its directors, officers and employees, to, refrain
from taking actions or making statements, written or oral, which disparage or
defame the goodwill or reputation of, the NXL Entities and their trustees,
officers, security holders, partners, agents and former and current employees
and directors, or the Executive,
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<PAGE>
respectively, or which are intended to, or may be reasonably expected to,
adversely affect the morale of the employees of any of the NXL Entities and
their trustees, officers, security holders, partners, agents and former and
current employees and directors, or the Executive, respectively. The Executive
further agrees not to make any negative statements, written or oral, to third
parties relating to his employment or any aspect of the business of the NXL
Entities and not to make any statements, written or oral, to third parties about
the circumstances of his resignation, except as may be required by a court or
governmental body, or as may merely repeat any of the matters contained in the
press release of the Company issued on or about the date hereof.
4. CONFIDENTIALITY OF THIS AGREEMENT
Except as required by law or regulation, none of the parties
hereto will disclose the terms of this Agreement, provided that the Executive
may disclose such terms to his financial and legal advisors and his spouse and
the Company may disclose such terms to selected employees, advisors and
affiliates on a "need to know" basis, each of whom shall be instructed by the
Executive and the Company, as the case may be, to maintain the terms of this
Agreement in strict confidence in accordance with the terms hereof.
5. ADDITIONAL RESTRICTIVE COVENANTS
The Executive shall abide by the provisions set forth in Sections
1.1, 2.1 and 5.2 of that certain Master Separation Agreement, dated as of the
date hereof, by and among the Company, ERT Development Corporation ("EDV"), and
Excel Legacy Corporation ("Legacy") on the same terms as are applicable to
affiliates of Legacy.
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<PAGE>
6. WAIVER OF OTHER PAYMENTS AND BENEFITS
The compensation and benefits arrangements set forth in this
Agreement are in lieu of any rights or claims that the Executive may have with
respect to severance or other benefits, or any other form of remuneration from
the NXL Entities, other than benefits under any tax-qualified employee pension
benefit plans subject to the Employee Retirement Income Security Act of 1974, as
amended (including the Company's 401(k) plan), and without limiting the
generality of the foregoing, the Executive hereby expressly waives any right or
claim that he may have or could assert to payment for salary, bonuses, medical,
dental or hospitalization benefits, payments under supplemental retirement plans
and incentive plans, life insurance benefits and attorneys' fees, except as
otherwise provided in this Agreement or as mandated under applicable law.
7. INFORMATION REQUESTS/COOPERATION
The Executive agrees to make himself, and agrees to use reasonable
efforts to cause representatives of any joint venture partners with which the
Company has a business relationship prior to the date hereof to be, reasonably
available to the Company for a two-year period from the date hereof to respond
to requests by the Company for information concerning matters involving facts or
events relating to the Company or any other NXL Entity that may be within the
Executive's knowledge, and to assist the Company and the NXL Entities as
reasonably requested with respect to pending and future litigations,
arbitrations or other dispute resolutions; provided, that, to the extent the
Executive can reasonably comply with the foregoing requirements, he shall be
entitled to do so via telephone; and provided, further, that unless the
Executive agrees, his compliance with the foregoing requirements shall not
require him to travel to New York City more than once per calendar month. The
Company will reimburse the Executive for
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<PAGE>
his reasonable travel expenses and out-of-pocket costs incurred as a result of
his assistance under this Section 7.
8. NO ADMISSION OF WRONGDOING
Nothing contained in this Agreement shall be construed in any way as
an admission by any of the parties of any act, practice or policy of
discrimination or breach of contract either in violation of applicable law or
otherwise.
9. WAIVER AND RELEASE
(a) In consideration of the payments and benefits set forth in this
Agreement, except for the payment and benefits expressly provided herein, the
Executive, for himself, his heirs, administrators, representatives, executors,
successors and assigns (collectively "Releasors") does hereby irrevocably and
unconditionally release, acquit and forever discharge the NXL Entities and their
trustees, officers, security holders, partners, agents, and former and current
employees and directors, and their successors, executors and assigns, including
without limitation all persons acting by, through, under or in concert with any
of them (collectively, "Releasees"), from any and all charges, complaints,
claims, liabilities, obligations, promises, agreements, controversies, damages,
remedies, actions, causes of action, suits, rights, demands, costs, losses,
debts and expenses (including attorneys' fees and costs) (collectively,
"Claims") of any nature whatsoever, known or unknown, whether in law or equity
and whether arising under federal, state or local law and in particular
including any claim for discrimination based upon race, color, ethnicity, sex,
age (including the Age Discrimination in Employment Act of 1967), national
origin, religion, disability, or any other unlawful criterion or circumstance,
which the Releasors had, now have, or may have in the future as a result of any
facts or circumstances cur-
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<PAGE>
rently existing or which may have existed in the past (including, without
limitation, any and all matters arising from the Executive's employment by or
service with the Company), but excluding any Claims arising from any action to
enforce the Company's obligations under this Agreement, against each or any of
the Releasees (collectively, the "Released Claims"). The Executive acknowledges
and agrees that if he or any other Releasor should hereafter make any claim or
demand or commence or threaten to commence any action, claim or proceeding
against the Releasees with respect to any cause, matter or thing which is the
subject of this Section 9(a), this Agreement may be raised as a complete bar to
any such action, claim or proceeding, and the applicable Releasee may recover
from the Executive all costs incurred in connection with such action, claim or
proceeding, including attorneys' fees.
(b) With respect to any and all Released Claims, the Executive
stipulates and agrees that, upon execution of this Agreement, Releasors shall be
deemed to have expressly waived and relinquished, to the fullest extent
permitted by law, the provisions, rights, and benefits of Section 1542 of the
California Civil Code, which provides:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor.
The Releasors, upon execution of this Agreement, shall be deemed to have waived
any and all provisions, rights and benefits conferred by any law of any state or
territory of the United States, or principle of common law, which is similar,
comparable or equivalent to Section 1542 of the California Civil Code. The
Releasors may hereafter discover facts in addition to or different from those
which he, she or it now knows or believes to be true with respect to the subject
matter of the Released Claims, but each Releasor, upon the execution of this
Agreement by the Executive, shall
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be deemed to have fully, finally, and forever settled and released any and all
Released Claims, known or unknown, suspected or unsuspected, contingent or
noncontingent, whether or not concealed or hidden, which now exist, or
heretofore have existed upon any theory of law or equity now existing or coming
into existence in the future, including, but not limited to, conduct which is
negligent, intentional, with or without malice, or a breach of any duty, law or
rule, without regard to the subsequent discovery or existence of such different
or additional facts.
(c) The Executive affirms that he has been represented by counsel
in connection with the negotiation and execution of this Agreement and the
waiver and release in Section 9(a).
(d) In consideration of the matters set forth in this Agreement,
except for the payment and benefits expressly provided herein, the Company, for
itself and its successors and assigns (collectively "NXL Releasors") does hereby
irrevocably and unconditionally release, acquit and forever discharge the
Executive and his successors, executors and assigns, including without
limitation all persons acting by, through, under or in concert with any of them
(collectively, "NXL Releasees"), from any and all Claims of any nature
whatsoever, known or unknown, whether in law or equity and whether arising under
federal, state or local law which the NXL Releasors had, now have, or may have
in the future as a result of any facts or circumstances currently existing or
which may have existed in the past (including, without limitation, any and all
matters arising from the Executive's employment by or service with the Company),
against each or any of the NXL Releasees (collectively, the "NXL Released
Claims"); provided that the NXL Released Claims shall not include either (x) any
Claims arising from any action to enforce the Executive's obligations under this
Agreement or (y) any Claims as to which indemni-
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fication of a director or officer of the Company would be unavailable under
Maryland law (it being understood and agreed for this purpose that the provision
in such law barring indemnification as to any acts or omissions involving "an
improper personal benefit in money, property or services" shall not extend to
any benefit that might be deemed to have been afforded to the Executive merely
as a result of his status as a director, officer or shareholder of Legacy or
EDV, and this Agreement shall not in any event constitute a release or waiver of
any Claim against Legacy). The Company acknowledges and agrees that if it or any
other NXL Releasor should hereafter make any claim or demand or commence or
threaten to commence any action, claim or proceeding against the NXL Releasees
with respect to any cause, matter or thing which is the subject of this Section
9(d), this Agreement may be raised as a complete bar to any such action, claim
or proceeding, and the applicable NXL Releasee may recover from the Company all
costs incurred in connection with such action, claim or proceeding, including
attorneys' fees.
(e) With respect to any and all NXL Released Claims, the Company
stipulates and agrees that, upon execution of this Agreement, the NXL Releasors
shall be deemed to have expressly waived and relinquished, to the fullest extent
permitted by law, the provisions, rights, and benefits of Section 1542 of the
California Civil Code, which provides:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor.
The NXL Releasors, upon execution of this Agreement, shall be deemed to have
waived any and all provisions, rights and benefits conferred by any law of any
state or territory of the United States, or principle of common law, which is
similar, comparable or equivalent to ss. 1542 of the California Civil Code. The
NXL Releasors may hereafter discover facts in addition to or differ-
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ent from those which he, she or it now knows or believes to be true with respect
to the subject matter of the NXL Released Claims, but each NXL Releasor, upon
the execution of this Agreement by the Company, shall be deemed to have fully,
finally, and forever settled and released any and all NXL Released Claims, known
or unknown, suspected or unsuspected, contingent or noncontingent, whether or
not concealed or hidden, which now exist, or heretofore have existed upon any
theory of law or equity now existing or coming into existence in the future,
including, but not limited to, conduct which is negligent, intentional, with or
without malice, or a breach of any duty, law or rule, without regard to the
subsequent discovery or existence of such different or additional facts.
(f) The Company affirms that it has been represented by counsel in
connection with the negotiation and execution of this Agreement and the waiver
and release in Section 9(d).
10. PUBLIC STATEMENT
The parties agree that the Executive's resignation of his employment
will be announced by the statement attached hereto as Exhibit A, and no
subsequent comments shall be made to the media or through other public
statements by any party hereto regarding the Executive's resignation of his
employment that are inconsistent with such statement, except as may be required
by applicable law or regulation.
11. NO RELIANCE
The Executive represents and acknowledges that, in executing this
Agreement, he has not relied upon any representation or statement made by the
Company not set forth herein.
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<PAGE>
12. GOVERNING LAW
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the principles of
conflicts of law thereof, to the extent not superseded by applicable federal
law. It is the intention of the parties that any dispute or litigation arising
out of the negotiation, existence, performance, interpretation or enforcement of
this Agreement shall be determined only by the Courts of the State of California
(including the federal courts located in the State of California), and no other
court or tribunal. THE PARTIES HERETO HEREBY AGREE THAT ANY DISPUTE CONCERNING
FORMATION, MEANING, APPLICABILITY, ENFORCEMENT OR INTERPRETATION OF THIS
AGREEMENT SHALL BE SUBMITTED TO THE JURISDICTION OF THE COURTS OF THE STATE OF
CALIFORNIA (INCLUDING FEDERAL COURTS IN THE STATE OF CALIFORNIA), AND NO OTHER
STATE SHALL HAVE JURISDICTION OVER SUCH MATTERS, AND FURTHER AGREE TO WAIVE ALL
RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY SUCH MATTERS. WITH RESPECT TO ANY
SUCH DISPUTE, ALL PARTIES HERETO AGREE TO WAIVE ANY DEFENSES OR OBJECTIONS THEY
MAY HAVE TO THE PERSONAL JURISDICTION OVER THEM OF THE AFORESAID CALIFORNIA
COURTS, AND THE EXECUTIVE AGREES THAT SERVICE OF PROCESS UPON HIM BY MAIL AT THE
ADDRESS CONTAINED HEREIN SHALL BE GOOD AND SUFFICIENT PERSONAL SERVICE, AND THAT
SUCH SERVICE SHALL BE DEEMED TO HAVE BEEN MADE UPON HIM AS IF HE WERE PERSONALLY
SERVED AT A LOCATION WITHIN THE STATE OF CALIFORNIA.
(b) If either party brings an action to enforce its rights under
this Agreement, the prevailing party in the action, at such time as the action
is binding, final and no longer ap-
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pealable, shall be entitled to recover its costs and expenses, including,
without limitation, reasonable attorneys' fees, incurred in connection with such
action, including any appeal of such action.
13. WARRANTY
The parties hereto represent and warrant that there exists no
impediment or restraint, contractual or otherwise on their power, right or
ability to enter into this Agreement and to perform their duties and obligations
hereunder or as contemplated hereby.
14. TAXES
All payments made and benefits provided to the Executive under this
Agreement shall be reduced by, or the Executive will otherwise pay, all required
withholding, employment and Medicare taxes applicable to the Executive.
15. NO COERCION
The parties hereto represent and acknowledge that they have decided
to enter into this Agreement voluntarily, knowingly and without coercion of any
kind.
16. ENFORCEABILITY; SEVERABILITY
The parties hereto affirmatively acknowledge that this Agreement,
and each of its provisions, is enforceable, and expressly agree not to challenge
nor raise any defense against the enforceability of this Agreement or any of its
provisions in the future (including, for purposes of this Section 16, Section 10
of the Employment Agreement). In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, the
remaining provisions or portions of this Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by
law.
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<PAGE>
17. NOTICES
All notices, requests, demands and other communication which are
required or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given when received if personally delivered; when
transmitted by telecopy, electronic or digital transmission method upon receipt
of telephonic or electronic confirmation; that day after it is sent, if sent for
next day delivery to a domestic address by recognized overnight delivery service
(e.g., Federal Express) and upon receipt, if sent by certified or registered
mail, return receipt requested. In each case notice shall be sent to:
If to the Executive, addressed to:
Gary B. Sabin
c/o Excel Legacy Corporation
16955 Via Del Campo, Suite 100
San Diego, California 92127
Telecopier: (619) 485-8530
with a copy to:
Latham & Watkins
701 B Street, Suite 2100
San Diego, California 92101-8197
Attention: Scott N. Wolfe, Esq.
Telecopier: (619) 696-7419
If to the Company, addressed to:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
Attention: Chief Executive Officer
Telecopier: (212) 302-4776
or to such other place and with such other copies as any party may designate as
to itself or himself by written notice to the others.
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<PAGE>
18. AMENDMENTS; WAIVERS
This Agreement may not be amended, modified or terminated, except by
a written instrument signed by the parties hereto. Any provision of this
Agreement may be waived by a written instrument signed by the party to be
charged with such waiver.
19. SUCCESSORS
This Agreement shall be binding on the Executive, the Company and
their respective heirs, successors and assigns, including without limitation any
corporation or other entity into which the Company may be merged, reorganized or
liquidated, or by which the Company may be acquired. The obligations of the
Company may be assigned without limitation, provided that the Company shall
remain liable for the payment obligations under Section 2; but, as the
obligations to be performed by the Executive hereunder are unique based upon his
skills and qualifications, the Executive's obligations under this Agreement may
not be assigned.
20. ENTIRE AGREEMENT
Except as specified herein, this Agreement contains the entire
agreement between the parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties with respect thereto.
21. COUNTERPARTS
This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original, but all of which together will
constitute one and the same Agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement, as of
the date and year first written above.
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Arnold Laubich
--------------------------------------
Name: Arnold Laubich
Title: Chief Executive Officer
/s/ Gary B. Sabin
--------------------------------------
Gary B. Sabin
EXHIBIT 10.3
RESIGNATION AND RELEASE AGREEMENT
This RESIGNATION AND RELEASE AGREEMENT (the "Agreement"),
dated as of April 21, 1999, by and between New Plan Excel Realty Trust, Inc., a
Maryland corporation (the "Company") and Richard B. Muir (the "Executive").
WITNESSETH THAT:
WHEREAS, the Executive has been employed by the Company
pursuant to the Employment Agreement between the Executive and the Company dated
as of September 25, 1998 (as amended, the "Employment Agreement"); and
WHEREAS, the Executive and the Company have agreed that the
Executive shall resign from his employment with the Company and each of its
subsidiaries and affiliates, and from the Boards of the Directors of the Company
and each of its subsidiaries and affiliates, on the terms and conditions set
forth in this Agreement;
NOW, THEREFORE, the Company and the Executive, in
consideration of the covenants herein set forth, and for other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged,
hereby agree as follows:
1. RESIGNATION OF EMPLOYMENT AND DIRECTORSHIPS
The Executive hereby resigns, effective as of the date hereof
(the "Date of Resignation"), from his employment with the Company, from all of
his positions and offices with the Company and from all other positions and
offices the Executive may currently hold as an officer or member of the board of
directors or trustees (or any committee thereof) of the Company or
<PAGE>
any of the Company's subsidiaries or affiliates, including without limitation
the entities listed on Schedule I hereto (the Company and all of its
subsidiaries and affiliates being hereinafter referred collectively as the "NXL
Entities"). The Executive shall promptly sign and deliver to the Company such
other documents as the Company may reasonably determine to be necessary to
effect or reflect such resignations.
2. SEVERANCE PAYMENTS, BENEFITS AND OBLIGATIONS
(a) On or about the Date of Resignation, the Company shall pay
to the Executive his base salary through the Date of Resignation to the extent
it has not previously been paid. In lieu of and in satisfaction of any severance
or other payments due under any severance or other benefit plans maintained by
any of the NXL Entities, or any individual agreement previously entered into
with the Executive by any of the NXL Entities, including without limitation the
Employment Agreement, the Company shall provide the Executive with the payments
and benefits set forth in Sections 2(b) through (e) below. The Executive will
not be entitled to any additional compensation or benefits from the Company or
any other NXL Entity, except as specifically provided in this Agreement.
(b) On the Effective Date (as defined in Section 2(f) below),
the Company shall pay the Executive a lump sum severance payment in the amount
set forth on Schedule 2, plus the amount of any Company matching contributions
that would have been allocated to the Executive's account in the Company's
401(k) plan for pay periods ending on or before the Date of Resignation, but for
the fact that he has resigned. In addition, in accordance with and subject to
the Company's usual practices with respect to the reimbursement of ordinary
business ex-
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penses, the Company shall reimburse the Executive for ordinary business expenses
incurred prior to the date of this Agreement in an amount not to exceed $2,500.
(c) Promptly following the Date of Resignation, the Company
shall pay the Executive a lump sum payment in cash equal to eight times the
current quarterly value of the benefits that he and his eligible spouse and
dependents have received during the most recent quarterly period under the
Company's medical, hospitalization, dental, and life insurance plans, practices
and programs. Such payment shall be due and payable regardless of whether or not
the Executive should become eligible to receive or should receive benefits under
the plans and programs of any subsequent employer, and shall not be reduced or
offset by any such benefits. The value of the foregoing benefits shall be
computed based on the cost that is currently charged by the Company for
continued health coverage as required under Section 4980B of Internal Revenue
Code of 1986, as amended, plus the Company's current cost of premiums for such
life insurance coverage.
On the Effective Date, the options to acquire shares of
Company common stock listed in Schedule 2 to this Agreement with an exercise
price less than $21 per share (whether or not vested) shall be canceled in
exchange for the lump sum payment for such options shown on Schedule 2, which
represents a purchase price equal to the excess, if any, of $21 per share over
the per-share exercise price of each such option. The other options listed on
Schedule 2, with an exercise price equal to or in excess of $21 per share, shall
be treated as follows: (x) those options granted under the Excel Realty Trust,
Inc. 1994 Directors Stock Option Plan shall terminate and be forfeited effective
on the Date of Resignation; and (y) those options granted under any other plan
of the Company or any of its predecessors and which are vested as of the date
hereof, or would become vested in accordance with the terms of the Employment
Agreement if the Execu-
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tive's employment were to have been terminated by the Company without Cause or
by the Executive for Good Reason (as such terms are defined in the Employment
Agreement) on the Date of Resignation shall fully vest as of the Date of
Resignation. The options described in the preceding sentence shall be
exercisable for a period of two years from the Date of Resignation. If at any
time during such two-year period the Executive desires to exercise some or all
of such options, the Executive shall notify the Company and the Company shall at
its option either (x) upon delivery by the Executive of the exercise price under
such options and surrender of such options, deliver to the Executive the number
of shares of Company common stock subject to such options, or (y) upon surrender
of such options, pay over to the Executive a lump sum in cash equal to the
excess of the then fair market value of the underlying shares over the exercise
price for such options.
(d) On the 60th day following the Effective Date, or at such
earlier time as the Company may request upon not less than 3-day's notice to the
Executive, regardless of any breach of this Agreement by the Executive, the
Executive shall surrender or cause to be surrendered to the Company the shares
of Company common stock listed in Schedule 2 to this Agreement in exchange for a
lump sum cash payment, payable on the date of such surrender, as shown on said
Schedule 2 (representing a purchase price of $21 per share), plus, if the
payment contemplated by this paragraph is not made on or before the 20th day
following the Date of Resignation (but only in such case), an amount equal to
interest on the amount so payable from (x) the later of (i) the date of the most
recent dividend payment on such shares of Company common stock paid or payable
to the Executive and (ii) the Date of Resignation through (y) the payment date
at a rate equal to the Company's dividend rate on its shares of common stock.
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(e) The "Effective Date" shall be the later of the Date of
Resignation and the date the Executive provides the Company with written notice
(i) stating whether a reduction pursuant to this Section 2(f) shall be made
because the Executive's tax advisor has determined the net after-tax value to
the Executive of the payments and benefits provided pursuant to Sections 2(b)
through (e) above, after taking into account the excise tax imposed by Section
4999 of the Code, would be greater if such payments and benefits were reduced,
and (ii) if such a reduction is to be made, specifying which portions of such
payments and benefits shall not be made (the "Foregone Payments").
Notwithstanding any other provision of this Agreement, any Foregone Payments set
forth in such notice shall not be provided, and the Executive shall be deemed to
have waived all of his rights to receive the Foregone Payments.
(f) Sections 10(a), (b), (d) and (e) and Section 11 of the
Employment Agreement shall survive the execution of this Agreement and remain in
effect after the date hereof in accordance with their terms. Except as specified
in the preceding sentence, this Agreement shall supersede the Employment
Agreement and any other agreement, arrangement or understanding between the
Company and the Executive, each of which shall be terminated and of no further
force or effect from and after the Date of Resignation, without any additional
benefits or payments being paid or made thereunder. Subject to the restrictions
and limitations hereof and of the Master Separation Agreement and the provisions
thereof by which the Executive has hereby agreed to be bound, the Company waives
the continuing application of Section 10(c) of the Employment Agreement to the
Executive.
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<PAGE>
3. DISPARAGING COMMENTS
From and after the date of this Agreement, except as may be
required by a court or governmental body, each of the Executive and the Company
shall, and the Company shall cause each of its subsidiaries and affiliates, and
use its reasonable efforts to cause its directors, officers and employees, to,
refrain from taking actions or making statements, written or oral, which
disparage or defame the goodwill or reputation of, the NXL Entities and their
trustees, officers, security holders, partners, agents and former and current
employees and directors, or the Executive, respectively, or which are intended
to, or may be reasonably expected to, adversely affect the morale of the
employees of any of the NXL Entities and their trustees, officers, security
holders, partners, agents and former and current employees and directors, or the
Executive, respectively. The Executive further agrees not to make any negative
statements, written or oral, to third parties relating to his employment or any
aspect of the business of the NXL Entities and not to make any statements,
written or oral, to third parties about the circumstances of his resignation,
except as may be required by a court or governmental body, or as may merely
repeat any of the matters contained in the press release of the Company issued
on or about the date hereof.
4. CONFIDENTIALITY OF THIS AGREEMENT
Except as required by law or regulation, none of the parties
hereto will disclose the terms of this Agreement, provided that the Executive
may disclose such terms to his financial and legal advisors and his spouse and
the Company may disclose such terms to selected employees, advisors and
affiliates on a "need to know" basis, each of whom shall be instructed by the
Executive and the Company, as the case may be, to maintain the terms of this
Agreement in strict confidence in accordance with the terms hereof.
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5. ADDITIONAL RESTRICTIVE COVENANTS
The Executive shall abide by the provisions set forth in
Sections 1.1, 2.1 and 5.2 of that certain Master Separation Agreement, dated as
of the date hereof, by and among the Company, ERT Development Corporation
("EDV"), and Excel Legacy Corporation ("Legacy") on the same terms as are
applicable to affiliates of Legacy.
6. WAIVER OF OTHER PAYMENTS AND BENEFITS
The compensation and benefits arrangements set forth in this
Agreement are in lieu of any rights or claims that the Executive may have with
respect to severance or other benefits, or any other form of remuneration from
the NXL Entities, other than benefits under any tax-qualified employee pension
benefit plans subject to the Employee Retirement Income Security Act of 1974, as
amended (including the Company's 401(k) plan), and without limiting the
generality of the foregoing, the Executive hereby expressly waives any right or
claim that he may have or could assert to payment for salary, bonuses, medical,
dental or hospitalization benefits, payments under supplemental retirement plans
and incentive plans, life insurance benefits and attorneys' fees, except as
otherwise provided in this Agreement or as mandated under applicable law.
7. INFORMATION REQUESTS/COOPERATION
The Executive agrees to make himself, and agrees to use
reasonable efforts to cause representatives of any joint venture partners with
which the Company has a business relationship prior to the date hereof to be,
reasonably available to the Company for a two-year period from the date hereof
to respond to requests by the Company for information concerning matters
involving facts or events relating to the Company or any other NXL Entity that
may be within the Executive's knowledge, and to assist the Company and the NXL
Entities as reasonably re-
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quested with respect to pending and future litigations, arbitrations or other
dispute resolutions; provided, that, to the extent the Executive can reasonably
comply with the foregoing requirements, he shall be entitled to do so via
telephone; and provided, further, that unless the Executive agrees, his
compliance with the foregoing requirements shall not require him to travel to
New York City more than once per calendar month. The Company will reimburse the
Executive for his reasonable travel expenses and out-of-pocket costs incurred as
a result of his assistance under this Section 7.
8. NO ADMISSION OF WRONGDOING
Nothing contained in this Agreement shall be construed in any
way as an admission by any of the parties of any act, practice or policy of
discrimination or breach of contract either in violation of applicable law or
otherwise.
9. WAIVER AND RELEASE
(a) In consideration of the payments and benefits set forth in
this Agreement, except for the payment and benefits expressly provided herein,
the Executive, for himself, his heirs, administrators, representatives,
executors, successors and assigns (collectively "Releasors") does hereby
irrevocably and unconditionally release, acquit and forever discharge the NXL
Entities and their trustees, officers, security holders, partners, agents, and
former and current employees and directors, and their successors, executors and
assigns, including without limitation all persons acting by, through, under or
in concert with any of them (collectively, "Releasees"), from any and all
charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, remedies, actions, causes of action, suits, rights,
demands, costs, losses, debts and expenses (including attorneys' fees and costs)
(collectively, "Claims") of
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any nature whatsoever, known or unknown, whether in law or equity and whether
arising under federal, state or local law and in particular including any claim
for discrimination based upon race, color, ethnicity, sex, age (including the
Age Discrimination in Employment Act of 1967), national origin, religion,
disability, or any other unlawful criterion or circumstance, which the Releasors
had, now have, or may have in the future as a result of any facts or
circumstances currently existing or which may have existed in the past
(including, without limitation, any and all matters arising from the Executive's
employment by or service with the Company), but excluding any Claims arising
from any action to enforce the Company's obligations under this Agreement,
against each or any of the Releasees (collectively, the "Released Claims"). The
Executive acknowledges and agrees that if he or any other Releasor should
hereafter make any claim or demand or commence or threaten to commence any
action, claim or proceeding against the Releasees with respect to any cause,
matter or thing which is the subject of this Section 9(a), this Agreement may be
raised as a complete bar to any such action, claim or proceeding, and the
applicable Releasee may recover from the Executive all costs incurred in
connection with such action, claim or proceeding, including attorneys' fees.
(b) With respect to any and all Released Claims, the Executive
stipulates and agrees that, upon execution of this Agreement, Releasors shall be
deemed to have expressly waived and relinquished, to the fullest extent
permitted by law, the provisions, rights, and benefits of ss. 1542 of the
California Civil Code, which provides:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his
favor at the time of executing the release, which if
known by him must have materially affected his
settlement with the debtor.
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<PAGE>
The Releasors, upon execution of this Agreement, shall be deemed to have waived
any and all provisions, rights and benefits conferred by any law of any state or
territory of the United States, or principle of common law, which is similar,
comparable or equivalent to ss. 1542 of the California Civil Code. The Releasors
may hereafter discover facts in addition to or different from those which he,
she or it now knows or believes to be true with respect to the subject matter of
the Released Claims, but each Releasor, upon the execution of this Agreement by
the Executive, shall be deemed to have fully, finally, and forever settled and
released any and all Released Claims, known or unknown, suspected or
unsuspected, contingent or noncontingent, whether or not concealed or hidden,
which now exist, or heretofore have existed upon any theory of law or equity now
existing or coming into existence in the future, including, but not limited to,
conduct which is negligent, intentional, with or without malice, or a breach of
any duty, law or rule, without regard to the subsequent discovery or existence
of such different or additional facts.
(c) The Executive affirms that he has been represented by
counsel in connection with the negotiation and execution of this Agreement and
the waiver and release in Section 9(a).
(d) In consideration of the matters set forth in this
Agreement, except for the payment and benefits expressly provided herein, the
Company, for itself and its successors and assigns (collectively "NXL
Releasors") does hereby irrevocably and unconditionally release, acquit and
forever discharge the Executive and his successors, executors and assigns,
including without limitation all persons acting by, through, under or in concert
with any of them (collectively, "NXL Releasees"), from any and all Claims of any
nature whatsoever, known or unknown, whether in law or equity and whether
arising under federal, state or local law which
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the NXL Releasors had, now have, or may have in the future as a result of any
facts or circumstances currently existing or which may have existed in the past
(including, without limitation, any and all matters arising from the Executive's
employment by or service with the Company) , against each or any of the NXL
Releasees (collectively, the "NXL Released Claims"); provided that the NXL
Released Claims shall not include either (x) any Claims arising from any action
to enforce the Executive's obligations under this Agreement or (y) any Claims as
to which indemnification of a director or officer of the Company would be
unavailable under Maryland law (it being understood and agreed for this purpose
that the provision in such law barring indemnification as to any acts or
omissions involving "an improper personal benefit in money, property or
services" shall not extend to any benefit that might be deemed to have been
afforded to the Executive merely as a result of his status as a director,
officer or shareholder of Legacy or EDV, and this Agreement shall not in any
event constitute a release or waiver of any Claim against Legacy). The Company
acknowledges and agrees that if it or any other NXL Releasor should hereafter
make any claim or demand or commence or threaten to commence any action, claim
or proceeding against the NXL Releasees with respect to any cause, matter or
thing which is the subject of this Section 9(d), this Agreement may be raised as
a complete bar to any such action, claim or proceeding, and the applicable NXL
Releasee may recover from the Company all costs incurred in connection with such
action, claim or proceeding, including attorneys' fees.
(e) With respect to any and all NXL Released Claims, the
Company stipulates and agrees that, upon execution of this Agreement, the NXL
Releasors shall be deemed to have expressly waived and relinquished, to the
fullest extent permitted by law, the provisions, rights, and benefits of ss.
1542 of the California Civil Code, which provides:
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A general release does not extend to claims which the
creditor does not know or suspect to exist in his
favor at the time of executing the release, which if
known by him must have materially affected his
settlement with the debtor.
The NXL Releasors, upon execution of this Agreement, shall be deemed to have
waived any and all provisions, rights and benefits conferred by any law of any
state or territory of the United States, or principle of common law, which is
similar, comparable or equivalent to ss. 1542 of the California Civil Code. The
NXL Releasors may hereafter discover facts in addition to or different from
those which he, she or it now knows or believes to be true with respect to the
subject matter of the NXL Released Claims, but each NXL Releasor, upon the
execution of this Agreement by the Company, shall be deemed to have fully,
finally, and forever settled and released any and all NXL Released Claims, known
or unknown, suspected or unsuspected, contingent or noncontingent, whether or
not concealed or hidden, which now exist, or heretofore have existed upon any
theory of law or equity now existing or coming into existence in the future,
including, but not limited to, conduct which is negligent, intentional, with or
without malice, or a breach of any duty, law or rule, without regard to the
subsequent discovery or existence of such different or additional facts.
(f) The Company affirms that it has been represented by
counsel in connection with the negotiation and execution of this Agreement and
the waiver and release in Section 9(d).
10. PUBLIC STATEMENT
The parties agree that the Executive's resignation of his
employment will be announced by the statement attached hereto as Exhibit A, and
no subsequent comments shall be
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made to the media or through other public statements by any party hereto
regarding the Executive's resignation of his employment that are inconsistent
with such statement, except as may be required by applicable law or regulation.
11. NO RELIANCE
The Executive represents and acknowledges that, in executing
this Agreement, he has not relied upon any representation or statement made by
the Company not set forth herein.
12. GOVERNING LAW
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
principles of conflicts of law thereof, to the extent not superseded by
applicable federal law. It is the intention of the parties that any dispute or
litigation arising out of the negotiation, existence, performance,
interpretation or enforcement of this Agreement shall be determined only by the
Courts of the State of California (including the federal courts located in the
State of California), and no other court or tribunal. THE PARTIES HERETO HEREBY
AGREE THAT ANY DISPUTE CONCERNING FORMATION, MEANING, APPLICABILITY, ENFORCEMENT
OR INTERPRETATION OF THIS AGREEMENT SHALL BE SUBMITTED TO THE JURISDICTION OF
THE COURTS OF THE STATE OF CALIFORNIA (INCLUDING FEDERAL COURTS IN THE STATE OF
CALIFORNIA), AND NO OTHER STATE SHALL HAVE JURISDICTION OVER SUCH MATTERS, AND
FURTHER AGREE TO WAIVE ALL RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY SUCH
MATTERS. WITH RESPECT TO ANY SUCH DISPUTE, ALL PARTIES HERETO AGREE TO WAIVE ANY
DEFENSES OR OBJECTIONS THEY MAY HAVE TO THE PERSONAL JURISDICTION OVER THEM OF
THE AFORESAID CALIFORNIA COURTS, AND THE
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EXECUTIVE AGREES THAT SERVICE OF PROCESS UPON HIM BY MAIL AT THE ADDRESS
CONTAINED HEREIN SHALL BE GOOD AND SUFFICIENT PERSONAL SERVICE, AND THAT SUCH
SERVICE SHALL BE DEEMED TO HAVE BEEN MADE UPON HIM AS IF HE WERE PERSONALLY
SERVED AT A LOCATION WITHIN THE STATE OF CALIFORNIA.
(b) If either party brings an action to enforce its rights
under this Agreement, the prevailing party in the action, at such time as the
action is binding, final and no longer appealable, shall be entitled to recover
its costs and expenses, including, without limitation, reasonable attorneys'
fees, incurred in connection with such action, including any appeal of such
action.
13. WARRANTY
The parties hereto represent and warrant that there exists no
impediment or restraint, contractual or otherwise on their power, right or
ability to enter into this Agreement and to perform their duties and obligations
hereunder or as contemplated hereby.
14. TAXES
All payments made and benefits provided to the Executive under
this Agreement shall be reduced by, or the Executive will otherwise pay, all
required withholding, employment and Medicare taxes applicable to the Executive.
15. NO COERCION
The parties hereto represent and acknowledge that they have
decided to enter into this Agreement voluntarily, knowingly and without coercion
of any kind.
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16. ENFORCEABILITY; SEVERABILITY
The parties hereto affirmatively acknowledge that this
Agreement, and each of its provisions, is enforceable, and expressly agree not
to challenge nor raise any defense against the enforceability of this Agreement
or any of its provisions in the future (including, for purposes of this Section
16, Section 10 of the Employment Agreement). In the event that any provision or
portion of this Agreement shall be determined to be invalid or unenforceable for
any reason, the remaining provisions or portions of this Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
17. NOTICES
All notices, requests, demands and other communication which
are required or may be given under this Agreement shall be in writing and shall
be deemed to have been duly given when received if personally delivered; when
transmitted by telecopy, electronic or digital transmission method upon receipt
of telephonic or electronic confirmation; that day after it is sent, if sent for
next day delivery to a domestic address by recognized overnight delivery service
(e.g., Federal Express) and upon receipt, if sent by certified or registered
mail, return receipt requested. In each case notice shall be sent to:
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If to the Executive, addressed to the Executive:
c/o Excel Legacy Corporation
16955 Via Del Campo, Suite 100
San Diego, California 92127
Telecopier: (619) 485-8530
with a copy to:
Latham & Watkins
701 B Street, Suite 2100
San Diego, California 92101-8197
Attention: Scott N. Wolfe, Esq.
Telecopier: (619) 696-7419
If to the Company, addressed to:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
Attention: Chief Executive Officer
Telecopier: (212) 302-4776
or to such other place and with such other copies as any party may designate as
to itself or himself by written notice to the others.
18. AMENDMENTS; WAIVERS
This Agreement may not be amended, modified or terminated,
except by a written instrument signed by the parties hereto. Any provision of
this Agreement may be waived by a written instrument signed by the party to be
charged with such waiver.
19. SUCCESSORS
This Agreement shall be binding on the Executive, the Company
and their respective heirs, successors and assigns, including without limitation
any corporation or other entity into which the Company may be merged,
reorganized or liquidated, or by which the Com-
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pany may be acquired. The obligations of the Company may be assigned without
limitation, provided that the Company shall remain liable for the payment
obligations under Section 2; but, as the obligations to be performed by the
Executive hereunder are unique based upon his skills and qualifications, the
Executive's obligations under this Agreement may not be assigned.
20. ENTIRE AGREEMENT
Except as specified herein, this Agreement contains the entire
agreement between the parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties with respect thereto.
21. COUNTERPARTS
This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original, but all of which together will
constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement,
as of the date and year first written above.
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Arnold Laubich
-----------------------------------------
Name: Arnold Laubich
Title: Chief Executive Officer
/s/ Richard B. Muir
-----------------------------------------
Richard B. Muir
EXHIBIT 99.1
FINAL DRAFT
News Release
- ------------------------------------------------------------------------------
(NYSE Symbol: NXL)
NOT FOR IMMEDIATE RELEASE
Contact::
Investors: Media:
Dean Bernstein Judy Brennan
Senior Vice President, Finance Sard Verbinnen & Co.
New Plan Excel Realty 212-687-8080
212-869-3000 ext. 314
NEW PLAN EXCEL REALTY TRUST STREAMLINES ORGANIZATION;
FORMER EXCEL REALTY EXECUTIVES AND DIRECTORS RESIGN
NEW YORK, April 22,1999 -- New Plan Excel Realty Trust, Inc. (NYSE: NXL)
announced today that seven executives including President Gary B. Sabin and
Executive Vice President Richard B. Muir have agreed to resign. All had been
executives of Excel Realty Trust, Inc. of San Diego when New Plan Realty
Trust of New York acquired Excel Realty Trust in September 1998. In
addition, Sabin, Muir, and three non-executive directors who had been Excel
Realty Trust directors have also resigned from the New Plan Excel Realty
Trust Board, reducing the Board to 10 directors.
Six of the departing executives also currently serve as executives of Excel
Legacy Corporation (AMEX: XLG), the San Diego-based real-estate trading and
development company which was spun off from Excel Realty Trust prior to its
acquisition by New Plan Realty Trust. Four of the resigning directors are
also directors of Excel Legacy.
"For the past seven months, these executives have been dividing their time
between New Plan Excel and Excel Legacy, and this dual responsibility has
proven unwieldy and more complicated than we had anticipated. We believe it
is now in the best interests of our shareholders for New Plan Excel to have a
management team dedicated solely to our REIT business. Excel Legacy is not a
REIT and is in a very different type of business than New Plan Excel," said
Arnold Laubich, Chief Executive Officer of New Plan Excel Realty Trust. "This
is an amicable parting, and we wish Gary and his colleagues well. We intend to
work with Excel Legacy on several of our existing joint ventures."
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"New Plan Excel has a strong management team in place, and we will keep
running the combined entity, which employs more than 700 people, with the
balance of innovation and long- term perspective that has made New Plan a
leader in the real estate industry for more than 70 years. We intend to
continue building on our track record of delivering sustainable shareholder
value. We believe our strong operating capabilities, powerful balance sheet
and carefully constructed portfolio of 356 properties, including the 158
properties acquired in the purchase of Excel Realty Trust, will provide us
continued opportunities to be an industry consolidator in the years to come
as others fail to meet unrealistic growth expectations," said Laubich.
William Newman, Chairman of the Board of New Plan Excel Realty, said, "We
have increased our dividend for 79 consecutive quarters, and expect to
continue growing the dividend and generating solid financial results. As a
result of acquiring Excel Realty, we are now a national player with increased
critical mass, a more diversified portfolio and greater liquidity. We look
forward to building the next generation of leadership, and continuing to
create value for our shareholders and other key constituencies including
tenants and employees."
Under the terms of their resignations, the departing executives and directors
will receive a total of approximately $1.7 million in severance payments. In
addition, approximately $33.5 million will go toward repurchasing their
approximately 1.3 million New Plan Excel Realty shares and certain of their
vested options on approximately 900,000 shares.
New Plan Excel Realty expects to take a one-time charge of approximately $3
million related to the restructuring. This non-recurring charge will not
impact the company's funds from operations. This streamlining will also
result in significant ongoing cost savings.
James M. Steuterman will continue to serve as Executive Vice President of New
Plan Excel Realty. "Leveraging the strengths of our nationwide leasing team
led by Jim DeCicco, our solid acquisition department led by Tom Farrell and
our first-rate asset management group will enable us to continue taking
advantage of the many growth opportunities we see in today's marketplace," said
Steuterman.
New Plan Excel Realty Trust, Inc. is one of the nation's largest real estate
companies, with $2.9 billion in total assets, more than $425 million in
annual revenue and an investment grade rating of A by Standard & Poor's and
A2 by Moody's, ratings unsurpassed by any other REIT. The
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company owns and operates a portfolio of 356 properties in 31 states, including
295 retail centers with a total of 38 million square feet of gross leasable area
and 4,000 tenants as well as 55 garden apartment communities containing 13,000
units.
Certain statements in this release that are not historical fact may
constitute forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. Such forward-looking statements
involve known and unknown risks, uncertainties and other factors which may
cause the actual results of the company to differ materially from historical
results or from any results expressed or implied by such forward-looking
statements, including without limitation: national and local economic
conditions; the competitive environment in which the company operates:
financing risks; property management risks; acquisition and development
risks; potential environmental and other liabilities; and other factors
affecting the real estate industry generally. The company refers you to the
documents filed by the company from time to time with the Securities and
Exchange Commission, specifically the section titled "Certain Cautionary
Statements" in the company's Annual Report on Form 10K for the year ended
Dec. 31, 1998, which discuss these and other factors that could adversely
affect the company's result.
###
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