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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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): FEBRUARY 23, 2000
NEW PLAN EXCEL REALTY TRUST, INC.
(Exact name of registrant as specified in its charter)
MARYLAND 1-12244 33-0160389
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification Number)
1120 AVENUE OF THE AMERICAS, 12TH FLOOR
NEW YORK, NEW YORK 10036
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(212) 869-3000
NOT APPLICABLE
(Former name or former address, if changed since last report)
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NEW PLAN EXCEL REALTY TRUST, INC.
ITEM 5. OTHER EVENTS
In connection with the retirement of Arnold Laubich from certain of his
positions with New Plan Excel Realty Trust, Inc. (the "Company") and its
subsidiaries effective February 23, 2000, including the position of President
and Chief Executive Officer of the Company, the Company entered into an
agreement with Mr. Laubich (the "Retirement Agreement"). The Retirement
Agreement provides for the resignation of Mr. Laubich from all of his positions
with the Company and its subsidiaries and affiliates other than his position as
a director of the Company, the mutual release by the Company and Mr. Laubich of
any claims against the other (subject to certain exceptions), and the payment by
the Company of certain retirement benefits, including (i) a lump sum retirement
payment of $2.5 million, (ii) the unpaid portion of Mr. Laubich's 1999 bonus,
and (iii) the continuation of medical benefits for Mr. Laubich and his eligible
family members during the subsequent five years. Stock options currently held by
Mr. Laubich will continue to vest on the same schedule and remain exercisable
through their original term as though Mr. Laubich continued to be an employee,
subject to certain limitations.
Under the Retirement Agreement, until the first anniversary of the later of
the date of termination of Mr. Laubich as provided in the Retirement Agreement
or the date Mr. Laubich ceases to be a director of the Company, generally, Mr.
Laubich may not (i) engage in any business, directly or as an officer, director,
partner or joint venturer, related to strip shopping centers or factory outlet
centers, which is competitive with the Company, (ii) divert to any person or
entity any strip shopping center or factory outlet center project that the
Company or its affiliates were pursuing, developing or attempting to develop as
of the date of the Retirement Agreement, or (iii) solicit any officer, employee
or consultant of the Company to leave the employ of the Company.
The Retirement Agreement also provides for a transition period of six
months during which time Mr. Laubich will provide advisory and consultative
services to certain senior executive officers of the Company. During this time,
he will be compensated at a monthly rate of $40,000 for such services by the
Company.
The foregoing description of the Retirement Agreement is qualified in its
entirety by reference to the Retirement Agreement, a copy of which is filed as
an exhibit hereto and is incorporated by reference herein.
Contemporaneously with the Company's entering into the Retirement
Agreement, the Company entered into an employment agreement with Glenn J.
Rufrano (the "Employment Agreement"), pursuant to which Mr. Rufrano became the
President and Chief Executive Officer of the Company. The Employment
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Agreement provides for an initial term commencing on February 23, 2000 and
ending on the fifth anniversary thereof (i.e., February 23, 2005), extending
automatically thereafter for one (1) additional year unless either the Company
or Mr. Rufrano elects not to extend the term. The Employment Agreement also
provides that Mr. Rufrano be nominated by the Company at the annual meeting of
shareholders of the Company in 2000 to serve as a Director of the Company, and
that the Company use reasonable good faith efforts to cause Mr. Rufrano to be
elected a Director. In addition, the Employment Agreement provides that, during
the term of his employment under the Employment Agreement, Mr. Rufrano be Chief
Executive Officer of the Company and be appointed as a full voting member of the
Company's Investment Committee, or any successor committee thereto. Until such
time as a President of the Company other than Mr. Rufrano is appointed, the
Employment Agreement provides that Mr. Rufrano serve as President of the Company
as well. Mr. Rufrano's annual base salary is $555,000 under the employment
agreement, and he is entitled to receive an annual cash bonus of up to 100% of
his base salary as determined by the Executive Compensation and Stock Option
Committee of the Board of Directors. In the first year of the Employment
Agreement, Mr. Rufrano's bonus will not be less than $325,000. The Employment
Agreement also provides that Mr. Rufrano receive certain fringe benefits in
connection with his employment.
In connection with his employment, Mr. Rufrano was granted options to
purchase 700,000 shares of the Company's common stock, at an exercise price of
$12.8125 per share (the closing price of the Company's common stock on February
22, 2000). A total of 500,000 of these options vest ratably over five years
commencing on the first anniversary of the grant date, while the remaining
200,000 vest upon the eighth anniversary of the Employment Agreement, subject to
acceleration in the fourth and fifth years in the event certain performance
criteria are achieved. Mr. Rufrano also was granted options to purchase an
additional 515,121 shares of the Company's common stock at an exercise price of
$12.8125 per share, all of which options vested immediately upon Mr. Rufrano's
employment with the Company. Mr. Rufrano has since exercised these options. The
shares that were acquired upon the exercise of these options are subject to
restrictions, which restrictions lapse ratably over five years commencing on the
first anniversary of the exercise for all but 60,000 shares. The restrictions on
the remaining 60,000 shares lapse on the eighth anniversary of the Employment
Agreement, subject to acceleration in the fourth and fifth years in the event
certain performance criteria are achieved. Shares not vested upon termination of
Mr. Rufrano's employment are subject to repurchase by the Company at the lesser
of the original exercise price or the then-current market price of the Company's
common stock. In connection with the exercise of these options, the Company
loaned Mr. Rufrano $6.2 million. The loan accrues interest at 8% per annum and
matures on February 23, 2005 (or earlier under certain circumstances). A portion
of the loan is secured by a pledge of the shares Mr. Rufrano acquired upon
exercise of the options.
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If Mr. Rufrano's employment is terminated by the Company without "Cause" or
by Mr. Rufrano for "Good Reason," Mr. Rufrano will be entitled to severance
benefits, including either (i) the sum of $2.5 million, if the termination of
employment occurs prior to the expiration of the initial term of the Employment
Agreement, or (ii) the base salary for Mr. Rufrano from the date of termination
of employment through the end of the employment period under the Employment
Agreement if the termination occurs after an extension of the original five-year
term of the Employment Agreement. In addition, Mr. Rufrano's stock options will
fully vest as of the date of such termination. However, all of the foregoing is
subject to certain provisions of the Internal Revenue Code of 1986, as amended,
concerning "excess" parachute payments. "Good Reason" is defined to include,
among other things, a "Change in Control" of the Company (as defined in the
Employment Agreement) and a failure of the Company to have outside directors
constituting at least a majority of the Board of Directors by September 2001.
The Employment Agreement also provides for certain benefits upon Mr. Rufrano's
death or disability. If the Employment Agreement is terminated by Mr. Rufrano
without "Good Reason" or by the Company for "Cause," for one year following the
date of termination, Mr. Rufrano may not (i) serve as an officer, employee,
director or consultant of a REIT or other real estate business with a
significant portion of its business involved with community shopping centers,
(ii) generally, engage in any business which is competing with the Company or
its affiliates, (iii) divert to any entity any business of the Company or its
affiliates, or (iv) solicit any officer, employee or consultant of the Company
or its affiliates to leave the Company or its affiliates.
The foregoing description of the Employment Agreement is qualified in its
entirety by reference to the Employment Agreement and the other agreements
described above, copies of which are filed as exhibits hereto and are
incorporated by reference herein.
On February 25, 2000, 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.
ITEM 7. EXHIBITS
The following exhibits are filed as part of this report:
10.1 Employment Agreement, dated as of February 23, 2000, by and between
the Company and Glenn J. Rufrano.
10.2 Stock Option Agreement, dated as of February 23, 2000 by and between
the Company and Glenn J. Rufrano (relating to 460,976 options).
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10.3 Stock Option Agreement, dated as of February 23, 2000 by and between
the Company and Glenn J. Rufrano (relating to 39,024 options).
10.4 Stock Option Agreement, dated as of February 23, 2000 by and between
the Company and Glenn J. Rufrano (relating to 200,000 options).
10.5 Stock Option Agreement, dated as of February 23, 2000 by and between
the Company and Glenn J. Rufrano (relating to 515,121 options).
10.6 Recourse Promissory Note, dated February 23, 2000, made by Glenn J.
Rufrano in favor of the Company.
10.7 Limited Recourse Promissory Note, dated February 23, 2000, made by
Glenn J. Rufrano in favor of the Company.
10.8 Stock Pledge Agreement, dated February 23, 2000 between the Company
and Glenn J. Rufrano.
10.9 Agreement, dated as of February 23, 2000, by and between the Company
and Arnold Laubich.
99.1 Press Release, dated February 25, 2000, issued by the Company.
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SIGNATURE
Pursuant to the requirements 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.
NEW PLAN EXCEL REALTY TRUST, INC.
Date: March 9, 2000 By: /s/ Steven F. Siegel
----------------------------------
Steven F. Siegel
Senior Vice President, General Counsel
and Secretary
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EXHIBIT INDEX
Exhibit Document
10.1 Employment Agreement, dated as of February 23, 2000, by and between
the Company and Glenn J. Rufrano.
10.2 Stock Option Agreement, dated as of February 23, 2000 by and between
the Company and Glenn J. Rufrano (relating to 460,976 options).
10.3 Stock Option Agreement, dated as of February 23, 2000 by and between
the Company and Glenn J. Rufrano (relating to 39,024 options).
10.4 Stock Option Agreement, dated as of February 23, 2000 by and between
the Company and Glenn J. Rufrano (relating to 200,000 options).
10.5 Stock Option Agreement, dated as of February 23, 2000 by and between
the Company and Glenn J. Rufrano (relating to 515,121 options).
10.6 Recourse Promissory Note, dated February 23, 2000, made by Glenn J.
Rufrano in favor of the Company.
10.7 Limited Recourse Promissory Note, dated February 23, 2000, made by
Glenn J. Rufrano in favor of the Company.
10.8 Stock Pledge Agreement, dated February 23, 2000 between the Company
and Glenn J. Rufrano.
10.9 Agreement, dated as of February 23, 2000, by and between the Company
and Arnold Laubich.
99.1 Press Release, dated February 25, 2000, issued by the Company.
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Exhibit 10.1
EMPLOYMENT AGREEMENT
AGREEMENT ("Agreement"), dated as of February 23, 2000 ("Effective Date")
by and between New Plan Excel Realty Trust, Inc., a Maryland corporation (the
"Company") and Glenn J. Rufrano ("Executive").
RECITAL
The Company desires to employ Executive as of the Effective Date, on the
terms and conditions set forth in this Agreement, and Executive desires to be so
employed.
AGREEMENT
IN CONSIDERATION of the premises and the mutual covenants set forth below,
the parties hereby agree as follows:
1. Employment. The Company hereby agrees to employ Executive and
Executive hereby accepts such employment, on the terms and conditions
hereinafter set forth.
2. Term. The period of employment of Executive by the Company hereunder
(the "Employment Period") shall commence on the Effective Date and shall
continue through the fifth anniversary of the Effective Date. Thereafter, the
Employment Period shall automatically be extended for one (1) additional year
unless either party shall provide notice of nonrenewal not less than nine (9)
months prior to the date which such extension would be effective. The
Executive's employment from the Effective Date until the date which is
forty-five (45) days following the Effective Date may, at the Executive's
election, be on a part-time basis to permit the Executive to complete his
commitments to his former employer. The Executive's estimated average weekly
time commitments during the part-time period will be eight (8) hours per week.
The Executive shall commence full-time employment with the Company not later
than forty-five (45) days from the Effective Date. The Employment Period may be
sooner terminated by either party in accordance with Section 6 of this
Agreement. At the time Executive ceases to be a full-time employee of the
Company, the Executive agrees that he shall resign as a director, trustee and
officer of the Company and its subsidiaries and any entity in control of,
controlled by or under common control with the Company or in which the Company
owns any common or preferred stock or interest or any entity in control of,
controlled by or under common control with such entity ("Affiliate") and as a
member of any committee of the board of directors and the board of trustees of
the Company and its subsidiaries and Affiliates of which he is a member.
3. Position and Duties.
(a) Chief Executive Officer. At all times during the Employment
Period, Executive shall serve as Chief Executive Officer of the Company, and
shall report solely and directly to the Board of Directors of the Company
("Board"). Until such time as a President of
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the Company other than Executive is appointed, Executive shall also serve as
President of the Company. Executive shall have those powers and duties normally
associated with the position of a Chief Executive Officer and such other powers
and duties as may be properly prescribed by the Board of Directors of the
Company ("Board"), provided that such other powers and duties are consistent
with Executive's position as Chief Executive Officer. Except as specifically set
forth in this section and Section 2, Executive shall perform full-time services
for the Company and devote such time, attention and energies to Company affairs
as are necessary to fully perform his duties (other than absences due to illness
or vacation) for the Company. Notwithstanding the above, Executive shall be
permitted, to the extent such activities do not materially and adversely affect
the ability of Executive to fully perform his duties and responsibilities
hereunder, to (i) manage Executive's personal, financial and legal affairs, (ii)
serve on civic or charitable boards or committees, and (iii) with the consent of
the Board, serve as a member of the board of directors of any noncompeting
business. The Executive has disclosed to the Company a list of boards of which
he is currently a member, and the Company has consented to his continued
membership on such boards.
(b) Director. The Company agrees to nominate the Executive in
place of an individual who is not an "Outside Director" (as defined herein) to
serve for a three-year term as a member of the Board at the annual meeting of
shareholders of the Company in 2000 at which directors of the Board are elected
and use reasonable good faith effort to cause Executive to be elected as a
member of the Board, including, without limitation, recommending Executive to be
elected as a member of the Board in the proxy statement distributed to
shareholders regarding the election of members of the Board. Thereafter during
the Employment Period the Company agrees to nominate the Executive as a member
of the Board for successive three-year terms and use reasonable good faith
effort to cause Executive to be elected as a member of the Board, including,
without limitation, recommending Executive to be elected as a member of the
Board in the proxy statement distributed to shareholders regarding the election
of members of the Board. Until such time as Executive is elected to serve as a
member of the Board and during any period during the Employment Period when
Executive is not a member of the Board, Executive shall be invited to attend and
shall be entitled to participate in all Board meetings but shall have no right
to vote at such meetings. Upon the Effective Date, the Executive shall be
appointed as a full voting member of the Company's Investment Committee and
shall remain a member of the Investment Committee during the Employment Period
for as long as the Investment Committee exists and thereafter during the
Employment Period the Executive shall be appointed as a full voting member of
any successor committee or body (other than the Board itself) which succeeds to
the Investment Committee. Executive shall support each proposal to be submitted
to shareholders of the Company which has been approved by the Board (whether or
not such approval was unanimous and whether or not Executive voted in favor of
or agreed with such proposal) ("Shareholder Proposal") and shall not, directly
or indirectly, take or cause any action to be taken which may interfere with a
Shareholder Proposal and shall vote or cause to be voted Shares (as defined
herein) owned or controlled by Executive in favor of each Shareholder Proposal.
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4. Place of Performance. The principal place of employment of Executive
shall be at the Company's corporate offices in New York, New York.
5. Compensation and Related Matters.
(a) Salary. During the Employment Period, following the
commencement of full-time employment, the Company shall pay Executive an annual
base salary of $555,000 ("Base Salary"), with pro-rata payment thereof for
periods from the Effective Date until commencement of full-time employment.
Executive's Base Salary shall be paid in approximately equal installments in
accordance with the Company's customary payroll practices. If Executive's Base
Salary is increased by the Company, such increased Base Salary shall then
constitute the Base Salary for all purposes of this Agreement.
(b) Bonus. The Board's executive compensation and stock option
committee (the "Compensation Committee") shall review Executive's performance at
least annually during each year of the Employment Period and cause the Company
to award Executive a cash bonus of up to 100% of his Base Salary which the
Compensation Committee shall reasonably determine as fairly compensating and
rewarding Executive for services rendered to the Company and/or as an incentive
for continued service to the Company, but in no event shall Executive's
aggregate bonus for the period from the Effective Date through March 1, 2001 be
less than $325,000. The amount of Executive's cash bonus shall be determined in
the discretion of the Compensation Committee and shall be dependent upon, among
other things, the achievement of certain performance levels by the Company,
including, without limitation, growth in funds from operations, and Executive's
performance and contribution to increasing the funds from operations.
(c) Expenses. The Company shall promptly reimburse Executive for
all reasonable business expenses upon the presentation of reasonably itemized
statements of such expenses in accordance with the Company's policies and
procedures now in force or as such policies and procedures may be modified with
respect to all senior executive officers of the Company.
(d) Vacation. Executive shall be entitled to the number of weeks
of vacation per year provided to the Company's senior executive officers, but in
no event less than four (4) weeks annually.
(e) Welfare, Pension and Incentive Benefit Plans. During the
Employment Period, Executive (and his spouse and dependents to the extent
provided therein) shall be entitled to participate in and be covered under all
the welfare benefit plans or programs maintained by the Company from time to
time on terms no less favorable than provided for any of its senior executives
other than William Newman or Arnold Laubich including, without limitation, all
medical, hospitalization, dental, disability, accidental death and dismemberment
and travel accident insurance plans and programs. In addition, during the
Employment Period, Executive shall be eligible to participate in and be covered
under all pension, retirement, savings and other
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employee benefit, perquisite, change in control and executive compensation plans
and any annual incentive or long-term performance plans and programs maintained
from time to time by the Company on terms no less favorable than provided for
any of its senior executives other than William Newman or Arnold Laubich.
(f) Automobile. During the Employment Period, the Company shall
provide Executive with the use of a Lexus LS 400 automobile (including the
payment of vehicle insurance) or an automobile substantially comparable to a
Lexus LS 400 automobile; however, at the Company's option, Company may in lieu
thereof provide Executive with an automobile allowance in an amount sufficient
for Executive to have the use of a Lexus LS 400 (and pay vehicle insurance on,
if not so provided by the Company) or an automobile substantially comparable to
a Lexus LS 400. If the Executive so elects, in lieu of the obligations set forth
in the preceding sentence, the Company shall pay the lease payments for the
period during the Employment Period on the automobile leased by Executive on the
Effective Date.
(g) Option. Executive shall be granted on the Effective Date
options ("Option") to purchase seven hundred thousand (700,000) shares of common
stock of the Company ("Shares"). Such Option shall be granted by the
Compensation Committee pursuant to the 1993 Stock Option Plan of New Plan Excel
Realty Trust, Inc., as amended ("Stock Option Plan") to the extent deemed
appropriate by the Compensation Committee but with respect to not less than the
maximum number of Shares for which incentive stock options are permissible under
the limitations applicable to incentive stock options under the Stock Option
Plan and under applicable law. To the extent the Option is not granted pursuant
to the Stock Option Plan, the Board will grant a nonqualified stock option on
the Effective Date with respect to the number of Shares by which the Option
would exceed the number of Shares with respect to which options were granted
under the Stock Option Plan. Options granted outside the Stock Option Plan shall
not be subject to stockholder approval, and shall have terms no less favorable
than if they had been granted with the terms set forth below as nonqualified
stock options under the Stock Option Plan. The portion of the Option granted
under the Stock Option Plan shall be an incentive stock option to the extent
permissible under the limitations applicable to incentive stock options under
the Stock Option Plan and under applicable law. The Option shall have an
exercise price per Share equal to the fair market value (as defined in the Stock
Option Plan) of a Share underlying an option granted on the Effective Date,
i.e., the closing price on the last trading day preceding the Effective Date
(the "Effective Date Market Price").
(i) Of the Option, options to purchase five hundred
thousand (500,000) Shares ("Time Vested Options") shall become vested
at the rate of one hundred thousand (100,000) Shares on each
anniversary of the Effective Date. Notwithstanding the foregoing, Time
Vested Options shall become vested if the Executive's employment is
terminated during the Employment Period by the Company without "Cause"
(as herein defined) or by the Executive for "Good Reason" (as herein
defined). In addition, if the Executive dies or the Executive's
employment is terminated because of Disability during the Employment
Period,
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50% of the Time Vested Options which were not vested immediately prior
to his death or Disability shall become vested on the date of his
death or Disability. Subject to the provisions of the Stock Option
Plan, the Time Vested Options shall have a maximum term of ten years
from the Effective Date but no additional vesting of Time Vested
Options shall occur after termination of Executive's employment and
the Time Vested Options shall terminate earlier [1] on the ninetieth
(90th) day after Executive is no longer employed by the Company on a
full-time basis for any reason other than death or Disability, or [2]
on the first anniversary of the Executive's termination of employment
by reason of death or Disability.
(ii) Of the Option, options to purchase two hundred thousand
(200,000) Shares ("Performance Vested Options") shall vest on the
eighth anniversary of the Effective Date provided Executive is a
full-time employee of the Company at such time or may vest earlier on
the basis of performance as herein described.
[1] Performance Vested Options for one hundred thousand
(100,000) Shares shall vest on the fourth anniversary of the
Effective Date if the annualized return on investment on a
Share from the Effective Date through the fourth anniversary
of the Effective Date (determined in good faith by the
Compensation Committee based upon dividends paid and
appreciation in Share price during such period) ("Cumulative
Four Year ROI") is at least 16%. If Cumulative Four Year ROI
is not greater than 14%, no Performance Vested Options shall
vest on the fourth anniversary of the Effective Date. To the
extent Cumulative Four Year ROI is greater than 14% but not
at least 16%, Performance Vested Options for five hundred
(500) Shares shall become vested on the fourth anniversary
of the Effective Date for each .01% by which Cumulative Four
Year ROI exceeds 14%.
[2] All Performance Vested Options which have not
previously vested shall vest on the fifth anniversary of the
Effective Date if the annualized return on investment of a
Share from the Effective Date through the fifth anniversary
of the Effective Date (determined in good faith by the
Compensation Committee based upon dividends paid and
appreciation in Share price during such period) ("Cumulative
Five Year ROI") is at least 16%. If Cumulative Five Year ROI
is not greater than 14%, no additional Performance Vested
Options shall vest on the fifth anniversary of the Effective
Date. To the extent Cumulative Five Year ROI is greater than
14% but not at least 16%, for each .01% by which Cumulative
Five Year ROI exceeds 14%, additional Performance Vested
Options shall become vested for a number of Shares equal to
the quotient of (A) the difference
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between two hundred thousand (200,000) and the number of
Performance Vested Options which became vested on the fourth
anniversary of the Effective Date and (B) two hundred (200).
[3] Notwithstanding the foregoing, Performance Vested
Options shall become vested if the Executive's employment
with the Company is terminated by the Company without Cause
or by the Executive with Good Reason. If the Executive dies
or the Executive's employment is terminated because of
Disability during the Employment Period prior to the fourth
anniversary of the Effective Date, Performance Vested
Options for one hundred thousand (100,000) Shares shall vest
if the cumulative return on investment from the Effective
Date through the date of death or termination of Executive's
employment because of Disability is at least 16% or
Performance Vested Options for five hundred (500) Shares for
each .01% by which the cumulative return on investment from
the Effective Date through the date of death or Disability
exceeds 14% (up to 16%) shall vest (such determinations to
be made in a manner consistent with the Cumulative Four Year
ROI calculations). Subject to the provisions of the Stock
Option Plan, the Performance Vested Options shall have a
maximum term of ten years but no additional vesting of
Performance Vested Options shall occur after termination of
Executive's employment and the Performance Vested Options
shall terminate earlier [A] on the ninetieth (90th) day
after Executive is no longer employed by the Company as a
full-time employee for any reason other than death or
Disability, or [B] on the first anniversary of the
Executive's termination of employment by reason of death or
Disability.
(h) Restricted Option. Executive shall also be granted on the
Effective Date options ("Restricted Option") to purchase Shares subject to the
restrictions set forth in this Section 5(h) ("Restricted Shares") in a number
equal to six million six hundred thousand dollars ($6,600,000) divided by the
Effective Date Market Price. Such Restricted Option shall be immediately vested,
be exercisable only on the Effective Date and for six months thereafter,
exercisable only for the full number of Restricted Shares and have an exercise
price per Share equal to the Effective Date Market Price. The Company shall
cooperate with Executive to permit Executive to make an election under section
83(b) of the Internal Revenue Code of 1986, as amended.
(i) Such Restricted Option shall be exercisable by (i)
cash, (ii) certified check, or (iii) by a combination of four hundred
thousand dollars ($400,000) in cash or by certified check and two
promissory notes ("Notes") - a promissory recourse note to the Company
for five hundred ninety thousand dollars ($590,000) ("Recourse Note")
and a promissory limited recourse note to the Company for five million
six hundred ten thousand dollars ($5,610,000) ("Limited Recourse
Note").
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Interest on the Notes shall be at 8%, compounded quarterly. Interest
shall be due and payable on the Notes on each January 15, April 15,
July 15 and October 15 (each a "Payment Date"). In addition, Executive
shall make principal payments on the Limited Recourse Note in the
following amount and manner: on each Payment Date during the
Employment Period an amount equal to 10% multiplied by the excess of
[1] the number of Restricted Shares multiplied by $1.64, over [2] five
hundred twenty-eight thousand dollars ($528,000). To the extent
payments are not made as due on the Limited Recourse Note, Executive
shall be fully liable on a recourse basis for such payments due but
not paid prior to the date the Notes are payable in full.
(ii) Of the Restricted Shares, a number of Restricted Shares
equal to the total number of Restricted Shares less sixty thousand
(60,000) ("Time Vested Restricted Shares") shall vest at the rate of
one-fifth of the number of such Time Vested Restricted Shares on each
anniversary of the Effective Date. All remaining unvested Time Vested
Restricted Shares shall vest upon termination of the Executive's
employment by the Company without Cause or by the Executive with Good
Reason. If the Executive should die or his employment is terminated
because of Disability during the Employment Period, 50% of the
unvested Time Vested Restricted Shares shall vest upon his death or
Disability.
(iii) Of the Restricted Shares, sixty thousand (60,000)
Restricted Shares ("Performance Restricted Shares") shall vest on the
eighth anniversary of the Effective Date provided Executive is a
full-time employee of the Company at such time or may vest earlier on
the basis of performance as herein described.
[1] Performance Restricted Shares for thirty thousand
(30,000) Shares shall vest on the fourth anniversary of the
Effective Date if Cumulative Four Year ROI is at least 16%.
If Cumulative Four Year ROI is not greater than 14%, no
Performance Restricted Shares shall vest on the fourth
anniversary of the Effective Date. To the extent Cumulative
Four Year ROI is greater than 14% but not at least 16%,
Performance Restricted Shares for one hundred fifty (150)
Shares shall become vested on the fourth anniversary of the
Effective Date for each .01% by which Cumulative Four Year
ROI exceeds 14%.
[2] All Performance Restricted Shares which have not
previously vested shall vest on the fifth anniversary of the
Effective Date if Cumulative Five Year ROI is at least 16%.
If Cumulative Five Year ROI is not greater than 14%, no
additional Performance Restricted Shares shall vest on the
fifth anniversary of the Effective Date. To the extent
Cumulative Five Year ROI is greater than 14% but not at
least 16%, for each .01% by which Cumulative Five Year ROI
exceeds 14%, additional
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Performance Restricted Shares shall become vested for a
number of Shares equal to the quotient of (A) the difference
between sixty thousand (60,000) and the number of
Performance Restricted Shares which became vested on the
fourth anniversary of the Effective Date and (B) two hundred
(200).
[3] Notwithstanding the foregoing, Performance
Restricted Shares shall become vested if the Executive's
employment with the Company is terminated by the Company
without Cause or by the Executive with Good Reason. If the
Executive dies or the Executive's employment is terminated
because of Disability during the Employment Period prior to
the fourth anniversary of the Effective Date, Performance
Restricted Shares for thirty thousand (30,000) Shares shall
vest if the cumulative return on investment from the
Effective Date through the date of death or Disability is at
least 16% or Performance Restricted Shares for one hundred
fifty (150) Shares for each .01% by which the cumulative
return on investment from the Effective Date through the
date of death or Disability exceeds 14% (up to 16%) shall
vest (such determinations to be made in a manner consistent
with the Cumulative Four Year ROI calculations).
(iv) The Recourse Note and Limited Recourse Note shall be
due no later than the fifth anniversary of the Effective Date;
provided, however, if the Company terminates Executive's employment
for Cause or if the Executive terminates employment without Good
Reason, the Notes, subject to the Company's repurchase obligation set
forth in Section 5(h)(v), shall be immediately payable in full upon
such event, and if the Company terminates Executive's employment for
Disability or if the Executive dies, subject to the Company's
repurchase obligation set forth in Section 5(h)(v), the Notes shall be
payable in full no later than the earlier of the first anniversary of
the termination of employment or the fifth anniversary of the
Effective Date. Notwithstanding the preceding sentences, if applicable
securities law prevents the Executive from selling vested Restricted
Shares before the date when the Notes would otherwise be due, the
Notes shall become payable in full sixty (60) days following the first
date on which the applicable securities law no longer prevents such
sale. Restricted Shares shall be specific security for the Limited
Recourse Note and the Company shall have the right to sell the
Restricted Shares to effectuate repayment of the Notes as payments are
due. No vested Restricted Shares shall be released from securing the
Limited Recourse Note unless:
[1] Principal payments to the Limited Recourse Note are
made in an amount equal to the amount by which [i] the
product of [A] the number of Restricted Shares desired to be
released from securing the Limited Recourse Note, multiplied
by [B] 90.5%, multiplied by [C] the Effective Date Market
Price, exceeds [ii] the product of the principal
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payments made prior thereto to the Limited Recourse Note
multiplied by 90.5%.
[2] Principal payments to the Recourse Note are made in
an amount equal to the amount by which [i] the product of
[A] the number of Restricted Shares desired to be released
from securing the Limited Recourse Note, multiplied by [B]
9.5%, multiplied by [C] the Effective Date Market Price,
exceeds [ii] the product of the principal payments made
prior thereto to the Limited Recourse Note multiplied by
9.5%.
Executive shall execute such documents as the Company may reasonably
require to evidence the Notes and the Restricted Shares being security
for such Notes. Restricted Shares shall contain a restrictive legend
and Executive shall execute a pledge agreement and stock power to
effectuate the security for the Notes.
(v) The Company shall purchase each Restricted Share which
is not vested at the Executive's termination of employment for the
lesser of [1] the Effective Date Market Price and [2] the market price
of a Share on the date of the Company's purchase. The Company's
purchase of Restricted Shares which are not vested shall occur as soon
as practicable after [1] the Company's termination of Executive's
employment for Cause or the Executive's termination of employment
without Good Reason or [2] the earlier of the first anniversary of
Executive's termination of employment because of death or Disability
or the fifth anniversary of the Effective Date if the Executive's
employment is terminated by the Company without Cause or by the
Executive for Good Reason. The purchase price for such Restricted
Shares shall be paid through reduction of the outstanding balance of
the Limited Recourse Note by 90.5% of the amount of the purchase price
for such Restricted Shares and through reduction of the outstanding
balance of the Recourse Note by the remainder of the amount of the
purchase price for such Restricted Shares which was not used to reduce
the outstanding balance of the Limited Recourse Note.
(vi) Subject to the provisions of this Section and Section
3(b), Executive shall have full voting rights with respect to the
Restricted Shares and shall be entitled to receive all dividends paid
with respect to Restricted Shares, whether or not vested.
(i) No Hedging. During the Employment Period, Executive will not
in any way attempt to limit the financial risk with respect to Options,
Restricted Options or Restricted Shares which are not vested by means of any
hedging (including without limitation, selling short) or other techniques.
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(j) Registration. The Company shall cause a registration statement
on Form S-8 (or any successor or replacement form) under the Securities Act of
1933, as amended to be effective with respect to Shares acquired pursuant to the
Option.
6. Termination. Executive's employment hereunder may be terminated during
the Employment Period under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate upon
his death.
(b) Disability. If, as a result of Executive's incapacity due to
physical or mental illness, Executive shall have been substantially unable to
perform his duties hereunder for an entire period of one hundred twenty (120)
days, and within thirty (30) days after written Notice of Termination (as
defined in Section 7(a)) is given after such sixty (60) day period, Executive
shall not have returned to the substantial performance of his duties on a
full-time basis, the Company shall have the right to terminate Executive's
employment hereunder for "Disability", and such termination in and of itself
shall not be, nor shall it be deemed to be, a breach of this Agreement.
(c) Cause. The Company shall have the right to terminate
Executive's employment for Cause, and such termination in and of itself shall
not be, nor shall it be deemed to be, a breach of this Agreement. For purposes
of this Agreement, the Company shall have "Cause" to terminate Executive's
employment upon Executive's:
(i) conviction of, or plea of guilty or nolo contendere to,
a felony; or
(ii) willful and continued failure to use reasonable best
efforts to substantially perform his duties hereunder (other than such
failure resulting from Executive's incapacity due to physical or
mental illness or subsequent to the issuance of a Notice of
Termination by Executive for Good Reason (as defined in Section 6(d))
after demand for substantial performance is delivered by the Company
in writing that specifically identifies the manner in which the
Company believes Executive has not used reasonable best efforts to
substantially perform his duties; or
(iii) willful misconduct (including, but not limited to, a
willful breach of the provisions of Section 10) that is materially
economically injurious to the Company or to any Affiliate.
For purposes of this Section 6(c), no act, or failure to act, by Executive
shall be considered "willful" unless committed in bad faith and without a
reasonable belief that the act or omission was in the best interests of the
Company or any Affiliates thereof; provided, however, that the willful
requirement outlined in paragraphs (ii) or (iii) above shall be deemed to have
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occurred if the Executive's action or non-action continues for more than ten
(10) days after Executive has received written notice of the inappropriate
action or non-action. Failure to achieve performance goals, in and of itself,
shall in no event be grounds for a termination for Cause hereunder. Cause shall
not exist under paragraph (ii) or (iii) above unless and until the Company has
delivered to Executive a copy of a resolution duly adopted by a majority of the
Board (excluding Executive for purposes of determining such majority) at a
meeting of the Board called and held for such purpose (after reasonable (but in
no event less than thirty (30) days) notice to Executive and an opportunity for
Executive, together with his counsel, to be heard before the Board), finding
that in the good faith opinion of the Board, Executive was guilty of the conduct
set forth in paragraph (ii) or (iii) and specifying the particulars thereof in
detail. This Section 6(c) shall not prevent Executive from challenging in any
court of competent jurisdiction the Board's determination that Cause exists or
that Executive has failed to cure any act (or failure to act) that purportedly
formed the basis for the Board's determination.
(d) Good Reason. Executive may terminate his employment for "Good
Reason" within thirty (30) days after Executive has actual knowledge of the
occurrence, without the written consent of Executive, of one of the following
events that has not been cured within thirty (30) days after written notice
thereof has been given by Executive to the Company; provided, however, that with
respect to Section 6(d) the Company shall have the right to challenge in any
court of competent jurisdiction the Executive's determination that he has the
right to terminate his employment for "Good Reason.":
(i) the failure to comply with Section 3(b) in nominating
the Executive as a director or appointing Executive as a member of the
Investment Committee or any successor committee or body (other than
the Board itself) which succeeds to the Investment Committee while any
such committee exists, in each case, as required hereunder;
(ii) the assignment to Executive of duties materially and
adversely inconsistent with Executive's status as Chief Executive
Officer of the Company or a material and adverse alteration in the
nature of Executive's duties and/or responsibilities, reporting
obligations, titles or authority as Chief Executive Officer; provided,
however, the Company's appointment of an individual other than
Executive as President of the Company shall not constitute "Good
Reason";
(iii) a reduction by the Company in Executive's Base Salary
or a failure by the Company to pay any such amounts when due;
(iv) the relocation of the Company's executive offices or
Executive's own office location to a location that is more than fifty
(50) miles from New York, New York;
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<PAGE> 12
(v) any purported termination of Executive's employment for
Cause which is not effected pursuant to the procedures of Section 6(c)
(and for purposes of this Agreement, no such purported termination
shall be effective);
(vi) the failure to grant the Option and Restricted Option
as provided in Section 5(g) and 5(h), respectively, of this Agreement
or the Company's failure to pay or provide any material employee
benefits due to be provided to Executive under this Agreement;
(vii) the Company's failure to provide in all material
respects the indemnification set forth in Section 11 of this
Agreement, or to require any successor to assume and agree to perform
this Agreement as set forth in Section 13 of this Agreement;
(viii) a Change in Control (as defined below) of the Company;
or
(ix) Outside Directors (as defined below) do not constitute
at least a majority of the Board within three months following the
annual meeting of shareholders of the Company in 2001 at which
directors of the Board are elected (An "Outside Director" is any
person other than an employee of the Company on the Effective Date or
thereafter, Arnold Laubich, William Newman, Melvin Newman or Norman
Gold or any member of the respective immediate families of the
individually named persons or employees who on the Effective Date or
thereafter are officers of the Company); provided, however, that an
increase in the number of directors on the Board which permits Outside
Directors to constitute a majority of the Board shall not constitute
"Good Reason".
Executive's right to terminate his employment hereunder for Good Reason
shall not be affected by his incapacity due to physical or mental illness.
Executive's continued employment during the thirty (30) day period referred to
above in this paragraph (d) shall not constitute consent to, or a waiver of
rights with respect to, any act or failure to act constituting Good Reason
hereunder.
If Executive terminates employment hereunder for Good Reason and is
reemployed by the Company or any successor within six months of such termination
of employment, Executive's termination of employment shall retroactively not be
considered a termination for Good Reason and Executive shall have no entitlement
to any payments or benefits pursuant to Section 8(a) (including without
limitation, Section 8(a)(iv)). To the extent Executive has already received
payments or benefits pursuant to Section 8(a) (including without limitation,
Section 8(a)(iv)), Executive shall repay to the Company such payments or
benefits or make other equitable restitution to the Company, as the Board shall
determine.
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For purposes of this Agreement, a "Change in Control" of the Company means
the occurrence of one of the following events:
(1) individuals who, on the Effective Date, constitute
the Board (the "Incumbent Directors") cease for any reason to
constitute at least a majority of the Board, provided that any person
becoming a director subsequent to the Effective Date whose election or
nomination for election was approved by a vote of a majority of the
Incumbent Directors then on the Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person is
named as a nominee for director, without objection to such nomination)
shall be an Incumbent Director; provided, however, that no individual
initially elected or nominated as a director of the Company as a
result of an actual or threatened election contest with respect to
directors or as a result of any other actual or threatened
solicitation of proxies by or on behalf of any person other than the
Board shall be an Incumbent Director;
(2) any "person" (as such term is defined in Section
3(a) (9) of the Securities Exchange Act of 1934 (the "Exchange Act")
and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is
or becomes, after the Effective Date, a "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 30% or more of the combined
voting power of the Company's then outstanding securities eligible to
vote for the election of the Board (the "Company Voting Securities");
provided, however, that an event described in this paragraph (2) shall
not be deemed to be a Change in Control if any of following becomes
such a beneficial owner: (A) the Company or any majority-owned entity
(provided, that this exclusion applies solely to the ownership levels
of the Company or the majority-owned entity), (B) any tax-qualified,
broad-based employee benefit plan sponsored or maintained by the
Company or any majority-owned entity, (C) any underwriter temporarily
holding securities pursuant to an offering of such securities, (D) any
person pursuant to a Non-Qualifying Transaction (as defined in
paragraph (3)), or (E) Executive or any group of persons including
Executive (or any entity controlled by Executive or any group of
persons including Executive);
(3) the consummation of a merger, consolidation, share
exchange or similar form of transaction involving the Company or any
of its subsidiaries, or the sale of all or substantially all of the
Company's assets (a "Business Transaction"), unless immediately
following such Business Transaction (i) more than 50% of the total
voting power of the entity resulting from such Business Transaction or
the entity acquiring the Company's assets in such Business Transaction
(the "Surviving Corporation") is beneficially owned, directly or
indirectly, by the Company's shareholders immediately prior to any
such Business Transaction, and (ii) no person (other than the persons
set forth in clauses (A),
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(B), or (C) of paragraph (2) above or any tax-qualified, broad-based
employee benefit plan of the Surviving Corporation or its Affiliates)
beneficially owns, directly or indirectly, 30% or more of the total
voting power of the Surviving Corporation (a "Non-Qualifying
Transaction"); provided, however, that in the event a definitive
agreement is entered into providing for the occurrence of an event
which, if consummated, would result in a Change in Control of the
Company (a "Merger Event"), then all options and equity interests
granted or acquired by the Executive pursuant to this Agreement which
have not then become fully vested, shall become fully vested but only
on a provisional basis, for the sole purpose of enabling the Executive
to exercise any such options and tender any such equity interests as
necessary to permit the Executive to participate in the Merger Event
on the same basis as all other stockholders. If the Merger Event is
consummated, such accelerated vesting shall no longer be provisional.
If the Merger Event is not consummated, the Executive shall continue
to have the same vested status in his options and equity interests as
he had without regard to the provisional vesting terms included
herein; or
(4) Board and to the extent necessary, shareholder
approval of a liquidation or dissolution of the Company, unless the
voting common equity interests of an ongoing entity (other than a
liquidating trust) are beneficially owned, directly or indirectly, by
the Company's shareholders in substantially the same proportions as
such shareholders owned the Company's outstanding voting common equity
interests immediately prior to such liquidation and such ongoing
entity assumes all existing obligations of the Company to Executive
under this Agreement and the Stock Option Agreements pursuant to which
the Stock Options were granted.
(e) Without Good Reason. Executive shall have the right to
terminate his employment hereunder without Good Reason by providing the Company
with a Notice of Termination, and such termination shall not in and of itself
be, nor shall it be deemed to be, a breach of this Agreement.
7. Termination Procedure.
(a) Notice of Termination. Any termination of Executive's
employment by the Company or by Executive during the Employment Period (other
than termination pursuant to Section 6(a)) shall be communicated by written
Notice of Termination to the other party hereto in accordance with Section 14.
For purposes of this Agreement, a "Notice of Termination" shall mean a notice
which shall indicate the specific termination provision in this Agreement relied
upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under the
provision so indicated.
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(b) Date of Termination. "Date of Termination" shall mean (i) if
Executive's employment is terminated by his death, the date of his death, (ii)
if Executive's employment is terminated pursuant to Section 6(b), thirty (30)
days after Notice of Termination (provided that Executive shall not have
returned to the substantial performance of his duties on a full-time basis
during such thirty (30) day period), and (iii) if Executive's employment is
terminated for any other reason, the date on which a Notice of Termination is
given or any later date (within thirty (30) days after the giving of such
notice) set forth in such Notice of Termination.
8. Compensation Upon Termination or During Disability. In the event
Executive is disabled or his employment terminates during the Employment Period,
the Company shall provide Executive with the payments and benefits set forth
below; provided, however, as a specific condition to being entitled to any
payments or benefits under this Section 8 Executive must have resigned as a
director, trustee and officer of the Company and all of its subsidiaries and
Affiliates and as a member of any committee of the board of directors and the
board of trustees of the Company and its subsidiaries and Affiliates of which he
is a member and must have joined the Company in having executed a mutual release
of the Company and its Affiliates, in the form attached hereto as Exhibit A.
Executive acknowledges and agrees that the payments set forth in this Section 8
constitute liquidated damages for termination of his employment during the
Employment Period.
(a) Termination By Company Without Cause or By Executive for Good
Reason. If Executive's employment is terminated by the Company without Cause or
by Executive for Good Reason:
(i) the Company shall pay to Executive his Base Salary and
accrued vacation pay through the Date of Termination, as soon as
practicable following the Date of Termination; and
(ii) The Company shall pay to Executive a payment equal to;
[1] $2,500,000 if the termination of employment occurs
prior to the fifth anniversary of the Effective Date. At the
election of the Company, the payment set forth in this
(ii)[1] may be made in substantially equal monthly
installments over the shorter of three years or the
remainder of the Employment Period, with interest computed
at the Company's cost of capital for the equivalent period;
or
[2] Base Salary for the period from the Date of
Termination through the end of the Employment Period if the
termination of employment occurs after an extension of the
original five-year term of this Agreement.
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(iii) the Company shall reimburse Executive pursuant to
Section 5(c) for reasonable expenses incurred, but not paid prior to
such termination of employment;
(iv) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance
with the terms and provisions of any agreements, plans or programs of
the Company; and
(v) stock options described in Section 5(g) and Restricted
Shares described in Section 5(h) shall fully vest as of the Date of
Termination.
The foregoing notwithstanding, the total of the severance payments payable
under this Section 8(a) shall be reduced to the extent the payment of such
amounts would cause Executive's total termination benefits (as determined by
Executive's tax advisor) to constitute an "excess" parachute payment under
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and
by reason of such excess parachute payment Executive would be subject to an
excise tax under Section 4999(a) of the Code, but only if Executive determines
that the after-tax value of the termination benefits calculated with the
foregoing restriction exceed those calculated without the foregoing restriction.
(b) Cause or By Executive Without Good Reason. If Executive's
employment is terminated by the Company for Cause or by Executive (other than
for Good Reason):
(i) the Company shall pay Executive his Base Salary and, to
the extent required by law or the Company's vacation policy, his
accrued vacation pay through the Date of Termination, as soon as
practicable following the Date of Termination; and
(ii) the Company shall reimburse Executive pursuant to
Section 5(c) for reasonable expenses incurred, but not paid prior to
such termination of employment, unless such termination resulted from
a misappropriation of Company funds; and
(iii) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance
with the terms and provisions of any agreements, plans or programs of
the Company.
(c) Disability. During any period that Executive fails to perform
his duties hereunder as a result of incapacity due to physical or mental illness
("Disability Period"), Executive shall continue to receive his full Base Salary
set forth in Section 5(a) until his employment is terminated pursuant to Section
6(b). In the event Executive's employment is terminated for Disability pursuant
to Section 6(b):
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(i) the Company shall pay to Executive (A) his Base Salary
and accrued vacation pay through the Date of Termination, as soon as
practicable following the Date of Termination, and (B) continued Base
Salary (as provided for in Section 5(a)) for six (6) months; and
(ii) the Company shall reimburse Executive pursuant to
Section 5(c) for reasonable expenses incurred, but not paid prior to
such termination of employment; and
(iii) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance
with the terms and provisions of any agreements, plans or programs of
the Company.
(d) Death. If Executive's employment is terminated by his death:
(i) the Company shall pay in a lump sum to Executive's
beneficiary, legal representatives or estate, as the case may be,
Executive's Base Salary through the Date of Termination and one (1)
times Executive's annual rate of Base Salary;
(ii) the Company shall reimburse Executive's beneficiary,
legal representatives, or estate, as the case may be, pursuant to
Section 5(c) for reasonable expenses incurred, but not paid prior to
such termination of employment; and
(iii) Executive's beneficiary, legal representatives or
estate, as the case may be, shall be entitled to any other rights,
compensation and benefits as may be due to any such persons or estate
in accordance with the terms and provisions of any agreements, plans
or programs of the Company.
(e) Failure to Extend. A failure to extend the Agreement by either
party shall not be treated as a termination of Executive's employment for
purposes of this Agreement.
(f) Bonus. In the event the Executive's termination of employment
occurs for any reason after the end of any fiscal year of the Company for which
annual bonus performance criteria have been established, the Executive shall be
entitled to payment of any bonus which is earned by reason of such performance
criteria having been met for such fiscal year according to the performance
criteria established, without regard to whether the Executive's termination of
employment precedes the bonus payment date.
9. Mitigation. Executive shall not be required to mitigate amounts
payable under this Agreement by seeking other employment or otherwise, and there
shall be no offset against amounts due Executive under this Agreement on account
of subsequent employment. Additionally, amounts owed to Executive under this
Agreement shall not be offset by any claims
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the Company may have against Executive, and the Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any other circumstances, including, without
limitation, any counterclaim, recoupment, defense or other right which the
Company may have against Executive or others.
10. Confidential Information, Ownership of Documents; Non-Competition.
(a) Confidential Information. Executive shall hold in a fiduciary
capacity for the benefit of the Company all trade secrets and confidential
information, knowledge or data relating to the Company and its businesses and
investments, which shall have been obtained by Executive during Executive's
employment by the Company and which is not generally available public knowledge
(other than by acts by Executive in violation of this Agreement). Except as may
be required or appropriate in connection with his carrying out his duties under
this Agreement, Executive shall not, without the prior written consent of the
Company or as may otherwise be required by law or any legal process, or as is
necessary in connection with any adversarial proceeding against the Company (in
which case Executive shall use his reasonable best efforts in cooperating with
the Company in obtaining a protective order against disclosure by a court of
competent jurisdiction), communicate or divulge any such trade secrets,
information, knowledge or data to anyone other than the Company and those
designated by the Company or on behalf of the Company in the furtherance of its
business or to perform duties hereunder.
(b) Removal of Documents; Rights to Products. All records, files,
drawings, documents, models, equipment, and the like relating to the Company's
business, which Executive has control over shall not be removed from the
Company's premises without its written consent, unless such removal is in the
furtherance of the Company's business or is in connection with Executive's
carrying out his duties under this Agreement and, if so removed, shall be
returned to the Company promptly after termination of Executive's employment
hereunder, or otherwise promptly after removal if such removal occurs following
termination of employment. Executive shall assign to the Company all rights to
trade secrets and other products relating to the Company's business developed by
him alone or in conjunction with others at any time while employed by the
Company.
(c) Protection of Business. During the Employment Period and if
the Executive is terminated by the Company without Cause or Executive terminates
employment with or without Good Reason, until the first anniversary of
Executive's Date of Termination, the Executive will not (i) serve as an officer,
employee, director or consultant of a REIT or other real estate business with a
significant portion of its business involved with community shopping centers;
(ii) engage, anywhere within the geographical areas in which the Company or any
of its Affiliates (the "Designated Entities") are conducting their business
operations or providing services as of the Date of Termination, in any business
which is being engaged in by the Designated Entities as of the Date of
Termination or pursue or attempt to develop any project known to Executive and
which the Designated Entities are pursuing, developing or attempting to develop
as of the Date of Termination, unless such project has been inactive for over
nine (9)
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months (a "Project"), directly or indirectly, alone, in association with or as a
shareholder, principal, agent, partner, officer, director, employee or
consultant of any other organization; (iii) divert to any entity which is
engaged in any business conducted by the Designated Entities in the same
geographic area as the Designated Entities, any Project or any customer of any
of the Designated Entities; or (iv) solicit any officer, employee (other than
secretarial staff) or consultant of any of the Designated Entities to leave the
employ of any of the Designated Entities. Notwithstanding the preceding
sentence, Executive shall not be prohibited from owning less than three (3%)
percent of any publicly traded corporation, whether or not such corporation is
in competition with the Company. If, at any time, the provisions of this Section
10(c) shall be determined to be invalid or unenforceable, by reason of being
vague or unreasonable as to area, duration or scope of activity, this Section
10(c) shall be considered divisible and shall become and be immediately amended
to only such area, duration and scope of activity as shall be determined to be
reasonable and enforceable by the court or other body having jurisdiction over
the matter; and Executive agrees that this Section 10(c) as so amended shall be
valid and binding as though any invalid or unenforceable provision had not been
included herein.
(d) Injunctive Relief. In the event of a breach or threatened
breach of this Section 10, Executive agrees that the Company shall be entitled
to injunctive relief in a court of appropriate jurisdiction to remedy any such
breach or threatened breach, Executive acknowledging that damages would be
inadequate and insufficient.
(e) Continuing Operation. Except as specifically provided in this
Section 10, the termination of Executive's employment or of this Agreement shall
have no effect on the continuing operation of this Section 10.
11. Indemnification.
(a) General. The Company agrees that if Executive is made a party
or a threatened to be made a party to any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "Proceeding"), by reason of
the fact that Executive is or was a trustee, director or officer of the Company
or any subsidiary of the Company or is or was serving at the request of the
Company or any subsidiary as a trustee, director, officer, member, employee or
agent of another corporation or a partnership, joint venture, trust or other
enterprise, including, without limitation, service with respect to employee
benefit plans, whether or not the basis of such Proceeding is alleged action in
an official capacity as a trustee, director, officer, member, employee or agent
while serving as a trustee, director, officer, member, employee or agent,
Executive shall be indemnified and held harmless by the Company to the same
extent as other officers and directors, as in effect from time to time, against
all Expenses incurred or suffered by Executive in connection therewith, and such
indemnification shall continue as to Executive even if Executive has ceased to
be an officer, director, trustee or agent, or is no longer employed by the
Company and shall inure to the benefit of his heirs, executors and
administrators.
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(b) Expenses. As used in this Agreement, the term "Expenses" shall
include, without limitation, damages, losses, judgments, liabilities, fines,
penalties, excise taxes, settlements, and costs, attorneys' fees, accountants'
fees, and disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to indemnification
under this Agreement.
(c) Enforcement. If a claim or request under this Agreement is not
paid by the Company or on its behalf, within thirty (30) days after a written
claim or request has been received by the Company, Executive may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim or request and, if Executive prevails in respect to the material issues,
Executive shall be entitled to be paid also the Expenses of prosecuting such
suit. All obligations for indemnification hereunder shall be subject to, and
paid in accordance with, applicable Maryland law.
(d) Partial Indemnification. If Executive is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of any Expenses, but not, however, for the total amount thereof, the
Company, shall nevertheless indemnify Executive for the portion of such Expenses
to which Executive is entitled.
(e) Advances of Expenses. Expenses incurred by Executive in
connection with any Proceeding shall be paid by the Company in advance upon
request of Executive that the Company pay such Expenses; but only in the event
that Executive shall have delivered in writing to the Company (i) an undertaking
to reimburse the Company for Expenses with respect to which Executive is not
entitled to indemnification and (ii) an affirmation of his good faith belief
that the standard of conduct necessary for indemnification by the Company has
been met.
(f) Notice of Claim. Executive shall give to the Company notice of
any claim made against him for which indemnification will or could be sought
under this Agreement. In addition, Executive shall give the Company such
information and cooperation as it may reasonably require and as shall be within
Executive's power and at such times and places as are convenient for Executive.
(g) Defense of Claim. With respect to any Proceeding as to which
Executive notifies the Company of the commencement thereof:
(i) The Company will be entitled to participate therein at
its own expense; and
(ii) Except as otherwise provided below, to the extent that
it may wish, the Company will be entitled to assume the defense
thereof, with counsel reasonably satisfactory to Executive, which in
the Company's sole discretion may be regular counsel to the Company
and may be counsel to other officers and
20
<PAGE> 21
directors of the Company or any subsidiary. Executive also shall have
the right to employ his own counsel in such action, suit or proceeding
if he reasonably concludes that failure to do so would involve a
conflict of interest between the Company and Executive, and under such
circumstances the fees and expenses of such counsel shall be at the
expense of the Company.
(iii) The Company shall not be liable to indemnify Executive
under this Agreement for any amounts paid in settlement of any action
or claim effected without its written consent. The Company shall not
settle any action or claim in any manner which would impose any
penalty or limitation on Executive without Executive's written
consent. Neither the Company nor Executive will unreasonably withhold
or delay their consent to any proposed settlement.
(h) Non-exclusivity. The right to indemnification and the payment
of expenses incurred in defending a Proceeding in advance of its final
disposition conferred in this Section 11 shall not be exclusive of any other
right which Executive may have or hereafter may acquire under any statute,
provision of the declaration of trust or certificate of incorporation or by-laws
of the Company or any subsidiary, agreement, vote of shareholders or
disinterested directors or trustees or otherwise.
12. Legal Fees and Expenses. If any contest or dispute shall arise between
the Company and Executive regarding any provision of this Agreement, the Company
shall reimburse Executive for all legal fees and expenses reasonably incurred by
Executive in connection with such contest or dispute, but only if Executive
prevails in respect of the material issues in dispute of Executive's claims
brought and pursued in connection with such contest or dispute. Such
reimbursement shall be made as soon as practicable following the final
resolution of such contest or dispute to the extent the Company receives
reasonable written evidence of such fees and expenses.
13. Successors; Binding Agreement.
(a) Company's Successors. No rights or obligations of the Company
under this Agreement may be assigned or transferred except that the Company will
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in this Agreement,
"Company" shall mean the Company as herein before defined and any successor to
its business and/or assets (by merger, purchase or otherwise) which executes and
delivers the agreement provided for in this Section 13 or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation of
law.
21
<PAGE> 22
(b) Executive's Successors. No rights or obligations of Executive
under this Agreement may be assigned or transferred by Executive other than his
rights to payments or benefits hereunder, which may be transferred only by will
or the laws of descent and distribution. Upon Executive's death, this Agreement
and all rights of Executive hereunder shall inure to the benefit of and be
enforceable by Executive's beneficiary or beneficiaries, personal or legal
representatives, or estate, to the extent any such person succeeds to
Executive's interests under this Agreement. Executive shall be entitled to
select and change a beneficiary or beneficiaries to receive any benefit or
compensation payable hereunder following Executive's death by giving the Company
written notice thereof. In the event of Executive's death or a judicial
determination of his incompetence, reference in this Agreement to Executive
shall be deemed, where appropriate, to refer to his beneficiary(ies), estate or
other legal representative(s). If Executive should die following his Date of
Termination while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts unless otherwise provided herein shall be
paid in accordance with the terms of this Agreement to such person or persons so
appointed in writing by Executive, or otherwise to his legal representatives or
estate.
14. Notice. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally,
or sent by nationally-recognized, overnight courier or by registered or
certified mail, return receipt requested and postage prepaid, addressed as
follows:
If to Executive:
Mr. Glenn J. Rufrano
c/o New Plan Excel Realty Trust, Inc.
1120 Ave of the Americas
New York, NY 10036
With copy to:
Mr. Stephen T. Lindo
Willkie Farr and Gallagher
787 Seventh Avenue
New York, NY 10019-6099
If to the Company:
New Plan Excel Realty Trust, Inc.
1120 Ave of the Americas
New York, NY 10036
Attn: General Counsel
22
<PAGE> 23
or to such other address as any party may have furnished to the others in
writing in accordance herewith. All such notices and other communications shall
be deemed to have been received (a) in the case of personal delivery, on the
date of such delivery, (b) in the case of delivery by nationally-recognized,
overnight courier, on the business day following dispatch and (c) in the case of
mailing, on the third business day following such mailing.
15. Miscellaneous. No provisions of this Agreement may be amended,
modified, or waived unless such amendment or modification is agreed to in
writing signed by Executive and by a duly authorized officer of the Company, and
such waiver is set forth in writing and signed by the party to be charged. No
waiver by either party hereto at any time of any breach by the other party
hereto of any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. The respective rights and obligations of the
parties hereunder of this Agreement shall survive Executive's termination of
employment and the termination of this Agreement to the extent necessary for the
intended preservation of such rights and obligations. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of New York without regard to its conflicts of law
principles.
16. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
18. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supersede all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, director, employee or representative of any party hereto in respect of
such subject matter. Any prior agreement of the parties hereto in respect of the
subject matter contained herein is hereby terminated and canceled.
19. Attorney Fees. The Company shall pay, or reimburse Executive for at
Executive's discretion, reasonable attorney fees actually incurred by Executive
in connection with the negotiation, execution and delivery of this Agreement in
an amount up to twenty-five thousand dollars ($25,000).
20. Withholding. All payments hereunder shall be subject to any required
withholding of Federal, state and local taxes pursuant to any applicable law or
regulation.
23
<PAGE> 24
21. Noncontravention. The Company represents that the Company is not
prevented from entering into, or performing this Agreement by the terms of any
law, order, rule or regulation, its by-laws or certificate of incorporation, or
any agreement to which it is a party, other than which would not have a material
adverse effect on the Company's ability to enter into or perform this Agreement.
Executive represents to the Company that he is not a party to any contract that
would preclude him from accepting employment as Chief Executive Officer and
President of the Company and he has no reason to believe that accepting
employment as Chief Executive Officer and President of the Company would result
in a disclosure of any confidential information of any prior employer.
22. Section Headings. The section headings in this Agreement are for
convenience of reference only, and they form no part of this Agreement and shall
not affect its interpretation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
NEW PLAN EXCEL REALTY TRUST, INC.,
a Maryland corporation
By: /s/ Steven F. Siegel
---------------------------------
Name: Steven F. Siegel
Title: Sr. VP
/s/ Glenn J. Rufrano
------------------------------------
Glenn J. Rufrano
24
<PAGE> 1
Exhibit 10.2
STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of February 23, 2000, is made by and between
New Plan Excel Realty Trust, Inc., a Maryland corporation, hereinafter referred
to as "Company," and Glenn J. Rufrano, an employee of the Company or a
Subsidiary of the Company, hereinafter referred to as "Employee":
WHEREAS, the Company wishes to afford the Employee the opportunity to
purchase shares of its $0.01 par value Common Stock; and
WHEREAS, the Board has determined that it would be to the advantage
and best interest of the Company and its shareholders to grant the Non-Qualified
Option provided for herein to the Employee as an inducement to remain in the
service of the Company or its Subsidiaries and as an incentive for increased
efforts during such service, and has instructed the undersigned officers to
issue the Option.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall
have the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter and the
singular the plural, where the context so indicates.
SECTION 1.1 - BOARD
"Board" shall mean the Board of Directors of the Company.
SECTION 1.2 - CAUSE
"Cause" shall mean Cause as defined in the Employment Agreement.
SECTION 1.3 - CHANGE IN CONTROL
"Change in Control" shall mean the consummation of a merger,
consolidation, share exchange or similar form of transaction involving the
Company or any of its subsidiaries, or the sale of all or substantially all of
the Company's assets (a "Business Transaction"), unless immediately following
such Business Transaction (i) more than 50% of the total voting power of the
entity resulting from such Business Transaction or the entity acquiring the
Company's assets in
<PAGE> 2
such Business Transaction (the "Surviving Corporation") is beneficially owned,
directly or indirectly, by the Company's shareholders immediately prior to any
such Business Transaction, and (ii) no person (other than (1) the Company or any
majority-owned entity (provided, that this exclusion applies solely to the
ownership levels of the Company or the majority-owned entity), (2) any
tax-qualified, broad-based employee benefit plan sponsored or maintained by the
Company or any majority-owned entity, or (3) any underwriter temporarily holding
securities pursuant to an offering of such securities), or any tax-qualified,
broad-based employee benefit plan of the Surviving Corporation or its Affiliates
beneficially owns, directly or indirectly, 30% or more of the total voting power
of the Surviving Corporation.
SECTION 1.4 - CODE
"Code" shall mean the Internal Revenue Code of 1986, as amended.
SECTION 1.5 - COMMITTEE
"Committee" shall mean the Executive Compensation and Stock Option
Committee of the Board.
SECTION 1.6 - COMPANY
"Company" shall mean New Plan Excel Realty Trust, Inc. In addition,
"Company" shall mean any corporation assuming, or issuing a new stock option in
substitution for, the Option in a transaction to which Section 424(a) of the
Code applies.
SECTION 1.7 - DIRECTOR
"Director" shall mean a member of the Board.
SECTION 1.8 - DISABILITY
"Disability" shall mean Disability as defined in the Employment
Agreement.
SECTION 1.9 - EFFECTIVE DATE
"Effective Date" shall mean the effective date of the Employment
Agreement.
SECTION 1.10 - EMPLOYMENT AGREEMENT
"Employment Agreement" shall mean the Employment Agreement by and
between New Plan Excel Realty Trust, Inc., a Maryland corporation, and Glenn J.
Rufrano dated February 23, 2000.
2
<PAGE> 3
SECTION 1.11 - EMPLOYMENT PERIOD
"Employment Period" shall mean Employment Period as defined in the
Employment Agreement.
SECTION 1.12 - EXCHANGE ACT
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
SECTION 1.13 - GOOD REASON
"Good Reason" shall mean Good Reason as defined in the Employment
Agreement.
SECTION 1.14 - OPTION
"Option" shall mean the option to purchase Common Stock of the Company
granted under this Agreement.
SECTION 1.15 - SECRETARY
"Secretary" shall mean the Secretary of the Company.
SECTION 1.16 - SECURITIES ACT
"Securities Act" shall mean the Securities Act of 1933, as amended.
SECTION 1.17 - SUBSIDIARY
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one (1) of the other corporations in such chain. To the extent not
inconsistent with the requirements of Section 422 of the Code, "corporation" in
the preceding sentence shall include entities other than corporations,
including, without limitation, partnerships and trusts.
SECTION 1.18 - TERMINATION OF EMPLOYMENT
"Termination of Employment" shall mean the time when the
employee-employer relationship between the Employee and the Company or a
Subsidiary is terminated for any reason, with or without Cause, including, but
not by way of limitation, a termination by resignation with
3
<PAGE> 4
or without Good Reason, discharge, death or retirement, but excluding any
termination where there is a simultaneous reemployment by the Company or a
Subsidiary.
ARTICLE II
GRANT OF OPTION
SECTION 2.1 - GRANT OF OPTION
For good and valuable consideration, on the date hereof the Company
irrevocably grants to the Employee the option to purchase any part or all of an
aggregate of Four Hundred Sixty Thousand Nine Hundred and Seventy-Six (460,976)
shares of its $0.01 par value Common Stock upon the terms and conditions set
forth in this Agreement.
SECTION 2.2 - PURCHASE PRICE
The purchase price of the shares of stock covered by the Option shall
be Twelve and Thirteen Sixteenths Dollars ($12.8125) per share without
commission or other charge.
SECTION 2.3 - ADJUSTMENTS IN OPTION
In the event that the outstanding shares of the stock subject to the
Option are changed into or exchanged for a different number or kind of shares of
the Company or other securities of the Company by reason of merger,
consolidation, recapitalization, reclassification, stock split up, stock
dividend or combination of shares, the Committee shall make an appropriate and
equitable adjustment in the number and kind of shares as to which the Option, or
portions thereof then unexercised, shall be exercisable, to the end that after
such event the Employee's proportionate interest shall be maintained as before
the occurrence of such event. Such adjustment in the Option shall be made
without change in the total price applicable to the unexercised portion of the
Option (except for any change in the aggregate price resulting from rounding-off
of share quantities or prices) and with any necessary corresponding adjustment
in the Option price per share. Any such adjustment made by the Committee shall
be final and binding upon the Employee, the Company and all other interested
persons.
ARTICLE III
PERIOD OF EXERCISABILITY
SECTION 3.1 - COMMENCEMENT OF EXERCISABILITY
(a) The Option shall become exercisable as provided in Schedule "A"
attached to this Agreement and hereby incorporated by reference.
4
<PAGE> 5
(b) No portion of the Option which is unexercisable at Termination of
Employment shall thereafter become exercisable.
SECTION 3.2 - DURATION OF EXERCISABILITY
Each installment which becomes exercisable pursuant to Section 3.1
shall remain exercisable until it becomes unexercisable under Section 3.3.
SECTION 3.3 - EXPIRATION OF OPTION
The Option may not be exercised to any extent by anyone after the first
to occur of the following events:
(a) The expiration of ten (10) years from the date the Option was
granted; or
(b) The expiration of ninety (90) days from the date of the
Employee's Termination of Employment on a full-time basis for any
reason other than death of Disability; or
(c) The expiration of one (1) year from the date of the
Employee's Termination of Employment by reason of death or Disability;
or
(d) The effective date of either the merger or consolidation
of the Company with or into another corporation, or the acquisition by
another corporation or person of all or substantially all of the
Company's assets or eighty percent (80%) or more of the Company's then
outstanding voting stock, or the liquidation or dissolution of the
Company, unless the Committee waives this provision in connection with
such transaction. At least ten (10) days prior to the effective date
of such merger, consolidation, acquisition, liquidation or
dissolution, the Committee shall give the Employee notice of such
event if the Option has then neither been exercised nor become
unexercisable under this Section 3.3.
SECTION 3.4 - MERGER, CONSOLIDATION, ACQUISITION OR DISSOLUTION OF THE COMPANY
In the event of the merger or consolidation of the Company with or
into another corporation, or the acquisition by another corporation or person of
all or substantially all of the Company's assets or eighty percent (80%) or more
of the Company's then outstanding voting stock, or the liquidation or
dissolution of the Company, the Committee may, in its absolute discretion and
upon such terms and conditions as it deems appropriate, provide by resolution,
adopted prior to such event and incorporated in the notice referred to in
Section 3.3(d), that at some time prior to the effective date of such event this
Option shall be exercisable as to all the
5
<PAGE> 6
shares covered hereby, notwithstanding that this Option may not yet have become
fully exercisable under Section 3.1(a).
ARTICLE IV
EXERCISE OF OPTION
SECTION 4.1 - PERSON ELIGIBLE TO EXERCISE
During the lifetime of the Employee, only he may exercise the Option
or any portion thereof. After the death of the Employee, any exercisable portion
of the Option may, prior to the time when the Option becomes unexercisable under
Section 3.3, be exercised by his personal representative or by any person
empowered to do so under the Employee's will or under the then applicable laws
of descent and distribution.
SECTION 4.2 - PARTIAL EXERCISE
Any exercisable portion of the Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.3; provided, however, that each partial exercise shall be for whole shares
only.
SECTION 4.3 - MANNER OF EXERCISE
The Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Secretary or his office of all of the following prior
to the time when the Option or such portion becomes unexercisable under Section
3.3:
(a) Notice in writing signed by the Employee or the other
person then entitled to exercise the Option or portion, stating that
the Option or portion is thereby exercised, such notice complying with
all applicable rules established by the Committee; and
(b) (1) Full payment (in cash or by check) for the shares
with respect to which such Option or portion is exercised; or
(2) With the consent of the Committee, (A) shares
of the Company's Common Stock owned by the Employee duly
endorsed for transfer to the Company or (B) shares of the
Company's Common Stock issuable to the Employee upon exercise of
the Option, with a fair market value (as determined by
6
<PAGE> 7
the Committee) on the date of Option exercise equal to the
aggregate Option price of the shares with respect to which such
Option or portion is exercised; or
(3) With the consent of the Committee, a recourse,
nonrecourse or limited recourse promissory note bearing interest
(at no less than such rate as shall then preclude the imputation
of interest under the Code or successor provision) and payable
upon such terms as may be prescribed by the Committee. The
Committee may also prescribe the form of such note and the
security to be given for such note. The Option may not be
exercised, however, by delivery of a promissory note or by a
loan from the Company when or where such loan or other extension
of credit is prohibited by law; or
(4) With the consent of the Committee, any combination
of the consideration provided in the foregoing subparagraphs
(1), (2) and (3); and
(c) A bona fide written representation and agreement, in a
form satisfactory to the Committee, signed by the Employee or other
person then entitled to exercise such Option or portion, stating that
the shares of stock are being acquired for his own account, for
investment and without any present intention of distributing or
reselling said shares or any of them except as may be permitted under
the Securities Act and then applicable rules and regulations thereunder,
and that the Employee or other person then entitled to exercise such
Option or portion will indemnify the Company against and hold it free
and harmless from any loss, damage, expense or liability resulting to
the Company if any sale or distribution of the shares by such person is
contrary to the representation and agreement referred to above. The
Committee may, in its absolute discretion, take whatever additional
actions it deems appropriate to insure the observance and performance of
such representation and agreement and to effect compliance with the
Securities Act and any other federal or state securities laws or
regulations. Without limiting the generality of the foregoing, the
Committee may require an opinion of counsel acceptable to it to the
effect that any subsequent transfer of shares acquired on an Option
exercise does not violate the Securities Act, and may issue
stop-transfer orders covering such shares. Share certificates evidencing
stock issued on exercise of this Option shall bear an appropriate legend
referring to the provisions of this subsection (c) and the
7
<PAGE> 8
agreements herein. The written representation and agreement referred to
in the first sentence of this subsection (c) shall, however, not be
required if the shares to be issued pursuant to such exercise have been
registered under the Securities Act, and such registration is then
effective in respect of such shares; and
(d) Full payment to the Company (or other employer
corporation) of all amounts which, under federal, state or local tax
law, it is required to withhold upon exercise of the Option; with the
consent of the Committee, (i) shares of the Company's Common Stock owned
by the Employee duly endorsed for transfer, or (ii) shares of the
Company's Common Stock issuable to the Employee upon exercise of the
Option, valued by the Committee at the date of Option exercise, may be
used to make all or part of such payment; and
(e) In the event the Option or portion shall be exercised
pursuant to Section 4.1 by any person or persons other than the
Employee, appropriate proof of the right of such person or persons to
exercise the Option.
SECTION 4.4 - CERTAIN TIMING REQUIREMENTS
Shares of the Company's Common Stock, whether or not issuable to the
Employee upon exercise of the Option, may be used to satisfy the Option price or
the tax withholding consequences of such exercise in accordance with procedures
set forth by the Committee.
SECTION 4.5 - CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES
The shares of stock deliverable upon the exercise of the Option, or any
portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to the fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other
qualification of such shares under any state or federal law or under
rulings or regulations of the Securities and Exchange Commission or of
any other governmental regulatory body, which the Committee shall, in
its absolute discretion, deem necessary or advisable; and
8
<PAGE> 9
(c) The obtaining of any approval or other clearance from
any state or federal governmental agency which the Committee shall, in
its absolute discretion, determine to be necessary or advisable; and
(d) The payment to the Company (or other employer
corporation) of all amounts which, under federal, state or local tax
law, it is required to withhold upon exercise of the Option; and
(e) The lapse of such reasonable period of time following
the exercise of the Option as the Committee may from time to time
establish for reasons of administrative convenience.
SECTION 4.6 - NO RIGHTS AS SHAREHOLDER
The holder of the Option shall not be, nor have any of the rights or
privileges of, a shareholder of the Company in respect of any shares purchasable
upon the exercise of any part of the Option unless and until certificates
representing such shares shall have been issued by the Company to such holder.
ARTICLE V
OTHER PROVISIONS
SECTION 5.1 - ADMINISTRATION
The Committee shall have the power to interpret this Agreement. All
actions taken and all interpretations and determinations made by the Committee
in good faith shall be final and binding upon the Employee, the Company and all
other interested persons. No member of the Committee shall be personally liable
for any action, determination or interpretation made in good faith with respect
to the Option.
SECTION 5.2 - OPTION NOT TRANSFERABLE
Neither the Option nor any interest or right therein or part thereof
shall be liable for the debts, contracts or engagements of the Employee or his
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this Section 5.2
shall not prevent transfers by will or by the applicable laws of descent and
distribution.
SECTION 5.3 - SHARES TO BE RESERVED
9
<PAGE> 10
The Company shall at all times during the term of the Option reserve and
keep available such number of shares of stock as will be sufficient to satisfy
the requirements of this Agreement.
SECTION 5.4 - NOTICES
Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Secretary, and any notice to be
given to the Employee shall be addressed to him at the address given beneath his
signature hereto. By a notice given pursuant to this Section 5.4, either party
may hereafter designate a different address for notices to be given to him. Any
notice which is required to be given to the Employee shall, if the Employee is
then deceased, be given to the Employee's personal representative if such
representative has previously informed the Company of his status and address by
written notice under this Section 5.4. Any notice shall be deemed duly given
when enclosed in a properly sealed envelope or wrapper addressed as aforesaid,
deposited (with postage prepaid) in a post office or branch post office
regularly maintained by the United States Postal Service.
SECTION 5.5 - NO RIGHT TO EMPLOYMENT
Nothing in this Agreement shall confer upon the Employee any right to
continue in the employ of the Company or any Subsidiary or shall interfere with
or restrict in any way the rights of the Company and its Subsidiaries, which are
hereby expressly reserved, to discharge the Employee at any time for any reason
whatsoever, with or without cause.
SECTION 5.6 - TITLES
Titles are provided herein for convenience only and are not to serve as
a basis for interpretation or construction of this Agreement.
SECTION 5.7 - CONFORMITY TO SECURITIES LAWS
The Employee acknowledges that the Option is granted and may be
exercised only in such a manner as to conform to the extent necessary with all
provisions of the Securities Act and the Exchange Act and any and all
regulations and rules promulgated by the Securities and Exchange Commission
thereunder. Notwithstanding anything herein to the contrary, the Option is
granted and may be exercised only in such a manner as to conform to such laws,
rules and regulations. To the extent permitted by applicable law, this Agreement
shall be deemed amended to the extent necessary to conform to such laws, rules
and regulations.
SECTION 5.8 - AMENDMENT
10
<PAGE> 11
The Committee may amend the Option at any time or from time to time. No
amendment shall, without the consent of the holder of the Option, impair the
rights or obligations under the Option.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto.
NEW PLAN EXCEL REALTY TRUST, INC.
By /s/ James DeCicco
---------------------------------
Executive Vice President
By /s/ Steven F. Siegel
---------------------------------
Secretary
/s/ Glenn Rufrano
- ---------------------------------
Employee
- ---------------------------------
- ---------------------------------
Address
Employee's Taxpayer
Identification Number:
- ---------------------------------
11
<PAGE> 12
SCHEDULE "A"
OPTION EXERCISABILITY SCHEDULE
The Option shall be exercisable in installments as follows:
<TABLE>
<CAPTION>
OPTION EXERCISABLE WITH RESPECT
TIME TO NUMBER OF SHARES
---- -------------------
<S> <C>
On or after February 23, 2001 92,195
-----------------
On or after February 23, 2002 184,390
-----------------
On or after February 23, 2003 276,585
-----------------
On or after February 23, 2004 368,780
-----------------
On or after February 23, 2005 460,976
-----------------
</TABLE>
Notwithstanding the foregoing, the Option shall become exercisable if
the Employee is terminated during the Employment Period, by the Company without
Cause or by the Employee for Good Reason. In the event a definitive agreement is
entered into providing for the occurrence of an event which, if consummated,
would result in a Change in Control of the Company (a "Merger Event"), then the
Option shall become fully exercisable but only on a provisional basis, for the
sole purpose of enabling the Employee to exercise the Option as necessary to
permit the Employee to participate in the Merger Event on the same basis as all
other stockholders. If the Merger Event is consummated, such accelerated
exercise shall no longer be provisional. If the Merger Event is not consummated,
the Employee shall continue to have the same ability to exercise his Option as
he had without regard to the provisional exercise terms included herein.
In addition, if the Employee dies or the Employee's employment is
terminated because of Disability during the Employment Period, fifty percent
(50%) of the Option which was not exercisable immediately prior to the
Employee's death or Disability shall become exercisable on the date of his death
or Disability.
<PAGE> 1
Exhibit 10.3
STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of February 23, 2000, is made by and between
New Plan Excel Realty Trust, Inc., a Maryland corporation, hereinafter referred
to as "Company," and Glenn J. Rufrano, an employee of the Company or a
Subsidiary of the Company, hereinafter referred to as "Employee":
WHEREAS, the Company wishes to afford the Employee the opportunity to
purchase shares of its $0.01 par value Common Stock; and
WHEREAS, the Company wishes to carry out the Plan (the terms of which
are hereby incorporated by reference and made a part of this Agreement); and
WHEREAS, the Committee, appointed to administer the Plan, has determined
that it would be to the advantage and best interest of the Company and its
shareholders to grant the Incentive Stock Option (or to the extent not
qualifying under Section 422 of the Code, Non-Qualified Option) provided for
herein to the Employee as an inducement to remain in the service of the Company
or its Subsidiaries and as an incentive for increased efforts during such
service, and has advised the Company thereof and instructed the undersigned
officers to issue the Option.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall have
the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter and the
singular the plural, where the context so indicates.
SECTION 1.1 - BOARD
"Board" shall mean the Board of Directors of the Company.
SECTION 1.2 - CAUSE
"Cause" shall mean Cause as defined in the Employment Agreement.
SECTION 1.3 - CHANGE IN CONTROL
<PAGE> 2
"Change in Control" shall mean the consummation of a merger,
consolidation, share exchange or similar form of transaction involving the
Company or any of its subsidiaries, or the sale of all or substantially all of
the Company's assets (a "Business Transaction"), unless immediately following
such Business Transaction (i) more than 50% of the total voting power of the
entity resulting from such Business Transaction or the entity acquiring the
Company's assets in such Business Transaction (the "Surviving Corporation") is
beneficially owned, directly or indirectly, by the Company's shareholders
immediately prior to any such Business Transaction, and (ii) no person (other
than (1) the Company or any majority-owned entity (provided, that this exclusion
applies solely to the ownership levels of the Company or the majority-owned
entity), (2) any tax-qualified, broad-based employee benefit plan sponsored or
maintained by the Company or any majority-owned entity, or (3) any underwriter
temporarily holding securities pursuant to an offering of such securities), or
any taxqualified, broadbased employee benefit plan of the Surviving Corporation
or its Affiliates beneficially owns, directly or indirectly, 30% or more of the
total voting power of the Surviving Corporation.
SECTION 1.4 - CODE
"Code" shall mean the Internal Revenue Code of 1986, as amended.
SECTION 1.5 - COMMITTEE
"Committee" shall mean the Executive Compensation and Stock Option
Committee of the Board, appointed as provided in the Plan.
SECTION 1.6 - COMPANY
"Company" shall mean New Plan Excel Realty Trust, Inc. In addition,
"Company" shall mean any corporation assuming, or issuing a new stock option in
substitution for, the Option in a transaction to which Section 424(a) of the
Code applies.
SECTION 1.7 - DIRECTOR
"Director" shall mean a member of the Board.
SECTION 1.8 - DISABILITY
"Disability" shall mean Disability as defined in the Employment
Agreement.
SECTION 1.9 - EFFECTIVE DATE
"Effective Date" shall mean the effective date of the Employment
Agreement.
2
<PAGE> 3
SECTION 1.10 - EMPLOYMENT AGREEMENT
"Employment Agreement" shall mean the Employment Agreement by and
between New Plan Excel Realty Trust, Inc., a Maryland corporation, and Glenn J.
Rufrano dated February 23, 2000.
SECTION 1.11 - EMPLOYMENT PERIOD
"Employment Period" shall mean Employment Period as defined in the
Employment Agreement.
SECTION 1.12 - EXCHANGE ACT
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
SECTION 1.13 - GOOD REASON
"Good Reason" shall mean Good Reason as defined in the Employment
Agreement.
SECTION 1.14 - OPTION
"Option" shall mean the option to purchase Common Stock of the Company
granted under this Agreement.
SECTION 1.15 - PLAN
"Plan" shall mean the 1993 Stock Option Plan of New Plan Excel Realty
Trust, Inc., as amended from time to time.
SECTION 1.16 - SECRETARY
"Secretary" shall mean the Secretary of the Company.
SECTION 1.17 - SECURITIES ACT
"Securities Act" shall mean the Securities Act of 1933, as amended.
SECTION 1.18 - SUBSIDIARY
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing fifty
percent (50%) or more of the total combined voting power
3
<PAGE> 4
of all classes of stock in one (1) of the other corporations in such chain. To
the extent not inconsistent with the requirements of Section 422 of the Code,
"corporation" in the preceding sentence shall include entities other than
corporations, including, without limitation, partnerships and trusts.
SECTION 1.19 - TERMINATION OF EMPLOYMENT
"Termination of Employment" shall mean the time when the
employee-employer relationship between the Employee and the Company or a
Subsidiary is terminated for any reason, with or without Cause, including, but
not by way of limitation, a termination by resignation with or without Good
Reason, discharge, death or retirement, but excluding any termination where
there is a simultaneous reemployment by the Company or a Subsidiary. A leave of
absence shall constitute a Termination of Employment if, and to the extent that,
such leave of absence interrupts employment for purposes of Section 422(a)(2) of
the Code and the then applicable regulations and revenue rulings under said
Section.
ARTICLE II
GRANT OF OPTION
SECTION 2.1 - GRANT OF OPTION
For good and valuable consideration, on the date hereof the Company
irrevocably grants to the Employee the option to purchase any part or all of an
aggregate of Thirty-Nine Thousand and Twenty-Four (39,024) shares of its $0.01
par value Common Stock upon the terms and conditions set forth in this
Agreement.
SECTION 2.2 - PURCHASE PRICE
The purchase price of the shares of stock covered by the Option shall be
Twelve and Thirteen Sixteenths Dollars ($12.8125) per share without commission
or other charge.
SECTION 2.3 - ADJUSTMENTS IN OPTION
In the event that the outstanding shares of the stock subject to the
Option are changed into or exchanged for a different number or kind of shares of
the Company or other securities of the Company by reason of merger,
consolidation, recapitalization, reclassification, stock split up, stock
dividend or combination of shares, the Committee shall make an appropriate and
equitable adjustment in the number and kind of shares as to which the Option, or
portions thereof then unexercised, shall be exercisable, to the end that after
such event the Employee's proportionate interest shall be maintained as before
the occurrence of such event. Such adjustment in the Option shall be made
without change in the total price applicable to the unexercised portion of the
4
<PAGE> 5
Option (except for any change in the aggregate price resulting from rounding-off
of share quantities or prices) and with any necessary corresponding adjustment
in the Option price per share; provided, however, that, in the case of the
Incentive Stock Option, each such adjustment shall be made in such manner as not
to constitute a "modification" within the meaning of Section 424(h)(3) of the
Code to the extent deemed appropriate by the Committee. Any such adjustment made
by the Committee shall be final and binding upon the Employee, the Company and
all other interested persons.
ARTICLE III
PERIOD OF EXERCISABILITY
SECTION 3.1 - COMMENCEMENT OF EXERCISABILITY
(a) The Option shall become exercisable as provided in Schedule "A"
attached to this Agreement and hereby incorporated by reference.
(b) No portion of the Option which is unexercisable at Termination of
Employment shall thereafter become exercisable.
SECTION 3.2 - DURATION OF EXERCISABILITY
Each installment which becomes exercisable pursuant to Section 3.1 shall
remain exercisable until it becomes unexercisable under Section 3.3.
SECTION 3.3 - EXPIRATION OF OPTION
The Option may not be exercised to any extent by anyone after the first
to occur of the following events:
(a) The expiration of ten (10) years from the date the
Option was granted; or
(b) If the Employee owned (within the meaning of Section
424(d) of the Code), at the time the Option was granted, more than ten
percent (10%) of the total combined voting power of all classes of stock
of the Company, any Subsidiary or any parent corporation, the expiration
of five (5) years from the date the Option was granted; or
(c) The expiration of ninety (90) days from the date of the
Employee's Termination of Employment on a full-time basis for any reason
other than death of Disability; or
5
<PAGE> 6
(d) The expiration of one (1) year from the date of the
Employee's Termination of Employment by reason of death or Disability;
or
(e) The effective date of either the merger or consolidation
of the Company with or into another corporation, or the acquisition by
another corporation or person of all or substantially all of the
Company's assets or eighty percent (80%) or more of the Company's then
outstanding voting stock, or the liquidation or dissolution of the
Company, unless the Committee waives this provision in connection with
such transaction. At least ten (10) days prior to the effective date of
such merger, consolidation, acquisition, liquidation or dissolution, the
Committee shall give the Employee notice of such event if the Option has
then neither been fully exercised nor become unexercisable under this
Section 3.3.
SECTION 3.4 - MERGER, CONSOLIDATION, ACQUISITION OR DISSOLUTION OF THE COMPANY
In the event of the merger or consolidation of the Company with or into
another corporation, or the acquisition by another corporation or person of all
or substantially all of the Company's assets or eighty percent (80%) or more of
the Company's then outstanding voting stock, or the liquidation or dissolution
of the Company, the Committee may, in its absolute discretion and upon such
terms and conditions as it deems appropriate, provide by resolution, adopted
prior to such event and incorporated in the notice referred to in Section
3.3(e), that at some time prior to the effective date of such event this Option
shall be exercisable as to all the shares covered hereby, notwithstanding that
this Option may not yet have become fully exercisable under Section 3.1 (a).
SECTION 3.5 - SPECIAL TAX CONSEQUENCES
The Employee acknowledges that, to the extent that the aggregate fair
market value of stock with respect to which "incentive stock options" (within
the meaning of Section 422 of the Code, but without regard to Section 422(d) of
the Code), including the Option, are exercisable for the first time by the
Employee during any calendar year (under the Plan and all other incentive stock
option plans of the Company, any Subsidiary and any parent corporation) exceeds
$100,000, such options shall be treated as not qualifying under Section 422 of
the Code but rather shall be taxed as non-qualified options. The Employee
further acknowledges that the rule set forth in the preceding sentence shall be
applied by taking options into account in the order in which they were granted.
For purposes of these rules, the fair market value of stock shall be determined
as of the time the option with respect to such stock is granted.
ARTICLE IV
EXERCISE OF OPTION
SECTION 4.1 - PERSON ELIGIBLE TO EXERCISE
6
<PAGE> 7
During the lifetime of the Employee, only he may exercise the Option or
any portion thereof. After the death of the Employee, any exercisable portion of
the Option may, prior to the time when the Option becomes unexercisable under
Section 3.3, be exercised by his personal representative or by any person
empowered to do so under the Employee's will or under the then applicable laws
of descent and distribution.
SECTION 4.2 - PARTIAL EXERCISE
Any exercisable portion of the Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.3; provided, however, that each partial exercise shall be for whole shares
only.
SECTION 4.3 - MANNER OF EXERCISE
The Option, or any exercisable portion thereof, may be exercised solely
by delivery to the Secretary or his office of all of the following prior to the
time when the Option or such portion becomes unexercisable under Section 3.3:
(a) Notice in writing signed by the Employee or the
other person then entitled to exercise the Option or portion, stating
that the Option or portion is thereby exercised, such notice complying
with all applicable rules established by the Committee; and
(b) (1) Full payment (in cash or by check) for the
shares with respect to which such Option or portion is
exercised; or
(2) With the consent of the Committee, (A) shares of the
Company's Common Stock owned by the Employee duly endorsed for
transfer to the Company or (B) shares of the Company's Common
Stock issuable to the Employee upon exercise of the Option, with
a fair market value (as determined under Section 4.2(b) of the
Plan) on the date of Option exercise equal to the aggregate
Option price of the shares with respect to which such Option or
portion is exercised; or
(3) With the consent of the Committee, a recourse,
nonrecourse or limited recourse
7
<PAGE> 8
promissory note bearing interest (at no less than such rate as
shall then preclude the imputation of interest under the Code or
successor provision) and payable upon such terms as may be
prescribed by the Committee. The Committee may also prescribe
the form of such note and the security to be given for such
note. The Option may not be exercised, however, by delivery of a
promissory note or by a loan from the Company when or where such
loan or other extension of credit is prohibited by law; or
(4) With the consent of the Committee, any combination
of the consideration provided in the foregoing subparagraphs
(1), (2) and (3); and
(c) A bona fide written representation and agreement, in a
form satisfactory to the Committee, signed by the Employee or other
person then entitled to exercise such Option or portion, stating that
the shares of stock are being acquired for his own account, for
investment and without any present intention of distributing or
reselling said shares or any of them except as may be permitted under
the Securities Act and then applicable rules and regulations thereunder,
and that the Employee or other person then entitled to exercise such
Option or portion will indemnify the Company against and hold it free
and harmless from any loss, damage, expense or liability resulting to
the Company if any sale or distribution of the shares by such person is
contrary to the representation and agreement referred to above. The
Committee may, in its absolute discretion, take whatever additional
actions it deems appropriate to insure the observance and performance of
such representation and agreement and to effect compliance with the
Securities Act and any other federal or state securities laws or
regulations. Without limiting the generality of the foregoing, the
Committee may require an opinion of counsel acceptable to it to the
effect that any subsequent transfer of shares acquired on an Option
exercise does not violate the Securities Act, and may issue
stop-transfer orders covering such shares. Share certificates evidencing
stock issued on exercise of this Option shall bear an appropriate legend
referring to the provisions of this subsection (c) and the agreements
herein. The written representation and agreement referred to in the
first sentence of this subsection (c) shall, however, not be required if
the shares to be issued pursuant to such exercise have been registered
under the Securities Act, and such registration is then effective in
respect of such shares; and
(d) Full payment to the Company (or other employer
corporation) of all amounts which, under federal, state or local tax
law, it is
8
<PAGE> 9
required to withhold upon exercise of the Option; with the consent of
the Committee, (i) shares of the Company's Common Stock owned by the
Employee duly endorsed for transfer, or (ii) shares of the Company's
Common Stock issuable to the Employee upon exercise of the Option,
valued in accordance with Section 4.2(b) of the Plan at the date of
Option exercise, may be used to make all or part of such payment; and
(e) In the event the Option or portion shall be exercised
pursuant to Section 4.1 by any person or persons other than the
Employee, appropriate proof of the right of such person or persons to
exercise the Option.
SECTION 4.4 - CERTAIN TIMING REQUIREMENTS
Shares of the Company's Common Stock, whether or not issuable to the
Employee upon exercise of the Option, may be used to satisfy the Option price or
the tax withholding consequences of such exercise in accordance with procedures
set forth by the Committee.
SECTION 4.5 - CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES
The shares of stock deliverable upon the exercise of the Option, or any
portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to the fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other
qualification of such shares under any state or federal law or under
rulings or regulations of the Securities and Exchange Commission or of
any other governmental regulatory body, which the Committee shall, in
its absolute discretion, deem necessary or advisable; and
(c) The obtaining of any approval or other clearance from
any state or federal governmental agency which the Committee shall, in
its absolute discretion, determine to be necessary or advisable; and
(d) The payment to the Company (or other employer
corporation) of all amounts which, under federal, state or local tax
law, it is required to withhold upon exercise of the Option; and
9
<PAGE> 10
(e) The lapse of such reasonable period of time following
the exercise of the Option as the Committee may from time to time
establish for reasons of administrative convenience.
SECTION 4.6 - NO RIGHTS AS SHAREHOLDER
The holder of the Option shall not be, nor have any of the rights or
privileges of, a shareholder of the Company in respect of any shares purchasable
upon the exercise of any part of the Option unless and until certificates
representing such shares shall have been issued by the Company to such holder.
ARTICLE V
OTHER PROVISIONS
SECTION 5.1 - ADMINISTRATION
The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and determinations
made by the Committee in good faith shall be final and binding upon the
Employee, the Company and all other interested persons. No member of the
Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or the Option. The
Board shall have no right to exercise any of the rights or duties of the
Committee under the Plan and this Agreement.
SECTION 5.2 - OPTION NOT TRANSFERABLE
Neither the Option nor any interest or right therein or part thereof
shall be liable for the debts, contracts or engagements of the Employee or his
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this Section 5.2
shall not prevent transfers by will or by the applicable laws of descent and
distribution.
SECTION 5.3 - SHARES TO BE RESERVED
The Company shall at all times during the term of the Option reserve and
keep available such number of shares of stock as will be sufficient to satisfy
the requirements of this Agreement.
SECTION 5.4 - NOTICES
10
<PAGE> 11
Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Secretary, and any notice to be
given to the Employee shall be addressed to him at the address given beneath his
signature hereto. By a notice given pursuant to this Section 5.4, either party
may hereafter designate a different address for notices to be given to him. Any
notice which is required to be given to the Employee shall, if the Employee is
then deceased, be given to the Employee's personal representative if such
representative has previously informed the Company of his status and address by
written notice under this Section 5.4. Any notice shall be deemed duly given
when enclosed in a properly sealed envelope or wrapper addressed as aforesaid,
deposited (with postage prepaid) in a post office or branch post office
regularly maintained by the United States Postal Service.
SECTION 5.5 - NO RIGHT OF EMPLOYMENT
Nothing in this Agreement or in the Plan shall confer upon the Employee
any right to continue in the employ of the Company or any Subsidiary or shall
interfere with or restrict in any way the rights of the Company and its
Subsidiaries, which are hereby expressly reserved, to discharge the Employee at
any time for any reason whatsoever, with or without cause.
SECTION 5.6 - TITLES
Titles are provided herein for convenience only and are not to serve as
a basis for interpretation or construction of this Agreement.
SECTION 5.7 - NOTIFICATION OF DISPOSITION
The Employee shall give prompt notice to the Company of any disposition
or other transfer of any shares of stock acquired under this Agreement if such
disposition or transfer is made (a) within two (2) years from the date of
granting the Option with respect to such shares or (b) within one (1) year after
the transfer of such shares to him. Such notice shall specify the date of such
disposition or other transfer and the amount realized, in cash, other property,
assumption of indebtedness or other consideration, by the Employee in such
disposition or other transfer.
SECTION 5.8 - CONFORMITY TO SECURITIES LAWS
The Employee acknowledges that the Plan is intended to conform to the
extent necessary with all provisions of the Securities Act and the Exchange Act
and any and all regulations and rules promulgated by the Securities and Exchange
Commission thereunder. Notwithstanding anything herein to the contrary, the Plan
shall be administered, and the Option is granted and may be exercised, only in
such a manner as to conform to such laws, rules and regulations. To the extent
permitted by applicable law, the Plan and this Agreement shall be deemed amended
to the extent necessary to conform to such laws, rules and regulations.
11
<PAGE> 12
SECTION 5.9 - AMENDMENT
The Committee may amend the Option at any time or from time to time. No
amendment shall, without the consent of the holder of the Option, impair the
rights or obligations under the Option.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto.
NEW PLAN EXCEL REALTY TRUST, INC.
By /s/ James DeCicco
---------------------------------
Executive Vice President
By /s/ Steven F. Siegel
---------------------------------
Secretary
/s/ Glenn Rufrano
- ---------------------------------
Employee
- --------------------------------
- --------------------------------
Address
Employee's Taxpayer
Identification Number:
- --------------------------------
12
<PAGE> 13
SCHEDULE "A"
OPTION EXERCISABILITY SCHEDULE
The Option shall be exercisable in installments as follows:
<TABLE>
<CAPTION>
OPTION EXERCISABLE WITH RESPECT
TIME TO NUMBER OF SHARES
---- -------------------
<S> <C>
On or after February 23, 2001 7,805
-----------------
On or after February 23, 2002 15,610
-----------------
On or after February 23, 2003 23,415
-----------------
On or after February 23, 2004 31,220
-----------------
On or after February 23, 2005 39,024
-----------------
</TABLE>
Notwithstanding the foregoing, the Option shall become exercisable if
the Employee is terminated during the Employment Period, by the Company without
Cause or by the Employee for Good Reason. In the event a definitive agreement is
entered into providing for the occurrence of an event which, if consummated,
would result in a Change in Control of the Company (a "Merger Event"), then the
Option shall become fully exercisable but only on a provisional basis, for the
sole purpose of enabling the Employee to exercise the Option as necessary to
permit the Employee to participate in the Merger Event on the same basis as all
other stockholders. If the Merger Event is consummated, such accelerated
exercise shall no longer be provisional. If the Merger Event is not consummated,
the Employee shall continue to have the same ability to exercise his Option as
he had without regard to the provisional exercise terms included herein.
In addition, if the Employee dies or the Employee's employment is
terminated because of Disability during the Employment Period, fifty percent
(50%) of the Option which was not exercisable immediately prior to the
Employee's death or Disability shall become exercisable on the date of his death
or Disability.
<PAGE> 1
Exhibit 10.4
STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of February 23, 2000, is made by and between
New Plan Excel Realty Trust, Inc., a Maryland corporation, hereinafter referred
to as "Company," and Glenn J. Rufrano, an employee of the Company or a
Subsidiary of the Company, hereinafter referred to as "Employee":
WHEREAS, the Company wishes to afford the Employee the opportunity to
purchase shares of its $0.01 par value Common Stock; and
WHEREAS, the Board has determined that it would be to the advantage and
best interest of the Company and its shareholders to grant the Non-Qualified
Option provided for herein to the Employee as an inducement to remain in the
service of the Company or its Subsidiaries and as an incentive for increased
efforts during such service, and has instructed the undersigned officers to
issue the Option.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall have
the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter and the
singular the plural, where the context so indicates.
SECTION 1.1 - BOARD
"Board" shall mean the Board of Directors of the Company.
SECTION 1.2 - CAUSE
"Cause" shall mean Cause as defined in the Employment Agreement.
SECTION 1.3 - CHANGE IN CONTROL
"Change in Control" shall mean the consummation of a merger,
consolidation, share exchange or similar form of transaction involving the
Company or any of its subsidiaries, or the sale of all or substantially all of
the Company's assets (a "Business Transaction"), unless immediately following
such Business Transaction (i) more than 50% of the total voting power of the
entity resulting from such Business Transaction or the entity acquiring the
Company's assets in
<PAGE> 2
such Business Transaction (the "Surviving Corporation") is beneficially owned,
directly or indirectly, by the Company's shareholders immediately prior to any
such Business Transaction, and (ii) no person (other than (1) the Company or any
majority-owned entity (provided, that this exclusion applies solely to the
ownership levels of the Company or the majority-owned entity), (2) any
tax-qualified, broad-based employee benefit plan sponsored or maintained by the
Company or any majority-owned entity, or (3) any underwriter temporarily holding
securities pursuant to an offering of such securities, or any tax-qualified,
broad-based employee benefit plan of the Surviving Corporation or its
Affiliates) beneficially owns, directly or indirectly, 30% or more of the total
voting power of the Surviving Corporation.
SECTION 1.4 - CODE
"Code" shall mean the Internal Revenue Code of 1986, as amended.
SECTION 1.5 - COMMITTEE
"Committee" shall mean the Executive Compensation and Stock Option
Committee of the Board.
SECTION 1.6 - COMPANY
"Company" shall mean New Plan Excel Realty Trust, Inc. In addition,
"Company" shall mean any corporation assuming, or issuing a new stock option in
substitution for, the Option in a transaction to which Section 424(a) of the
Code applies.
SECTION 1.7 - CUMULATIVE FOUR YEAR ROI
"Cumulative Four Year ROI" shall mean the annualized return on
investment on a share from the Effective Date through the fourth anniversary of
the Effective Date (determined in good faith by the Committee based upon
dividends paid and appreciation in share price during such period).
SECTION 1.8 - CUMULATIVE FIVE YEAR ROI
"Cumulative Five Year ROI" shall mean the annualized return on
investment of a share from the Effective Date through the fifth anniversary of
the Effective Date (determined in good faith by the Committee based upon
dividends paid and appreciation in share price during such period).
SECTION 1.9 - DIRECTOR
"Director" shall mean a member of the Board.
2
<PAGE> 3
SECTION 1.10 - DISABILITY
"Disability" shall mean Disability as defined in the Employment
Agreement.
SECTION 1.11 - EFFECTIVE DATE
"Effective Date" shall mean the effective date of the Employment
Agreement.
SECTION 1.12 - EMPLOYMENT AGREEMENT
"Employment Agreement" shall mean the Employment Agreement by and
between New Plan Excel Realty Trust, Inc., a Maryland corporation, and Glenn J.
Rufrano dated February 23, 2000.
SECTION 1.13 - EMPLOYMENT PERIOD
"Employment Period" shall mean Employment Period as defined in the
Employment Agreement.
SECTION 1.14 - EXCHANGE ACT
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
SECTION 1.15 - GOOD REASON
"Good Reason" shall mean Good Reason as defined in the Employment
Agreement.
SECTION 1.16 - OPTION
"Option" shall mean the option to purchase Common Stock of the Company
granted under this Agreement.
SECTION 1.17 - SECRETARY
"Secretary" shall mean the Secretary of the Company.
SECTION 1.18 - SECURITIES ACT
"Securities Act" shall mean the Securities Act of 1933, as amended.
SECTION 1.19 - SUBSIDIARY
3
<PAGE> 4
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one (1) of the other corporations in such chain. To the extent not
inconsistent with the requirements of Section 422 of the Code, "corporation" in
the preceding sentence shall include entities other than corporations,
including, without limitation, partnerships and trusts.
SECTION 1.20 - TERMINATION OF EMPLOYMENT
"Termination of Employment" shall mean the time when the
employee-employer relationship between the Employee and the Company or a
Subsidiary is terminated for any reason, with or without Cause, including, but
not by way of limitation, a termination by resignation with or without Good
Reason, discharge, death or retirement, but excluding any termination where
there is a simultaneous reemployment by the Company or a Subsidiary.
ARTICLE II
GRANT OF OPTION
SECTION 2.1 - GRANT OF OPTION
For good and valuable consideration, on the date hereof the Company
irrevocably grants to the Employee the option to purchase any part or all of an
aggregate of Two Hundred Thousand (200,000) shares ("Performance Vested
Options") of its $0.01 par value Common Stock upon the terms and conditions set
forth in this Agreement.
SECTION 2.2 - PURCHASE PRICE
The purchase price of the shares of stock covered by the Option shall be
Twelve and Thirteen Sixteenths Dollars ($12.8125) per share without commission
or other charge.
SECTION 2.3 - ADJUSTMENTS IN OPTION
In the event that the outstanding shares of the stock subject to the
Option are changed into or exchanged for a different number or kind of shares of
the Company or other securities of the Company by reason of merger,
consolidation, recapitalization, reclassification, stock split up, stock
dividend or combination of shares, the Committee shall make an appropriate and
equitable adjustment in the number and kind of shares as to which the Option, or
portions thereof then unexercised, shall be exercisable, to the end that after
such event the Employee's proportionate interest shall be maintained as before
the occurrence of such event. Such adjustment in the Option shall be made
without change in the total price applicable to the unexercised portion of the
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<PAGE> 5
Option (except for any change in the aggregate price resulting from rounding-off
of share quantities or prices) and with any necessary corresponding adjustment
in the Option price per share. Any such adjustment made by the Committee shall
be final and binding upon the Employee, the Company and all other interested
persons.
ARTICLE III
PERIOD OF EXERCISABILITY
SECTION 3.1 - COMMENCEMENT OF EXERCISABILITY
(a) The Option shall be exercisable on the eighth (8th) anniversary
of the date of the Employment Agreement provided Employee is a full-time
employee of the Company at such time or may become exercisable earlier on the
basis of performance as described below.
[1] Performance Vested Options for One Hundred Thousand
(100,000) shares of common stock $0.01 par value shall become
exercisable on the fourth anniversary of the Effective Date if the
Cumulative Four Year ROI is at least sixteen percent (16%). If
Cumulative Four Year ROI is not greater than fourteen percent (14%), no
Performance Vested Options shall become exercisable on the fourth
anniversary of the Effective Date. To the extent Cumulative Four Year
ROI is greater than fourteen (14%) but not at least sixteen percent
(16%), Performance Vested Options for Five Hundred (500) shares shall
become exercisable on the fourth anniversary of the Effective Date for
each .01% by which Cumulative Four Year ROI exceeds fourteen percent
(14%).
[2] All Performance Vested Options which have not previously
become exercisable shall become exercisable on the fifth anniversary of
the Effective Date if Cumulative Five Year ROI is at least sixteen
percent (16%). If Cumulative Five Year ROI is not greater than fourteen
percent (14%), no additional Performance Vested Options shall become
exercisable on the fifth anniversary of the Effective Date. To the
extent Cumulative Five Year ROI is greater than fourteen percent (14%)
but not at least sixteen percent (16%), for each .01% by which
Cumulative Five Year ROI exceeds fourteen percent (14%), additional
Performance Vested Options shall become exercisable for a number of
shares equal to the quotient of (A) the difference between Two Hundred
Thousand (200,000) and the number of Performance Vested Options which
became exercisable on the fourth anniversary of the Effective Date and
(B) Two Hundred (200).
[3] Notwithstanding the foregoing, Performance Vested
Options shall become exercisable if the Employee's employment with the
Company is terminated by the Company without Cause or by the Employee
with Good Reason. If the Employee dies or the Employee's employment is
terminated because of Disability during the Employment Period prior to
the fourth anniversary of the Effective Date, Performance Vested Options
for One Hundred Thousand (100,000) shares shall become exercisable if
the cumulative
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<PAGE> 6
return on investment from the Effective Date through the date of death
or termination of Employee's employment because of Disability is at
least sixteen percent (16%) or Performance Vested Options for Five
Hundred (500) Shares for each .01% by which the cumulative return on
investment from the Effective Date through the date of death or
Disability exceeds fourteen percent (14%) (up to sixteen percent (16%))
shall become exercisable (such determinations to be made in a manner
consistent with the Cumulative Four Year ROI calculations).
[4] In the event a definitive agreement is entered into
providing for the occurrence of an event which, if consummated, would
result in a Change in Control of the Company (a "Merger Event"), then
the Option shall become fully exercisable but only on a provisional
basis, for the sole purpose of enabling the Employee to exercise the
Option as necessary to permit the Employee to participate in the Merger
Event on the same basis as all other stockholders. If the Merger Event
is consummated, such accelerated exercise shall no longer be
provisional. If the Merger Event is not consummated, the Employee shall
continue to have the same ability to exercise his Option as he had
without regard to the provisional exercise terms included herein.
(b) No portion of the Option which is unexercisable at Termination of
Employment shall thereafter become exercisable.
SECTION 3.2 - DURATION OF EXERCISABILITY
Each installment which becomes exercisable pursuant to Section 3.1 shall
remain exercisable until it becomes unexercisable under Section 3.3.
SECTION 3.3 - EXPIRATION OF OPTION
The Option may not be exercised to any extent by anyone after the first
to occur of the following events:
(a) The expiration of ten (10) years from the date the
Option was granted; or
(b) The expiration of ninety (90) days from the date of the
Employee's Termination of Employment on a full-time basis for any reason
other than death of Disability; or
(c) The expiration of one (1) year from the date of the
Employee's Termination of Employment by reason of death or Disability;
or
(d) The effective date of either the merger or consolidation
of the Company with or into another corporation, or the acquisition by
another corporation or person of all
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<PAGE> 7
or substantially all of the Company's assets or eighty percent (80%) or
more of the Company's then outstanding voting stock, or the liquidation
or dissolution of the Company, unless the Committee waives this
provision in connection with such transaction. At least ten (10) days
prior to the effective date of such merger, consolidation, acquisition,
liquidation or dissolution, the Committee shall give the Employee notice
of such event if the Option has then neither been fully exercised nor
become unexercisable under this Section 3.3.
SECTION 3.4 - MERGER, CONSOLIDATION, ACQUISITION OR DISSOLUTION OF THE COMPANY
In the event of the merger or consolidation of the Company with or into
another corporation, or the acquisition by another corporation or person of all
or substantially all of the Company's assets or eighty percent (80%) or more of
the Company's then outstanding voting stock, or the liquidation or dissolution
of the Company, the Committee may, in its absolute discretion and upon such
terms and conditions as it deems appropriate, provide by resolution, adopted
prior to such event and incorporated in the notice referred to in Section
3.3(d), that at some time prior to the effective date of such event this Option
shall be exercisable as to all the shares covered hereby, notwithstanding that
this Option may not yet have become fully exercisable under Section 3.1 (a).
ARTICLE IV
EXERCISE OF OPTION
SECTION 4.1 - PERSON ELIGIBLE TO EXERCISE
During the lifetime of the Employee, only he may exercise the Option or
any portion thereof. After the death of the Employee, any exercisable portion of
the Option may, prior to the time when the Option becomes unexercisable under
Section 3.3, be exercised by his personal representative or by any person
empowered to do so under the Employee's will or under the then applicable laws
of descent and distribution.
SECTION 4.2 - PARTIAL EXERCISE
Any exercisable portion of the Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.3; provided, however, that each partial exercise shall be for whole shares
only.
SECTION 4.3 - MANNER OF EXERCISE
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The Option, or any exercisable portion thereof, may be exercised solely
by delivery to the Secretary or his office of all of the following prior to the
time when the Option or such portion becomes unexercisable under Section 3.3:
(a) Notice in writing signed by the Employee or the
other person then entitled to exercise the Option or portion, stating
that the Option or portion is thereby exercised, such notice complying
with all applicable rules established by the Committee; and
(b) (1) Full payment (in cash or by check) for the
shares with respect to which such Option or portion is
exercised; or
(2) With the consent of the Committee, (A) shares of
the Company's Common Stock owned by the Employee duly endorsed
for transfer to the Company or (B) shares of the Company's
Common Stock issuable to the Employee upon exercise of the
Option, with a fair market value (as determined by the
Committee) on the date of Option exercise equal to the aggregate
Option price of the shares with respect to which such Option or
portion is exercised; or
(3) With the consent of the Committee, a recourse,
nonrecourse or limited recourse promissory note bearing interest
(at no less than such rate as shall then preclude the imputation
of interest under the Code or successor provision) and payable
upon such terms as may be prescribed by the Committee. The
Committee may also prescribe the form of such note and the
security to be given for such note. The Option may not be
exercised, however, by delivery of a promissory note or by a
loan from the Company when or where such loan or other extension
of credit is prohibited by law; or
(4) With the consent of the Committee, any
combination of the consideration provided in the foregoing
subparagraphs (1), (2) and (3); and
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(c) A bona fide written representation and agreement, in
a form satisfactory to the Committee, signed by the Employee or other
person then entitled to exercise such Option or portion, stating that
the shares of stock are being acquired for his own account, for
investment and without any present intention of distributing or
reselling said shares or any of them except as may be permitted under
the Securities Act and then applicable rules and regulations thereunder,
and that the Employee or other person then entitled to exercise such
Option or portion will indemnify the Company against and hold it free
and harmless from any loss, damage, expense or liability resulting to
the Company if any sale or distribution of the shares by such person is
contrary to the representation and agreement referred to above. The
Committee may, in its absolute discretion, take whatever additional
actions it deems appropriate to insure the observance and performance of
such representation and agreement and to effect compliance with the
Securities Act and any other federal or state securities laws or
regulations. Without limiting the generality of the foregoing, the
Committee may require an opinion of counsel acceptable to it to the
effect that any subsequent transfer of shares acquired on an Option
exercise does not violate the Securities Act, and may issue
stop-transfer orders covering such shares. Share certificates evidencing
stock issued on exercise of this Option shall bear an appropriate legend
referring to the provisions of this subsection (c) and the agreements
herein. The written representation and agreement referred to in the
first sentence of this subsection (c) shall, however, not be required if
the shares to be issued pursuant to such exercise have been registered
under the Securities Act, and such registration is then effective in
respect of such shares; and
(d) Full payment to the Company (or other employer
corporation) of all amounts which, under federal, state or local tax
law, it is required to withhold upon exercise of the Option; with the
consent of the Committee, (i) shares of the Company's Common Stock owned
by the Employee duly endorsed for transfer, or (ii) shares of the
Company's Common Stock issuable to the Employee upon exercise of the
Option, valued by the Committee at the date of Option exercise, may be
used to make all or part of such payment; and
(e) In the event the Option or portion shall be
exercised pursuant to Section 4.1 by any person or persons other than
the Employee, appropriate proof of the right of such person or persons
to exercise the Option.
SECTION 4.4 - CERTAIN TIMING REQUIREMENTS
Shares of the Company's Common Stock, whether or not issuable to the
Employee upon exercise of the Option, may be used to satisfy the Option price or
the tax withholding consequences of such exercise in accordance with procedures
set forth by the Committee.
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SECTION 4.5 - CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES
The shares of stock deliverable upon the exercise of the Option, or any
portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to the fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other
qualification of such shares under any state or federal law or under
rulings or regulations of the Securities and Exchange Commission or of
any other governmental regulatory body, which the Committee shall, in
its absolute discretion, deem necessary or advisable; and
(c) The obtaining of any approval or other clearance from
any state or federal governmental agency which the Committee shall, in
its absolute discretion, determine to be necessary or advisable; and
(d) The payment to the Company (or other employer
corporation) of all amounts which, under federal, state or local tax
law, it is required to withhold upon exercise of the Option; and
(e) The lapse of such reasonable period of time following
the exercise of the Option as the Committee may from time to time
establish for reasons of administrative convenience.
SECTION 4.6 - NO RIGHTS AS SHAREHOLDER
The holder of the Option shall not be, nor have any of the rights or
privileges of, a shareholder of the Company in respect of any shares purchasable
upon the exercise of any part of the Option unless and until certificates
representing such shares shall have been issued by the Company to such holder.
ARTICLE V
OTHER PROVISIONS
SECTION 5.1 - ADMINISTRATION
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The Committee shall have the power to interpret this Agreement. All
actions taken and all interpretations and determinations made by the Committee
in good faith shall be final and binding upon the Employee, the Company and all
other interested persons. No member of the Committee shall be personally liable
for any action, determination or interpretation made in good faith with respect
to the Option.
SECTION 5.2 - OPTION NOT TRANSFERABLE
Neither the Option nor any interest or right therein or part thereof
shall be liable for the debts, contracts or engagements of the Employee or his
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this Section 5.2
shall not prevent transfers by will or by the applicable laws of descent and
distribution.
SECTION 5.3 - SHARES TO BE RESERVED
The Company shall at all times during the term of the Option reserve and
keep available such number of shares of stock as will be sufficient to satisfy
the requirements of this Agreement.
SECTION 5.4 - NOTICES
Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Secretary, and any notice to be
given to the Employee shall be addressed to him at the address given beneath his
signature hereto. By a notice given pursuant to this Section 5.4, either party
may hereafter designate a different address for notices to be given to him. Any
notice which is required to be given to the Employee shall, if the Employee is
then deceased, be given to the Employee's personal representative if such
representative has previously informed the Company of his status and address by
written notice under this Section 5.4. Any notice shall be deemed duly given
when enclosed in a properly sealed envelope or wrapper addressed as aforesaid,
deposited (with postage prepaid) in a post office or branch post office
regularly maintained by the United States Postal Service.
SECTION 5.5 - NO RIGHT TO EMPLOYMENT
Nothing in this Agreement shall confer upon the Employee any right to
continue in the employ of the Company or any Subsidiary or shall interfere with
or restrict in any way the rights of the Company and its Subsidiaries, which are
hereby expressly reserved, to discharge the Employee at any time for any reason
whatsoever, with or without cause.
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SECTION 5.6 - TITLES
Titles are provided herein for convenience only and are not to serve as
a basis for interpretation or construction of this Agreement.
SECTION 5.7 - CONFORMITY TO SECURITIES LAWS
The Employee acknowledges that the Option is granted and may be
exercised only in such a manner as to conform to the extent necessary with all
provisions of the Securities Act and the Exchange Act and any and all
regulations and rules promulgated by the Securities and Exchange Commission
thereunder. Notwithstanding anything herein to the contrary, the Option is
granted and may be exercised only in such a manner as to conform to such laws,
rules and regulations. To the extent permitted by applicable law, this Agreement
shall be deemed amended to the extent necessary to conform to such laws, rules
and regulations.
SECTION 5.8 - AMENDMENT
The Committee may amend the Option at any time or from time to time. No
amendment shall, without the consent of the holder of the Option, impair the
rights or obligations under the Option.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto.
NEW PLAN EXCEL REALTY TRUST, INC.
By /s/ James DeCicco
---------------------------------
Executive Vice President
/s/ Glenn Rufrano
- ---------------------------------
Employee
By /s/ Steven F. Siegel
---------------------------------
Secretary
- ---------------------------------
- ---------------------------------
Address
Employee's Taxpayer
Identification Number:
- ---------------------------------
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Exhibit 10.5
STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of February 23, 2000, is made by and between
New Plan Excel Realty Trust, Inc., a Maryland corporation, hereinafter referred
to as "Company," and Glenn J. Rufrano, an employee of the Company or a
Subsidiary of the Company, hereinafter referred to as "Employee":
WHEREAS, the Company wishes to afford the Employee the opportunity to
purchase shares of its $0.01 par value Common Stock; and
WHEREAS, the Company wishes to carry out the Plan (the terms of which
are hereby incorporated by reference and made a part of this Agreement); and
WHEREAS, the Committee, appointed to administer the Plan, has determined
that it would be to the advantage and best interest of the Company and its
shareholders to grant to the Employee as an inducement to remain in the service
of the Company or its Subsidiaries and as an incentive for increased efforts
during such service the Non-Qualified Option ("Option") to purchase shares
subject to the restrictions set forth below ("Restricted Shares"), and has
advised the Company thereof and instructed the undersigned officers to issue the
Option.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall have
the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter and the
singular the plural, where the context so indicates.
SECTION 1.1 - BOARD
"Board" shall mean the Board of Directors of the Company.
SECTION 1.2 - CAUSE
"Cause" shall mean Cause as defined in the Employment Agreement.
<PAGE> 2
SECTION 1.3 - CHANGE IN CONTROL
"Change in Control" shall mean the consummation of a merger,
consolidation, share exchange or similar form of transaction involving the
Company or any of its subsidiaries, or the sale of all or substantially all of
the Company's assets (a "Business Transaction"), unless immediately following
such Business Transaction (i) more than 50% of the total voting power of the
entity resulting from such Business Transaction or the entity acquiring the
Company's assets in such Business Transaction (the "Surviving Corporation") is
beneficially owned, directly or indirectly, by the Company's shareholders
immediately prior to any such Business Transaction, and (ii) no person (other
than (1) the Company or any majority-owned entity (provided, that this exclusion
applies solely to the ownership levels of the Company or the majority-owned
entity), (2) any tax-qualified, broad-based employee benefit plan sponsored or
maintained by the Company or any majority-owned entity, or (3) any underwriter
temporarily holding securities pursuant to an offering of such securities), or
any tax-qualified, broad-based employee benefit plan of the Surviving
Corporation or its Affiliates beneficially owns, directly or indirectly, 30% or
more of the total voting power of the Surviving Corporation.
SECTION 1.4 - CODE
"Code" shall mean the Internal Revenue Code of 1986, as amended.
SECTION 1.5 - COMMITTEE
"Committee" shall mean the Executive Compensation and Stock Option
Committee of the Board, appointed as provided in the Plan.
SECTION 1.6 - COMPANY
"Company" shall mean New Plan Excel Realty Trust, Inc. In addition,
"Company" shall mean any corporation assuming, or issuing a new stock option in
substitution for, the Option in a transaction to which Section 424(a) of the
Code applies.
SECTION 1.7 - CUMULATIVE FOUR YEAR ROI
"Cumulative Four Year ROI" shall mean the annualized return on
investment on a share from the Effective Date through the fourth anniversary of
the Effective Date (determined in good faith by the Committee based upon
dividends paid and appreciation in share price during such period).
SECTION 1.8 - CUMULATIVE FIVE YEAR ROI
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"Cumulative Five Year ROI" shall mean the annualized return on
investment of a share from the Effective Date through the fifth anniversary of
the Effective Date (determined in good faith by the Committee based upon
dividends paid and appreciation in share price during such period).
SECTION 1.9 - DIRECTOR
"Director" shall mean a member of the Board.
SECTION 1.10 - DISABILITY
"Disability" shall mean Disability as defined in the Employment
Agreement.
SECTION 1.11 - EFFECTIVE DATE
"Effective Date" shall mean the effective date of the Employment
Agreement.
SECTION 1.12 - EMPLOYMENT AGREEMENT
"Employment Agreement" shall mean the Employment Agreement by and
between New Plan Excel Realty Trust, Inc., a Maryland corporation, and Glenn J.
Rufrano dated February 23, 2000.
SECTION 1.13 - EMPLOYMENT PERIOD
"Employment Period" shall mean Employment Period as defined in the
Employment Agreement.
SECTION 1.14 - EXCHANGE ACT
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
SECTION 1.15 - GOOD REASON
"Good Reason" shall mean Good Reason as defined in the Employment
Agreement.
SECTION 1.16 - OPTION
"Option" shall mean the option to purchase Common Stock of the Company
granted under this Agreement.
SECTION 1.17 - PLAN
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"Plan" shall mean the 1993 Stock Option Plan of New Plan Excel Realty
Trust, Inc., as amended from time to time.
SECTION 1.18 - SECRETARY
"Secretary" shall mean the Secretary of the Company.
SECTION 1.19 - SECURITIES ACT
"Securities Act" shall mean the Securities Act of 1933, as amended.
SECTION 1.20 - SUBSIDIARY
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one (1) of the other corporations in such chain. To the extent not
inconsistent with the requirements of Section 422 of the Code, "corporation" in
the preceding sentence shall include entities other than corporations,
including, without limitation, partnerships and trusts.
SECTION 1.21 - TERMINATION OF EMPLOYMENT
"Termination of Employment" shall mean the time when the
employee-employer relationship between the Employee and the Company or a
Subsidiary is terminated for any reason, with or without Cause, including, but
not by way of limitation, a termination by resignation with or without Good
Reason, discharge, death or retirement, but excluding any termination where
there is a simultaneous reemployment by the Company or a Subsidiary.
ARTICLE II
GRANT OF OPTION
SECTION 2.1 - GRANT OF OPTION
For good and valuable consideration, on the date hereof the Company
irrevocably grants to the Employee the option to purchase an aggregate of Five
Hundred Fifteen Thousand One Hundred and Twenty-One (515,121) shares of its
$0.01 par value Common Stock upon the terms and conditions set forth in this
Agreement.
SECTION 2.2 - PURCHASE PRICE
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The purchase price of the shares of stock covered by the Option shall be
Twelve and Thirteen Sixteenths Dollars ($12.8125) per share without commission
or other charge.
SECTION 2.3 - ADJUSTMENTS IN OPTION
In the event that the outstanding shares of the stock subject to the
Option are changed into or exchanged for a different number or kind of shares of
the Company or other securities of the Company by reason of merger,
consolidation, recapitalization, reclassification, stock split up, stock
dividend or combination of shares, the Committee shall make an appropriate and
equitable adjustment in the number and kind of shares as to which the Option, or
portions thereof then unexercised, shall be exercisable, to the end that after
such event the Employee's proportionate interest shall be maintained as before
the occurrence of such event. Such adjustment in the Option shall be made
without change in the total price applicable to the unexercised portion of the
Option (except for any change in the aggregate price resulting from rounding-off
of share quantities or prices) and with any necessary corresponding adjustment
in the Option price per share. Any such adjustment made by the Committee shall
be final and binding upon the Employee, the Company and all other interested
persons.
ARTICLE III
PERIOD OF EXERCISABILITY
SECTION 3.1 - COMMENCEMENT OF EXERCISABILITY
The Option shall become exercisable on the Effective Date.
SECTION 3.2 - DURATION OF EXERCISABILITY
The Option which becomes exercisable pursuant to Section 3.1 shall
remain exercisable until it becomes unexercisable under Section 3.3.
SECTION 3.3 - EXPIRATION OF OPTION
The Option may not be exercised to any extent by anyone after the first
to occur of the following events:
(a) The Option may not be exercised to any extent by anyone
after the expiration of six months from the Effective Date; or
(b) The effective date of either the merger or consolidation
of the Company with or into another corporation, or the acquisition by
another corporation or person of all
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or substantially all of the Company's assets or eighty percent (80%) or
more of the Company's then outstanding voting stock, or the liquidation
or dissolution of the Company, unless the Committee waives this
provision in connection with such transaction. At least ten (10) days
prior to the effective date of such merger, consolidation, acquisition,
liquidation or dissolution, the Committee shall give the Employee notice
of such event if the Option has then neither been exercised nor become
unexercisable under this Section 3.3.
SECTION 3.4 - MERGER, CONSOLIDATION, ACQUISITION OR DISSOLUTION OF THE COMPANY
In the event of the merger or consolidation of the Company with or into
another corporation, or the acquisition by another corporation or person of all
or substantially all of the Company's assets or eighty percent (80%) or more of
the Company's then outstanding voting stock, or the liquidation or dissolution
of the Company, the Committee may, in its absolute discretion and upon such
terms and conditions as it deems appropriate, provide by resolution, adopted
prior to such event and incorporated in the notice referred to in Section
3.3(b), that at some time prior to the effective date of such event this Option
shall be exercisable as to all the shares covered hereby.
ARTICLE IV
EXERCISE OF OPTION
SECTION 4.1 - PERSON ELIGIBLE TO EXERCISE
During the lifetime of the Employee, only he may exercise the Option.
After the death of the Employee, any exercisable portion of the Option may,
prior to the time when the Option becomes unexercisable under Section 3.3, be
exercised by his personal representative or by any person empowered to do so
under the Employee's will or under the then applicable laws of descent and
distribution.
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SECTION 4.2 - PARTIAL EXERCISE
The Option is exercisable only for the full number of Restricted Shares.
SECTION 4.3 - MANNER OF EXERCISE
The Option may be exercised solely by delivery to the Secretary or his
office of all of the following prior to the time when the Option becomes
unexercisable under Section 3.3:
(a) Notice in writing signed by the Employee or the
other person then entitled to exercise the Option, stating that the
Option is thereby exercised, such notice complying with all applicable
rules established by the Committee; and
(b) (1) Full payment in cash;
(2) by certified check; or
(3) by a combination of four hundred thousand
dollars ($400,000) in cash or by certified check and two
promissory notes: (1) a promissory recourse note to the Company
for five hundred ninety thousand dollars ($590,000) and (2) a
promissory limited recourse note to the Company for five million
six hundred ten thousand dollars ($5,610,000) on such terms as
set forth in the Employment Agreement.
SECTION 4.4 - CERTAIN TIMING REQUIREMENTS
Shares of the Company's Common Stock, whether or not issuable to the
Employee upon exercise of the Option, may be used to satisfy the Option price or
the tax withholding consequences of such exercise in accordance with procedures
set forth by the Committee.
SECTION 4.5 - CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES
The shares of stock deliverable upon the exercise of the Option may be
either previously authorized but unissued shares or issued shares which have
then been reacquired by the Company. Such shares shall be fully paid and
nonassessable. The Company shall not be required to issue or deliver any
certificate or certificates for shares of stock purchased upon the exercise of
the Option prior to the fulfillment of all of the following conditions:
7
<PAGE> 8
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other
qualification of such shares under any state or federal law or under
rulings or regulations of the Securities and Exchange Commission or of
any other governmental regulatory body, which the Committee shall, in
its absolute discretion, deem necessary or advisable; and
(c) The obtaining of any approval or other clearance from
any state or federal governmental agency which the Committee shall, in
its absolute discretion, determine to be necessary or advisable; and
(d) The payment to the Company (or other employer
corporation) of all amounts which, under federal, state or local tax
law, it is required to withhold upon exercise of the Option; and
(e) The lapse of such reasonable period of time following
the exercise of the Option as the Committee may from time to time
establish for reasons of administrative convenience.
SECTION 4.6 - NO RIGHTS AS SHAREHOLDER
The holder of the Option shall not be, nor have any of the rights or
privileges of, a shareholder of the Company in respect of any shares purchasable
upon the exercise of any part of the Option unless and until certificates
representing such shares shall have been issued by the Company to such holder.
ARTICLE V
ADDITIONAL RESTRICTIONS ON SHARES
ISSUED PURSUANT TO THIS AGREEMENT
SECTION 5.1 - VESTING OF RESTRICTED SHARES
(a) Of the Restricted Shares, a number of Restricted Shares equal to
the total number of Restricted Shares less sixty thousand (60,000) ("Time Vested
Restricted Shares") shall vest at the rate of one-fifth of the number of such
Time Vested Restricted Shares on each anniversary of the Effective Date. All
remaining unvested Time Vested Restricted Shares shall vest upon termination of
the Employee's employment by the Company without Cause or by the Employee with
Good Reason, or in the event of a Change in Control. If the Employee should die
or his
8
<PAGE> 9
employment is terminated because of Disability during the Employment Period, 50%
of the unvested Time Vested Restricted Shares shall vest upon his death or
Disability.
(b) Of the Restricted Shares, sixty thousand (60,000) Restricted
Shares ("Performance Restricted Shares") shall vest on the eighth anniversary of
the Effective Date provided Employee is a full-time employee of the Company at
such time or may vest earlier on the basis of performance as herein described.
(i) Performance Restricted Shares for thirty thousand
(30,000) shares shall vest on the fourth anniversary of the Effective
Date if Cumulative Four Year ROI is at least 16%. If Cumulative Four
Year ROI is not greater than 14%, no Performance Restricted Shares shall
vest on the fourth anniversary of the Effective Date. To the extent
Cumulative Four Year ROI is greater than 14% but not at least 16%,
Performance Restricted Shares for one hundred fifty (150) shares shall
become vested on the fourth anniversary of the Effective Date for each
.01% by which Cumulative Four Year ROI exceeds 14%.
(ii) All Performance Restricted Shares which have not
previously vested shall vest on the fifth anniversary of the Effective
Date if Cumulative Five Year ROI is at least 16%. If Cumulative Five
Year ROI is not greater than 14%, no additional Performance Restricted
Shares shall vest on the fifth anniversary of the Effective Date. To the
extent Cumulative Five Year ROI is greater than 14% but not at least
16%, for each .01% by which Cumulative Five Year ROI exceeds 14%,
additional Performance Restricted Shares shall become vested for a
number of shares equal to the quotient of (A) the difference between
sixty thousand (60,000) and the number of Performance Restricted Shares
which became vested on the fourth anniversary of the Effective Date and
(B) two hundred (200).
(iii) Notwithstanding the foregoing, Performance Restricted
Shares shall become vested if the Employee's employment with the Company
is terminated by the Company without Cause or by the Employee with Good
Reason. If the Employee dies or the Employee's employment is terminated
because of Disability during the Employment Period prior to the fourth
anniversary of the Effective Date, Performance Restricted Shares for
thirty thousand (30,000) shares shall vest if the cumulative return on
investment from the Effective Date through the date of death or
Disability is at least 16% or Performance Restricted Shares for one
hundred fifty (150) shares for each .01% by which the cumulative return
on investment from the Effective Date through the date of death or
Disability exceeds 14% (up to 16%) shall vest (such determinations to be
made in a manner consistent with the Cumulative Four Year ROI
calculations).
9
<PAGE> 10
(c) In the event a definitive agreement is entered into providing for
the occurrence of an event which, if consummated, would result in a Change in
Control of the Company (a "Merger Event"), then the equity interests granted or
acquired pursuant to this Agreement shall become fully vested but only on a
provisional basis, for the sole purpose of enabling the Employee to tender such
equity interests as necessary to permit the Employee to participate in the
Merger Event on the same basis as all other stockholders. If the Merger Event is
consummated, such accelerated vesting shall no longer be provisional. If the
Merger Event is not consummated, the Employee shall continue to have the same
vested status in his equity interests as he had without regard to the
provisional vesting terms included herein.
SECTION 5.2 - VOTING RIGHTS
Subject to the restrictions contained in this Agreement and in Sections
3(b) and 5(h) of the Employment Agreement, Employee shall have full voting
rights with respect to the Restricted Shares and shall be entitled to receive
all dividends paid with respect to Restricted Shares, whether or not vested.
ARTICLE VI
OTHER PROVISIONS
SECTION 6.1 - ADMINISTRATION
The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and determinations
made by the Committee in good faith shall be final and binding upon the
Employee, the Company and all other interested persons. No member of the
Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or the Option. The
Board shall have no right to exercise any of the rights or duties of the
Committee under the Plan and this Agreement.
SECTION 6.2 - OPTION NOT TRANSFERABLE
Neither the Option nor any interest or right therein or part thereof
shall be liable for the debts, contracts or engagements of the Employee or his
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this Section 6.2
shall not prevent transfers by will or by the applicable laws of descent and
distribution.
10
<PAGE> 11
SECTION 6.3 - SHARES TO BE RESERVED
The Company shall at all times during the term of the Option reserve and
keep available such number of shares of stock as will be sufficient to satisfy
the requirements of this Agreement.
SECTION 6.4 - NOTICES
Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Secretary, and any notice to be
given to the Employee shall be addressed to him at the address given beneath his
signature hereto. By a notice given pursuant to this Section 6.4, either party
may hereafter designate a different address for notices to be given to him. Any
notice which is required to be given to the Employee shall, if the Employee is
then deceased, be given to the Employee's personal representative if such
representative has previously informed the Company of his status and address by
written notice under this Section 6.4. Any notice shall be deemed duly given
when enclosed in a properly sealed envelope or wrapper addressed as aforesaid,
deposited (with postage prepaid) in a post office or branch post office
regularly maintained by the United States Postal Service.
SECTION 6.5 - NO RIGHT TO EMPLOYMENT
Nothing in this Agreement or in the Plan shall confer upon the Employee
any right to continue in the employ of the Company or any Subsidiary or shall
interfere with or restrict in any way the rights of the Company and its
Subsidiaries, which are hereby expressly reserved, to discharge the Employee at
any time for any reason whatsoever, with or without cause.
SECTION 6.6 - TITLES
Titles are provided herein for convenience only and are not to serve as
a basis for interpretation or construction of this Agreement.
SECTION 6.7 - CONFORMITY TO SECURITIES LAWS
The Employee acknowledges that the Plan is intended to conform to the
extent necessary with all provisions of the Securities Act and the Exchange Act
and any and all regulations and rules promulgated by the Securities and Exchange
Commission thereunder. Notwithstanding anything herein to the contrary, the Plan
shall be administered, and the Option is granted and may be exercised, only in
such a manner as to conform to such laws, rules and regulations. To the extent
permitted by applicable law, the Plan and this Agreement shall be deemed amended
to the extent necessary to conform to such laws, rules and regulations.
SECTION 6.8 - AMENDMENT
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<PAGE> 12
The Committee may amend the Option at any time or from time to time. No
amendment shall, without the consent of the holder of the Option, impair the
rights or obligations under the Option.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto.
NEW PLAN EXCEL REALTY TRUST, INC.
By /s/ James DeCicco
-------------------------------
Executive Vice President
By /s/ Steven F. Siegel
-------------------------------
Secretary
/s/ Glenn Rufrano
- -------------------------------
Employee
- -------------------------------
- -------------------------------
Address
Employee's Taxpayer
Identification Number:
- -------------------------------
12
<PAGE> 1
Exhibit 10.6
RECOURSE PROMISSORY NOTE
New York, New York
$590,000 February 23, 2000
THIS NOTE ("Note") is made as of the 23rd day of February, 2000, by
Glenn J. Rufrano ("Borrower"), to the order of New Plan Excel Realty Trust,
Inc., a Maryland corporation ("Lender").
I
DEFINITIONS
Borrower agrees that, for the purposes of this Note, the following terms
shall have the following respective meanings ascribed thereto.
1.1 "Default Rate" shall mean two percent (2%) per annum in excess of
the Interest Rate, but not in excess of the maximum interest rate permitted by
law.
1.2 "Dollars" shall mean dollars in lawful currency of The United
States of America.
1.3 "Employment Agreement" shall mean the Employment Agreement
between Lender and Borrower dated February 23, 2000, as it may from time to time
be amended.
1.4 "Interest Payment Date" shall mean January 15, April 15, July 15,
and October 15.
1.5 "Interest Rate" shall mean eight percent (8%) per annum.
1.6 "Maturity Date" shall mean the earlier of (i) February 23, 2005,
(ii) the date the entire Outstanding Principal Balance is due and payable by
reason of the acceleration of the maturity of this Note, (iii) the date that
Lender exercises the right to purchase the stock securing the Other Note
pursuant to the Employment Agreement, or (iv) such earlier date as provided for
in the Employment Agreement.
1.7 "Original Principal Amount" shall mean Five Hundred Ninety
Thousand Dollars ($590,000).
1.8 "Other Note" shall mean the other note of even date herewith
executed by Borrower in favor of Lender in the original principal amount of Five
Million Six Hundred Ten Thousand Dollars ($5,610,000).
<PAGE> 2
1.9 "Outstanding Principal Balance" shall mean the portion of the
Original Principal Amount that has not been repaid.
II
PAYMENT OF INTEREST AND PRINCIPAL
For Value Received, Borrower hereby promises to pay to the order of
Lender the Original Principal Amount, together with interest as provided herein
as follows:
2.1 Payment of Interest and Principal.
(a) Interest shall accrue on the Outstanding Principal Balance
at the Interest Rate prior to Default, with all outstanding and unpaid interest
compounded quarterly.
(b) All accrued and unpaid interest shall be due and payable on
each Interest Payment Date while the Note is outstanding.
(c) The entire Outstanding Principal Balance of this Note, and
any accrued and unpaid interest thereon, shall be due and payable on the
Maturity Date.
2.2 Prepayment Privileges. This Note may be prepaid in whole or in
part at any time and from time to time during the term hereof.
2.3 Default Interest. Subsequent to a Default, interest shall accrue
on the Outstanding Principal Balance and any unpaid interest at the Default
Rate, with all outstanding and unpaid interest compounded quarterly.
2.4 Principal and Interest at Maturity. The entire Outstanding
Principal Balance and accrued and unpaid interest thereon, and any and all other
sums which are due and payable pursuant to the terms and provisions of this
Note, shall be due and payable on the Maturity Date.
2.5 Calculation of Interest. All interest on this Note shall be
calculated on the basis of twelve 30-day months, provided, however, that for
portions of the principal balance which are outstanding for less than a full
calendar month, interest on such portion of the principal balance shall be
calculated on the basis of a three hundred sixty (360) day year and the actual
number of days elapsed in any portion of a month for which interest may be due
on such portion of the principal balance.
2.6 Application of Payments Prior to Default. Prior to the invocation
of the terms and provisions of Paragraph 3.2 hereof, all monies paid by Borrower
to Lender shall be applied in the following order of priority: (a) first, toward
payment of all amounts due and owing pursuant
2
<PAGE> 3
to Paragraph 3.5 hereof (if any); (b) next, toward payment of all amounts due
and owing pursuant to Paragraph 3.4 hereof (if any); (c) next, toward payment of
interest which has accrued on the Outstanding Principal Balance and which is due
and payable; and (d) last, toward payment of the Outstanding Principal Balance.
2.7 Payments after Default. While any Default exists, Lender is
expressly authorized to apply payments made to it as it may elect against (a)
any or all amounts, or portions thereof, then due and payable hereunder, (b) the
Outstanding Principal Balance, or (c) any combination thereof.
2.8 Place of Payment. Payments and prepayments to be made under this
Note are to be made at such place as the legal holder of this Note may from time
to time in writing appoint, and, in the absence of such appointment, then at the
following address:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, NY 10036
III
DEFAULTS AND REMEDIES
3.1 Security for Payment. The payment of this Note is not secured.
3.2 Occurrence of Default; Acceleration of Maturity Date. It is
agreed that upon occurrence of any of the following events of default under this
Note (a "Default"):
(a) default in the payment of any amount when due hereunder
which continues for five (5) days after written notice to Borrower; or
(b) default in the performance or observance of any other
covenant or agreement of Borrower contained herein which continues for thirty
(30) days after written notice to Borrower; or
(c) occurrence of any default under the Other Note which
continue beyond any applicable notice and grace periods,
then, at any time thereafter, at the election of the holder or holders hereof
and without additional notice to Borrower, the Outstanding Principal Balance,
together with accrued interest thereon, shall become at once due and payable at
the place of payment as aforesaid, and Lender may proceed to exercise all rights
and remedies available to Lender with respect to this Note which Lender may have
at law, in equity or otherwise.
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<PAGE> 4
3.3 Nature of Remedies. The remedies of Lender as provided herein
shall be cumulative and concurrent, and may be pursued singularly, successively
or together, at the sole discretion of Lender, and may be exercised as often as
occasion therefor shall arise. Failure of Lender, for any period of time or on
more than one occasion, to exercise its option to accelerate the Maturity Date
of this Note shall not constitute a waiver of the right to exercise the same at
any time thereafter or in the event of any subsequent Default. No act of
omission or commission of Lender, including specifically any failure to exercise
any right, remedy or recourse, shall be deemed to be a waiver or release of the
same; any such waiver or release is to be effected only through a written
document executed by Lender and then only to the extent specifically recited
therein. A waiver or release in connection with any one event shall not be
construed as a waiver or release of any subsequent event or as a bar to any
subsequent exercise of Lender's rights or remedies hereunder. Notice of the
exercise of any right or remedy granted to Lender by this Note is not required
to be given except as specifically provided herein.
3.4 Payment of Attorneys' Fees and Costs. If (i) this Note is placed
in the hands of an attorney for collection or enforcement or is collected or
enforced through any legal proceeding; (ii) an attorney is retained to represent
Lender in any bankruptcy, reorganization, receivership, or other proceedings
affecting creditors' rights and involving a claim under this Note; or (iii) an
attorney is retained to represent Lender in any other proceedings whatsoever in
connection with this Note, then Borrower shall pay to Lender all reasonable
attorneys' fees, costs and expenses incurred in connection therewith, in
addition to all other amounts due hereunder.
3.5 Late Charge. If any payment of interest is not paid when due, the
Borrower shall pay to Lender a late charge of two percent (2%) of the amount so
overdue in order to defray part of the expense incident to handling such
delinquent payment or payments. Such late charge shall be in addition to and
separate from any increase in interest due hereunder as a result of calculation
of interest due hereunder at the Default Rate.
IV
OTHER GENERAL AGREEMENTS
4.1 Notices. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if delivered
personally, or sent by nationally-recognized overnight courier, or by registered
or certified mail, return receipt requested and postage prepaid, addressed as
follows:
4
<PAGE> 5
If to Borrower:
Mr. Glenn J. Rufrano
c/o New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, NY 10036
If to the Lender:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, NY 10036
Attn: General Counsel
or to such other address as any party may have furnished to the others in
writing in accordance herewith. All such notices and other communications shall
be deemed to have been received (a) in the case of personal delivery, on the
date of such delivery, (b) in the case of delivery by nationally-recognized,
overnight courier, on the business day following dispatch and (c) in the case of
mailing, on the third business day following such mailing.
4.2 Governing Law and Other Agreements. Borrower agrees that: (i)
this instrument and the rights and obligations of the parties hereunder shall be
governed by the laws of the State New York, without reference to the conflict of
law principles of such state; (ii) the obligation evidenced by this Note is an
exempted transaction under the Truth in Lending Act, 15 U.S.C. Section 1601, et
seq.; (iii) said obligation constitutes a business loan; and (iv) upon the
Maturity Date, Lender shall not have any obligation to refinance the
indebtedness evidenced by this Note or to extend further credit to the Borrower.
4.3 Interpretation. The headings of sections and paragraphs in this
Note are for convenience only and shall not be construed in any way to limit or
define the content, scope or intent of the provisions hereof. As used in this
Note, the singular shall include the plural, and masculine, feminine and neuter
pronouns shall be fully interchangeable, where the context so requires. This
Note shall not be construed more favorably for the benefit of Borrower or
Lender, regardless of which party or their counsel were primarily responsible
for the drafting hereof. The parties hereto intend and believe that each
provision in this Note comports with all applicable law. However, if any
provision in this Note is found by a court of law to be in violation of any
applicable law, and if such court should declare such provision of this Note to
be unlawful, void or unenforceable as written, then it is the intent of all
parties to the fullest possible extent that it is legal, valid and enforceable,
that the remainder of this Note shall be construed as if such unlawful, void or
unenforceable provision were not contained therein, and that the rights,
obligations and interests of Borrower and the holder hereof under the remainder
of this Note shall continue in full force and effect; provided, however, that if
any provision of this Note which is found to be in violation of any applicable
law concerns the imposition of interest hereunder, the rights, obligations and
interests of Borrower and Lender with respect to the imposition of interest
5
<PAGE> 6
hereunder shall be governed and controlled by the provisions of Paragraph 4.5
hereof. Time is of the essence of this Note.
4.4 Waiver. Borrower and any and all others who are now or may become
liable for all or part of the obligations of Borrower under this Note agree to
be jointly and severally bound hereby and jointly and severally: (i) waive and
renounce any and all redemption and exemption rights and the benefit of all
valuation and appraisement privileges against the indebtedness evidenced by this
Note or by any extension or renewal hereof; (ii) waive presentment and demand
for payment, notices of nonpayment and of dishonor, protest of dishonor and
notice of protest; (iii) waive all notices in connection with the delivery and
acceptance hereof and all other notices in connection with the performance,
default or enforcement of the payment hereof or hereunder; (iv) waive any and
all lack of diligence and delays in the enforcement of the payment hereof; (v)
agree that the liability of each of them shall be unconditional and without
regard to the liability of any other person or entity for the payment hereof,
and shall not in any manner be affected by any indulgence or forbearance granted
or consented to by Lender to any of them with respect hereto; (vi) consent to
any and all extensions of time, renewals, waivers or modifications that may be
granted by Lender with respect to the payment or other provisions hereof, and to
the release of any security at any time given for the payment hereof, or any
part thereof, with or without substitution, and to the release of any person or
entity liable for the payment hereof; and (vii) consent to the addition of any
and all other makers, endorsers, guarantors and other obligors for the payment
hereof, and to the acceptance of any and all other security for the payment
hereof, and agree that the addition of any such obligors or security shall not
affect the liability of any of the obligors for the payment hereof.
4.5 Excess Interest. It being the intention of Lender and Borrower to
comply with the laws of the State of New York with regard to the rate of
interest charged hereunder, it is agreed that, notwithstanding any provision to
the contrary in this Note, no such provision shall require the payment or permit
the collection of any amount ("Excess Interest") in excess of the maximum amount
of interest permitted by law to be charged for the use or detention, or the
forbearance in the collection of all or any portion of the indebtedness
evidenced by this Note. If any Excess Interest is provided for, or is
adjudicated to be provided for, in this Note, then in such event:
(a) the provisions of this paragraph shall govern and control;
(b) neither Borrower nor any of the other Obligors shall be
obligated to pay any Excess Interest;
(c) any Excess Interest that Lender may have received hereunder
shall, at the option of Lender, be (i) applied as a credit against either the
then outstanding principal balance due under this Note, or the accrued and
unpaid interest thereon not to exceed the maximum amount permitted by law, or
both; (ii) refunded to the payor thereof; or (iii) any combination of the
foregoing;
6
<PAGE> 7
(d) the applicable interest rate or rates shall be automatically
subject to reduction to the maximum lawful rate allowed to be contracted for in
writing under the applicable usury laws of the aforesaid State, and this Note
shall be deemed to have been, and shall be, reformed and modified to reflect
such reduction in such interest rate or rates; and
(e) neither Borrower nor any of the other Obligors shall have
any action or remedy against Lender for any damages whatsoever or any defense to
enforcement of the Note arising out of the payment or collection of any Excess
Interest.
4.6 Successors, Holders and Assigns. Upon any endorsement, assignment
or other transfer of this Note by Lender or by operation of law, the term
"Lender", as used herein, shall mean such endorsee, assignee or other transferee
or successor to Lender then becoming the holder of this Note. This Note shall
inure to the benefit of Lender and its successors and assigns and shall be
binding upon the undersigned and its successors and assigns. The term
"Borrower", as used herein, shall include the successors, assigns, legal and
personal representatives, executors, administrators, devisees, legatees and
heirs of Borrower.
IN WITNESS WHEREOF, Borrower has executed and delivered this Note as of
the day and year first above written.
/s/ Glenn J. Rufrano
-------------------------------
Glenn J. Rufrano
7
<PAGE> 1
Exhibit 10.7
LIMITED RECOURSE PROMISSORY NOTE
New York, New York
$5,610,000 February 23, 2000
THIS NOTE ("Note") is made as of the 23rd day of February, 2000, by
Glenn J. Rufrano ("Borrower"), to the order of New Plan Excel Realty Trust,
Inc., a Maryland corporation ("Lender").
I
DEFINITIONS
Borrower agrees that, for the purposes of this Note, the following terms
shall have the following respective meanings ascribed thereto.
1.1 "Default Rate" shall mean two percent (2%) per annum in excess of
the Interest Rate, but not in excess of the maximum interest rate permitted by
law.
1.2 "Dollars" shall mean dollars in lawful currency of The United
States of America.
1.3 "Employment Agreement" shall mean the Employment Agreement
between Lender and Borrower dated February 23, 2000, as it may from time to time
be amended.
1.4 "Interest Rate" shall mean eight percent (8%) per annum.
1.5 "Maturity Date".shall mean the earlier of (i) February 23, 2005,
(ii) the date the entire Outstanding Principal Balance is due and payable by
reason of the acceleration of the maturity of this Note, (iii) the date that
Lender exercises the right to purchase the stock securing this Note pursuant to
the Employment Agreement, or (iv) such earlier date as provided for in the
Employment Agreement.
1.6 "Original Principal Amount" shall mean Five Million Six Hundred
Ten Thousand Dollars ($5,610,000).
1.7 "Other Note" shall mean the other note of even date herewith
executed by Borrower in favor of Lender in the original principal amount of Five
Hundred Ninety Thousand Dollars ($590,000).
<PAGE> 2
1.8 "Outstanding Principal Balance" shall mean the portion of the
Original Principal Amount that has not been repaid.
1.9 "Payment Date" shall mean January 15, April 15, July 15, and
October 15.
1.10 "Pledge Agreement" shall mean the pledge agreement securing the
payment of the Note executed by Borrower for the benefit of Lender
II
PAYMENT OF INTEREST AND PRINCIPAL
For Value Received, Borrower hereby promises to pay to the order of
Lender the Original Principal Amount, together with interest as provided herein
as follows:
2.1 Payment of Interest and Principal.
(a) Interest shall accrue on the Outstanding Principal Balance
at the Interest Rate prior to Default, with all outstanding and unpaid interest
compounded quarterly.
(b) All accrued and unpaid interest shall be due and payable on
each Payment Date while the Note is outstanding.
(c) On each Payment Date while this Note is outstanding, there
shall be due and payable a payment of principal in the amount of $31,679.75.
(d) The entire Outstanding Principal Balance of this Note, and
any accrued and unpaid interest thereon, shall be due and payable on the
Maturity Date.
2.2 Prepayment Privileges. This Note may be prepaid in whole or in
part at any time and from time to time during the term hereof. All partial
prepayments shall be applied in inverse order of maturity and shall not extend
or reduce any other principal payments due hereunder.
2.3 Default Interest. Subsequent to a Default, interest shall accrue
on the Outstanding Principal Balance and any unpaid interest at the Default
Rate, with all outstanding and unpaid interest compounded quarterly.
2.4 Principal and Interest at Maturity. The entire Outstanding
Principal Balance and accrued and unpaid interest thereon, and any and all other
sums which are due and payable pursuant to the terms and provisions of this Note
or the Pledge Agreement, shall be due and payable on the Maturity Date.
2
<PAGE> 3
2.5 Calculation of Interest. All interest on this Note shall be
calculated on the basis of twelve 30-day months, provided, however, that for
portions of the principal balance which are outstanding for less than a full
calendar month, interest on such portion of the principal balance shall be
calculated on the basis of a three hundred sixty (360) day year and the actual
number of days elapsed in any portion of a month for which interest may be due
on such portion of the principal balance.
2.6 Application of Payments Prior to Default. Prior to the invocation
of the terms and provisions of Paragraph 3.2 hereof, all monies paid by Borrower
to Lender shall be applied in the following order of priority: (a) first, toward
repayment of all amounts advanced by Lender under the provisions of the Pledge
Agreement to protect and preserve the collateral (if any); (b) next, toward
payment of all amounts due and owing pursuant to Paragraph 3.5 hereof (if any);
(c) next, toward payment of all amounts due and owing pursuant to Paragraph 3.4
hereof (if any); (d) next, toward payment of interest which has accrued on the
Outstanding Principal Balance and which is due and payable; and (e) last, toward
payment of the Outstanding Principal Balance.
2.7 Payments after Default. While any Default exists, Lender is
expressly authorized to apply payments made to it as it may elect against (a)
any or all amounts, or portions thereof, then due and payable hereunder, (b) the
Outstanding Principal Balance, or (c) any combination thereof.
2.8 Place of Payment. Payments and prepayments to be made under this
Note are to be made at such place as the legal holder of this Note may from time
to time in writing appoint, and, in the absence of such appointment, then at the
following address:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, NY 10036
III
SECURITY, DEFAULTS, AND REMEDIES
3.1 Security for Payment. The payment of this Note is secured by the
Pledge Agreement.
3.2 Occurrence of Default; Acceleration of Maturity Date. It is
agreed that upon occurrence of any of the following events of default under this
Note (a "Default"):
(a) default in the payment of any amount when due hereunder
which continues for five (5) days after written notice to Borrower; or
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(b) default in the performance or observance of any other
covenant or agreement of Borrower contained herein which continues for thirty
(30) days after written notice to Borrower; or
(c) occurrence of any default under the Other Note or Pledge
Agreement which continue beyond any applicable notice and grace periods,
then, at any time thereafter, at the election of the holder or holders hereof
and without additional notice to Borrower, the Outstanding Principal Balance,
together with accrued interest thereon, shall become at once due and payable at
the place of payment as aforesaid, and Lender may proceed to exercise all rights
and remedies available to Lender under the Pledge Agreement, and to exercise any
other rights and remedies against Borrower or with respect to this Note which
Lender may have at law, in equity or otherwise.
3.3 Nature of Remedies. The remedies of Lender as provided herein or
in the Pledge Agreement shall be cumulative and concurrent, and may be pursued
singularly, successively or together, at the sole discretion of Lender, and may
be exercised as often as occasion therefor shall arise. Failure of Lender, for
any period of time or on more than one occasion, to exercise its option to
accelerate the Maturity Date of this Note shall not constitute a waiver of the
right to exercise the same at any time thereafter or in the event of any
subsequent Default. No act of omission or commission of Lender, including
specifically any failure to exercise any right, remedy or recourse, shall be
deemed to be a waiver or release of the same; any such waiver or release is to
be effected only through a written document executed by Lender and then only to
the extent specifically recited therein. A waiver or release in connection with
any one event shall not be construed as a waiver or release of any subsequent
event or as a bar to any subsequent exercise of Lender's rights or remedies
hereunder. Notice of the exercise of any right or remedy granted to Lender by
this Note is not required to be given except as specifically provided herein.
3.4 Payment of Attorneys' Fees and Costs. If (i) this Note or the
Pledge Agreement is placed in the hands of an attorney for collection or
enforcement or is collected or enforced through any legal proceeding; (ii) an
attorney is retained to represent Lender in any bankruptcy, reorganization,
receivership, or other proceedings affecting creditors' rights and involving a
claim under this Note or the Pledge Agreement; (iii) an attorney is retained to
protect or enforce the lien of the Pledge Agreement; or (iv) an attorney is
retained to represent Lender in any other proceedings whatsoever in connection
with this Note or the Pledge Agreement or any property subject thereto, then
Borrower shall pay to Lender all reasonable attorneys' fees, costs and expenses
incurred in connection therewith, in addition to all other amounts due
hereunder.
3.5 Late Charge. If any installment of interest or principal is not
paid when due, the Borrower shall pay to Lender a late charge of two percent
(2%) of the amount so overdue in order to defray part of the expense incident to
handling such delinquent payment or payments. Such late charge shall be in
addition to and separate from any increase in interest due hereunder as a result
of calculation of interest due hereunder at the Default Rate.
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IV
OTHER GENERAL AGREEMENTS
4.1 Notices. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if delivered
personally, or sent by nationally-recognized overnight courier, or by registered
or certified mail, return receipt requested and postage prepaid, addressed as
follows:
If to Borrower:
Mr. Glenn J. Rufrano
c/o New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, NY 10036
If to the Lender:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, NY 10036
Attn: General Counsel
or to such other address as any party may have furnished to the others in
writing in accordance herewith. All such notices and other communications shall
be deemed to have been received (a) in the case of personal delivery, on the
date of such delivery, (b) in the case of delivery by nationally-recognized,
overnight courier, on the business day following dispatch and (c) in the case of
mailing, on the third business day following such mailing.
4.2 Governing Law and Other Agreements. Borrower agrees that: (i)
this instrument and the rights and obligations of the parties hereunder shall be
governed by the laws of the State New York, without reference to the conflict of
law principles of such state; (ii) the obligation evidenced by this Note is an
exempted transaction under the Truth in Lending Act, 15 U.S.C. Section 1601, et
seq.; (iii) said obligation constitutes a business loan; and (iv) upon the
Maturity Date, Lender shall not have any obligation to refinance the
indebtedness evidenced by this Note or to extend further credit to the Borrower.
4.3 Interpretation. The headings of sections and paragraphs in this
Note are for convenience only and shall not be construed in any way to limit or
define the content, scope or intent of the provisions hereof. As used in this
Note, the singular shall include the plural, and masculine, feminine and neuter
pronouns shall be fully interchangeable, where the context so requires. This
Note shall not be construed more favorably for the benefit of Borrower or
Lender,
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<PAGE> 6
regardless of which party or their counsel were primarily responsible for the
drafting hereof. The parties hereto intend and believe that each provision in
this Note comports with all applicable law. However, if any provision in this
Note is found by a court of law to be in violation of any applicable law, and if
such court should declare such provision of this Note to be unlawful, void or
unenforceable as written, then it is the intent of all parties to the fullest
possible extent that it is legal, valid and enforceable, that the remainder of
this Note shall be construed as if such unlawful, void or unenforceable
provision were not contained therein, and that the rights, obligations and
interests of Borrower and the holder hereof under the remainder of this Note
shall continue in full force and effect; provided, however, that if any
provision of this Note which is found to be in violation of any applicable law
concerns the imposition of interest hereunder, the rights, obligations and
interests of Borrower and Lender with respect to the imposition of interest
hereunder shall be governed and controlled by the provisions of Paragraph 4.5
hereof. Time is of the essence of this Note.
4.4 Waiver. Borrower and any and all others who are now or may become
liable for all or part of the obligations of Borrower under this Note agree to
be jointly and severally bound hereby and jointly and severally: (i) waive and
renounce any and all redemption and exemption rights and the benefit of all
valuation and appraisement privileges against the indebtedness evidenced by this
Note or by any extension or renewal hereof; (ii) waive presentment and demand
for payment, notices of nonpayment and of dishonor, protest of dishonor and
notice of protest; (iii) waive all notices in connection with the delivery and
acceptance hereof and all other notices in connection with the performance,
default or enforcement of the payment hereof or hereunder; (iv) waive any and
all lack of diligence and delays in the enforcement of the payment hereof; (v)
agree that the liability of each of them shall be unconditional and without
regard to the liability of any other person or entity for the payment hereof,
and shall not in any manner be affected by any indulgence or forbearance granted
or consented to by Lender to any of them with respect hereto; (vi) consent to
any and all extensions of time, renewals, waivers or modifications that may be
granted by Lender with respect to the payment or other provisions hereof, and to
the release of any security at any time given for the payment hereof, or any
part thereof, with or without substitution, and to the release of any person or
entity liable for the payment hereof; and (vii) consent to the addition of any
and all other makers, endorsers, guarantors and other obligors for the payment
hereof, and to the acceptance of any and all other security for the payment
hereof, and agree that the addition of any such obligors or security shall not
affect the liability of any of the obligors for the payment hereof.
4.5 Excess Interest. It being the intention of Lender and Borrower to
comply with the laws of the State of New York with regard to the rate of
interest charged hereunder, it is agreed that, notwithstanding any provision to
the contrary in this Note or the Pledge Agreement, no such provision shall
require the payment or permit the collection of any amount ("Excess Interest")
in excess of the maximum amount of interest permitted by law to be charged for
the use or detention, or the forbearance in the collection of all or any portion
of the indebtedness evidenced by this Note. If any Excess Interest is provided
for, or is adjudicated to be provided for, in this Note or the Pledge Agreement,
then in such event:
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(a) the provisions of this paragraph shall govern and control;
(b) neither Borrower nor any of the other Obligors shall be
obligated to pay any Excess Interest;
(c) any Excess Interest that Lender may have received hereunder
shall, at the option of Lender, be (i) applied as a credit against either the
then outstanding principal balance due under this Note, or the accrued and
unpaid interest thereon not to exceed the maximum amount permitted by law, or
both; (ii) refunded to the payor thereof; or (iii) any combination of the
foregoing;
(d) the applicable interest rate or rates shall be automatically
subject to reduction to the maximum lawful rate allowed to be contracted for in
writing under the applicable usury laws of the aforesaid State, and this Note
and the Pledge Agreement shall be deemed to have been, and shall be, reformed
and modified to reflect such reduction in such interest rate or rates; and
(e) neither Borrower nor any of the other Obligors shall have
any action or remedy against Lender for any damages whatsoever or any defense to
enforcement of the Note or the Pledge Agreement arising out of the payment or
collection of any Excess Interest.
4.6 Successors, Holders and Assigns. Upon any endorsement, assignment
or other transfer of this Note by Lender or by operation of law, the term
"Lender", as used herein, shall mean such endorsee, assignee or other transferee
or successor to Lender then becoming the holder of this Note. This Note shall
inure to the benefit of Lender and its successors and assigns and shall be
binding upon the undersigned and its successors and assigns. The term
"Borrower", as used herein, shall include the successors, assigns, legal and
personal representatives, executors, administrators, devisees, legatees and
heirs of Borrower.
4.7 Exculpation. Borrower, his successors and assigns ("Exculpated
Parties") shall not be personally liable for the payment of any sums, other than
interest, due hereunder, or under the Pledge Agreement. No judgment for the
repayment of the principal, or for any damages, or for specific performance of
obligations to pay or expend money resulting from any breach of or default under
this Note or under the Pledge Agreement, will be sought or enforced against the
Exculpated Parties personally or any property of the Exculpated Parties, other
than the security under the Pledge Agreement, in any action to realize upon any
security furnished under the Pledge Agreement, or to collect any amount payable
hereunder or thereunder; provided, however, that:
(a) Nothing herein contained shall be construed as prohibiting
Lender from exercising any and all remedies which the Pledge Agreement permits,
including the right to bring actions or proceedings against Borrower and to
enter a judgment against Borrower, or to obtain injunctive or other equitable
relief against the Borrower in order to prevent a breach of the Pledge
Agreement, so long as the exercise of any remedy does not extend to execution
against or recovery out of any property of Borrower other than the security
furnished under the Pledge
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Agreement, or, in the case of specific performance or other injunctive relief,
does not require the expenditure of money except out of the security furnished
pursuant to the Pledge Agreement; and
(b) Borrower shall be personally liable for committing fraud or
material misrepresentation in connection with the making of the loan evidenced
hereby, to the full extent of any loss, damage, expense or costs (including
reasonable attorneys' fees) incurred by Lender resulting from such fraud or
material misrepresentation.
(a) Notwithstanding anything contained herein, if the payments
due pursuant to Paragraph 2.1(b) or (c) are not made on the Payment Date when
due, any such unpaid amount shall be a recourse obligation of Borrower who will
be personally liable for any such payment.
IN WITNESS WHEREOF, Borrower has executed and delivered this Note as of
the day and year first above written.
/s/ Glenn J. Rufrano
-------------------------------
Glenn J. Rufrano
8
<PAGE> 1
Exhibit 10.8
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (this "Pledge Agreement"), dated as of
February 23, 2000, is entered into by Glenn J. Rufrano, an individual
("Pledgor"), and New Plan Excel Realty Trust, Inc ("Lender").
WHEREAS, Pledgor (i) is acquiring on the date hereof 515,121 shares of
common stock, par value $.01 per share, of Lender (the "Purchased Shares"), and
(ii) is delivering to Lender a promissory note (the "Note") of Pledgor in the
amount of $5,610,000 for a portion of the purchase price of the Purchased
Shares; and
WHEREAS, Lender has agreed to accept the Note only on the condition that
Pledgor pledge the Purchased Shares to Lender in accordance with the terms of
this Pledge Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions.
(a) "Obligations" shall mean all indebtedness, liabilities
and obligations of Pledgor to Lender, whether now existing or hereafter
incurred, direct or indirect, absolute or contingent, secured or unsecured,
matured or unmatured, joint or several, whether for principal, interest, fees,
expenses or otherwise, arising out of or in connection with the Note (including
without limitation this Pledge Agreement), but shall not include any other
indebtedness, liability or obligation of Pledgor of any kind or nature
whatsoever.
(b) "Pledged Stock" shall mean (i) the Purchased Shares, and
the certificates representing such shares, and (ii)_all certificates, options,
rights, dividends or other distributions issued as an addition to, in
substitution or in exchange for, or on account of, the Purchased Shares, and all
proceeds of all of the foregoing, now or hereafter owned or acquired by Pledgor.
2. Grant of Security Interest.
(a) As collateral security for the prompt and complete
payment and performance when due of all the Obligations, Pledgor hereby pledges
and assigns to Lender the Pledged Stock and grants to Lender a first
<PAGE> 2
priority lien on, and security interest in, the Pledged Stock and the proceeds
thereof.
(b) Simultaneously with the execution of this Pledge
Agreement, Pledgor is delivering to Lender the certificate(s) representing the
shares of Pledged Stock described in Section 1(b)(i) hereof, which
certificate(s) shall be registered in the name of Pledgor, duly endorsed in
blank or accompanied by stock powers duly executed in blank, together with any
documentary tax stamps and any other document necessary to cause Lender to have
a good, valid and perfected first pledge of, lien on and security interest in
the Pledged Stock, free and clear of any mortgage, pledge, lien security
interest, hypothecation, assignment, charge, right, encumbrance or restriction
(individually, "Encumbrance" and collectively, "Encumbrances"). At any time
following an Event of Default (as hereinafter defined), any or all shares of the
Pledged Stock held by Lender hereunder may be registered, at the option of
Lender exercised in accordance with Section 3(d) hereof, in the name of Lender
or in the name of its nominee as pledgee.
(c) Pledgor agrees that the certificate(s) representing the Pledged
Shares shall contain a legend substantially in the following form:
"The shares represented by this certificate have been pledged pursuant
to a Stock Pledge Agreement dated as of February 23, 2000 by and between
the holder hereof and New Plan Excel Realty Trust, Inc., and may not be
sold or otherwise transferred except in accordance with the terms
thereof. These shares also are subject to additional restrictions on
transfer under federal and state securities laws, and may not be sold or
otherwise transferred except in compliance with such laws, and subject
to the provisions of the Employment Agreement between Pledgor and Lender
dated February 23, 2000, as it may from time to time be amended."
3. Voting Rights, Dividends and Distributions. So long as no Event
of Default shall have occurred and be continuing, and subject to the provisions
of the Employment Agreement between Pledgor and Lender dated February 23, 2000,
as it may from time to time be amended ("Employment Agreement"):
(a) Pledgor shall be entitled to exercise any and all voting
and/or consensual rights and powers relating or pertaining to the Pledged Stock
or any part thereof, subject to the terms hereof;
(b) Subject to Section 3(d) hereof, Pledgor shall be
entitled to receive and retain cash dividends payable on the Pledged Stock;
provided,
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however, that Lender shall be entitled to apply any cash dividends payable on
the Pledged Stock to any amounts then due under the Note and outstanding; and
provided further, that all other dividends (including, without limitation, stock
and liquidating dividends), distributions in property, returns of capital and
other distributions made on or in respect of the Pledged Stock, whether
resulting from a subdivision, combination or reclassification of the outstanding
capital stock of Lender or received in exchange for the Pledged Stock or any
part thereof or as a result of any merger, consolidation, acquisition or other
exchange of assets to which the Lender may be a party or otherwise, and any and
all cash and other property received in exchange for or redemption of any of the
Pledged Stock, shall be retained by Lender, or, if delivered to Pledgor, shall
be held in trust for the benefit of Lender and forthwith delivered to Lender and
shall be considered as part of the Pledged Stock for all purposes of this Pledge
Agreement;
(c) Lender shall execute and deliver (or cause to be
executed and delivered) to Pledgor all such proxies, powers of attorney,
dividend orders, and other instruments as Pledgor may reasonably request for the
purpose of enabling Pledgor to exercise the voting and/or consensual rights and
powers which Pledgor is entitled to exercise pursuant to Section 3(a) above
and/or to receive the dividends which Pledgor is authorized to receive and
retain pursuant to Section 3(b) above; and Pledgor shall execute and deliver to
Lender such instruments as may be required or may be reasonably requested by
Lender to enable Lender to receive and retain the dividends, distributions in
property, returns of capital and other distributions it is authorized to receive
and retain pursuant to Section 3(b) above; and
(d) Upon the occurrence and during the continuance of an
Event of Default, all rights of Pledgor to exercise the voting and/or consensual
rights and powers which Pledgor is entitled to exercise pursuant to Section 3(a)
above and/or to receive the dividends which Pledgor is authorized to receive and
retain pursuant to Section 3(b) above shall cease, at the option of Lender, and
all such rights shall thereupon become vested in Lender, who shall have the sole
and exclusive right and authority to exercise such voting and/or consensual
rights and powers and/or to receive and retain such dividends. In such case
Pledgor shall execute and deliver such documents as Lender may reasonably
request to enable Lender to exercise such rights and receive such dividends. In
addition, Lender is hereby appointed the attorney-in-fact of Pledgor, with full
power of substitution, which appointment as attorney-in-fact is irrevocable and
coupled with an interest, to take all such actions after the occurrence and
during the continuance of an Event of Default, whether in the name of Lender or
Pledgor, as Lender may consider necessary or desirable for the purpose of
exercising such rights and receiving such dividends. Any and all money and other
property paid over to or received by Lender pursuant to
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the provisions of this Section 3(d) shall be retained by Lender as part of the
Pledged Stock and shall be applied in accordance with the provisions hereof.
4. Events of Default; Remedies Upon Default.
(a) Each of the following shall constitute an Event of
Default under this Pledge Agreement:
(i) Failure of Pledgor to perform or observe any
covenant set forth in this Pledge Agreement, if such failure shall not have been
cured within thirty (30) days after written notice thereof has been given to
Pledgor by Lender;
(ii) Any representation or warranty made by Pledgor in
this Pledge Agreement shall be untrue as of the date made in any material
respect;
(iii) Any sale, assignment, pledge or other encumbrance
or transfer of the Pledged Stock following the date hereof not permitted by the
Employment Agreement; or
(iv) The occurrence of a Default under and as defined
in the Note.
(b) Upon the occurrence and during the continuance of an
Event of Default, in addition to having the right to exercise any right or
remedy of a secured party upon default under the Uniform Commercial Code as then
in effect in the State of New York (the "Uniform Commercial Code"), Lender may,
to the extent permitted by law, without demand of performance or other demand,
advertisement, or notice of any kind (except the notice specified below of time
and place of public or private sale) to or upon Pledgor or any other person (all
of which are, to the extent permitted by law, hereby expressly waived), apply
any cash held by it hereunder in the manner provided in Section 4(c) hereof and
if there shall be no such cash or if the cash so applied shall be insufficient
to pay in full the items specified in Section 4(c) below, forthwith sell, or
agree to sell, or otherwise dispose of and deliver the Pledged Stock or any part
thereof or interest therein, in one or more parcels at public or private sale or
sales, at any exchange, broker's board or at any of Lender's offices or
elsewhere, at such prices and upon such terms and conditions (including, without
limitation, requirements that any purchaser of all or any part of the Pledged
Stock be an "accredited investor" for purposes of Regulation D under the
Securities Act of 1933, as amended (the "Securities Act")), as it deems
appropriate. The Lender or any prospective purchaser shall have the right to
purchase upon any such sale the whole or any part of the Pledged Stock free of
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any right or equity of redemption in Pledgor, which right or equity is hereby
expressly waived and released.
(c) The proceeds of any such disposition or other action by
Lender shall be applied as follows:
(i) First, to the payment of all costs and expenses
incurred in connection therewith or incidental thereto or to the care or
safekeeping of any of the Pledged Stock or in any way relating to the rights of
Lender hereunder, including, without limitation, reasonable attorneys' fees and
expenses;
(ii) Second, to the satisfaction of the Obligations;
(iii) Third, to the payment of any amounts required by
applicable law (including, without limitation, Section 9-504(1)(c) of the
Uniform Commercial Code); and
(iv) Fourth, to the payment to Pledgor of any surplus
then remaining from such proceeds, unless otherwise required by law or directed
by a court of competent jurisdiction.
(d) The Lender need not give more than fifteen (15) business
days' notice of the time and place of any public sale or of the time after which
a private sale may take place unless such sale is to be made in the open market,
in which case the above fifteen business day period shall be five (5) business
days, which notice, in each case, Pledgor hereby deems reasonable.
5. Representations and Warranties of Pledgor. Pledgor represents and
warrants that:
(a) Pledgor has, and has duly exercised, all requisite power
and authority to enter into this Pledge Agreement, to pledge the Pledged Stock
for the purposes described in the recitals to this Pledge Agreement, and to
carry out the transactions contemplated by this Pledge Agreement. This Pledge
Agreement has been duly executed and delivered by Pledgor and constitutes a
legal, valid and binding obligation of Pledgor, enforceable in accordance with
its terms.
(b) Upon delivery of the Pledged Stock, Pledgor will be the
direct record owner and beneficial owner of the Pledged Stock, owning such
shares free and clear of any Encumbrance except for that granted hereunder.
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(c) The execution and delivery of this Pledge Agreement, and
the performance of its terms, will not violate or constitute a default under the
terms of any agreement, contract or other instrument, law, statute, ordinance,
license, judgment, decree, order or other governmental rule or regulation
applicable to Pledgor or any material portion of Pledgor's property.
(d) Upon delivery of the Pledged Stock to Lender, this
Pledge Agreement shall create a valid first lien upon and perfected security
interest in the Pledged Stock and the proceeds thereof, subject to no prior
Encumbrance.
(e) No approval, consent or other action by Pledgor, any
governmental authority or any other person is or will be necessary to permit the
valid execution, delivery or performance of this Pledge Agreement by Pledgor.
6. Covenants of Pledgor. The Pledgor hereby covenants that, until
all of the Obligations have been satisfied in full, Pledgor will:
(a) At Pledgor's own expense, defend Lender's right, title
and security interest in and to the Pledged Stock against the claims of any
person, firm, corporation or other entity;
(b) At the request of Lender, execute, deliver and file any
and all financing statements, continuation statements, stock powers, instruments
and other documents necessary or desirable, in Lender's reasonable opinion, to
create, perfect, preserve, validate or otherwise protect the pledge of the
Pledged Stock to Lender and Lender's lien on and security interest in the
Pledged Stock and the first priority thereof; and
(c) Maintain, or cause to be maintained, at all times, the
pledge of the Pledged Stock to Lender and Lender's lien on and security interest
in the Pledged Stock and the first priority thereof; provided, however, that
Pledgor shall have no liability under this subparagraph (c) for actions of
Lender.
(d) Promptly deliver to Lender all written notices, and will
promptly give Lender written notice of any other notices, received by him with
respect to Pledged Stock.
(e) At any time, and from time to time, upon the written
request of Lender, execute and deliver such further documents and do such
further acts and things as Lender may reasonably request to effect the purposes
of this Agreement.
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7. Release of Pledged Stock. Upon a partial satisfaction of the
Obligations as provided for in the Employment Agreement and payment of all costs
and expenses of Lender as provided herein, a portion of the Pledged Stock as
provided for in the Employment Agreement shall be released from the security
interest granted pursuant to this Agreement and Lender shall deliver to Pledgor,
at Pledgor's expense, such Pledged Stock. Upon the satisfaction in full of all
Obligations and the full payment of all costs and expenses of Lender as provided
herein, this Agreement shall terminate and Lender shall deliver to Pledgor, at
Pledgor's expense, such of the Pledged Stock as shall not have been sold or
otherwise applied pursuant to this Agreement.
8. Sale of the Pledged Stock. The Pledgor recognizes that Lender may
be unable to effect a public sale of all or a part of the Pledged Stock and may
be compelled to resort to one or more private sales to a restricted group of
purchasers who will be obligated, among other things, to be an "accredited
investor" for purposes of Regulation D under the Securities Act and to agree to
acquire the Pledged Stock for their own account, for investment and not with a
view to the distribution or resale thereof. The Pledgor acknowledges that any
such sales may be at prices and on terms less favorable to Lender than those of
public sales of all of the Pledged Stock and agrees that such sales shall be
deemed to have been made in a commercially reasonable manner and that Lender has
no obligation to delay sale of any Pledged stock until such time as it may make
a public sale under the Securities Act.
9. Termination. Upon the satisfaction in full of all obligations of
Pledgor under this Pledge Agreement and the Note and the full payment of all
additional costs and expenses of Lender as provided herein, this Agreement shall
terminate and Lender shall deliver to Pledgor, at Pledgor's expense, such of the
Pledged Stock as shall not have been sold or otherwise applied pursuant to this
Agreement.
10. Limitation on Lender's Duty in Respect of Collateral.
(a) Beyond the exercise of reasonable care to assure the
safe custody of the Pledged Stock while held hereunder, Lender shall have no
duty or liability to preserve rights pertaining thereto and shall be relieved of
all responsibility for the Pledged Stock upon surrendering it or tendering
surrender of it to Pledgor.
(b) No course of dealing between Pledgor and Lender, nor any
failure to exercise, nor any delay in exercising any right, power or privilege
of Lender hereunder or under the Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
or
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thereunder preclude any other or future exercise thereof or the exercise of any
other right, power or privilege.
(c) The rights and remedies provided herein and in all other
agreements, instruments and documents delivered pursuant to or in connection
with the Note are cumulative and are in addition to and not exclusive of any
rights or remedies provided by law, including without limitation, the rights and
remedies of a secured party under the Uniform Commercial Code.
11. Notices. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given effective at the times provided for in Section
4.1 of the Note when hand delivered, sent by nationally-recognized overnight
courier or mailed first-class, registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to Lender:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
12th Floor
New York, New York 10036
Attention: Steven F. Siegel, General Counsel
If to Pledgor:
at the address set forth on the signature page hereof
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
12. Successors and Assigns. This Pledge Agreement shall inure to the
benefit of and shall be binding upon the successors and assigns of the parties
hereto.
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13. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of New York without regard to its conflicts of laws
principles.
IN WITNESS WHEREOF, this Pledge Agreement has been duly executed and
delivered by or on behalf of the parties hereto as of the date and year first
above written.
/s/ Glenn J. Rufrano
-------------------------------
GLENN J. RUFRANO
Address:
c/o New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
12th Floor
New York, New York 10036
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Steven F. Siegel
----------------------------
Name:
--------------------------
Title:
-------------------------
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<PAGE> 1
Exhibit 10.9
AGREEMENT
AGREEMENT ("Agreement"), dated as of February 23, 2000 ("Effective
Date"), by and between New Plan Excel Realty Trust, Inc., a Maryland corporation
("Company") and Arnold Laubich ("Laubich").
RECITALS
A. Laubich is currently Chief Executive Officer and President of the
Company.
B. The Company and Laubich entered into an employment agreement
dated as of May 14, 1998 which provides for, among other things, Laubich's
employment by the Company as Chief Executive Officer through at least December
31, 2002 ("1998 Employment Agreement").
C. Laubich desires to retire as Chief Executive Officer and
President of the Company and provide for a smooth transition for a new Chief
Executive Officer and President of the Company.
D. The Company desires to employ Glenn J. Rufrano ("Rufrano") as a
new Chief Executive Officer and President and Laubich consents to such
employment of Glenn J. Rufrano as a new Chief Executive Officer and President of
the Company.
AGREEMENT
IN CONSIDERATION of the premises and the mutual covenants set forth
below, the parties hereby agree as follows:
1. Resignation. In connection with such retirement, the Company and
Laubich agree that Laubich hereby resigns effective as of the Effective Date as
(a) an officer of the Company, including, but not limited to his position as
Chief Executive Officer and President of the Company, (b) a representative,
agent, signatory and other similar positions in connection with or for the
benefit of the Company and (c) an officer, director, member of any committee,
trustee, representative, agent, signatory and other similar position of any and
all subsidiaries, affiliates (including without limitation, ERT Development
Corporation and its subsidiaries and affiliates) and benefit plans of the
Company; provided, however, that no such resignation shall become effective
until Laubich shall have received the payment described in subsection (a) of the
following paragraph. Notwithstanding the foregoing, Laubich does not resign as a
director of the Company as of the Effective Date but shall resign as a member of
any committee of the Board of Directors of the Company ("Board") of which he is
a member. Laubich agrees to execute all documents that the Company reasonably
determines are necessary or desirable to effectuate or reflect the foregoing.
<PAGE> 2
Upon the receipt of the resignations set forth above, the Company shall
provide Laubich with the payments and benefits set forth below; provided,
however, that as a specific condition to Laubich's being entitled to receive any
payments or benefits under this Section 1, the Company must have received the
release in Section 9 of this Agreement:
(a) the Company shall pay Laubich two million five hundred
thousand dollars ($2,500,000) in a lump sum on the Effective Date;
(b) the Company shall pay Laubich two hundred thousand
dollars ($200,000) payable in a lump sum not later than twenty (20) days
following the Effective Date for all accrued vacation to which he is entitled as
of December 31, 1999. Laubich acknowledges that this amount is the accrued
vacation to which he is entitled as of December 31, 1999, that he will not
accrue additional vacation during the Employment Period (as defined in Section
2), and that upon termination of the Employment Period he shall have no right to
payment for any accrued vacation with respect to the Employment Period;
provided, however, that he shall be entitled to take during the Employment
Period his vacation days accrued during the period from January 1, 2000 to the
Effective Date;
(c) all stock options held by Laubich shall continue to vest
on the same schedule and shall remain exercisable through their full original
term as though Laubich continued to be an employee of the Company through their
full original term except that, in the event of Laubich's death, the stock
options shall expire on the first anniversary of his death, but all stock
options can only be exercised by means of attestation of Shares to the extent
Laubich has sufficient number of Shares which had been held for at least six
months prior to exercise of the stock options;
(d) the Company shall provide Laubich, his spouse and
dependents for a period of five (5) years following the Date of Termination, as
defined in Section 6(b), medical, hospitalization and dental benefits comparable
to those provided to senior executive officers and their spouses and dependents
during such period on substantially the same terms and conditions as provided to
such senior executive officers (including without limitation Laubich's
obligation to make contributions required to be made by the senior executive
officers). The foregoing sentence shall not prevent the Company from changing
benefit programs provided Laubich (and to the extent applicable, his spouse and
dependents) are treated at least as well under the benefit program as the
Company's senior executive officers (and to the extent applicable, their spouses
and dependents). Notwithstanding anything to the contrary herein, if Laubich,
his spouse or his dependents cannot during such five (5) year period continue to
participate in the Company programs providing such benefits, the Company shall
arrange to provide Laubich, his spouse and his dependents with equivalent
benefits or the economic equivalent of such benefits which they otherwise would
have been entitled to receive under such programs. After such five (5) year
period, to the extent permitted by the applicable plans or policies without
adverse tax or other consequences to the Company or other participants, Laubich,
his spouse and his dependents may continue such medical, hospitalization and
dental benefits, provided Laubich or his spouse or
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<PAGE> 3
dependents pays to the Company the Company's full cost of providing such
benefits to Laubich, his spouse and dependents (which cost may be higher than
COBRA rates). If the benefit continuation referred to in the preceding sentence
would have adverse tax or other consequences to the Company or other
participants but not material adverse tax or other consequences to the Company
or other participants and Laubich (or his spouse or dependents) fully
compensates the Company and participants for the full economic detriment to the
Company and participants (including full tax gross-up of any payments) which
would result from such benefit continuation to the extent permitted without
material adverse tax or other consequences to the Company or other participants,
Laubich (or his spouse or dependents) may continue such medical, hospitalization
and dental benefits for himself, his spouse and dependents, provided Laubich (or
his spouse or dependents) pays to the Company the Company's full cost of
providing such benefits to Laubich, his spouse and dependents (which cost may be
higher than COBRA rates);
(e) through the earlier of the fifth anniversary of the
Effective Date or Laubich's death, the Company shall continue to provide to
Laubich the use of the automobile the Company is currently providing Laubich and
the payment of insurance (at the Company's then current coverages for senior
executives) on such automobile; however, Laubich shall be responsible for all
other expenses with respect to the automobile other than insurance and shall
have no right to an automobile replacement under any circumstances.
Notwithstanding the above, Laubich shall be entitled to receive the insurance
proceeds, after applicable deductibles, for any physical damage to and/or any
theft loss with respect to such automobile. On the earlier of the fifth
anniversary of the Effective Date or Laubich's death, such automobile shall be
transferred to Laubich and the Company shall not provide for payment of
insurance on such automobile thereafter or pay any other expenses with respect
to such automobile;
(f) Laubich shall be entitled to all other rights,
compensations and/or benefits as may be due him in accordance with the terms and
provisions of any benefit plans or programs of the Company;
(g) the Company shall pay Laubich one hundred fifty thousand
dollars ($150,000) in one lump sum on the Effective Date which payment
represents the final portion of Laubich's bonus for 1999; and
(h) the Company shall promptly reimburse Laubich for all
reasonable business expenses incurred before the Effective Date in the amount of
five thousand dollars ($5,000.00).
2. Transition Employment Period. The period of employment of Laubich
by the Company ("Employment Period") shall continue from the Effective Date
through the six month anniversary of the Effective Date and during any extension
thereof. Upon written notice to Laubich given at least thirty (30) days prior to
the expiration of the six month anniversary of the Effective Date, the Board may
extend the Employment Period for a period ending on the first anniversary of the
Effective Date in which event Laubich agrees to remain in the employ of the
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<PAGE> 4
Company until such extended date. The Employment Period may be sooner terminated
in accordance with Section 5 of this Agreement.
3. Position and Duties. During the Employment Period, Laubich will
render to Glenn Rufrano, James Steuterman, James DeCicco and/or Steven Siegel
("Senior Executive Officers") such services of an advisory or consultative
nature as the Senior Executive Officers may reasonably request, to enable the
Company to continue to have the benefit of his experience and knowledge of the
affairs of the Company and of his reputation, experience and contacts in the
industry and to assist in the transition of Laubich's duties to Glenn Rufrano.
Until such time as Rufrano commences full-time employment with the Company
("Rufrano Start Date"), Laubich shall devote not less than five full days per
week (excluding holidays) to performing his duties for the Company. During the
remainder of the Employment Period, Laubich shall devote not less than three
full days per week to performing his duties for the Company. During the
Employment Period and throughout the period Laubich is a director of the
Company, Laubich shall support and shall not, directly or indirectly, take or
cause any action to be taken which may interfere with any proposal to be
submitted to shareholders of the Company which has been approved by the Board
(whether or not such approval was unanimous and whether or not Laubich voted in
favor of or agreed with such proposal) ("Shareholder Proposal") and shall vote
or cause to be voted all shares of common stock of the Company owned or
controlled by Laubich in favor of each Shareholder Proposal. During the
Employment Period, Laubich agrees that he will not serve as a member of the
board of directors or trustees of any of the competitive shopping center REITs
set forth in Exhibit A.
4. Compensation and Related Matters.
(a) Compensation. During the period in the Employment Period
prior to the Rufrano Start Date, the Company shall pay Laubich, at least
biweekly, at the annual rate of five hundred twenty-five thousand dollars
($525,000) and during the remainder of the Employment Period, the Company shall
pay Laubich, at least biweekly, at a monthly rate equal to forty thousand
dollars ($40,000) ("Base Salary").
(b) Welfare, Pension and Incentive Benefit Plans. During the
Employment Period, Laubich (and his spouse and dependents to the extent provided
therein) shall be entitled to participate in and be covered under all the
welfare benefit plans or programs maintained by the Company from time to time
for the benefit of its senior executives including, without limitation, all
medical, hospitalization, disability, dental, life insurance, accidental death
and dismemberment and travel accident insurance plans and programs. In addition,
during the Employment Period, Laubich shall be eligible to participate in all
pension, retirement, savings and other employee benefit plans and programs
maintained from time to time by the Company for the benefit of its senior
executives. The Board will consider Laubich for a bonus for his services for the
Company during 2000 but any bonus shall be determined in the sole discretion of
the Board and there shall be no requirement or obligation that any bonus for
2000 be awarded or paid to Laubich.
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<PAGE> 5
(c) Expenses. During the Employment Period, the Company
shall promptly reimburse Laubich for all reasonable business expenses related to
services provided under this Agreement incurred during the Employment Period
upon the presentation of reasonably itemized statements of such expenses in
accordance with the Company's policies and procedures now in force or as such
policies and procedures may be modified with respect to all senior executive
officers of the Company.
(d) Office; Secretarial Assistance. During the Employment
Period, the Company shall provide Laubich with secretarial assistance and an
appropriate office at its New York corporate offices but such office need not be
the same office he occupies on the Effective Date.
5. Termination of Employment. Laubich's employment hereunder may be
terminated during the Employment Period under the following circumstances:
(a) Death. Laubich's employment hereunder shall terminate
upon his death.
(b) By Company. The Company shall have the right to
terminate Laubich's employment hereunder at any time by providing Laubich with a
Notice of Termination as set forth in Section 6(a), and such termination shall
not in and of itself be, nor shall it be deemed to be, a breach of this
Agreement.
6. Termination Procedure.
(a) Notice of Termination. Any termination of Laubich's
employment by the Company under Section 5(b) during the Employment Period shall
be communicated by written notice of termination ("Notice of Termination") to
the other party hereto in accordance with Section 18.
(b) Date of Termination. "Date of Termination" shall mean
(i) if Laubich's employment is terminated by his death, the date of his death,
and (ii) if Laubich's employment is terminated by the Company pursuant to
Section 5(b), the date thirty (30) days after the date on which a Notice of
Termination is given by the Company or any later date set forth in such Notice
of Termination.
7. Compensation Upon Termination of Employment. In the event the
Company terminates Laubich's employment during the Employment Period or if the
Employment Period expires, the Company shall provide Laubich with the payments
and benefits set forth below; provided, however, as a specific condition to
being entitled to any payments or benefits under this Section 7, the Company
must have received a copy of a release executed by him (in the form set forth in
Exhibit B) from liability for acts between the date of this Agreement and the
Date of Termination and the seven day revocation period provided for in such
release shall have expired.
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<PAGE> 6
(a) the Company shall pay to Laubich as soon as practicable
following the Date of Termination his Base Salary through (i) the six month
anniversary of the Effective Date or (ii) in the event the Company has elected
to extend the Employment Period, the period through the extension of the
Employment Period not to extend beyond the first anniversary of the Effective
Date;
(b) the Company shall provide to Laubich a release in the
form set forth in Exhibit C;
(c) Laubich shall be entitled to all other rights,
compensations and/or benefits as may be due him in accordance with the terms and
provisions of any benefit plans or programs; and
(d) the Company shall promptly reimburse Laubich for all
reasonable business expenses related to services provided under this Agreement
incurred during the Employment Period upon the presentation of reasonable
itemized statements of such expenses in accordance with the Company's policies
and procedures now in force or as such policies and procedures may be modified
with respect to all senior executive officers.
8. Retention of Items and Documents. Laubich may keep for his
personal use the desk top computer and laptop computer which the Company had
previously provided for his use. Except as otherwise provided in section 1(e)
regarding the automobile and as provided in the preceding sentence, Laubich will
return to Company on the Date of Termination all items provided by Company
including but without limitation all originals and all copies of documents,
notes, computer discs, tapes or other tangible information of any sort which he
has in his possession or under his custody or control that is the property of
Company or is confidential information and will not retain any copies of such
items; provided, however, Laubich may retain the items he received and the
materials he prepared in his capacity as a director.
9. Release.
(a) Laubich. In consideration for the promises made by the
parties in this Agreement and the Release Agreement to be signed by Laubich on
or about the Date of Termination and the payments to be made by Company under
this Agreement, the receipt and sufficiency of which are hereby acknowledged,
Laubich hereby releases and forever discharges, except as expressly provided
herein, Company and its subsidiaries and affiliates and their shareholders,
directors, officers, agents, representatives, and employees and successors and
assigns, past and present ("Employer Released Parties"), jointly and
individually, from any and all claims, obligations, demands, damages, causes of
action or liabilities of any nature or kind whatsoever, known or unknown, which
Laubich, his heirs, successors or assigns ever had or now have arising out of or
in any way connected with his employment and/or separation from Company or its
subsidiaries and affiliates including, but not limited to, claims arising under
or relating to the employment agreement dated as of May 14, 1998 between the
Company and Laubich, Laubich's services in any of the capacities described in
Section 1 and Laubich's services as a director of the
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<PAGE> 7
Company; provided, however, that this release does not include, and specifically
excludes, any and all claims, obligations, demands, damages, causes of action or
liabilities relating to or arising out of (i) any benefit plans or programs of
the Company, including, without limitation, the stock options described in
Section 1(c); (ii) this Agreement, and (iii) indemnification under the Company's
articles of incorporation or by-laws. Without limiting the generality of the
foregoing or the excluded items contained in the proviso in the immediately
preceding sentence, this release applies to any right which Laubich, his heirs,
successors or assigns have or may have to commence or maintain a charge or
action alleging discrimination under any federal, state, or local statute
(whether before a court or an administrative agency), including, but not limited
to, Title VII of the Civil Rights Act of 1964, the Employee Retirement Income
Security Act of 1974, the Americans with Disabilities Act, the Family and
Medical Leave Act, the Fair Labor Standards Act, all as amended from time to
time, and to any right which Laubich, his heirs, successors or assigns have or
may have to commence or maintain a claim for attorneys' fees, wrongful
discharge, estoppel, breach of contract, damage to personal or professional
reputation, misrepresentation, and/or intentional or negligent infliction of
emotional distress. Laubich warrants and represents he has not directly or
indirectly transferred or assigned rights or causes of action against the
Employer Released Parties. Laubich agrees not to make, assert or maintain any
charge, claim, demand or action which would be covered by this release. If
Laubich breaches this provision, he agrees to indemnify the Employer Released
Parties against all liability, costs and expenses, including reasonable
attorneys' fees, related to such breach.
(b) Company. In consideration for the promises made by the
parties in this Agreement, the receipt and sufficiency of which are hereby
acknowledged, the Company hereby releases and forever discharges, except as
hereinafter expressly provided, Laubich and his successors and assigns, past and
present ("Laubich Released Parties"), jointly and individually, from any and all
claims, obligations, demands, damages, causes of action or liabilities of any
nature or kind whatsoever, known or unknown, which the Company and/or a
subsidiary or affiliate of the Company ever had or now has arising out of or in
any way connected with Laubich's employment and/or separation from Company or
its subsidiaries and affiliates including, but not limited to, claims arising
under or relating to the employment agreement dated as of May 14, 1998 between
the Company and Laubich, Laubich's services in any capacities described in
Section 1 and Laubich's services as a director of the Company; provided,
however, that this release does not include, and specifically excludes, any and
all claims, obligations, demands, damages, causes of action or liabilities
relating to or arising from any claims as to which indemnification of a director
or officer of the Company would be unavailable under Maryland law. The Company
warrants and represents that neither it, nor a subsidiary, nor an affiliate of
the Company has directly or indirectly transferred or assigned rights or causes
of action against the Laubich Released Parties. The Company agrees not to make,
assert or maintain (either directly or indirectly through a subsidiary or an
affiliate of the Company) any charge, claim, demand or action which would be
covered by this release. If the Company breaches this provision, it agrees to
indemnify the Laubich Released Parties against all liability, costs and
expenses, including reasonable attorneys' fees, related to such breach.
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<PAGE> 8
10. Cooperation. For four (4) years after expiration of the
Employment Period, Laubich agrees to make himself available at reasonable times
during normal business hours and upon reasonable notice to the Senior Executive
Officers and the Company's accountants for the purpose of assisting with
responding to questions, depositions, administrative proceedings and court
hearings, executing documents, and cooperating with Company and its accountants
and legal counsel with respect to claims and litigation of which he has personal
or corporate knowledge. The Company agrees to pay Laubich a per diem of $2500
per day for each full or partial day of service (including travel days)
performed by Laubich for the Company hereunder and the Company shall reimburse
Laubich for all reasonable expenses, including, without limitation, travel
expenses, incurred in connection with such service upon the presentation of
reasonable itemized statements of such expenses in accordance with the Company's
policies and procedures now in force or as such policies and procedures may be
modified with respect to all senior executive officers.
11. Non-Disparagement.
(a) Laubich agrees that he will not, directly or indirectly,
individually or in concert with others, intentionally engage in any conduct or
make any statement that is calculated or likely to have the effect of
undermining or disparaging the reputation of the Company or any entity in
control of, controlled by or under common control with the Company or in which
the Company owns any material amount of common or preferred stock or interest or
any entity in control of, controlled by or under common control with such entity
("Affiliate"), or their good will, products, or business opportunities or that
is calculated or likely to have the effect of undermining or disparaging the
reputation of any officer, director, agent, representative, or employee, past or
present, of the Company and/or its Affiliates; provided, however, that this
Section shall not preclude Laubich from writing a book regarding the history of
the Company provided that no disparaging or negative remarks are made with
respect to any officer, director or employee, past or present, of the Company or
its Affiliates; and provided further, however, that Laubich will be able to
respond to any statement made or published by the Company in breach of its
obligations under Section 11(b) below (and/or a statement made by a current or
former director or officer of the Company that would have been in violation of
this provision had such person been a party to this Agreement).
(b) The Company agrees that it will not, directly or
indirectly, individually or in concert with others, intentionally engage in any
conduct or make any statement that is calculated or likely to have the effect of
undermining or disparaging the reputation of Laubich; provided, however, that
the Company will be able to respond to any statement made or published by
Laubich in breach of his obligations under Section 11(a) above. The Company will
inform its directors and executive officers of this requirement and will take
reasonable measures to cause its directors and officers to comply with it.
12. ADEA Waiver. Laubich acknowledges that this Agreement includes a
waiver of any rights and claims arising under the Age Discrimination in
Employment Act ("ADEA"). Laubich understands he is not waiving rights or claims
that may arise after the date this Agreement
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<PAGE> 9
is executed. Laubich agrees that in exchange for the consideration he is paid
under this Agreement, he will execute another release from liability in the
Company's favor on or about the Date of Termination in the form set forth in
Exhibit B. Laubich acknowledges that the consideration he is receiving in
exchange for his waiver of the rights and claims specified herein exceeds
anything of value to which he already is entitled. Laubich acknowledges that he
was advised in writing on or prior to January 31, 2000, to consult with an
attorney prior to executing this Agreement. Laubich acknowledges that he has
entered into this Agreement knowingly and voluntarily with full understanding of
its terms and after having had the opportunity to seek and receive advice and
counsel from his attorney. Laubich acknowledges that he was given a period of at
least twenty-one (21) days within which to consider this Agreement and was so
advised in writing on or prior to January 31, 2000. Laubich understands that he
may revoke this ADEA waiver during the seven (7) days following the execution of
this Agreement and that the ADEA waiver shall not become effective or
enforceable until that seven-day revocation period has expired.
13. Mitigation. Laubich shall not be required to mitigate amounts
payable under this Agreement by seeking other employment or otherwise, and there
shall be no offset against amounts due Laubich under this Agreement on account
of subsequent employment. Additionally, amounts owed to Laubich under this
Agreement shall not be offset by any claims the Company may have against
Laubich, and the Company's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any other circumstances, including, without limitation, any
counterclaim, recoupment, defense or other right which the Company may have
against Laubich or others.
14. Confidential Information, Ownership of Documents;
Non-Competition.
(a) Confidential Information. Laubich shall hold for the
benefit of the Company all trade secrets and confidential information, knowledge
or data relating to the Company and its businesses and investments, which shall
have been obtained by Laubich during Laubich's employment by the Company and
which is not generally available public knowledge (other than by acts by Laubich
in violation of this Agreement). Except as may be required or appropriate in
connection with his carrying out his duties or enforcing his rights under this
Agreement, Laubich shall not, without the prior written consent of the Company
or as may otherwise be required by law or any legal process, or as is necessary
in connection with any adversarial proceeding against the Company (in which case
Laubich shall use his reasonable best efforts in cooperating with the Company in
obtaining a protective order against disclosure by a court of competent
jurisdiction), communicate or divulge any such trade secrets, information,
knowledge or data to anyone other than the Company and those designated by the
Company or on behalf of the Company in the furtherance of its business or to
perform duties hereunder.
(b) Removal of Documents; Rights to Products. All records,
files, drawings, documents, models, equipment, and the like relating to the
Company's business which Laubich has control over shall not be removed from the
Company's premises without its written consent, unless
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such removal is in the furtherance of the Company's business or is in connection
with Laubich's carrying out his duties under this Agreement and, if so removed,
shall be returned to the Company promptly after termination of Laubich's
employment hereunder, or otherwise promptly after removal if such removal occurs
following termination of employment. Laubich shall assign to the Company all
rights to trade secrets and other products relating to the Company's business
developed by him alone or in conjunction with others at any time while employed
by the Company.
(c) Protection of Business. During the Employment Period and
until the first anniversary of the later of Laubich's Date of Termination or the
date Laubich ceases to be a director of the Company, Laubich will not (i) engage
in any business, directly or as an officer, director, partner or joint venturer,
related to strip shopping centers or factory outlet centers, which is
competitive with the Company, (ii) divert to any person or entity any strip
shopping center or factory outlet center project that the Company or its
Affiliates are pursuing, developing or attempting to develop on the Effective
Date of this Agreement, unless such project has been inactive for over nine (9)
months, or (iii) solicit any officer, employee (other than secretarial staff) or
consultant of the Company to leave the employ of the Company; provided, however,
that nothing in this sentence shall prohibit Laubich from dealing in any manner
with the properties and partnerships listed in Exhibit D, or from consulting
with or performing services for entities leasing space as tenants in strip
shopping centers or factory outlet centers other than those centers in which the
Company, directly or indirectly, owns an interest. Notwithstanding the preceding
sentence, Laubich shall not be prohibited from owning the securities of any
publicly traded corporation, whether or not such corporation is in competition
with the Company and Laubich shall not be precluded from retaining any interest
or investment owned or held by Laubich as of the Effective Date. If, at any
time, the provisions of this Section 14(c) shall be determined to be invalid or
unenforceable, by reason of being vague or unreasonable as to area, duration or
scope of activity, this Section 14(c) shall be considered divisible and shall
become and be immediately amended to only such area, duration and scope of
activity as shall be determined to be reasonable and enforceable by the court or
other body having jurisdiction over the matter; and Laubich agrees that this
Section 14(c) as so amended shall be valid and binding as though any invalid or
unenforceable provision had not been included herein.
(d) Injunctive Relief. In the event of a breach or
threatened breach of this Section 14, Laubich agrees that the Company shall be
entitled to injunctive relief in a court of appropriate jurisdiction to remedy
any such breach or threatened breach, Laubich acknowledging that damages would
be inadequate and insufficient.
(e) Continuing Operation. Except as specifically provided in
this Section 14, the termination of Laubich's employment or of this Agreement
shall have no effect on the continuing operation of this Section 14.
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15. Indemnification and Insurance.
(a) General. The Company agrees that if Laubich is made a
party or is threatened to be made a party to any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "Proceeding"), by
reason of the fact that Laubich is or was a trustee, director or officer of the
Company or any subsidiary or affiliate of the Company or is or was serving at
the request of the Company or any subsidiary or affiliate as a trustee,
director, officer, member, employee or agent of another corporation or a
partnership, joint venture, trust or other enterprise, including, without
limitation, service with respect to employee benefit plans, whether or not the
basis of such Proceeding is alleged action in an official capacity as a trustee,
director, officer, member, employee or agent while serving as a trustee,
director, officer, member, employee or agent, Laubich shall be indemnified and
held harmless by the Company to the fullest extent authorized by Maryland law,
as the same exists or may hereafter be amended, against all Expenses incurred or
suffered by Laubich in connection therewith, and such indemnification shall
continue as to Laubich even if Laubich has ceased to be an officer, director,
trustee or agent, or is no longer employed by the Company and shall inure to the
benefit of his heirs, executors and administrators.
(b) Expenses. As used in this Agreement, the term "Expenses"
shall include, without limitation, damages, losses, judgments, liabilities,
fines, penalties, excise taxes, settlements, and costs, attorneys' fees,
accountants' fees, and disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to indemnification
under this Agreement.
(c) Enforcement. If a claim or request under this Agreement
is not paid by the Company or on its behalf, within thirty (30) days after a
written claim or request has been received by the Company, Laubich may at any
time thereafter bring suit against the Company to recover the unpaid amount of
the claim or request and, if successful in whole or in part, Laubich shall be
entitled to be paid also the Expenses of prosecuting such suit. All obligations
for indemnification hereunder shall be subject to, and paid in accordance with,
applicable Maryland law.
(d) Partial Indemnification. If Laubich is entitled under
any provision of this Agreement to indemnification by the Company for some or a
portion of any Expenses, but not, however, for the total amount thereof, the
Company shall nevertheless indemnify Laubich for the portion of such Expenses
for which Laubich is entitled to indemnification.
(e) Advances of Expenses. Expenses incurred by Laubich in
connection with any Proceeding shall be paid by the Company in advance upon
request of Laubich that the Company pay such Expenses; but only in the event
that Laubich shall have delivered in writing to the Company (i) an undertaking
to reimburse the Company for Expenses with respect to which Laubich is not
entitled to indemnification and (ii) an affirmation of his good faith belief
that the standard of conduct necessary for indemnification by the Company has
been met.
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(f) Notice of Claim. Laubich shall give to the Company
notice of any claim made against him for which indemnification will or could be
sought under this Agreement. In addition, Laubich shall give the Company such
information and cooperation as it may reasonably require relating to such claims
and as shall be reasonably within Laubich's power, at such times and places as
are convenient for Laubich.
(g) Defense of Claim. With respect to any Proceeding as to
which Laubich notifies the Company of the commencement thereof:
(i) The Company will be entitled to participate
therein at its own expense;
(ii) Except as otherwise provided below, to the extent
that it may wish, the Company will be entitled to assume the defense
thereof, with counsel reasonably satisfactory to Laubich which in the
Company's sole discretion may be regular counsel to the Company and
may be counsel to other officers and directors of the Company or any
subsidiary. Laubich also shall have the right to employ his own
counsel in such action, suit or proceeding if he reasonably concludes
that failure to do so would involve a conflict of interest between the
Company and Laubich, and under such circumstances the fees and
expenses of such counsel shall be at the expense of the Company; and
(iii) The Company shall not be liable to indemnify
Laubich under this Agreement for any amounts paid in settlement of any
action or claim effected without its written consent. The Company shall
not settle any action or claim in any manner which would impose any
penalty or limitation on Laubich without Laubich's written consent.
Neither the Company nor Laubich will unreasonably withhold or delay
their consent to any proposed settlement.
(h) Non-exclusivity. The right to indemnification and the
payment of expenses incurred in defending a Proceeding in advance of its final
disposition conferred in this Section 15 shall not be exclusive of any other
right which Laubich may have or hereafter may acquire under any statute,
provision of the declaration of trust or certificate of incorporation or by-laws
of the Company or any subsidiary, agreement, vote of shareholders or
disinterested directors or trustees or otherwise.
(i) Insurance. From the Effective Date through the sixth
anniversary of Laubich ceasing to be a director of the Company, the Company
agrees that Laubich shall be covered under any director's and officer's
liability insurance policy maintained by the Company with respect to the Board
and senior executive officers as in effect from time to time but the Company
shall have no requirement or obligation to continue to maintain any director's
and officer's liability insurance policy.
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<PAGE> 13
16. Legal Fees and Expenses. The Company shall pay, or reimburse
Laubich for at Laubich's discretion, reasonable attorney fees actually incurred
by Laubich in connection with the negotiation, execution and delivery of this
Agreement in an amount up to ten thousand dollars ($10,000). If any contest or
dispute shall arise between the Company and Laubich regarding any provision of
this Agreement, the Company shall reimburse Laubich for all legal fees and
expenses reasonably incurred by Laubich in connection with such contest or
dispute, but only if Laubich prevails in respect of the material issues in
dispute of Laubich's claims brought and pursued in connection with such contest
or dispute. Such reimbursement shall be made as soon as practicable following
the final resolution of such contest or dispute to the extent the Company
receives reasonable written evidence of such fees and expenses.
17. Successors; Binding Agreement.
(a) Company's Successors. No rights or obligations of the
Company under this Agreement may be assigned or transferred except that the
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as herein before defined and any
successor to its business and/or assets (by merger, purchase or otherwise) which
executes and delivers the agreement provided for in this Section 17 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
(b) Laubich's Successors. No rights or obligations of
Laubich under the Agreement may be assigned or transferred by Laubich other than
his rights to payments or benefits hereunder, which may be transferred only by
will or the laws of descent and distribution. Upon Laubich's death, this
Agreement and all rights of Laubich hereunder shall inure to the benefit of and
be enforceable by Laubich's beneficiary or beneficiaries, personal or legal
representatives, or estate, to the extent any such person succeeds to Laubich's
interests under this Agreement. Laubich shall be entitled to select and change a
beneficiary or beneficiaries to receive any benefit or compensation payable
hereunder following Laubich's death by giving the Company written notice
thereof. In the event of Laubich's death or a judicial determination of his
incompetence, reference in this Agreement to Laubich shall be deemed, where
appropriate, to refer to his beneficiary(ies), estate or other legal
representative(s). If Laubich should die on or after the Effective Date while
any amounts (which shall not include any Base Salary for any period after
Laubich's death if he died while employed by the Company) would still be payable
to him hereunder if he had continued to live, all such amounts unless otherwise
provided herein shall be paid in accordance with the terms of this Agreement to
such person or persons so appointed in writing by Laubich, or otherwise to his
legal representatives or estate and the provisions of Section 1(d) relating to
medical, dental and hospitalization benefits shall continue to apply with
respect to Laubich's surviving spouse and/or dependents.
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<PAGE> 14
18. Notice. For the purposes of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered either personally or by
United States certified or registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to Laubich:
Arnold Laubich
4 Laura Lane
Scarsdale, New York 10583
with a copy to:
Fred C. Kneip
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, New York 10005
If to the Company:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
Attn: General Counsel
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
19. Miscellaneous. No provisions of this Agreement may be amended,
modified, or waived unless such amendment or modification is agreed to in
writing signed by Laubich and by a duly authorized officer of the Company, and
such waiver is set forth in writing and signed by the party to be charged. No
waiver by either party hereto at any time of any breach by the other party
hereto of any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. The respective rights
and obligations of the parties hereunder of this Agreement shall survive
Laubich's termination of employment and the termination of this Agreement to the
extent necessary for the intended preservation of such rights and obligations.
The validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of New York without regard to its
conflicts of law principles.
20. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of the Agreement, which shall remain in full force and
effect.
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<PAGE> 15
21. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
22. Entire Agreement. Except as otherwise expressly provided herein,
this Agreement sets forth the entire agreement of the parties hereto in respect
of the subject matter contained herein and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto in respect of such subject matter. Any prior agreement of
the parties hereto in respect of the subject matter contained herein, including
without limitation, the 1998 Employment Agreement, is hereby terminated and
canceled with no rights or claim to any payment or benefits thereunder
(including without limitation any payments or benefits under the 1998 Employment
Agreement for termination by the Company without Cause or by Laubich for Good
Reason).
23. Withholding. All payments under this Agreement shall be subject
to any required withholding of Federal, state and local taxes pursuant to any
applicable law or regulation.
24. Press Release; Annual Report. The Company and Laubich will
mutually agree upon the text of a statement concerning the circumstances of
Laubich's retirement and resignation from the Company, and the Company will
inform Laubich reasonably in advance of the making of such statement. All
subsequent announcements and communications to be made by the Company in
relation to Laubich's retirement and resignation shall be based upon and
consistent with such statement. The Company will inform its directors and
executive officers of this requirement and will take reasonable measures to
cause its directors and officers to comply with it. In addition, the Company and
Laubich will mutually agree upon a brief statement from Laubich to the
shareholders to be included in the Company's next annual report for the purpose
of allowing Laubich to express his thanks and appreciation to the shareholders,
employees and customers of the Company.
25. Noncontravention. The Company represents that this Agreement has
been fully authorized by the Board and that the Company is not prevented from
entering into, or performing this Agreement by the terms of any law, order, rule
or regulation, its by-laws or certificate of incorporation, or any agreement to
which it is a party, other than which would not have a material adverse effect
on the Company's ability to enter into or perform this Agreement.
26. Section Headings. The section headings in this Agreement are for
convenience of reference only, and they form no part of this Agreement and shall
not affect its interpretation.
27. ACKNOWLEDGMENT. LAUBICH REPRESENTS AND AGREES THAT HE FULLY
UNDERSTANDS HIS RIGHT TO DISCUSS ALL ASPECTS OF THIS AGREEMENT WITH LEGAL
COUNSEL AND, TO THE EXTENT HE DEEMS APPROPRIATE, HE HAS FULLY AVAILED HIMSELF OF
THIS RIGHT, AND HE HAS CAREFULLY READ AND
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<PAGE> 16
FULLY UNDERSTANDS ALL THE PROVISIONS OF THIS AGREEMENT AND IS VOLUNTARILY
ENTERING INTO THEM.
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<PAGE> 17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
NEW PLAN EXCEL REALTY TRUST,
INC., a Maryland corporation
By: /s/ Steven F. Siegel
-----------------------------
Name: Steven F. Siegel
---------------------------
Title: Sr. VP
--------------------------
ARNOLD LAUBICH
/s/ Arnold Laubich
--------------------------------
17
<PAGE> 1
[NEW PLAN EXCEL REALTY TRUST, INC. PRESS RELEASE]
FOR IMMEDIATE RELEASE
CONTACT: Stacy Lipschitz
Director of Corporate Communications
New Plan Excel Realty Trust, Inc.
212-869-3000 EXT. 3359
NEW PLAN EXCEL REALTY TRUST NAMES GLENN RUFRANO CEO AND PRESIDENT
NEW YORK, February 25, 2000 -- New Plan Excel Realty Trust, Inc. (NYSE: NXL)
today announced the appointment of real estate executive Glenn J. Rufrano, 50,
as Chief Executive Officer and President of the Company. Mr. Rufrano will be
nominated to serve as a member of the Company's Board of Directors, in place of
a current inside director, at the Annual Meeting of Shareholders to be held on
May 31, 2000, and will become a member of the Company's Investment Committee.
This appointment is effective immediately, with Mr. Rufrano transitioning in
over a period not to exceed thirty days. His immediate initiatives will focus on
the overall strategic direction of the Company, including an evaluation of the
Company's portfolio of over 350 properties.
Mr. Rufrano succeeds Arnold Laubich, who will retire as both CEO and President
after dedicating more than 50 years to New Plan Excel Realty Trust and its
predecessors. Mr. Laubich will retain his seat on the Board, and to ensure
continuity during the management transition, he will remain at the Company for
the next thirty days as a full-time consultant to Mr. Rufrano, and thereafter,
for six months, as a part-time consultant to Mr. Rufrano.
Additionally, the Board of Directors of the Company has agreed that by September
2001 a majority of the Board will be composed of outside directors. The new
structure reflects the Board's commitment to enhanced corporate governance
practices and maximizes the experience and guidance of outside directors.
Mr. Rufrano has been a partner for over seventeen years at The O'Connor Group, a
diversified real estate investment firm. He acted as both Chief Financial
Officer and Chief Operating Officer during this period, and brings to New Plan
Excel Realty Trust a solid knowledge of corporate finance and property
fundamentals, as well as established relationships with real estate investors,
including public and private pension funds, insurance companies, foundations and
endowments. Most recently, Mr. Rufrano served as President of The O'Connor Group
where his responsibilities included the investment and management of three
private equity funds, as well as client service / marketing and finance
activities. Concurrently, he was Co-Chairman of The Peabody Group, an
association between The O'Connor Group and J.P. Morgan & Co., Inc., which
recently raised over $800 million of capital for high-yield international
investment opportunities. During his tenure at The O'Connor Group, the firm
managed over $7 billion of real estate assets of which approximately half were
retail assets,
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<PAGE> 2
New Plan Excel Realty Trust, Inc.
including a $1.5 billion private REIT. The $7 billion portfolio was
geographically dispersed across the country and comprised of both direct and
indirect interests in retail, as well as multi-family residential, office and
industrial space.
Prior to joining The O'Connor Group at its inception in 1983, Mr. Rufrano was a
Senior Vice President in the Appraisal and Property Dispositions Department at
Landauer Associates, a commercial real estate counseling firm. He currently
serves on a number of boards at New York University's Real Estate Institute,
where he is an adjunct professor, and is a member of the Board of Directors of
TrizecHahn Corporation. Mr. Rufrano is also a member of the Urban Land
Institute, the International Council of Shopping Centers and the Pension Real
Estate Association.
William Newman, Chairman of the Board of Directors, commented, "We are very
pleased to welcome Glenn as the new leader of our management team. We are
confident that his extensive experience and fresh perspective will contribute
greatly to our long-term strategy."
Mr. Newman concluded, "Arnold's innovative thinking and insightful appreciation
of the real estate market has played a pivotal role in the development of our
Company. During his tenure as President, and as CEO since 1998, he helped New
Plan build a solid portfolio of retail properties and achieve uninterrupted
dividend growth. We thank him for his dedication and wish him a fulfilling
retirement."
New Plan Excel Realty Trust, Inc. is one of the nation's largest real estate
companies, focusing on the ownership, management, acquisition, development and
redevelopment of community and neighborhood shopping centers and garden
apartment communities. The Company operates as a self-administered and
self-managed REIT, with a national portfolio of 355 properties, total assets of
approximately $3.0 billion and a track record of 83 consecutive quarters of
dividend growth. Its properties are strategically located across 31 states and
include 294 retail centers, primarily high-quality supermarket or discount store
anchored, with a total of approximately 37 million square feet of gross leasable
area; 53 garden apartment communities containing 12,560 units; and 8
miscellaneous commercial properties. For additional information, please visit
the New Plan Excel Realty Trust, Inc. web site at www.newplanexcel.com.
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
"Business-Risk Factors" in the Company's Annual Report on Form 10K/A for the
year ended Dec. 31, 1998, which discuss these and other factors that could
adversely affect the Company's results.
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