<PAGE> 1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES ACT OF
- --- 1934
For the quarterly period ended June 30, 1996
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES ACT OF
- --- 1934
For the transition period from to
---------- ----------
Commission file number 1-10093
RAMCO-GERSHENSON PROPERTIES TRUST
---------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<S><C>
MASSACHUSETTS 13-6908488
- ------------- ----------
(State or other jurisdiction (I.R.S. Employer Identification
of incorporation or organization) Number)
27600 Northwestern Highway, Suite 200, Southfield, Michigan 48034
- ------------------------------------------------ -----
(Address of principal executive offices) (Zip code)
</TABLE>
810-350-9900
------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
----- -----
Number of shares of beneficial interest ($.10 par value) of the Registrant
outstanding as of July 8, 1996: 7,123,105.
<PAGE> 2
INDEX
<TABLE>
<CAPTION>
Part I. FINANCIAL INFORMATION Page No.
--------
<S> <C>
Item 1. Financial Statements
Consolidated Balance Sheets - June 30, 1996
December 31, 1995............................................................... 3
Consolidated Statements of Operations - Three Months and Six Months Ended
June 30, 1996 and 1995.......................................................... 4
Consolidated Statement of Shareholders' Equity - Six Months Ended
June 30, 1996................................................................... 5
Consolidated Statements of Cash Flows - Six Months Ended
June 30, 1996 and 1995.......................................................... 6
Notes to Consolidated Financial Statements.............................................. 7
Item 2.
Management's Discussion and Analysis of Financial Condition
and Results of Operations....................................................... 16
Item 4.
Submission of Matters to a Vote of
Security Holders................................................................ 21
Part II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K....................................................... 22
</TABLE>
2
<PAGE> 3
PART I - FINANCIAL INFORMATION
ITEM 1 - FINANCIAL STATEMENTS
RAMCO-GERSHENSON PROPERTIES TRUST
CONSOLIDATED BALANCE SHEETS
(in thousands, except per share data)
<TABLE>
<CAPTION>
June 30, December 31,
1996 1995 (*)
-------- ------------
(unaudited)
<S> <C> <C>
ASSETS
Real Estate, Net (Note 3) $283,871 $ 55,299
Mortgage Loans Receivable, net of allowance
for possible loan losses of $10,231
in 1995 0 36,023
REMIC Investments 0 58,099
Interest and Accounts receivable, net 1,929 7,748
Due from Atlantic Realty Trust 5,644 0
Other assets, net (Note 4) 1,722 11,945
Equity Investments in Unconsolidated Entities 5,395 0
Cash and cash equivalents 3,024 11,467
-------- --------
TOTAL $301,585 $180,581
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
LIABILITIES
Mortgages and Notes Payable (Note 5) $114,530 $0
Distributions Payable 2,738 2,279
Accounts Payable 2,067 1,282
Accrued Expenses 5,682 0
Due to Ramco Affiliates 10,037 0
-------- --------
TOTAL LIABILITIES 135,054 3,561
COMMITMENTS AND CONTINGENCIES (Note 7) -- --
MINORITY INTEREST 44,961 0
SHAREHOLDERS' EQUITY 121,570 177,020
-------- --------
TOTAL $301,585 $180,581
======== ========
</TABLE>
See notes to consolidated financial statements
(*) The 1995 historical results consist of the operations of RPS Realty Trust
(Note 1)
3
<PAGE> 4
RAMCO-GERSHENSON PROPERTIES TRUST
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED ENDED
JUNE 30, JUNE 30,
1996 1995 (*) 1996 1995 (*)
---- -------- ---- --------
<S> <C> <C> <C> <C>
REVENUES
Minimum rents $5,790 $1,527 $7,254 $3,157
Percentage rents 250 236 646 494
Recoveries from tenants 2,879 387 3,364 791
Interest and other income 632 1,928 2,548 3,883
------- ------ ------- ------
TOTAL REVENUES 9,551 4,078 13,812 8,325
------- ------ ------- ------
EXPENSES
Property operating and maintenance 2,646 502 3,048 853
Real estate taxes 831 329 1,159 660
General and administrative 1,205 1,004 2,287 1,974
Interest expense 1,740 0 1,740 0
Depreciation and amortization 1,208 305 1,465 604
Spin-off and other expenses (Note 1) 6,276 0 7,933 0
Allowance for loan losses 0 0 0 3,000
------- ------ ------- ------
TOTAL EXPENSES 13,906 2,140 17,632 7,091
------- ------ ------- ------
OPERATING INCOME (LOSS) (4,355) 1,938 (3,820) 1,234
LOSS FROM UNCONSOLIDATED ENTITIES (92) 0 (92) 0
------- ------ ------- ------
INCOME (LOSS) BEFORE MINORITY INTEREST (4,447) 1,938 (3,912) 1,234
MINORITY INTEREST (447) 0 (447) 0
------- ------ ------- ------
NET INCOME (LOSS) ($4,894) $1,938 ($4,359) $1,234
======= ====== ======= ======
NET INCOME (LOSS) PER SHARE ($0.69) $0.27 ($0.61) $0.17
======= ====== ======= ======
WEIGHTED AVERAGE SHARES OUTSTANDING 7,123 7,123 7,123 7,123
======= ====== ======= ======
</TABLE>
See notes to consolidated financial statements
(*) The 1995 historical results consist of the operations of RPS Realty Trust
(Note 1)
4
<PAGE> 5
RAMCO-GERSHENSON PROPERTIES TRUST
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
(in thousands)
(Unaudited)
<TABLE>
<CAPTION>
SHARES OF ADDITIONAL CUMULATIVE TOTAL
BENEFICIAL INTEREST PAID-IN EARNINGS/ SHAREHOLDERS'
---------------------------
NUMBER AMOUNT CAPITAL DISTRIBUTION EQUITY
------ ------- -------- ------------ -----------
<S> <C> <C> <C> <C>
BALANCE AT JANUARY 1, 1996 7,123 $712 $197,061 ($20,753) $177,020
Assets transferred in spin-off transaction (45,483) (45,483)
Minority interests' equity (1,335) (1,335)
Cash Distributions Declared (4,273) (4,273)
Net loss for the six months ended June 30, 1996 (4,359) (4,359)
----- ---- -------- -------- --------
BALANCE AT JUNE 30, 1996 7,123 $712 $150,243 ($29,385) $121,570
===== ==== ======== ======== ========
</TABLE>
See notes to consolidated financial statements
5
<PAGE> 6
RAMCO-GERSHENSON PROPERTIES TRUST
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(Unaudited)
<TABLE>
<CAPTION>
FOR THE SIX MONTHS
ENDED
JUNE 30,
1996 1995 (*)
---- --------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
NET INCOME (LOSS) ($4,359) $1,234
Adjustments to reconcile net income to
net cash flows provided by operating
activities:
Provision for possible loan losses 129 3,000
Write-off of deferred acquisition expenses 2,154 0
Loss on disposal of REMICs 91 0
Depreciation and Amortization 1,465 604
Loss from unconsolidated entities 92 0
Minority Interest 447 0
Changes in assets and liabilities that
provided (used) cash:
Interest and accounts receivable 5,232 350
Other assets (966) (4,345)
Accounts payable and accrued expenses 2,770 14
------ -----
Total Adjustments 11,414 (377)
CASH FLOWS PROVIDED BY ------ -----
OPERATING ACTIVITIES 7,055 857
------ -----
CASH FLOWS FROM INVESTING ACTIVITIES
Satisfaction of Mortgage Loans Receivable (3,417) 3,000
Amortization of REMICs 1,100 0
Proceeds from REMICS 56,908 0
Real Estate Acquired (1,574) (811)
CASH FLOWS PROVIDED BY ------ -----
INVESTING ACTIVITIES 53,017 2,189
------ -----
CASH FLOWS FROM FINANCING ACTIVITIES
Distributions to shareholders (4,559) (4,559)
Principal repayments on debt (70,050) 0
Advances to affiliated entities, net (4,044) 0
Advances from affiliated entities, net 232 0
Borrowings on debt 9,906 0
------- -------
CASH FLOWS USED IN
FINANCING ACTIVITIES (68,515) (4,559)
======= =======
Net decrease in cash and cash equivalents ($8,443) ($1,513)
======= =======
Cash and cash equivalents, beginning of period $11,467 $74,584
======= =======
Cash and cash equivalents, end of period $3,024 $73,071
======= =======
SUPPLEMENTAL DISCLOSURES OF CASH
FLOW INFORMATION - CASH PAID FOR
INTEREST DURING THE PERIOD $1,106 $0
------ -------
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING
AND FINANCING ACTIVITIES
Accrued distributions payable $2,738 $2,279
Spin-off of Net Assets to Atlantic $45,483 $0
Acquisition of Ramco:
Debt assumed $176,556 $0
Value of OP Units issued $43,835 $0
Other liabilities assumed $2,097 $0
Debt assumed from Ramco affiliates in exchange
for real estate $9,805 $0
Interest and Accounts Payable $0 ($326)
Allowance for Possible Loan Losses $0 $1,876
Mortgages Receivable $0 ($1,550)
</TABLE>
See notes to consolidated financial statements
(*) The 1995 historical results consist of the operations of RPS Realty Trust
6
<PAGE> 7
RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
1. RAMCO ACQUISITION AND SPIN-OFF TRANSACTIONS
Effective May 1, 1996, Ramco-Gershenson Properties Trust, formerly known as RPS
Realty Trust (the "Company"), completed the previously announced acquisition of
substantially all of the shopping center and retail properties, as well as the
management organization, personnel, and business operations of
Ramco-Gershenson, Inc. and its affiliates (the "Ramco Acquisition") and the
spin-off of its wholly owned subsidiary Atlantic Realty Trust ("Atlantic"), a
Maryland real estate investment trust. In connection with the Ramco
Acquisition, the Company's name was changed to Ramco-Gershenson Properties
Trust and a one-for-four reverse stock split was effectuated as of the close of
business on May 1, 1996.
Concurrent with the Ramco Acquisition, the former owners of the Ramco Properties
(as defined below) and the shareholders of Ramco-Gershenson, Inc. ("Ramco")
(collectively, the "Ramco Group") transferred to Ramco-Gershenson Properties,
L.P. (the "Operating Partnership") (i) their interests in 20 shopping center and
retail properties (the "Ramco Properties") containing an aggregate of
approximately 5,114,000 square feet of total GLA, of which approximately
3,706,000 square feet is owned by the Operating Partnership, and the balance is
owned by certain anchor tenants, (ii) 100% of the non-voting common stock and 5%
of the voting common stock in Ramco (representing in excess of a 95% economic
interest in Ramco), (iii) 50% general partner interests of two partnerships
which each own a shopping center, (iv) rights in and/or options to acquire
certain development land , (v) options to acquire the Ramco Group's interest in
six shopping center properties and (vi) five outparcels.
In return for these transfers, the Ramco Group received, 2,377,492 units of the
Operating Partnership (representing an approximate 25% limited partnership
interest in the operating partnership). In addition, the Ramco Group received
279,181 units (the "PharMor Space Units") as a partial earnout relative to
Jackson Crossing Shopping Center (representing an approximate 2% limited
partnership interest in the operating partnership). Ramco Group's aggregate
units of 2,656,673 represent an approximate 27% limited partnership interest in
the Operating Partnership. The Company assumed approximately $176,556 of secured
indebtedness on the Ramco Properties. The aggregate interest in the Operating
Partnership to be received by the Ramco Group may be increased to a maximum of
approximately 29% if certain leasing plans with respect to one of the Ramco
Properties are fulfilled. Subject to certain limitations, the interests in the
Operating Partnership are exchangeable into shares of the Company on a
one-for-one basis beginning on May 10, 1997.
Pursuant to the Ramco Acquisition, the Company transferred to the Operating
Partnership six properties containing an aggregate of approximately 931,000
square feet of gross leaseable area ("GLA") and $68,000 in cash in exchange for
7,123,105 units of the Operating Partnership (representing a 1% General
Partnership interest, and a 72% limited partnership interest after giving effect
for the reduction of 2% for the Ramco Group's earnout).
7
<PAGE> 8
RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
Concurrently with the closing of the Ramco Acquisition, the Company's former
mortgage loan portfolio as well as certain of its former real estate assets
were transferred to Atlantic and the shares of Atlantic were distributed to the
Company's shareholders.
For the six months ended June 30, 1996 non-recurring expenses, including the
spin-off of Atlantic have been charged to operations as follows:
<TABLE>
<S> <C>
Severance and other termination costs $4,629
Directors and officers insurance 1,150
Write-off of deferred acquisition expense 2,154
------
$7,933
======
</TABLE>
2. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION - The accompanying interim financial statements and
related notes of the Company are unaudited; however, they have been prepared in
accordance with generally accepted accounting principles for interim financial
reporting, the instructions to Form 10-Q and the rules and regulations of the
Securities and Exchange Commission. Accordingly, certain information and
footnote disclosures normally included in financial statements prepared under
generally accepted accounting principles have been condensed or omitted
pursuant to such rules. The unaudited interim financial statements should be
read in conjunction with the audited financial statements and related notes
included in the Company's Annual Report on Form 10-K for the year ended
December 31, 1995. In the opinion of management, all adjustments (consisting
only of normal recurring adjustments) necessary for a fair presentation of the
financial statements for the interim periods have been made. The results for
interim periods are not necessarily indicative of the results for a full year.
The consolidated financial statements of the Company include the effects of the
Ramco Acquisition and the spin-off of Atlantic as well as the operations of the
Operating Partnership for the 61-day period ended June 30, 1996.
RECLASSIFICATIONS - Certain reclassifications have been made to the 1995
consolidated financial statements in order to conform with the 1996
presentation.
OTHER ASSETS - consist primarily of financing costs and leasing costs which are
amortized over the terms of the respective agreements.
8
<PAGE> 9
RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
PRINCIPLES OF CONSOLIDATION - The consolidated financial statements include the
accounts of the Company and its majority owned subsidiary, the Operating
Partnership (73% owned by the Company at June 30, 1996). All significant
intercompany accounts and transactions have been eliminated in consolidation.
INVESTMENTS IN UNCONSOLIDATED ENTITIES - consist of 50% general partner
interests in Kentwood Town Center ("Kentwood") and the Southfield Plaza
Expansion ("Southfield Plaza") and the Company's 100% interest in the
non-voting and 5% interest in the voting common stock of Ramco. These
investments are not unilaterally controlled and are therefore accounted for on
the equity method.
REAL ESTATE - Real estate assets are stated at cost. Costs incurred for the
acquisition, development, construction, and improvement of properties are
capitalized, including direct costs incurred by Ramco. Depreciation is
computed using the straight-line method over estimated useful lives.
Expenditures for improvements and construction allowances paid to tenants are
capitalized and amortized over the remaining life of the initial terms of each
lease. Maintenance and repairs are charged to expense when incurred.
REVENUE RECOGNITION - Shopping center space is generally leased to retail
tenants under leases which are accounted for as operating leases. Minimum
rents are recognized on the straight-line method over the terms of the leases.
Percentage rents are recognized as earned on an accrual basis over the terms of
the leases. The leases also typically provide for tenant
recoveries of common area maintenance, real estate taxes and other operating
expenses. These recoveries are recognized as revenue in the period the
applicable costs are incurred.
An allowance for doubtful accounts has been provided against the portion of
tenant accounts receivable which is estimated to be uncollectible. Accounts
receivable in the accompanying balance sheet is shown net of an allowance for
doubtful accounts of approximately $147 as of June 30, 1996.
EARNINGS PER COMMON SHARE - Computations of earnings per common share are based
on the weighted number of shares outstanding during the period. Common shares
issuable under stock options have not been considered in the computation of
earnings per share because such inclusion would be anti-dilutive.
The conversion of an Operating Partnership unit to common stock will have no
effect on earnings per share since the allocation of earnings to an Operating
Partnership unit is equivalent to earnings allocated to a share of common
stock.
9
<PAGE> 10
RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
MINORITY INTEREST - represents the Ramco Group's 27% interest as a limited
partner of the Operating Partnership. Such interest is held in the form of
Operating Partnership Units which are exchangeable on an equivalent basis with
common shares of the Company.
3. REAL ESTATE
The Company's real estate at June 30, 1996 and December 31, 1995 are as
follows:
<TABLE>
<CAPTION>
JUNE 30, 1996 DECEMBER 31, 1995
<S> <C> <C>
Land $ 37,542 $18,459
Buildings and Improvements 240,340 40,387
Construction-in-progress 9,906 0
--------- -------
Total 287,788 58,846
Less: Accumulated Depreciation 3,917 3,547
--------- -------
$283,871 $55,299
========= =======
</TABLE>
4. OTHER ASSETS
Other assets at June 30, 1996 and December 31, 1995 are as follows:
<TABLE>
<CAPTION>
JUNE 30, 1996 DECEMBER 31, 1995
<S> <C> <C>
Leasing costs, net 875
Deferred financing costs, net 439
Other, net 408
Deferred acquisition expenses, net $ 2,154
Transaction advances 9,791
------ -------
$1,722 $11,945
====== =======
</TABLE>
10
<PAGE> 11
RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
5. MORTGAGES AND NOTES PAYABLE
Mortgages and notes payable at June 30, 1996 consist of the following:
<TABLE>
<S> <C>
Fixed rate mortgages with interest rates ranging
from 7.8% to 8.75% due at various dates through
2006 $99,999
Floating rate mortgages at 75% of the rate of
long-term Capital A rated utility bonds due
December 1, 1996 7,000
Credit Facility, with an interest rate at the
reserve adjusted Eurodollar rate plus 1.75%
basis points, due May 1999, maximum available
borrowings of $50,000 7,531
---------
$114,530
=========
</TABLE>
The mortgage notes are secured by mortgages on properties that have an
approximate net book value of $136,664 as of June 30, 1996. The Credit
Facility is secured by mortgages on various properties that have an approximate
net book value of $76,146 as of June 30, 1996.
The following table presents scheduled principal payments on mortgages and
notes payable as of June 30, 1996:
<TABLE>
<S> <C> <C>
Year ended December 31,
1996 (July 1, 1996 to December 31, 1996)....... $7,421
1997........................................... 1,874
1998........................................... 3,799
1999........................................... 9,558
2000........................................... 2,130
Thereafter........................................ 89,748
---------
Total $114,530
=========
</TABLE>
11
<PAGE> 12
RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
6. LEASES
The Company is engaged in the operation of shopping center and retail properties
and leases space to tenants and certain anchors pursuant to lease agreements.
The lease agreements provide for terms ranging from three to 30 years and, in
some cases, for annual rentals which are subject to upward adjustment based on
operating expense levels and sales volume.
Approximate future minimum rent under noncancelable operating leases in effect
at June 30, 1996, assuming no new or renegotiated leases nor option extensions
on lease agreements, is as follows:
Year ended December 31,
<TABLE>
<S> <C>
1996 (July 1, 1996 to December 31, 1996)...... $ 14,779
1997.......................................... 27,090
1998.......................................... 23,320
1999.......................................... 20,407
2000.......................................... 16,827
Thereafter.................................... 118,050
-----------
Total......................................... $ 220,473
===========
</TABLE>
7. COMMITMENTS AND CONTINGENCIES
Certain of the Ramco Properties (Roseville Plaza, Lake Orion Plaza and Jackson
Crossing) contain environmental contamination caused by underground storage
tanks. Remediation programs have been implemented at Roseville Plaza and
Jackson Crossing with Lake Orion Plaza to be implemented in the future. Since
third parties are obligated and have paid for remediation work to date, in
management's opinion the Company will not incur any future costs related to the
remediation work. Management of the Company is not aware of any other
situations which require remediation.
During the third quarter of 1994, the Company held more than 25% of the value
of its gross assets in overnight Treasury Bill reserve repurchase transactions
which the United States Internal Revenue Service (the "IRS") may view as
non-qualifying assets for the purposes of satisfying an asset qualification
test applicable to REITs, based on a Revenue Ruling published in 1977 (the
"Asset Issue"). The Company has requested that the IRS enter into a closing
agreement with the Company that the Asset Issue will not impact the Company's
status as a REIT. The IRS has deferred any action relating to the Asset Issue
pending the further examination of the Company's 1991-1994 tax returns. Based
on developments in the law which occurred since 1977, the Company's legal
counsel has rendered an opinion that the Company's investment in Treasury Bill
repurchase obligations would not adversely affect its REIT status. However,
such opinion is not binding upon the IRS. In connection with the spin-off of
Atlantic, Atlantic has assumed all tax liability arising out of the Asset Issue
and the IRS audit of the Company's 1991-1994 tax returns. In connection with
the assumption of such potential
12
<PAGE> 13
RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
liabilities, Atlantic and the Company have entered into a tax agreement which
provides that the Company (under the direction of its Continuing Trustees), and
not Atlantic, will control, conduct and effect the settlement of any tax claims
against the Company relating to the Asset Issue. Accordingly, Atlantic will not
have any control as to the timing of the resolution or disposition of any such
claims. No assurance can be given that the resolution or disposition of any
such claims will be on terms or conditions favorable to the Company. The
Company and Atlantic also received an opinion from legal counsel that, to the
extent there is a deficiency in the Company's taxable income arising out of the
IRS examination and provided the Company makes a deficiency dividend (i.e,
declares and pays a distribution which is permitted to relate back to the year
for which each deficiency was determined to satisfy the requirement that the
REIT distribute 95 percent of its taxable income), the classification of the
Company as a REIT for the taxable years under examination would not be affected.
If notwithstanding the above-described opinions of legal counsel, the IRS
successfully challenged the status of the Company as a REIT, its status could be
adversely affected.
8. SHARE OPTION PLAN
Concurrent with the Ramco Acquisition, the Company adopted a share option plan
(the "Plan") to enable its employees to participate in the ownership of the
Company. The Plan is designed to attract and retain executive officers and
other key employees of the Company, to encourage a proprietary interest in the
Company, and to provide incentives to employees.
Under the Plan, executive officers and employees of the Company may be granted
options to acquire shares of common stock of the Company ("Options"). The Plan
is administered by the independent trustee members of the Compensation
Committee, who are authorized to select the executive officers and other
employees to whom Options are to be granted. No member of the compensation
committee is eligible to participate in the Plan.
The compensation committee, at its discretion, determines the number of Options
to be granted. At June 30, 1996, the Plan provided for Options to purchase up
to 855,000 shares of the Company's stock. However, no more than 50,000 stock
options may be granted to any one individual in any calendar year.
13
<PAGE> 14
RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
Each option will have an exercise price equal to the fair market value
of the shares of the Company at the date of grant.
In connection with the Ramco Acquisition and the spin-off of Atlantic, the
Company granted certain principals of the Ramco Group, options to purchase
120,000 shares at an exercise price of $16.00 per share. Subsequent to the
Ramco Acquisition, an additional 25,000 options have been granted to the Chief
Financial Officer.
9. PRO FORMA FINANCIAL INFORMATION
The following pro forma consolidated statements of operations have been
presented as if (i), the Ramco Acquisition and the spin-off of Atlantic had
occurred on January 1, 1995, and (ii) the Company had qualified as a REIT,
distributed all of its taxable income and, therefore had incurred no tax
expense during the periods. In management's opinion all adjustments necessary
to reflect the Ramco Acquisition and spin-off of Atlantic have been made. The
pro forma consolidated statements of operations are not necessarily indicative
of what the actual results of operations of the Company would have been had
such transactions actually occurred as of January 1, 1995, nor do they purport
to represent the results of the Company for future periods.
14
<PAGE> 15
RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
1996 1995
----------------------------
<S> <C> <C>
REVENUES
Minimum rents $15,289 $14,702
Percentage rents 856 957
Recoveries from tenants 8,274 7,754
Interest and other income 239 171
------- -------
TOTAL REVENUES 24,658 23,584
EXPENSES
Property operating and maintenance 5,933 5,482
Real estate taxes 2,594 2,568
General and administrative 2,412 1,535
Interest expense 4,940 4,940
Depreciation and amortization 3,180 3,180
Spin-off and other expenses 7,933 -
-------- -------
TOTAL EXPENSES 26,992 17,705
-------- -------
OPERATING INCOME (LOSS) (2,334) 5,879
LOSS FROM UNCONSOLIDATED ENTITIES (189) (473)
-------- -------
INCOME (LOSS) BEFORE MINORITY INTEREST (2,523) 5,406
MINORITY INTEREST (1,461) (1,353)
-------- -------
NET INCOME (LOSS) $(3,984) $4,053
======== =======
PRO FORMA EARNINGS (LOSS) PER SHARE $ (.56) $ .57
======== =======
WEIGHTED AVERAGE NUMBER OF COMMON
SHARES OUTSTANDING 7,123 7,123
======== =======
</TABLE>
15
<PAGE> 16
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS FROM OPERATIONS
(Dollars in Thousands)
OVERVIEW
The following should be read in conjunction with the Consolidated Financial
Statements of the Company, including the respective notes thereto which are
included in this Form 10-Q. Capitalized terms used herein and not defined
below have the meanings set forth in the Trust's definitive proxy statement
dated as of March 29, 1996 (the "Proxy Statement").
The Pro Forma Consolidated Statements of Operations which are included in Note
9 to the Consolidated Financial Statements are presented as if the Company had
been a REIT for the entire periods presented and the Ramco Acquisition and the
Spin-off Transaction had been completed at the beginning of the periods
presented.
In connection with the Ramco Acquisition, the Trust acquired, among other
things, interests in the 22 Ramco Properties, assumed and incurred certain debt,
and repaid a portion of the debt encumbering the Ramco Properties. Also, due to
the re-leasing of the Phar Mor Space at the Jackson Crossing Property as part of
the earnout prior to closing, the Ramco Group became entitled to 279,181
additional Operating Partnership units issued effective at closing. In
connection with the Spin-off Transaction, the Company transferred its remaining
mortgage portfolio as well as certain other assets, which included interests in
its Norgate Center and 9 North Wabash Avenue properties, to Atlantic Realty
Trust (a newly formed real estate investment trust), shares in which were
distributed ratably to the Shareholders of the Trust. With the closing of the
Ramco Acquisition and the consummation of the Spin-off Transaction the Trust
successfully completed its previously announced plan to transform itself into an
equity REIT. The discussion below should be read in conjunction with the
discussion set forth in the Proxy Statement.
16
<PAGE> 17
CAPITAL RESOURCES AND LIQUIDITY
As of the closing of the Ramco Acquisition (the "Closing"), the Company assumed
debt on the Ramco Properties amounting to $176,556. In conjunction with the
Closing and giving effect to the application of the RPS Cash and the initial
drawdown of $9,906 on the Credit Facility, mortgage indebtedness of $69,485 was
paid down. Taking into account the mortgage indebtedness remaining after the
paydowns and the initial draw on the Credit Facility, the Company had long term
debt of $116,977 upon the Closing of the Ramco Acquisition.
At the Closing, a total of $9,906 was borrowed under the Credit Facility, which
will mature on May 6, 1999. As of the Closing, $25,000 of the Credit Facility
was in place, of which only $12,300 was available for borrowing. The balance of
the $25,000 Credit Facility was to become available upon receipt by the lender
of satisfactory appraisals with respect to certain of the properties securing
the Credit Facility. Effective June 1996, the appraisals had been completed and
the availability under the Credit Facility was increased to $25,000, subject to
borrowings outstanding at that point. During June 1996 negotiations were
completed with a second participant-lender and the Credit Facility was increased
to $50,000. A total of approximately $10,500 will be borrowed under the Credit
Facility to be used to reimburse affiliates of Ramco for certain out-of-pocket
costs incurred in connection with certain development opportunities acquired by
the Trust. As stated in the Proxy Statement, the Trust intends to use the
balance of the Credit Facility principally to fund future acquisitions,
developments, expansions and redevelopments.
At the Closing, the Trust made a loan to, and assumed an obligation of,
Atlantic. In that connection, Atlantic is obligated to pay the Trust the sum of
$5,550 pursuant to a promissory note which matures on November 9, 1997 and bears
interest at the Base Rate under the Credit Facility (which was 8.25% at
Closing). The promissory note is secured by a collateral assignment of the
borrower's interest in the Hylan Center. Subsequent to the quarter ended June
30, 1996 Atlantic repaid $3,500 plus accrued interest.
Atlantic used the proceeds of the promissory note primarily to make (on behalf
of the Trust or otherwise) certain required severance and bonus payments to the
Trust's executive officers, to pay the cost of a run-off directors' and
officers' liability insurance policy for the Trust, to pay the cost of a
directors' and officers' liability insurance policy for Atlantic, and to provide
cash for Atlantic's initial working capital.
RECENT DEVELOPMENTS
Subsequent to the Closing, the lender holding the $7,000 of bonds secured by
the Oakbrook Square Shopping Center exercised its option to tender the bonds
for purchase on December 1, 1996. The underlying bonds have a maturity date of
January 1, 2010. The Company is pursuing various alternatives to find new
lender(s) to buy the bonds to hold until maturity but it is not
17
<PAGE> 18
known at this time whether a buyer will be found. The Company may need to draw
on the Credit Facility to either retire the bonds or purchase the bonds until a
new buyer can be found.
In August 1996, the Trust intends to purchase a Shopping Center for
approximately $2,200. The Trust expects to borrow on the Credit Facility
in order to fund the acquisition.
Expansions are currently underway at the Tel-Twelve Mall, Spring Meadows
Shopping Center, and the Troy Towne Center. The costs relative to these
expansions are anticipated to be approximately $3,900 and will be paid for
by borrowings under the Credit Facility.
RESULTS OF OPERATIONS
Six months ended June 30, 1996 compared to six months ended June 30, 1995
Total revenues for the six months ended June 30, 1996 increased $5,487, or 65%,
as compared to the six months ended June 30, 1995. Minimum rents increased to
$7,254, an increase of $4,097, or 130%, for the six months ended June 30, 1996
as compared to the six months ended June 30, 1995. Percentage rents and tenant
recoveries increased $2,725, or 212%, from $1,285 in 1995 to $4,010 in 1996.
These net increases are primarily attributable to the acquisition of the Ramco
Properties effective May 1, 1996. Two months of the Ramco Properties' operating
results have been included in the six months ended June 30, 1996 as compared to
none in the corresponding six months of 1995. In addition, due to the Spin-off
Transaction, two properties which were part of the Trust portfolio at June 30,
1995 were spun off effective May 1, 1996 and therefore the revenues for the six
months of 1996 include only four months of their activity as compared to six
months in 1995. The Company's results also show a decrease in the revenues
derived from the mortgage loan portfolio which was spun off as of May 1, 1996.
During the six months ended June 30, 1996 expenses increased $10,541 from $7,091
to $17,632, or 148% as compared to the six months ended June 30, 1995. This
increase was attributable principally to the non-recurring expenses related to
the Spin-off Transaction of $7,933, including employee severance and bonus
expenses, the cost of the run-off director's and officer's liability insurance
policy for the Trust and the write off of the Trust's deferred acquisition
expenses. In addition, a significant portion of the increase of approximately
$3,867 in the property operating and maintenance, real estate tax and general
and administrative expenses are directly attributable to
18
<PAGE> 19
the increase in the size of the real estate portfolio due to the acquisition of
the Ramco Properties, offset slightly by the decrease related to the two former
RPS properties which were spun-off effective May 1, 1996. Interest expense for
the six months ended June 30, 1996 has increased $1,740 due to the debt
assumed in connection with the Ramco acquisition. Interest expense for the six
months ended June 30, 1996 included approximately $140 in additional
costs for the period May 1 to May 10, 1996 due to the Closing being
effective May 1, 1996 while the Trust contributed the RPS cash on May 10, 1996
thus incurring additional interest expense on the assumed debt. Total
expenses for the six months ended June 30, 1995 included an addition to the
allowance for loan losses of $3,000, no such allowance was required in the
six months ended June 30, 1996.
Three months ended June 30, 1996 compared to three months ended June 30, 1995
Total revenues increased $5,473 or 134% to $9,551 for the three months ended
June 30, 1996, as compared with $4,078 for the three months ended June 30, 1995.
Minimum rents grew from $1,527 for the three months ended June 30, 1995 to
$5,790, an increase of $4,263, or 279%. Percentage rents and recoveries from
tenants increased $2,506, or 402%, from $623 in 1995 to $3,129 in 1996. This net
increase is primarily attributable to the acquisition of the Ramco Properties
effective May 1, 1996. Two months of the Ramco Properties operating results have
been included in the three months ended June 30, 1996 as compared to none in the
corresponding three months of 1995. In addition, due to the Spin-off
Transaction, two properties which were part of the Trust portfolio at June 30,
1995 were spun-off effective May 1, 1996 and, therefore, the revenues for the
three months of 1996 only include one month of their activity as compared to
three months in 1995. The results also show a decrease in the revenues related
to the mortgage loan portfolio which was spun-off as of May 1, 1996.
During the three months ended June 30, 1996 expenses increased $11,766 from
$2,140 to $13,906, or 549%, as compared to the three months ended June 30, 1995.
This increase was attributable principally to the non-recurring expenses
related to the Spin-off Transaction of $6,276, including employee severance and
bonus expenses, the cost of the run-off director's and officer's liability
insurance policy for the Trust and the write off of the Trust's deferred
acquisition expenses. In addition, a significant portion of the increase of
approximately $3,750 in the property operating and maintenance, real estate tax
and general and administrative expenses are directly attributable to the
increase in the size of the real estate portfolio due to the acquisition of the
Ramco Properties, offset slightly by a decrease related to the two former RPS
properties which were spun-off effective May 1, 1996. Interest expense for the
three months ended June 30, 1996 increased $1,740 due to the debt assumed
relative to the Ramco Acquisition. Interest expense for the three months
included approximately $140 in additional expense for the period May 1 to May
10, 1996 due to the Closing being effective May 1, 1996 while the Trust
contributed the RPS cash on May 10, 1996 thus incurring additional interest
expense on the assumed debt.
19
<PAGE> 20
Pro Forma six months ended June 30, 1996 compared to Pro Forma six months ended
June 30, 1995
Total revenues increased 4.6%, or $1,074 for the six months ended June 30,
1996, to $24,658 from $23,584 for the six months ended June 30, 1995. The
increase was primarily due to a $587 increase in minimum rents, a $101 decrease
in percentage rents, and a $520 increase in recoveries from tenants.
Minimum rents increased 4.0%, or $587, to $15,289 for the six months ended June
30, 1996 from $14,702 for the six months ended June 30, 1995. The increase was
primarily due to the openings of new anchor tenants at Tel-Twelve Mall, West
Oaks I and Jackson Crossing Shopping Center. Percentage rents decreased 10.6%,
or $101, to $856 for the six months ended June 30, 1996 from $957 for the six
months ended June 30, 1995. The decrease resulted primarily from the conversion
of percentage rent to minimum rent due to contractual rent increases.
Recoveries from tenants increased 6.7%, or $520, to $8,274 for the six months
ended June 30, 1996 from $7,754 for the six months ended June 30, 1995. The
increase was primarily due to corresponding increases in recoverable property
operating and real estate tax expense. The Company's overall recovery ratio for
1996 and 1995 remained relatively consistent at 97.0% and 96.3%, respectively.
Total expenses increased 52.5%, or $9,287 for the six months ended June 30,
1996, to $26,992 from $17,705 for the six months ended June 30, 1995. The
increase was primarily due to a $7,933 increase in Spin-off Transaction and
other related expenses, a $477 increase in property operating and real estate
tax expense and a $877 increase in general and administrative expenses.
For the six months ended June 30, 1996 the Company incurred $7,933 of Spin-off
Transaction and other related expenses for which there was no corresponding
costs for the six months ended June 30, 1995. These non-recurring costs were
primarily a result of the employee severance and bonus expense, the cost of
run-off director's and officer's liability insurance, and the write-off of
deferred acquisition costs related to the Transaction. Property operating and
real estate tax expenses increased 5.9%, or $477, to $8,527 for the six months
ended June 30, 1996 from $8,050 for the six months ended June 30, 1995. The
increase was offset primarily by an increase in recoveries from tenants. As
noted above, the Company's recovery ratio for the six months ended June 30, 1996
remained consistent with the corresponding 1995 period. General and
administrative expenses increased $877, or 57.1%, to $2,412 for the six months
ended June 30, 1996 from $1,535 for the six months ended June 30, 1995. The
increase in general and administrative expenses was primarily due to a $156
increase in bad debt expense, and a $576 increase in cost reimbursement to
Ramco-Gershenson, Inc. The $576 increase was a result of a decrease in
revenues of $343, and an increase in expenses of approximately $333. Of the
$343 decrease in revenues, $168 pertained to leasing fees and $44 pertained to
development fees. Leasing and development fees are not necessarily earned
consistently over time since these fees are based upon measurements related to
specific transactions. The $333 increase in expenses was primarily
attributable to a $180 increase in payroll and related benefits and a $100
increase in equipment leasing costs.
Management generally considers funds from operations ("FFO") to be one measure
of financial performance of an equity REIT. It has been presented to assist
investors in analyzing the performance of the Company and to provide a relevant
basis for comparison to other REITs.
The Company has adopted the most recent National Association of Real Estate
Investment Trusts ("NAREIT") definition of FFO, which was effective on January
1, 1996. Under the NAREIT definition, FFO represents income (loss) before
minority interest (computed in accordance with generally accepted accounting
principles), excluding gains (losses) from debt restructuring and sales of
property, plus real estate related depreciation and amortization (excluding
amortization of financing costs), and after adjustments for unconsolidated
partnerships and joint ventures.
Therefore, FFO does not represent cash generated from operating activities in
accordance with generally accepted accounting principles and should not be
considered an alternative to net income as an indication of the Company's
performance or to cash flows from operating activities as a measure of
liquidity of the ability to pay distributions. Furthermore, while net income
and cash generated from operating, investing and financing activities
determined in accordance with generally accepted accounting principles
consider capital expenditures which have been and will be incurred in the
future, the calculation of FFO does not.
The following table illustrates the calculation of FFO for the six months ended
June 30, 1996 and 1995:
<TABLE>
<CAPTION>
PRO FORMA SIX MONTHS ENDED
JUNE 30,
1996 1995
---- ----
<S> <C> <C>
Net Income (Loss) $(3,984) $4,053
Add back
Depreciation and amortization 3,180 3,180
Minority interest in partnerships 1,461 1,353
Non-recurring spin-off costs 7,933
------- ------
Funds from operations $ 8,590 $8,586
======= ======
</TABLE>
20
<PAGE> 21
ITEM 4-SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
A Special Meeting of Shareholders of the Company was held on April 29, 1996 to
consider and vote upon the following matters:
1. A proposal to consummate an acquisition (the "Ramco Acquisition") by the
Company of substantially all of the shopping center and retail properties, as
well as the management organization and personnel and business operations, of
Ramco-Gershenson, Inc. and its affiliates upon the terms and conditions
described in the Proxy Statement distributed in connection with the Special
Meeting ("First Proposal").
2. A proposal to amend the Company's Declaration of Trust to, among other
things, (i) increase certain quorum percentage requirements in connection with
meetings of the Board of Trustees, (ii) establish a Nominating Committee and
Advisory Committee of the Board of Trustees, (iii) change the Company's name to
Ramco-Gershenson Properties Trust, and (iv) authorize the Board of Trustees, on
a one-time basis in connection with the Ramco Acquisition, to combine
outstanding Shares by way of a 1 for 4 reverse split, provide for the payment
of cash in lieu of any fractional interest in a combined Share and establish
mechanics to implement any such combination ("Second Proposal").
3. A proposal to approve and ratify a new employee share option plan for
certain key employees of the Company and its subsidiaries ("Third Proposal").
The following table shows the number of votes for and against each proposal and
the number of votes abstaining with respect to each proposal:
<TABLE>
<CAPTION>
Proposal For Against Abstain
- -------- --- ------- -------
<S> <C> <C> <C>
First 15,005,720 933,321 348,890
Second 14,909,713 976,088 402,130
Third 12,380,955 3,435,010 471,966
</TABLE>
There were no broker non-votes with respect to any of the proposals at the
Special Meeting.
21
<PAGE> 22
PART II - OTHER INFORMATION
ITEM 6-EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
3(i) Amendment to Amended and Restated Declaration of Trust of the Company
(formerly known as RPS Realty Trust).
3(ii) Amendment to By-laws of the Company (formerly known as RPS Realty
Trust).
10.1 Pledge Agreement, dated as of May 10, 1996, among the Company, Dennis
Gershenson, Joel Gershenson, Bruce Gershenson, Richard Gershenson,
Michael A. Ward, Michael A. Ward U/T/A dated 2/22/77, as amended, and
the holders of interests in Ramco-Gershenson Properties, L.P., a
Delaware limited partnership.
10.2 Registration Rights Agreement, dated as of May 10, 1996, among the
Company, Dennis Gershenson, Joel Gershenson, Bruce Gershenson, Richard
Gershenson, Michael A. Ward, Michael A. Ward U/T/A dated 2/22/77, as
amended, and each of the Persons set forth on Exhibit A attached
thereto.
10.3 Exchange Rights Agreement, dated as of May 10, 1996, by and among the
Company and each of the Persons whose names are set forth on Exhibit A
attached thereto.
10.4 1996 Share Option Plan of the Company.
10.5 Letter Agreement, dated May 10, 1996, among the Persons and Entities
party to the Amended and Restated Master Agreement, dated as of
December 27, 1995, as amended.
10.6 Promissory Note payable by Atlantic Realty Trust ("Atlantic") in favor
of the Company in the principal face amount of 5,500,000 due November
9, 1997.
10.7 Letter Agreement, dated as of May 10, 1996, by and between Atlantic
and the Company concerning the assumption of certain liabilities by
Atlantic.
10.8 Employment Agreement, dated as of May 10, 1996, between the Company
and Joel Gershenson.
10.9 Employment Agreement, dated as of May 10, 1996, between the Company
and Dennis Gershenson.
10.10 Employment Agreement, dated as of May 10, 1996, between the Company
and Michael A. Ward.
10.11 Employment Agreement, dated as of May 10, 1996, between the Company
and Richard Gershenson.
22
<PAGE> 23
10.12 Employment Agreement, dated as of May 10, 1996, between the Company
and Bruce Gershenson.
10.13 Noncompetition Agreement, dated as of May 10, 1996, by and between
Joel Gershenson and the Company.
10.14 Noncompetition Agreement, dated as of May 10, 1996, by and between
Dennis Gershenson and the Company.
10.15 Noncompetition Agreement, dated as of May 10, 1996, by and between
Michael A. Ward and the Company.
10.16 Noncompetition Agreement, dated as of May 10, 1996, by and between
Richard Gershenson and the Company.
10.17 Noncompetition Agreement, dated as of May 10, 1996, by and between
Bruce Gershenson and the Company.
10.18 Letter Agreement, dated April 15, 1996, among the Company and Richard
Smith concerning Mr. Smith's employment by the Company.
27.1 Financial Data Schedule.
23
<PAGE> 24
SIGNATURES
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 thereunto duly authorized.
RAMCO-GERSHENSON PROPERTIES TRUST
Date: August 14, 1996 By: /s/ Dennis Gershenson
------------------------------
Dennis Gershenson
President and Trustee
(Chief Executive Officer)
Date: August 14, 1996 By: /s/ Richard Smith
------------------------------
Richard Smith
Chief Financial Officer (Principal
Accounting Officer)
24
<PAGE> 25
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
- ------- ----------- ------------
<S> <C> <C>
3(i) Amendment to Amended and Restated Declaration of Trust of the Company
(formerly known as RPS Realty Trust).
3(ii) Amendment to By-laws of the Company (formerly known as RPS Realty
Trust).
10.1 Pledge Agreement, dated as of May 10, 1996, among the Company, Dennis
Gershenson, Joel Gershenson, Bruce Gershenson, Richard Gershenson,
Michael A. Ward, Michael A. Ward U/T/A dated 2/22/77, as amended, and
the holders of interests in Ramco-Gershenson Properties, L.P., a
Delaware limited partnership.
10.2 Registration Rights Agreement, dated as of May 10, 1996, among the
Company, Dennis Gershenson, Joel Gershenson, Bruce Gershenson, Richard
Gershenson, Michael A. Ward, Michael A. Ward U/T/A dated 2/22/77, as
amended, and each of the Persons set forth on Exhibit A attached
thereto.
10.3 Exchange Rights Agreement, dated as of May 10, 1996, by and among the
Company and each of the Persons whose names are set forth on Exhibit A
attached thereto.
10.4 1996 Share Option Plan of the Company.
10.5 Letter Agreement, dated May 10, 1996, among the Persons and Entities
party to the Amended and Restated Master Agreement, dated as of
December 27, 1995, as amended.
10.6 Promissory Note payable by Atlantic Realty Trust ("Atlantic") in favor
of the Company in the principal face amount of 5,500,000 due November
9, 1997.
10.7 Letter Agreement, dated as of May 10, 1996, by and between Atlantic
and the Company concerning the assumption of certain liabilities by
Atlantic.
10.8 Employment Agreement, dated as of May 10, 1996, between the Company
and Joel Gershenson.
10.9 Employment Agreement, dated as of May 10, 1996, between the Company
and Dennis Gershenson.
10.10 Employment Agreement, dated as of May 10, 1996, between the Company
and Michael A. Ward.
10.11 Employment Agreement, dated as of May 10, 1996, between the Company
and Richard Gershenson.
</TABLE>
<PAGE> 26
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
- ------- ----------- ------------
<S> <C> <C>
10.12 Employment Agreement, dated as of May 10, 1996, between the Company
and Bruce Gershenson.
10.13 Noncompetition Agreement, dated as of May 10, 1996, by and between
Joel Gershenson and the Company.
10.14 Noncompetition Agreement, dated as of May 10, 1996, by and between
Dennis Gershenson and the Company.
10.15 Noncompetition Agreement, dated as of May 10, 1996, by and between
Michael A. Ward and the Company.
10.16 Noncompetition Agreement, dated as of May 10, 1996, by and between
Richard Gershenson and the Company.
10.17 Noncompetition Agreement, dated as of May 10, 1996, by and between
Bruce Gershenson and the Company.
10.18 Letter Agreement, dated April 15, 1996, among the Company and Richard
Smith concerning Mr. Smith's employment by the Company.
27.1 Financial Data Schedule.
</TABLE>
<PAGE> 1
EXHIBIT 3(i)
ACQUISITION AMENDMENT
AMENDMENT dated May 10, 1996 to Amended and Restated Declaration of
Trust of RPS Realty Trust (the "Trust") dated October 14, 1988 (the "Declaration
of Trust");
WHEREAS, Article VIII, Section 2 of the Declaration of Trust provides
for procedures governing the amendment of the Declaration of Trust;
WHEREAS, the Trustees have determined that it is in the best interests
of the Trust and its shareholders to cause the Trust to increase certain quorum
percentage requirements in connection with meetings of the Board of Trustees;
establish a Nominating Committee and an Advisory Committee of the Board of
Trustees and change the name of the Trust; and
WHEREAS, the Trustees have determined to propose (i) the addition of
new Sections to Article III of the Declaration of Trust to provide for the
creation of a Nominating Committee and an Advisory Committee of the Board of
Trustees, (ii) an amendment to Article IV, Section 8 of the Declaration of Trust
to increase certain quorum percentage requirements in connection with meetings
of the Board of Trustees and (iii) an amendment to Article I, Section 1 of the
Declaration of Trust to change the name of the Trust.
NOW, THEREFORE, the Trustees have adopted the following amendments to
the Declaration of Trust, which amendments respectively shall become effective
upon approval thereof by the holders of a majority of the Trust's issued and
outstanding shares of beneficial interest:
1. Article III of the Declaration of Trust is amended by adding the
following Sections to the end thereof (new language appearing in italics):
"SECTION 14. NOMINATING COMMITTEE. The Board of Trustees shall
appoint from among its members a Nominating Committee, which shall consist
of at least three members, all of whom shall be Independent Trustees, and
which shall nominate persons for election to the Board of Trustees. The
Nominating Committee will consider nominees recommended by other
shareholders in accordance with Article IV, Section 1."
"SECTION 15. ADVISORY COMMITTEE. The Board of Trustees shall appoint
an Advisory Committee, which shall consist of three Persons who are not
Trustees, and which shall have the power to consult with and advise the
Board of Trustees as required. The initial members of the Advisory
Committee shall be Michael A. Ward, Richard Gershenson and Bruce
Gershenson."
2. The second paragraph of Article IV, Section 1 of the Declaration of
Trust is amended as follows (new language appearing in italics):
"The number of Trustees shall be not less than three nor more than
fifteen, as fixed from time to time by the Board of Trustees. Unless
otherwise fixed by the Board of Trustees or the Shareholders, the number of
Trustees constituting the entire Board of Trustees shall be nine.
<PAGE> 2
Except for the initial Trustees during their initial term, the Trustees
shall be elected at the annual meeting of Shareholders and each Trustee
shall be elected to serve until his successor shall be
elected and shall qualify. A Trustee shall be an individual at least 21
years of age who is not under legal disability. A Trustee shall not be
required to devote his full business time and effort to the Trust. A
Trustee shall qualify as such when he has either signed this Declaration
of Trust or agreed in writing to be bound by it. No bond shall be
required to secure the performance of a Trustee unless the Trustees so
provide or as required by law."
Article IV, Section 8 of the Declaration of Trust is amended as
follows (new language appearing in italics):
"SECTION 8. ACTIONS BY TRUSTEES. The trustees shall hold at least
four meetings per year. The Trustees may act with or without a meeting.
The presence of at least 75% of the Board of Trustees then in office, the
majority of which shall be Independent Trustees, shall be necessary to
constitute a quorum for the transaction of business, except to adjourn a
meeting. Every act or decision done or made by the affirmative vote of at
least a majority of the Board of Trustees at a meeting duly held at which a
quorum is present shall be regarded as an act of the Board of Trustees
unless a greater number is required by law or by the By-Laws or by this
Declaration of Trust. If at any time more than one vacancy exists on the
Board of Trustees, a quorum of the Board of Trustees shall not exist unless
and until such vacancies are filled so that no more than one vacancy exists
on the Board of Trustees. Any agreement, deed, mortgage, lease or other
instrument of writing executed by any one or more of the Trustees or by any
one or more authorized persons shall be valid and binding upon the Trustees
and upon the Trust when authorized by action of the Trustees."
Article I, Section 1 of the Declaration of Trust is amended as follows
(new language appearing in italics):
"SECTION 1. NAME. The name of Trust created by this Declaration of
Trust shall be "Ramco-Gershenson Properties Trust" and so far as may be
practicable, the Trustees of the Trust ("Trustees" or the "Board of
Trustees") shall conduct the Trust's activities, execute all documents and
sue or be sued under the name, which name (and the word "Trust" whenever
used in this Declaration of Trust, except where the context otherwise
requires) shall refer to the Trustees in their capacity as Trustees and not
individually or personally, and shall not refer to the officers or
Shareholders of the Trust or the agents or employees of the Trust or of
such Trustees. Should the Trustees determine that the use of such name is
not practicable, legal or convenient, they may use such other designation
or they may adopt such other name of the Trust as they deem proper and the
Trust may hold property and conduct its activities under such designation
or name, subject, however, to the limitations contained in the next
succeeding paragraphs."
Article VII, Section 1 of the Declaration of Trust is amended as
follows (new language appearing in italics):
"SECTION 1. SHARES. The units into which the beneficial interest in
the Trust will be divided shall be designated as Shares, which Shares shall
be of one or more classes and shall have a par value of $.10 per Share.
The certificates evidencing the Shares shall be in such forms as the Board
of Trustees may prescribe, signed by, or in the name of the Trust by, the
Chairman of the Board or the President, and by the Secretary or the
Treasurer. Where a certificate is
<PAGE> 3
countersigned by a transfer agent and/or registrar other than the Trust or
its employees, the signatures of such officers may be facsimiles. There
shall be no limit on the number of Shares to be issued. The Shares may be
issued for such consideration as the Trustees shall determine, including
upon the conversion of convertible debt, or by way of share dividend or
share split in the discretion of the Trustees. In addition to the issuance
of Shares by way of share dividend or share split, the Trustees may combine
outstanding Shares by way of reverse share split and provide for the
payment of cash in lieu of any fractional interest in a combined Share; and
the mechanics authorized by the Trustees to implement any such combination
shall be binding upon all Shareholders, holders of convertible debt,
optionees and others with any interest in Shares. Shares reacquired by the
Trust may be cancelled by action of the Trustees. All Shares shall be
fully paid and non-assessable by or on behalf of the Trust upon receipt of
full consideration for which they have been issued or without additional
consideration if issued by way of share dividend, share split, or upon the
conversion of convertible debt. The Shares shall not entitle the holder to
preference, preemptive, appraisal, conversion, exchange or cumulative
voting rights of any kind."
Except as so amended, the Declaration of Trust shall remain unmodified
and in full force and effect.
<PAGE> 4
IN WITNESS WHEREOF, the undersigned, being not less than a majority of the
Trustees of RPS REALTY TRUST, have each executed this Amendment to the Amended
and Restated Declaration of Trust as of May 10, 1996.
/s/ Joel M. Pashcow
----------------------------------
Joel M. Pashcow
/s/ Herbert Liechtung
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Herbert Liechtung
/s/ Arthur H. Goldberg
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Arthur H. Goldberg
/s/ Edwin J. Glickman
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Edwin J. Glickman
/s/ Alfred D. Stalford
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Alfred D. Stalford
/s/ Samuel M. Eisenstat
----------------------------------
Samuel M. Eisenstat
/s/ Edward Blumenfeld
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Edward Blumenfeld
/s/ William A. Rosoff
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William A. Rosoff
/s/ Stephen R. Blank
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Stephen R. Blank
/s/ Robert A. Meister
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Robert A. Meister
<PAGE> 1
EXHIBIT 3(ii)
AMENDMENT TO THE BY-LAWS
OF
RPS REALTY TRUST
(Adopted Effective as of May 10, 1996)
This Amendment to the By-Laws is adopted by the Trustees of RPS Realty
Trust (the "Trust") under an Amended and Restated Declaration of Trust dated
October 14, 1988, as amended on May 10, 1996 (as the same may be further amended
from time to time, the "Declaration of Trust") as contemplated by Article IV,
Section 3(c) of the Declaration of Trust. The provisions of this Amendment to
the By-Laws are intended to implement the provisions of the Declaration of
Trust, but are in all respects subject to the Declaration of Trust. Terms not
otherwise defined in these By-Laws shall have the meanings ascribed to them in
the Declaration of Trust.
1. Article I, Section 5 of the By-Laws is amended as follows (new
language appearing in italics):
"SECTION 5. QUORUM. The presence of at least 75% of the Board of
Trustees then in office, the majority of which shall be Independent
Trustees, shall be necessary to constitute a quorum for the transaction of
business, except to adjourn a meeting. Every act or decision done or made
by the affirmative vote of at least a majority of the Board of Trustees at
a meeting duly held at which a quorum is present shall be regarded as an
act of the Board of Trustees unless a greater number is required by law or
by the Amended and Restated Declaration of Trust of the Trust or by these
By-Laws. If at any time more than one vacancy exists on the Board of
Trustees, a quorum of the Board of Trustees shall not exist unless and
until such vacancies are filled so that no more than one vacancy exists on
the Board of Trustees. Less than a quorum may adjourn any meeting from
time to time and the meeting may be held as adjourned without further
notice."
2. Article I of the By-Laws is amended by adding the following
Sections to the end thereof (new language appearing in italics):
"SECTION 11. NOMINATING COMMITTEE. The duties of the Nominating
Committee shall be (i) to nominate persons for election to the Board of
Trustees and (ii) to consider nominees recommended by other shareholders in
accordance with Article IV, Section 1 of the Declaration of the Trust of
the Trust."
"SECTION 12. ADVISORY COMMITTEE. The Advisory Committee shall have
the power to consult with and advise the Board of Trustees as required."
(End of Amendment)
<PAGE> 1
EXHIBIT 10.1
PLEDGE AGREEMENT
PLEDGE AGREEMENT ("AGREEMENT") dated as of May 10, 1996 among
Ramco-Gershenson Properties Trust, a Massachusetts business trust formerly known
as RPS Realty Trust (the "TRUST"), Dennis Gershenson, Joel Gershenson, Bruce
Gershenson, Richard Gershenson, Michael A. Ward and Michael A. Ward U/T/A dated
2/22/77, as amended (collectively, the "RAMCO PRINCIPALS") and the holders of
interests in Ramco-Gershenson Properties, L.P., a Delaware limited partnership,
who are set forth on Exhibit A hereto (collectively, the "HOLDERS").
Reference is made to the Amended and Restated Master Agreement, dated as of
December 27, 1996, as amended by the First Amendment to Amended and Restated
Master Agreement, dated as of March 19, 1996 (as amended, the "MASTER
AGREEMENT"), among the Trust, Ramco-Gershenson, Inc. ("RAMCO"), the Ramco
Principals, the Ramco Contributing Parties (as defined therein) and
Ramco-Gershenson Properties, L.P., a Delaware limited partnership (the
"OPERATING PARTNERSHIP"). Capitalized terms used in this Agreement and not
otherwise defined herein shall have the meanings ascribed to them in the Master
Agreement.
RECITALS:
A. The Trust and the Holders are entering into this Agreement in
connection with the transactions (the "RAMCO TRANSACTION") effectuated on this
day pursuant to which the Trust, the Ramco Contributing Parties and the Ramco
Principals contributed cash, certain stock in Ramco, certain partnership
interests and certain shopping center properties to the Operating Partnership.
B. As a condition to the Ramco Transaction, the Ramco Principals and the
Holders have agreed to execute and deliver to the Trust this Agreement.
Accordingly, the parties hereby agree as follows:
Section 1. The Pledge.
(a) As collateral security for the full and timely performance of the
obligations and liabilities of the Ramco Principals contained in the Master
Agreement and each Ramco Agreement including, without limitation, the
indemnification obligations set forth in Section 7.4 of the Master Agreement and
Section 20 of each Ramco Agreement (the "SECURED OBLIGATIONS"), each Ramco
Principal and each Holder, as the case may be, hereby transfers, conveys,
pledges, hypothecates and delivers to the Trust and its successors and assigns,
and grants to the Trust and its successors and assigns a security interest in,
the following property (collectively referred to herein as the "PLEDGED
COLLATERAL"):
(i) the number of units of limited partnership interest in the
Operating Partnership ("OP UNITS") issued under the Partnership
Agreement and owned by each Ramco Principal and Holder on the date
hereof, but only as set forth on Exhibit A, and each additional
<PAGE> 2
OP Unit issued or credited to any Ramco Principal or Holder from
time to time or otherwise acquired by any Ramco Principal or Holder
from time to time (collectively, the "RP PLEDGED OP UNITS");
(ii) the number of shares of beneficial interest of the Trust,
par value $.10 per share ("SHARES"), owned by each Ramco Principal on
the date hereof, but only as set forth on Exhibit B, and each
additional Share issued to, purchased or otherwise acquired by any
Ramco Principal or Holder from time to time, including, without
limitation, any Shares acquired by any Ramco Principal or Holder as a
result of any exchange of OP Units for Shares (collectively the "RP
PLEDGED SHARES");
(iii) the limited partnership interests in the Holders owned by
the Ramco Principals on the date hereof, but only as set forth on
Exhibit C, and each additional partnership interest (whether general
or limited) in such Holders issued or credited to any Ramco Principal
from time to time or otherwise acquired by any Ramco Principal from
time to time (collectively, the "PLEDGED LP INTERESTS");
(iv) the general and limited partnership interests in the
general partners of the Holders that are partnerships (the
"PARTNERSHIP GP ENTITIES") owned by the Ramco Principals on the date
hereof, but only as set forth on Exhibit D, and each additional
partnership interest (whether general or limited) in the Partnership
GP Entities issued or credited to any Ramco Principal from time to
time or otherwise acquired by any Ramco Principal from time to time
(collectively, the "PLEDGED PARTNERSHIP GP INTERESTS");
(v) the Shares of stock (irrespective of class) in the general
partners that are corporations (the "CORPORATE GP ENTITIES") owned by
the Ramco Principals on the date hereof, but only as set forth on
Exhibit E, and each additional Share of stock (irrespective of class)
in the Corporate GP Entities issued to, purchased or otherwise
acquired by any Ramco Principal from time to time (collectively, the
"PLEDGED CORPORATE GP STOCK");
(vi) with respect to each Holder, the number of OP Units and
Shares owned by such Holder on the date hereof, but only as set forth
on Exhibits A and B, multiplied by a fraction, the numerator of which
is the number of such OP Units and Shares allocated directly or
indirectly to the Ramco Principals and their
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<PAGE> 3
respective Affiliates pursuant to the partnership agreement of such
Holder (expressed as a decimal fraction) and the denominator of which
is the total number of OP Units and Shares allocated to such Holder
(the "APPLICABLE PERCENTAGE") as set forth on Exhibit F and each
additional OP Unit or Share issued to, purchased or acquired by such
Holder multiplied by, with respect to each Holder, the Applicable
Percentage (collectively, the "RCP PLEDGED UNITS AND SHARES"),
provided, however, if after the date hereof the aggregate direct or
indirect percentage ownership interest of the Ramco Principals in any
Holder shall increase from the percentage existing on the date hereof,
the Applicable Percentage with respect to such Holder shall equal such
greater percentage;
(vii) all payments due or to become due to each pledgor arising
out of, as a result of or in connection with such pledgor's ownership
of the RP Pledged OP Units, the RP Pledged Shares, the Pledged LP
Interests, the Pledged Partnership GP Interests, the Pledged Corporate
GP Stock, and the RCP Pledged Units and Shares, whether as dividends,
distributions of cash or property or otherwise (collectively, the
"DISTRIBUTIONS") and all of such pledgor's rights, whether now
existing or hereafter arising or acquired, to exercise all voting,
consensual and other powers of ownership pertaining to such pledgor's
ownership of the above items of Pledged Collateral (including, without
limitation, Pledgor's rights as owner of such items of Pledged
Collateral to make determinations, to exercise any election
(including, without limitation, election of remedies) or option, to
give or receive any notice, consent, amendment, waiver or approval);
and
(viii) all proceeds of any and all of the foregoing and all
increases, substitutions, replacements, additions, and accessions
thereto.
(b) Notwithstanding anything herein or in the Master Agreement or any
Ramco Agreement to the contrary, the Ramco Principals and the Holders hereby
acknowledge and agree that (a) it is not (and at no time will be) necessary for
the Trust, in order to enforce any of its rights and remedies in respect of the
Secured Obligations, to first institute or exhaust the Trust's rights and
remedies against any Ramco Principal, any Holder or against any of the Pledged
Collateral, in each case, pursuant to this Agreement, and (b) any delay in
exercising, failure to exercise, or non-exercise (or partial exercise), from
time to time, by the Trust of any rights or remedies hereunder (or to insist
upon strict performance) in any one or more instances shall not constitute a
waiver thereof (or preclude full exercise or insistence upon strict performance
thereof)
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<PAGE> 4
in that or any other instance, and any single exercise of the Trust's right or
remedies hereunder in any one or more instances shall not preclude full
exercise in any other instance.
Section 2. Dividends and Other Distributions. So long as no breach of
the Secured Obligations shall have occurred and be continuing (an "EVENT OF
DEFAULT"), all cash distributions and dividends payable in respect of the
Pledged Collateral shall be paid to the relevant pledgor; provided, that all
cash distributions and dividends payable in respect of the Pledged Collateral
which are determined by the Trust in its reasonable discretion to represent in
whole or in part an extraordinary, liquidating or other distribution in return
of capital shall be paid, to the extent so determined to represent an
extraordinary, liquidating or other distribution in return of capital, to the
Trust and retained by it in a separate interest bearing account as part of the
Pledged Collateral. The Trust shall also be entitled to receive directly, and
to retain as part of the Pledged Collateral to be held and applied in the manner
set forth in this Agreement:
(i) all additional stock, partnership interests or
other securities or property (other than cash) paid or
distributed by way of dividend or otherwise in respect
of the Pledged Collateral;
(ii) all additional stock, partnership interests or
other securities or property (including cash) paid or
distributed in respect of the Pledged Collateral by way
of stock-split, spin-off, split-up, reclassification,
combination of shares or interests or similar
rearrangement; and
(iii) all additional stock, partnership interests
or other securities or property (including cash) which
may be paid in respect of the Pledged Collateral by
reason of any consolidation, merger, exchange of stock
or interests, conveyance of assets, liquidation or
similar corporate or partnership reorganization.
Section 3. Voting Power. So long as no Event of Default exists, the
pledgors shall be entitled to exercise all voting, consensual and other powers
of ownership pertaining to the Pledged Collateral, provided that no vote shall
be cast nor any approval, consent, waiver or ratification given, nor any power
pertaining to the Pledged Collateral exercised, nor any other action taken,
which would violate or be inconsistent with the terms of this Agreement. If an
Event of Default occurs and is continuing, the Trust shall have the sole and
exclusive right to
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<PAGE> 5
exercise all voting, consensual and other powers of ownership pertaining to the
Pledged Collateral.
Section 4. Events of Default and Remedies.
(a) During any period in which an Event of Default shall have
occurred and be continuing, the Trust shall have the following rights regarding
the Pledged Collateral: (i) the Trust shall have all of the rights and remedies
with respect to the Pledged Collateral of a secured party under the Uniform
Commercial Code, as is in effect from time to time in the State of New York, and
such additional rights and remedies to which a secured party is entitled under
the laws in effect in any jurisdiction where any rights and remedies hereunder
may be asserted, including, without limitation, the right, to the fullest extent
permitted by law, to exercise all voting, and other powers of ownership
pertaining to the Pledged Collateral as if the Trust were the sole and absolute
owner thereof (and the pledgors under this Agreement agree to take all
reasonable actions as may be appropriate to give effect to such rights); (ii)
the Trust in its discretion may, in its name or the name of the pledgors or
otherwise, demand, sue for, collect or receive any money or property at any time
payable or receivable on account of or in exchange for any of the Pledged
Collateral, but shall be under no obligation to do so; and (iii) the Trust may,
upon 10 business days' written notice to the pledgors under this Agreement of
the time and place, sell, assign or otherwise dispose of all or any part of the
Pledged Collateral, at such place or places as the Trust deems best, and for
cash, credit or future delivery (without thereby assuming any credit risk),
without demand or performance or further notice of intention to effect such
disposition or the time or place thereof (except such notices which are required
by applicable statute and cannot be waived); and, further, the Trust or anyone
else who may be the purchaser, the lessee, transferee or assignee of any or all
of the Pledged Collateral so disposed of shall thereafter hold the same
absolutely free from any claim or right or whatsoever kind, including any right
or equity of redemption (statutory or otherwise).
The proceeds of each collection, sale or other disposition under this
Section shall be applied in accordance with Section 9 hereof.
The pledgors recognize that, by reason of certain prohibitions contained
in the Securities Act of 1933, as amended (the "SECURITIES ACT"), and
applicable state securities laws ("BLUE SKY LAWS"), the Trust may be compelled,
with respect to any sale of all or any part of the Pledged Collateral, to make
sales of such Pledged Collateral to purchasers who have agreed, among other
things, to acquire the Pledged Collateral for their own account, for investment
and not with a view to the distribution or resale thereof. The pledgors
acknowledge that such sales may be at prices and on terms less favorable to the
Trust than those obtainable through a public sale without such restrictions,
and notwithstanding such circumstances, agree that any such sale shall be
deemed to have been made in a commercially reasonable manner. The pledgors
acknowledge and agree that, subject to compliance with the Securities Act and
Blue Sky Laws, under no circumstances will the Trust be required to register
any of the Pledged Securities under the Securities Act or any Blue Sky Laws.
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<PAGE> 6
The pledgors hereby appoint the Trust, effective during the continuance of
an Event of Default, as the pledgors' attorney-in-fact, with full power of
substitution for the purposes specified in, or contemplated by, this Agreement.
Such appointment is irrevocable and coupled with an interest. As
attorney-in-fact, the Trust may (in addition to the actions specified in other
provisions of this Agreement), in the name, place and stead of any pledgor, make
and execute all conveyances, assignments and transfers of the Pledged Collateral
sold pursuant hereto, and such pledgor hereby ratifys and confirms all that the
Trust, as attorney-in-fact, shall do by virtue hereof. Nevertheless, such
pledgor shall, if so requested by the Trust, ratify and confirm any sale or
sales by executing and delivering to the Trust, or to such purchaser or
purchasers, all such instruments as may, in the judgment of the Trust, be
advisable for the purpose.
Section 5. Certain Representations and Warranties. The Ramco Principals,
jointly and severally, represent and warrant to the Trust as follows:
(i) the respective pledgors are the legal, record and beneficial
owners of, and have good and marketable title to, the Pledged Collateral,
subject to pledge, claim, lien, security interest, charge, option or other
encumbrance (a "LIEN") except for (A) the security interest created by
this Agreement and (B) restrictions on transfer under the Securities Act
and Blue Sky Laws;
(ii) the Pledged Collateral has been duly and validly issued and is
fully paid and non-assessable and such Pledged Collateral is not subject
to any options to purchase or similar rights except those in favor of the
Operating Partnership or the Trust;
(iii) assuming the authority of pledgors to execute, deliver and
perform their obligations under this Agreement, this Agreement creates, in
favor of the Trust and as security for the Secured Obligations, a valid
and enforceable perfected lien on the Pledged Collateral;
(iv) to the best of their knowledge after consultation with counsel,
no consent, filing, recording or registration, other than the filing of
Uniform Commercial Code financing statements, is required to perfect the
lien purported to be created by this Agreement against the Pledged
Collateral;
(v) the Pledged Collateral represents all of the Ramco Principals
direct and indirect interests in the Trust, the Operating Partnership and
the Holders;
(vi) the execution, delivery and performance of this Agreement will
not (a) violate any provision of any applicable law or regulation of any
Governmental Body, violate any provision of any mortgage, indenture,
lease, contract, pledge or other instrument or undertaking to which any
pledgor is a party or which purports to be binding upon any pledgor or any
of its assets, except for any partnership agreement or agreement of
limited partnership of any Holder, as applicable, or (b) result in the
creation or
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<PAGE> 7
imposition of any Lien on any assets of any pledgor except the Lien created
by this Agreement;
(vii) the principal place of business of such pledgor (or residence in
the event such pledgor is an individual) is as set forth in Exhibit F
annexed hereto and made a part hereof).
(viii) no Ramco Principal is a party to any shareholders' agreement
relating to his or its ownership of the Pledged Corporate GP Stock, except
for the shareholders' agreements between the Ramco Principals in Ramco
Jackson, Inc. ("Ramco Jackson") and Ramco Oak Brook, Inc., both of which
are in the same form as the Shareholders Agreement, dated February 27,
1990, between Ramco Jackson and each of the Ramco Principals (together,
the "Shareholder Agreements");
(ix) each party to the Shareholder Agreements has consented to the
pledge by the Ramco Principals of the Pledged Corporate GP Stock and
agreed that, to the extent such stock is foreclosed on and acquired by the
Trust pursuant to this Agreement, that such stock and the Trust shall not
be bound by or subject to any of the Shareholder Agreements;
(x) the data and other information set forth on Exhibits A through G
hereto are true, correct and complete in all respects; and
(xi) in connection with the incurrence by an affiliate of the Ramco
Principals of certain recourse indebtedness on or prior to the date hereof
(with respect to which he Ramco Principals are, jointly and severally,
personally liable), all interests owned, directly or indirectly, by the
Ramco Principals in the Holders set forth on Exhibit G hereto, together
with the number of OP Units owned by such Holders, are, on or prior to the
date hereof, subject to an existing pledge in favor of NBD Bank in
connection with the indebtedness incurred by an affiliate of the Ramco
Principals as described above.
Section 6. Covenants of the Pledgors. The Ramco Principals, jointly and
severally, covenant and agree with the Trust as follows:
(i) they will, or they will cause, the Pledgors to, defend the
Trust's right, title, claim of possession and Lien in and to the Pledged
Collateral against the claims and demands of all Persons;
(ii) they will pay and discharge all Liens, charges, claims, taxes
and other governmental charges, and all contractual obligations requiring
the payment of money, before such become overdue, that may affect the
Pledged Collateral or any part thereof, unless (but only to the extent
that) such payment is being contested in good faith and in accordance with
law;
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<PAGE> 8
(iii) they shall not, without the prior written consent of the Trust
(which consent shall not be unreasonably withheld), amend or modify, or
consent to the amendment or modification of, the organizational documents
of Holders, the Partnership GP Entities and the Corporate GP Entities;
(iv) they will, or they will cause each pledgor to, join with the
Trust in executing and file and refile under the Uniform Commercial Code
such financing statements, continuation statements and other documents in
such offices as the Trust may reasonably deem necessary or desirable and
wherever required or permitted by law in order to perfect and preserve the
Trust's security interest in the Pledged Collateral and hereby authorizes
the Trust to file financing statements and amendments thereto relative to
all or any part of the Pledged Collateral without the signature of such
pledgor where permitted by law, and agrees to do such further acts and
things and to make, execute and deliver to the Trust such additional
conveyances, assignments, agreements, instruments and financing statements
as the Trust may reasonably require or deem advisable to carry into effect
the purposes of this Agreement or to further assure and confirm unto the
Trust its rights, powers and remedies hereunder, and if any pledgor shall
fail to execute any such additional conveyances, assignments, agreements,
instruments or financing statements, the Trust, as attorney-in-fact for
such pledgor may in the name, place and stead of such pledgor, make,
execute and deliver any of the foregoing; and
(v) notify the Trust in writing forty-five (45) business days prior
to the date any pledgor changes its principal place of business or
principal residence in the event such pledgor is an individual, which
notice shall set forth the full and complete new principal place of
business or principal residence, as the case may be, of such pledgor.
Section 7. Marshalling. The Trust shall not be required to marshall any
present or future security for (including, but not limited to this Agreement or
any collateral pledged hereunder), or guaranties of, the Secured Obligations of
any pledgor, or to resort to such security or guaranties in any particular
order; and all of its rights hereunder and in respect of such security and
guaranties shall be cumulative and in addition to all other rights hereunder,
however existing or arising. To the extent that any pledgor may lawfully do
so, each pledgor hereby agrees not to invoke any law relating to the
marshalling of collateral which may cause delay and/or impede the enforcement
of any of the Trust's rights under this Agreement, or any other instrument
evidencing any of the obligations under this Agreement, the Master Agreement or
any Ramco Agreement or under which any of such obligations is outstanding or by
which any of such obligations is secured or guarantied, and to the extent that
such pledgor may lawfully do so, each pledgor hereby irrevocably waives the
benefit of all such laws.
Section 8. Deficiency. If the proceeds of sale, collection or
realization of or upon the Pledged Collateral pursuant to Section 4 hereof are
insufficient to cover the cost and expenses of such realization and the payment
in full of the Secured Obligations, the pledgor shall not be liable for any
amounts which exceed the Pledged Collateral. The Trust may not collect from
the
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<PAGE> 9
Pledged Collateral more than the Secured Obligations plus costs and expenses of
realizing on such Pledged Collateral.
Section 9. The Pledgors' Obligations Not Affected. The obligations of
each pledgor hereunder shall remain in full force and effect and shall not be
impaired by:
(a) any bankruptcy or insolvency of any other pledgor;
(b) any amendment to or modification of any instrument (other than
this Agreement) securing any of the Secured Obligations;
(c) the taking of additional security for, or any guaranty of, any of
the Secured Obligations or the release or discharge or termination of any
security or guaranty for any of the Secured Obligations; or
(d) the lack of enforceability of any of the Secured Obligations
against any pledgor or any other person.
Section 10. Application of Proceeds. Except as otherwise expressly
provided in Section 8 herein, the proceeds of any collection, sale or other
realization of any or any part of the Pledged Collateral pursuant hereto shall
be applied by the Trust: first, to the payment of the costs and expenses of
such collection, sale or other realization, including reasonable out-of-pocket
costs and expenses of the Trust and the reasonable fees and expenses of its
agents and counsel; second, to the payment in full of the Secured Obligations;
and finally, to the payment to the pledgors (in accordance with their interests
in the Pledged Collateral), or their heirs, executives, administrators,
successors or assigns, or as a court of competent jurisdiction may direct, of
any surplus then remaining.
As used in this Section 10, "THE PROCEEDS" of the Pledged Collateral shall
mean cash, securities and other property realized.
Section 11. Perfection. Each Ramco Principal shall deliver to the Trust
(i) to the extent that the Pledged Collateral are certificated securities, the
certificates representing the Pledged Collateral accompanied by undated stock
or other similar powers duly endorsed in blank, (ii) such Uniform Commercial
Code financing statements, executed by the applicable pledgor and in a form
ready for filing, as may be necessary or desirable to perfect the first
priority security interests in the Pledged Collateral granted to the Trust
pursuant to this Agreement and (iii) satisfactory evidence that all other
filings, recordings, registrations and other actions the Trust deems necessary
or desirable to establish, preserve and perfect the security interests granted
to the Trust pursuant to this Agreement shall have been made.
Section 12. Transfer, Etc. Without the prior written consent of the
Trust, the pledgors will not sell, assign, transfer or otherwise dispose of,
grant any option with respect to, or pledge
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<PAGE> 10
or grant any security interest in or otherwise encumber any of the Pledged
Collateral or any interest therein, except for the pledge provided for in this
Agreement.
Section 13. Termination. The security interest in the Pledged Collateral
granted to the Trust as security for the Secured Obligations shall terminate on
April 30, 1997 (the "TERMINATION DATE"), except as to Pledged Collateral having
a value (as determined in good faith by the Trust) of not more than 110% of any
amount claimed which the Trust gives written notice in accordance with Section
7.2 of the Master Agreement or Section 19 of the Ramco Agreements, as
applicable (a "PENDING CLAIM"). If a Pending Claim exists on the Termination
Date, the security interest in the remaining retained Pledged Collateral
granted to the Trust as security for the Secured Obligations shall terminate on
such date (the "PENDING CLAIM TERMINATION DATE") as when (a) the Ramco
Principals' obligation relating to the Pending Claim has been satisfied or (b)
the Pending Claim has been finally resolved (by agreement of the Trust and the
Ramco Principals or a final judgment of a court of competent jurisdiction). On
the applicable termination date provided for in this paragraph, the Trust shall
forthwith cause to be assigned, transferred and delivered, against receipt, any
remaining Pledged Collateral and any money received in respect of, to or in the
order of the applicable pledges.
Section 14. Further Assurances. The pledgors will from time to time
execute and deliver to the Trust all such other and further instruments and
documents and take or cause to be taken all such other and further actions as
the Trust may reasonably request in order to effect and confirm more securely
in the Trust all rights contemplated in this Agreement.
Section 15. Expenses. The Ramco Principals agree to pay to the Trust all
reasonable out-of-pocket expenses of the Trust (including reasonable expenses
for legal services) of, or incident to the enforcement of, any provisions of
this Agreement.
Section 16. Miscellaneous.
(a) Waiver, etc. No act, failure or delay by the Trust shall
constitute a waiver of its rights, powers or remedies hereunder or otherwise.
No single or partial waiver by the Trust or any of its agents of any default or
right or remedy which it may have shall constitute a waiver of any other
default, right or remedy or of the same default, right or remedy on a future
occasion. The pledgors hereby waive presentment, notice of dishonor and protest
of all instruments and any and all other notices and demands whatsoever (except
as expressly provided herein). The remedies herein are cumulative and are not
exclusive of any other remedies which may be provided by law.
(b) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to the conflicts of law principles thereof.
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(c) All communications herein provided shall be in writing and shall
be sufficient if sent by United States mail, registered or certified, delivered
by messenger, overnight courier, telex or telefax, addressed as follows:
If to the Trust:
Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
Telecopier No.: (810) 350-9925
Attention: Chairman
with a copy to:
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Telecopier No.: (212) 856-7812
Attention: Peter M. Fass, Esq.
If to any pledgor:
Ramco-Gershenson Properties Trust
27600 Northwestern Hwy
Suite 200
Southfield, Michigan 48034
Telecopier No.: (810) 350-9925
Attention: Mr. Dennis Gershenson
with a copy to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, Michigan 48226-3583
Telecopier No.: (313) 962-0176
Attention: Richard Burstein, Esq.
or such other addresses where any party may receive any such communication or
notice as may be designated by written notice to the other parties. Any
notice given pursuant to this Section to effect a change of address shall be
effective when received.
(d) Successors and Assigns. This Agreement and all obligations of
the pledgors herein shall be binding upon the heirs, executives, successors and
assigns of the pledgors and
11
<PAGE> 12
shall, together with the rights and remedies of the Trust, inure to the benefit
of the Trust and its successors and assigns.
(e) Severability. If any term in this Agreement shall be held to be
invalid or illegal or unenforceable in any respect, the validity of all other
terms hereof shall be in no way affected thereby, and this Agreement shall be
construed and be enforceable as if such invalid, illegal or unenforceable term
had not been included herein.
(f) Exclusive Agreement. This Agreement supersedes all prior
agreements among the parties with respect to its subject matter, including,
without limitation, Section 20 of any Ramco Agreement, and is intended as a
complete and exclusive statement of the terms of the Agreement among the
parties.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any other parties hereto may execute this Agreement by signing
any such counterparts.
12
<PAGE> 13
IN WITNESS WHEREOF, the Ramco Principals, the Trust and the Holders
have caused this Agreement to be duly executed as of the date first above
written.
TRUST
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
------------------------------
Name: Dennis Gershenson
Title: Chief Executive Officer
RAMCO PRINCIPALS
/s/ Dennis Gershenson
----------------------------------
Dennis Gershenson
/s/ Joel Gershenson
----------------------------------
Joel Gershenson
/s/ Bruce Gershenson
----------------------------------
Bruce Gershenson
/s/ Richard Gershenson
----------------------------------
Richard Gershenson
/s/ Michael A. Ward
----------------------------------
Michael A. Ward
(signature pages continued)
<PAGE> 14
MICHAEL A. WARD U/T/A DATED
2/22/77, AS AMENDED
By: /s/ Michael A. Ward
-------------------------------------
Michael A. Ward as trustee U/T/A dated
2/22/77, as amended
HOLDERS (other than Joel Gershenson,
Dennis Gershenson, Bruce Gershenson, Richard
Gershenson and Michael A. Ward U/T/A dated
2/22/77, as amended)
WEST OAKS I
WEST OAKS DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
----------------------------------------
Dennis Gershenson, Partner
JACKSON CROSSING
RAMCO JACKSON ASSOCIATES LIMITED
PARTNERSHIP,
a Michigan limited partnership
By: RAMCO JACKSON, INC.,
a Michigan corporation,
its General Partner
By: /s/ Dennis Gershenson
-----------------------------------
Dennis Gershenson
Vice President
(signature pages continued)
<PAGE> 15
TEL-TWELVE SHOPPING CENTER
TEL-TWELVE MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: R.G. TEL-TWELVE CO.,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
----------------------------
Dennis Gershenson, Partner
CLINTON VALLEY MALL
STERLING MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO CONSUMERS MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership,
its General Partner
By: /s/ Dennis Gershenson
------------------------------
Dennis Gershenson,
a General Partner
OAK BROOK SQUARE
RAMCO OAK BROOK SQUARE ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO OAK BROOK SQUARE, INC.,
a Michigan corporation,
general partner
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Vice President
(signature pages continued)
<PAGE> 16
FRASER TOWN CENTER
RAMCO FRASER DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
--------------------------------
Dennis Gershenson, Partner
EDGEWOOD TOWN CENTER
RAMCO LANSING ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
---------------------------------
Dennis Gershenson, Partner
NORTH TOWNE OFFICE MAX
RAMCO LEWIS ALEXIS ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
---------------------------------
Dennis Gershenson, Partner
NAPLES TOWNE CENTER
RAMCO SOUTH NAPLES DEVELOPMENT,
a Florida general partnership
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Partner
SPRING MEADOWS SHOPPING CENTER
RAMCO SPRING MEADOWS ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
-----------------------------------
Dennis Gershenson, Partner
(signature pages continued)
<PAGE> 17
TROY TOWNE CENTER
RAMCO SINGER ASSOCIATES LIMITED
PARTNERSHIP, an Ohio limited partnership
By: RAMCO TROY ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
---------------------------------
Dennis Gershenson, Partner
WEST ALLIS TOWN CENTER
WEST ALLIS SHOPPING CENTER ASSOCIATES,
a Wisconsin general partnership
By: RAMCO ALLIS DEVELOPMENT
COMPANY, its Partner
By: /s/ Dennis Gershenson
------------------------------
Dennis Gershenson, Partner
WEST OAKS II
RAMCO NOVI DEVELOPMENT ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO NOVI DEVELOPMENT COMPANY,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
-------------------------------
Dennis Gershenson, Partner
CLINTON VALLEY STRIP
KMW STERLING DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
-------------------------------------
Dennis Gershenson, Partner
(signature pages continued)
<PAGE> 18
KENTWOOD TOWNE CENTER
RAMCO KENTWOOD ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Partner
FERNDALE PLAZA
MICHIGAN SHOPPING CENTER VENTURE II
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO L & W PARTNERS,
a Michigan co-partnership,
its general partner
By: RAMCO GP,
a Michigan co-partnership,
its partner
By: /s/ Dennis Gershenson
-------------------------------
Dennis Gershenson, Partner
(End of signature pages)
<PAGE> 19
EXHIBIT A TO PLEDGE AGREEMENT
The number of OP Units issued under the Partnership Agreement owned by
each Ramco Principal, directly or indirectly through their general and/or
limited partnership interest in a Holder, on the date hereof and which are
subject to this Agreement:
Joel Gershenson 2
Dennis Gershenson 2
Richard Gershenson 2
Bruce Gershenson 2
Michael A. Ward 0
Michael A. Ward, Trustee U/T/A
dated 2/22/77, as amended 2
West Oaks Development Company 71,392
Ramco Jackson Associates Limited Partnership 10
Tel-Twelve Mall Associates Limited Partnership 368,154
Sterling Mall Associates Limited Partnership 9,316
Ramco Oak Brook Square Associates Limited Partnership 739
Ramco Fraser Development Company 74,972
Ramco Lansing Associates 62,295
Ramco Lewis Alexis Associates 10,914
Ramco South Naples Development 69,565
Ramco Spring Meadows Associates 3,325
Ramco Singer Associates Limited Partnership 60,548
West Allis Shopping Center Associates 89,735
Ramco Novi Development Associates Limited Partnership 110,414
KMW Sterling Development Company 64,575
Ramco Kentwood Associates 1,871
Michigan Shopping Center Venture II Limited Partnership 0
=======
Total 997,835
<PAGE> 20
EXHIBIT B TO PLEDGE AGREEMENT
The number of Shares of beneficial interests of the Trust owned by
each Ramco Principal on the date hereof:
Joel Gershenson 0
Dennis Gershenson 0
Richard Gershenson 0
Bruce Gershenson 0
Michael A. Ward 0
Michael A. Ward, Trustee U/T/A
dated 2/22/77, as amended 0
<PAGE> 21
EXHIBIT C TO PLEDGE AGREEMENT
Limited Partnership Interests in the Holders owned by each of the
Ramco Principals on the date hereof:
Percentage
Tel Twelve Mall Associates Limited Partnership 51.21
Ramco Fraser Development Company N/A - general
partnership
Ramco South Naples Development N/A - general
partnership
Ramco Singer Associates Limited Partnership 0
West Allis Shopping Center Associates N/A - general
partnership
KMW Sterling Development Company N/A - general
partnership
Ramco Kentwood Associates N/A general partnership
Ramco Oak Brook Square Associates Limited Partnership 96.04
Sterling Mall Associates Limited Partnership 0
West Oaks Development Company N/A - general
partnership
Ramco Novi Development Associates Limited Partnership 0
Ramco Spring Meadows Associates N/A - general
partnership
Ramco Jackson Associates Limited Partnership 100
Ramco Lansing Associates N/A - general
partnership
Ramco Lewis Alexis Associates N/A - general
partnership
Michigan Shopping Center Venture II Limited 0
Partnership
Each Ramco Principal owns 20% of the interests held by the Ramco Principals in
the aggregate.
<PAGE> 22
EXHIBIT D TO PLEDGE AGREEMENT
Percentage of Partnership Interests in the General Partners of the
Holders that are Limited Partnerships owned by each of the Ramco Principals on
the date hereof, and Percentage of Partnership Interests in the General
Partnerships which are Holders owned by each of the Ramco Principals on the date
hereof:
<TABLE>
<CAPTION>
PERCENTAGE OF
GENERAL PARTNER
OWNED BY RAMCO PERCENTAGE OF
PRINCIPALS, GENERAL PARTNERSHIP
RELATING TO HOLDERS INTERESTS OWNED BY
WHICH ARE LIMITED RAMCO PRINCIPALS
PARTNERSHIPS WITH A RELATING TO HOLDERS
PARTNERSHIP AS WHICH ARE GENERAL
PARTNERSHIP NAME A GENERAL PARTNER PARTNERSHIPS
---------------- -------------------- --------------------
<S> <C> <C>
Tel Twelve Mall Associates Limited Partnership 100(1)
Ramco Fraser Development Company 100
Ramco South Naples Development 100
Ramco Singer Associates Limited Partnership 83.33(2)
West Allis Shopping Center Associates 50
KMW Sterling Development Company 50
Ramco Kentwood Associates 100
Ramco Oak Brook Square Associates Limited Partnership (corporate general)
Sterling Mall Associates Limited Partnership 100(3)
West Oaks Development Company 83.33
Ramco Novi Development Associates Limited Partnership 100(4)
Ramco Spring Meadows Associates 15
Ramco Jackson Associates Limited Partnership Corporate general
Ramco Lansing Associates 100
Ramco Lewis Alexis Associates 100
Michigan Shopping Center Venture II Limited Partnership 68.58(5)
</TABLE>
Each Ramco Principal owns 20% of the interests held by the Ramco Principals in
the aggregate.
- -------------------
1. The name of the General Partner is R.G. Tel-Twelve Co., a Michigan general
partnership, and the specified interest therein is subject to a pledge under
this Pledge Agreement.
2. The name of the General Partner owned by the Ramco Principals is Ramco Troy
Associates, a Michigan co-partnership, and the specified interest therein is
subject to a pledge under this Pledge Agreement.
3. The name of the General Partner is Ramco Consumers Mall Associates Limited
Partnership, a Michigan limited partnership, and the specified interest therein
is subject to a pledge under this Pledge Agreement.
4. The name of the General Partner is Ramco Novi Development Company, a
Michigan co-partnership, and the specified interest therein is subject to a
pledge under this Pledge Agreement.
5. The name of the General Partner owned by the Ramco Principals is Ramco GP,
a Michigan co-partnership, and the specified interest therein is subject to a
pledge under this Pledge Agreement.
<PAGE> 23
EXHIBIT E TO PLEDGE AGREEMENT
Shares of stock in the general partnerships of Holder, which general
partners are corporations, owned by the Ramco Principals on the date hereof:
Ramco Jackson, Inc. 100%
Ramco Oak Brook Square, Inc. 100%
<PAGE> 24
EXHIBIT F TO PLEDGE AGREEMENT
NUMBER OF OP UNITS OWNED BY HOLDERS
AND APPLICABLE PERCENTAGE OWNERSHIP OF RAMCO PRINCIPALS
<TABLE>
<CAPTION>
APPLICABLE
NUMBER OF OP UNITS PERCENTAGE
OWNED ON DATE OWNERSHIP OF RAMCO
HEREOF PRINCIPALS
-------------------- -----------------
<S> <C> <C>
Tel Twelve Mall Associates Limited Partnership 674,399 54.59
Ramco Fraser Development Company 74,972 100
Ramco South Naples Development 69,565 100
Ramco Singer Associates Limited Partnership 96,876 62.50
West Allis Shopping Center Associates 179,469 50
KMW Sterling Development Co. 129,150 50
Ramco Kentwood Associates 1,871 100
Ramco Oak Brook Square Associates Limited 754 98
Partnership
Sterling Mall Associates Limited Partnership 93,158 10
West Oaks Development Company 85,674 83.33
Ramco Novi Development Associates Limited 220,828 50
Partnership
Ramco Spring Meadows Associates 21,772 15.27
Ramco Jackson Associates Limited Partnership 10 100
Ramco Lansing Associates 62,295 100
Ramco Lewis Alexis Associates 10,914 100
Michigan Shopping Center Venture II Limited 30,998 0
Partnership =========
Total 1,752,705
</TABLE>
Principal address of all Holders is 27600 Northwestern Highway, Suite 200,
Southfield, Michigan 48034.
<PAGE> 25
EXHIBIT G TO PLEDGE AGREEMENT
NUMBER OF OP UNITS OWNED BY HOLDERS
AND APPLICABLE PERCENTAGE OWNERSHIP OF RAMCO PRINCIPALS
(WHICH OP UNITS ARE CONCURRENTLY HEREWITH BEING (OR PRIOR
HERETO ARE) PLEDGED TO A FINANCIAL INSTITUTION TO SECURE
CERTAIN RECOURSE INDEBTEDNESS OF THE RAMCO PRINCIPALS)
<TABLE>
<CAPTION>
APPLICABLE
NUMBER OF OP UNITS PERCENTAGE
OWNED ON DATE OWNERSHIP OF RAMCO
HEREOF PRINCIPALS
------------------ -----------------
<S> <C> <C>
Ramco Lapeer Associates Limited Partnership 74,981 100
Roseville Plaza Limited Partnership 251,764 50
Southfield Plaza Limited Partnership 117,836 50
Ford Sheldon Plaza Company 65,465 51
W&G Realty Company 25,668 50
=======
Total 535,714
</TABLE>
<PAGE> 1
EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made as of May 10, 1996 (this
"AGREEMENT"), among RAMCO-GERSHENSON PROPERTIES TRUST, formerly known as RPS
Realty Trust, a Massachusetts business trust (the "COMPANY"), DENNIS GERSHENSON,
JOEL GERSHENSON, BRUCE GERSHENSON, RICHARD GERSHENSON, MICHAEL A. WARD, MICHAEL
A. WARD U/T/A DATED 2/22/77, AS AMENDED (collectively, the "RAMCO PRINCIPALS")
and each of the Persons (together with the Ramco Principals, collectively, the
"HOLDERS") set forth on Exhibit A hereto (as it may be amended from time to
time).
RECITALS:
A. The Holders are entering into this Agreement in connection with the
transactions (the "RAMCO TRANSACTION") effectuated on this day by the Company
and Ramco-Gershenson, Inc. and its affiliates pursuant to which the Company
contributed cash and properties to Ramco-Gershenson Properties, L.P., a Delaware
limited partnership (the "OPERATING PARTNERSHIP").
B. Pursuant to the Ramco Transaction, the Holders have been issued units
of limited partnership interest in the Operating Partnership ("OP UNITS"), which
OP Units may be exchanged for shares of beneficial interest of the Company, par
value $.10 per share (the "SHARES") pursuant to an Exchange Rights Agreement
dated the date hereof and entered into among the Holders and the Company
pursuant to the Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, dated the date hereof (as amended from time to time, the
"OPERATING PARTNERSHIP AGREEMENT").
C. The Company has agreed to provide each of the Holders with certain
registration rights as set forth herein.
Accordingly, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1. "AGREEMENT" has the meaning set forth in the introductory paragraph.
1.2. "RAMCO TRANSACTION" has the meaning set forth in Recital A.
1.3. "BUSINESS DAY" means any day on which the New York Stock Exchange is
open for trading.
<PAGE> 2
1.4. "CLOSING DATE" means the date of the consummation of the Ramco
Transaction.
1.5. "COMPANY" has the meaning set forth in the introductory paragraph.
1.6. "ELIGIBLE SECURITIES" means all or any portion of the Shares acquired
by the Holders in connection with or upon exchange of the OP Units. As to any
proposed offer or sale of Eligible Securities, such securities shall cease to
be Eligible Securities with respect to such proposed offer or sale when (i) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement or (ii) such
securities shall have been otherwise transferred pursuant to an applicable
exemption under the Securities Act, new certificates for such securities not
bearing a legend restricting further transfer shall have been delivered by the
Company and such securities shall be freely transferable to the public without
registration under the Securities Act.
1.7. "LOCK-UP AGREEMENTS" means the Lock-Up Agreements executed in favor
of the Company by each of the Holders.
1.8. "LOCK-UP DATE" (a) with respect to the Ramco Principals means the
date that is 30 months after the Closing Date and (b) with respect to Holders
other than the Ramco Principals means the date that is one year after the
Closing Date. If any such date is not a Business Day, the next succeeding date
that is a Business Day shall be the Lock-Up Date.
1.9. "OPERATING PARTNERSHIP" has the meaning set forth in Recital A.
1.10. "OPERATING PARTNERSHIP AGREEMENT" has the meaning set forth in
Recital B.
1.11. "PERSON" means an individual, a partnership (general or limited),
corporation, joint venture, business trust, cooperative, association or other
form of business organization, whether or not regarded as a legal entity under
applicable law, a trust (inter vivos or testamentary), an estate of a deceased,
insane or incompetent person, a quasi-governmental entity, a government or any
agency, authority, political subdivision or other instrumentality thereof, or
any other entity.
1.12. "PERMITTED TRANSFEREES" with respect to each Holder means (i) with
respect to OP Units, Persons which qualify as Permitted Transferees under the
Operating Partnership Agreement, and (ii) with respect to Shares, any other
Holder or an Affiliate of such Holder; provided, that no Person shall be deemed
to be a Permitted Transferee until the Company receives the requisite notice
and signature page pursuant to Section 7.1. As used herein, the term
"AFFILIATE" shall mean any Person that directly or indirectly, through one or
more intermediaries, controls, is controlled by, or is under common control
with, a specified Person, and, with respect to an individual, shall include
such Person's immediate family or a trust for the benefit thereof.
1.13. "REGISTRATION EXPENSES" means all expenses incident to the Company's
performance of or compliance with the registration requirements set forth in
this Agreement
2
<PAGE> 3
including, without limitation, the following: (i) the fees, disbursements and
expenses of the Company's counsel(s) (United States and foreign), accountants
and experts in connection with the registration of Eligible Securities to be
disposed of under the Securities Act; (ii) all expenses in connection with the
preparation, printing and filing of the registration statement, any preliminary
prospectus or final prospectus, any other offering document and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
underwriters and dealers; (iii) the cost of printing or producing any
agreement(s) among underwriters, underwriting agreement(s) and blue sky or legal
investment memoranda, any selling agreements and any other documents in
connection with the offering, sale or delivery of Eligible Securities to be
disposed of; (iv) all expenses in connection with the qualification of Eligible
Securities to be disposed of for offering and sale under state securities laws,
including the fees and disbursements of counsel for the underwriters in
connection with such qualification and in connection with any blue sky and legal
investment surveys; (v) the filing fees incident to securing any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of Eligible Securities to be disposed of; (vi) fees and expenses incurred in
connection with the listing of Eligible Securities on each securities exchange
or quotation system on which the Shares are then listed; and (vii) SEC or blue
sky registration fees attributable to Eligible Securities or transfer taxes
applicable to Eligible Securities; provided, that Registration Expenses with
respect to any registration pursuant to this Agreement shall not include
underwriting discounts or commissions attributable to Eligible Securities.
1.14. "SEC" means the Securities and Exchange Commission.
1.15. "SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC thereunder, all as the same shall be in
effect at the relevant time.
1.16. "SELLING INVESTOR" means any Holder who has requested registration
pursuant to Section 3.1.
ARTICLE II
EFFECTIVENESS OF REGISTRATION RIGHTS
2.1. EFFECTIVENESS OF REGISTRATION RIGHTS. This Agreement shall become
effective on the date hereof, provided, that the exercise of any registration
rights granted pursuant to Article 3 prior to the Lock-Up Date shall be subject
to the prior receipt by the Company of the written consent of a majority of the
Company's Board of Trustees (including a majority of the independent trustees)
to the waiver of the restrictions on transfer of the Shares and securities
convertible into or exchangeable or exercisable for Shares set forth in the
Lock-Up Agreement applicable to the Holder exercising such registration rights.
3
<PAGE> 4
ARTICLE III
INCIDENTAL REGISTRATION
3.1. NOTICE AND REGISTRATION. If the Company proposes to register any
Shares, any equity securities exercisable for, convertible into or exchangeable
for Shares, or other securities issued by it having terms substantially similar
to Eligible Securities ("OTHER SECURITIES") for public sale under the
Securities Act on a form and in a manner which would permit registration of
Eligible Securities for sale to the public under the Securities Act, it will
give written notice to each Holder of its intention to do so, and upon the
written request of any Holder delivered to the Company within 15 Business Days
after the giving of any such notice (which request shall specify the number of
Eligible Securities intended to be disposed of by such Holder and the intended
method of disposition thereof), the Company will use commercially reasonable
efforts to effect, in connection with the registration of the Other Securities,
the registration under the Securities Act of all Eligible Securities which the
Company has been so requested to register by the Selling Investors, to the
extent required to permit the disposition (in accordance with the intended
method or methods thereof as aforesaid) of Eligible Securities so to be
registered, provided, that:
(a) if, at any time after giving such written notice of its
intention to register any Other Securities and prior to the effective
date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register
the Other Securities, the Company may, at its election, give written
notice of such determination to the Selling Investors and thereupon the
Company shall be relieved of its obligation to register such Eligible
Securities in connection with the registration of such Other Securities
(but not from its obligation to pay Registration Expenses to the extent
incurred in connection therewith as provided in Section 3.2);
(b) The Company will not be required to effect any registration
pursuant to this Article 3 if the Company shall have been advised in
writing (with a copy to the Selling Investors) by a nationally recognized
independent investment banking firm selected by the Company to act as
lead underwriter in connection with the public offering of securities by
the Company that, in such firm's opinion, a registration of Eligible
Securities requested to be registered at that time would materially and
adversely affect the Company's own scheduled offering of Other
Securities; provided, that if an offering of some but not all of the
Eligible Securities requested to be registered by the Selling Investors
would not materially adversely affect the Company's offering of Other
Securities, the Company shall register the Maximum Excess Amount (as
defined below), and such Maximum Excess Amount shall be allocated pro
rata among all Selling Investors based upon the number of shares for
which registration was requested by each. For purposes of this
paragraph, the "MAXIMUM EXCESS AMOUNT" shall mean the largest number of
Eligible Securities (if any) that, in the opinion of the nationally
recognized independent investment banking firm selected by the Company,
could be offered to the public without materially adversely affecting the
offering and sale of Other Securities as then contemplated by the
Company;
4
<PAGE> 5
(c) The Company shall not be required to effect any registration of
Eligible Securities under this Article 3 incidental to the registration of
any of its securities in connection with mergers, acquisitions, exchange
offers, subscription offers, dividend reinvestment plans or stock options
or other employee benefit plans; and
(d) Notwithstanding any request under Section 3.1(a), a Selling
Investor may elect in writing prior to the effective date of a registration
under this Article 3, not to register all or any portion of its Eligible
Securities in connection with such registration.
3.2. REGISTRATION EXPENSES. The Company shall be responsible for the
payment of all Registration Expenses in connection with any registration
pursuant to this Article 3.
ARTICLE IV
REGISTRATION PROCEDURES
4.1. REGISTRATION AND QUALIFICATION. If and whenever the Company is
required to use all reasonable efforts to effect the registration of any
Eligible Securities under the Securities Act as provided in Article 3, the
Company will as promptly as is practicable:
(a) prepare, file and use commercially reasonable efforts to cause
to become effective a registration statement under the Securities Act
regarding the Eligible Securities to be offered;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with
respect to the disposition of all Eligible Securities until the earlier
of such time as all of such Eligible Securities have been disposed of in
accordance with the intended methods of disposition by the Selling
Investors set forth in such registration statement or the expiration of
90 days after such Registration Statement becomes effective;
(c) furnish to the Selling Investors and to any underwriter of such
Eligible Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included
in such registration statement (including each preliminary prospectus and
any summary prospectus), in conformity with the requirements of the
Securities Act, such documents incorporated by reference in such
registration statement or prospectus, and such other documents as the
Selling Investors or such underwriter may reasonably request;
(d) use commercially reasonable efforts to register or qualify all
Eligible Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as the Selling
Investors or any underwriter of such Eligible
5
<PAGE> 6
Securities shall reasonably request, and do any and all other acts and
things which may be reasonably requested by the Selling Investors or any
underwriter to consummate the disposition in such jurisdictions of the
Eligible Securities covered by such registration statement, except the
Company shall not for any such purpose be required to qualify generally to
do business as a foreign corporation in any jurisdiction wherein it is not
so qualified, or to subject itself to taxation in any jurisdiction where
it is not then subject to taxation, or to consent to general service of
process in any jurisdiction where it is not then subject to service of
process;
(e) use commercially reasonable efforts to list the Eligible
Securities on each national securities exchange or quotation system on
which the Shares are then listed, if the listing of such securities is
then permitted under the rules of such exchange;
(f) (i) use commercially reasonable efforts to furnish to the
Selling Investors an opinion of counsel for the Company, addressed to
them, dated the date of the closing under the underwriting agreement, and
(ii) upon such Selling Investor's request, use commercially reasonable
efforts to furnish to the Selling Investors a "comfort letter" signed by
the independent public accountants who have certified the Company's
financial statements included in such registration statement, addressed
to them; provided, that with respect to such opinion and "comfort
letter," the following shall apply: (A) the opinion and "comfort letter"
shall cover substantially the same matters with respect to such
registration statement (and the prospectus included therein) as are
customarily covered in opinions of issuer's counsel and in accountants'
letters delivered to underwriters in underwritten public offerings of
securities and such other matters as the Selling Investors may reasonably
request; and (B) the "comfort letter" also shall cover events subsequent
to the date of such financial statements; and
(g) notify the Selling Investors immediately upon the happening of
any event as a result of which a prospectus included in a registration
statement, relating to a registration pursuant to Article 3, as then in
effect, includes an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and, at the request of the Selling Investors,
prepare and furnish to the Selling Investors as many copies of a
supplement to or an amendment of such prospectus as the Selling Investors
reasonably request so that, as thereafter delivered to the purchasers of
such Eligible Securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
The Company may require the Selling Investors to furnish the Company such
information regarding the Selling Investors and the distribution of such
securities as the Company may from time to time reasonably request in writing
and as shall be required by law or by the SEC in connection with any
registration.
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<PAGE> 7
4.2. UNDERWRITING. (a) If requested by the underwriters for any
underwritten offering of Eligible Securities pursuant to a registration
described in this Agreement, the Company will enter into and perform its
obligations under an underwriting agreement with such underwriters for such
offering, such agreement to contain such representations and warranties by the
Company and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution to the effect and to the
extent provided in Article 6 and the provision of opinions of counsel and
accountants' letters to the effect and to the extent provided in Section
4.1(f). The holders of Eligible Securities on whose behalf Eligible Securities
are to be distributed by such underwriters shall be parties to any such
underwriting agreement and the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such holders of
Eligible Securities.
(b) In the event that any registration pursuant to Article 3 shall
involve, in whole or in part, an underwritten offering, the Company may require
Eligible Securities requested to be registered pursuant to Article 3 to be
included in such underwriting on the same terms and conditions as shall be
applicable to the Other Securities being sold through underwriters under such
registration. In such case, the holders of Eligible Securities on whose behalf
Eligible Securities are to be distributed by such underwriters shall be parties
to any such underwriting agreement. Such agreement shall contain such
representations and warranties by the Company and the Selling Investors and such
other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnities and contribution to the effect and to the extent
provided in Article 6. The representations and warranties in such underwriting
agreement by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
such holders of Eligible Securities.
4.3. QUALIFICATION FOR RULE 144 SALES. The Company will take all actions
reasonably necessary to comply with the filing requirements described in Rule
144(c)(1) so as to enable the Holders to sell Eligible Securities without
registration under the Securities Act and, upon the written request of any
Holder, the Company will deliver to such Holder a written statement as to
whether it has complied with such filing requirements.
ARTICLE V
PREPARATION; REASONABLE INVESTIGATION
5.1. PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of each registration statement registering Eligible
Securities under the Securities Act, the Company will give the Selling
Investors and the underwriters, if any, and their respective counsel and
accountants, drafts of such registration statement for their review and comment
prior to filing and such reasonable and customary access to its books and
records and such opportunities to discuss the business of the Company with its
officers and the independent public accountants who have certified
its financial statements as shall be necessary, in the opinion of the Selling
Investors
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<PAGE> 8
and such underwriters or their respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
ARTICLE VI
INDEMNIFICATION AND CONTRIBUTION
6.1. INDEMNIFICATION. (a) In the event of any registration of Eligible
Securities hereunder, the Company will, and hereby does, indemnify and hold
harmless, each Selling Investor, its respective directors, trustees, officers,
partners, agents, employees and affiliates and each other person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls each such Selling Investor or any such
underwriter within the meaning of the Securities Act, against any and all
losses, claims, damages, expenses or liabilities, joint or several, actions or
proceedings (whether commenced or threatened) in respect thereof, to which each
such indemnified party may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, expenses or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances in which they were made not misleading,
and the Company will reimburse each such Selling Investor and each such
director, trustee, officer, partner, agent, employee or affiliate, underwriter
and controlling person for any legal or any other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, expense, liability, action, or proceeding; provided, that (i) the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, expense or liability (or action or proceeding in respect thereof)
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company through an instrument duly executed by or on behalf of such
Selling Investor or underwriter specifically stating that it is for use in the
preparation thereof, and (ii) the Company shall not be liable to any person who
participates as an underwriter in the offering or sale of Eligible Securities or
any other person, if any, who controls or is controlled by such underwriter
within the meaning of the Securities Act, in any such case to the extent that
any such loss, claim, damage, expense or liability (or action or proceeding in
respect thereof) arises out of such underwriter's failure to send or give a copy
of the final prospectus, as the same may be then supplemented or amended, to the
person asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of Eligible
Securities to such person if such statement or omission was corrected in such
final prospectus.
(b) Each Selling Investor severally will indemnify, and hereby does,
indemnify and hold harmless the Company, its trustees, its officers who sign the
registration statement, each
8
<PAGE> 9
Person who participates as an underwriter in the offering or sale of such
securities, and each Person, if any, who controls the Company or any such
underwriter within the meaning of the Securities Act against any and all losses,
claims, damages, expenses or liabilities, joint or several, actions or
proceedings (whether commenced or threatened) in respect thereof, to which each
such indemnified party may become subject under the Securities Act or otherwise
insofar as such losses, claims, damages, expenses or liabilities (or actions or
proceedings, whether commenced or threatened in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact in or omission or alleged omission to state a material fact in such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, but only
to the extent that such statement or omission was made in reliance upon and in
conformity with written information furnished by such Selling Investor to the
Company through an instrument duly executed by or on behalf of such Selling
Investor specifically stating that it is for use in preparation thereof and
provided, that no Selling Investor shall be liable to any person who
participates as an underwriter in the offering or sale of Eligible Securities or
any other person, if any, who controls or is controlled by such underwriter
within the meaning of the Securities Act, in any such case to the extent that
any such loss, claim, damage, expense or liability (or action or proceeding in
respect thereof) arises out of such underwriter's failure to send or give a copy
of the final prospectus, as the same may be then supplemented or amended, to the
person asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of Eligible
Securities to such person if such statement or omission was corrected in such
final prospectus..
(c) Promptly after receipt by any indemnified party hereunder of
notice of the commencement of any action or proceeding involving a claim
referred to in paragraphs (a) or (b) of this Section 6.1, the indemnified party
will notify the indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
under paragraphs (a) or (b) of this Section 6.1, except to the extent it is
prejudiced thereby. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel selected by it
and approved by the indemnified party (which approval shall not be unreasonably
withheld or delayed), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under paragraph
(a) or (b) of this Section 6.1 for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that an indemnified party shall have the right
to retain its own counsel, with the reasonable fees and expenses to be paid by
the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. In addition, the
indemnifying party shall not be required to indemnify, reimburse or otherwise
make
9
<PAGE> 10
any contribution to the amount paid or payable by the indemnified party for any
losses, claims, damages, expenses or liabilities incurred by the indemnified
party in settlement of any actions, proceedings or investigations otherwise
covered hereunder unless such settlement has been previously approved by the
indemnifying party, which approval shall not be unreasonably withheld or
delayed.
(d) If for any reason the indemnity under this Section 6.1 is
unavailable or is insufficient to hold harmless any indemnified party under
paragraph (a) or (b) of this Section 6.1, then the indemnifying parties shall
contribute to the amount paid or payable to the indemnified party as a result
of any loss, claim, expense, damage or liability (or actions or proceedings,
whether commenced or threatened, in respect thereof), and legal or other
expenses reasonably incurred by the indemnified party in connection with
investigating or defending any such loss, claim, expense, damage, liability,
action or proceeding, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling Investor and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. If, however, the
allocation provided in the second preceding sentence is not permitted by
applicable law, or if the allocation provided in the second preceding sentence
provides a lesser sum to the indemnified party than the amount hereinafter
calculated, then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party in such proportion as is appropriate to
reflect not only such relative fault but also the relative benefits of the
indemnifying party and the indemnified party as well as any other relevant
equitable considerations. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this paragraph (d) of Section 6.1
were to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the preceding sentences of this paragraph (d) of Section 6.1.
(e) Indemnification and contribution similar to that specified in
this Section 6.1 (with appropriate modifications) shall be given by the Company
and the Selling Investors with respect to any required registration or other
qualification of securities under any federal, state or blue sky law or
regulation of any governmental authority other than the Securities Act.
(f) Notwithstanding any other provision of this Section 6.1, to the
extent that any director, trustee, officer, partner, agent, employee, affiliate,
or other representative (current or former) of any indemnified party is a
witness in any action or proceeding, the indemnifying party agrees to pay to the
indemnified party all out-of-pocket expenses reasonably incurred by, or on the
behalf of, the indemnified party and such witness in connection therewith.
(g) All legal and other expenses incurred by or on behalf of any
Selling Investor in connection with investigating or defending any loss, claim,
expense, damage, liability, action or proceeding shall be paid by the Company in
advance of the final disposition of such investigation, defense, action or
proceeding within 30 days after the receipt by the Company of
10
<PAGE> 11
a statement or statements from the Selling Investor requesting from time to time
such payment, advance or advances. The entitlement of each Selling Investor to
such payment or advancement of expenses shall include those incurred in
connection with any action or proceeding by the Selling Investor seeking an
adjudication or award in arbitration pursuant to this Section 6.1. Such
statement or statements shall reasonably evidence such expenses incurred by the
Selling Investor in connection therewith.
(h) The termination of any proceeding by judgment, order, settlement
or conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of itself, adversely affect the rights of any indemnified party to
indemnification hereunder or create a presumption that any indemnified party
violated any federal or state securities laws.
(i) (i) In the event that advances are not made pursuant to this
Section 6.1 or payment has not otherwise been timely made, each indemnified
party shall be entitled to seek a final adjudication in an appropriate court of
competent jurisdiction of the entitlement of the indemnified party to
indemnification or advances hereunder.
(ii) The Company and the Selling Investors agree that they
shall be precluded from asserting that the procedures and presumptions of this
Section 6.1 are not valid, binding and enforceable. The Company and the Selling
Investors further agree to stipulate in any such court that the Company and the
Selling Investors are bound by all the provisions of this Section 6.1 and are
precluded from making any assertion to the contrary.
(iii) To the extent deemed appropriate by the court, interest
shall be paid by the indemnifying party to the indemnified party at a reasonable
interest rate for amounts which the indemnifying party has not timely paid as
the result of its indemnification and contribution obligations hereunder.
(j) In the event that any indemnified party is a party to or
intervenes in any proceeding in which the validity or enforceability of this
Section 6.1 is at issue or seeks an adjudication to enforce the rights of any
indemnified party under, or to recover damages for breach of, this Section 6.1,
the indemnified party, if the indemnified party prevails in whole in such
action, shall be entitled to recover from the indemnifying party and shall be
indemnified by the indemnifying party against, any expenses incurred by the
indemnified party. If it is determined that the indemnified party is entitled
to indemnification for part (but not all) of the indemnification so requested,
expenses incurred in seeking enforcement of such partial indemnification shall
be reasonably prorated among the claims, issues or matters for which the
indemnified party is entitled to indemnification and for such claims, issues or
matters for which the indemnified party is not so entitled.
(k) The indemnity agreements contained in this Section 6.1 shall be
in addition to any other rights (to indemnification, contribution or otherwise)
which any indemnified party may have pursuant to law or contract and shall
remain operative and in full force and effect
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<PAGE> 12
regardless of any investigation made or omitted by or on behalf of any
indemnified party and shall survive the transfer of any Eligible Securities by
any Investor.
ARTICLE VII
BENEFITS OF REGISTRATION RIGHTS
7.1. BENEFITS OF REGISTRATION RIGHTS. Each Holder shall give notice to
the Company of any transfer by it of Eligible Securities to a Permitted
Transferee, identifying the name and address of such Permitted Transferee and
the Eligible Securities so transferred, and accompanied by a signature page to
this Agreement pursuant to which such Permitted Transferee agrees to be bound by
the terms and conditions hereof.
ARTICLE VIII
MISCELLANEOUS
8.1. CAPTIONS. The captions or headings in this Agreement are for
convenience and reference only, and in no way define, describe, extend or limit
the scope or intent of this Agreement.
8.2. SEVERABILITY. If any clause, provision or section of this Agreement
shall be invalid or unenforceable, the invalidity or unenforceability of such
clause, provision or section shall not affect the enforceability or validity of
any of the remaining clauses, provisions or sections hereof to the extent
permitted by applicable law.
8.3. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of New York, without reference to
its rules as to conflicts or choice of laws.
8.4. MODIFICATION AND AMENDMENT. This Agreement may not be changed,
modified, discharged or amended, except by an instrument signed by all of the
parties hereto.
8.5. TERMINATION OF AGREEMENT. This Agreement and the rights granted
hereunder shall terminate on December 31, 2094, or such earlier date on which
the Operating Partnership may be dissolved in accordance with the Operating
Partnership Agreement.
8.6. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
8.7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding among the parties and supersedes any prior understandings
and/or written or oral agreements among them respecting the subject matter
herein.
12
<PAGE> 13
8.8. NOTICES. All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by overnight courier delivery service
or by certified mail, return receipt requested, postage prepaid. Notices shall
be deemed given when actually received, which shall be deemed to be not later
than the next Business Day if sent by overnight courier or after five Business
Days if sent by mail. Notice to the Company shall be made to such party at
27600 Northwestern Highway, Suite 200, Southfield, Michigan 48034, Attn:
Chairman. Notice to each Holder shall be made to such party at the address set
forth under each such Holder's signature hereto, with a copy to Honigman Miller
Schwartz and Cohen, 2290 First National Building, Detroit, Michigan 48226-3583,
Attn: Richard Burstein, Esq.
8.9. JURISDICTION; VENUE. The parties to this Agreement hereby
irrevocably submit to the jurisdiction of any Michigan State or Federal court
and any appellate court from any thereof over any action or proceeding arising
out of or relating to this Agreement, and hereby irrevocably agree that all
claims in respect of such action or proceeding may be heard and determined in
such Michigan State court or in such Federal Court. The parties to this
Agreement hereby irrevocably waive, to the fullest extent permitted under law,
the defense of an inconvenient forum or improper venue to the maintenance of
such action or proceeding.
13
<PAGE> 14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed as of the day and year first above written.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
--------------------------------
Name: Dennis Gershenson
Title: Chief Executive Officer
/s/ Dennis Gershenson
------------------------------------
Dennis Gershenson
c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
/s/ Joel Gershenson
-------------------------------------
Joel Gershenson
c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
/s/ Bruce Gershenson
--------------------------------------
Bruce Gershenson
c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
/s/ Richard Gershenson
--------------------------------------
Richard Gershenson
c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
(signature pages continued)
<PAGE> 15
/s/ Michael A. Ward
-----------------------------------
Michael A. Ward
c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
MICHAEL A. WARD U/T/A, DATED
2/22/77, AS AMENDED
By: /s/ Michael A. Ward
---------------------------------
Trustee
c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
WEST OAKS I
WEST OAKS DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
-----------------------------------
Dennis Gershenson, Partner
JACKSON CROSSING
RAMCO JACKSON ASSOCIATES LIMITED
PARTNERSHIP,
a Michigan limited partnership
By: RAMCO JACKSON, INC.,
a Michigan corporation,
its General Partner
By: /s/ Dennis Gershenson
---------------------------
Dennis Gershenson
Vice President
(signature pages continued)
<PAGE> 16
SOUTHFIELD PLAZA + S-12
SOUTHFIELD PLAZA LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO VENTURES,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
--------------------------
Dennis Gershenson, Partner
ROSEVILLE PLAZA
ROSEVILLE PLAZA LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO VENTURES, a Michigan
co-partnership, its General Partner
By: /s/ Dennis Gershenson
--------------------------------
Dennis Gershenson, Partner
TEL-TWELVE SHOPPING CENTER
TEL-TWELVE MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: R.G. TEL-TWELVE CO.,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
---------------------------------
Dennis Gershenson, Partner
(signature pages continued)
<PAGE> 17
CLINTON VALLEY MALL
STERLING MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO CONSUMERS MALL ASSOCIATES
LIMITED PARTNERSHIP, a Michigan limited
partnership, its General Partner
By: /s/ Dennis Gershenson
-----------------------------------
Dennis Gershenson, a General Partner
EASTRIDGE COMMONS
RAMCO LAPEER ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited partnership
By: RAMCO LAPEER, INC., a Michigan
corporation, its General Partner
By: /s/ Dennis Gershenson
-------------------------------------
Dennis Gershenson,
Vice President
NEW TOWNE PLAZA
FORD SHELDON PLAZA COMPANY,
a Michigan limited partnership
By: /s/ Dennis Gershenson
--------------------------------------
Dennis Gershenson, a General Partner
(signature pages continued)
<PAGE> 18
LAKE ORION PLAZA
W & G REALTY COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
---------------------------------
Dennis Gershenson, Partner
OAK BROOK SQUARE
RAMCO OAK BROOK SQUARE ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO OAK BROOK SQUARE, INC.,
a Michigan corporation, general
partner
By: /s/ Dennis Gershenson
-------------------------------------
Dennis Gershenson, Vice President
FRASER TOWN CENTER
RAMCO FRASER DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
--------------------------------------
Dennis Gershenson, Partner
EDGEWOOD TOWN CENTER
RAMCO LANSING ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
--------------------------------------
Dennis Gershenson, Partner
(signature pages continued)
<PAGE> 19
NORTH TOWNE OFFICE MAX
RAMCO LEWIS ALEXIS ASSOCIATES,
a Michigan partnership
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Partner
NAPLES TOWNE CENTER
RAMCO SOUTH NAPLES DEVELOPMENT,
a Florida general partnership
By: /s/ Dennis Gershenson
-----------------------------------
Dennis Gershenson, Partner
SPRING MEADOWS SHOPPING CENTER
RAMCO SPRING MEADOWS ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
------------------------------------
Dennis Gershenson, Partner
and
JCP REALTY, INC.,
a Delaware corporation
By: /s/ Philip O'Connell
-------------------------------------
Philip O'Connell
Its: Vice President
-----------------------------
(signature pages continued)
<PAGE> 20
TROY TOWNE CENTER
RAMCO SINGER ASSOCIATES LIMITED
PARTNERSHIP, an Ohio limited partnership
By: RAMCO TROY ASSOCIATES,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
------------------------------------
Dennis Gershenson, Partner
WEST ALLIS TOWN CENTER
WEST ALLIS SHOPPING CENTER ASSOCIATES,
a Wisconsin general partnership,
By: RAMCO ALLIS DEVELOPMENT COMPANY,
its Partner
By: /s/ Dennis Gershenson
-------------------------------------
Dennis Gershenson, Partner
FERNDALE PLAZA
MICHIGAN SHOPPING CENTER VENTURE II
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO L & W PARTNERS,
a Michigan co-partnership, its general
partner
By: RAMCO GP,
a Michigan co-partnership, Partner
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Partner
(signature pages continued)
<PAGE> 21
WEST OAKS II
RAMCO NOVI DEVELOPMENT ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO NOVI DEVELOPMENT COMPANY,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
---------------------------------
Dennis Gershenson, Partner
CLINTON VALLEY STRIP
KMW STERLING DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
--------------------------------------
Dennis Gershenson, Partner
KENTWOOD TOWNE CENTER
RAMCO KENTWOOD ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
---------------------------------------
Dennis Gershenson, Partner
(signature pages continued)
<PAGE> 22
Exhibit A
Tel-Twelve Mall Associates Limited Partnership
Ramco Fraser Development Company
Ramco Lapeer Associates Limited Partnership
Roseville Plaza Limited Partnership
Ramco South Naples Development
Southfield Plaza Limited Partnership
Ramco Singer Associates Limited Partnership
West Allis Shopping Center Associates
Ford Sheldon Plaza Company
Michigan Shopping Center Ventures II Limited Partnership
KMW Sterling Development Company
Ramco Kentwood Associates
Ramco Oak Brook Square Associates Limited Partnership
Sterling Mall Associates Limited Partnership
W & G Realty Company
West Oaks Development Company
Ramco Novi Development Associates Limited Partnership
JCP Realty
Ramco Spring Meadows Associates
Ramco Jackson Associates Limited Partnership
Ramco Lansing Associates
Ramco Lewis Alexis Associates
Joel Gershenson
Dennis Gershenson
Richard Gershenson
Bruce Gershenson
Michael A. Ward, Trustee u/t/a dated 2/22/77, as amended
<PAGE> 1
EXHIBIT 10.3
EXCHANGE RIGHTS AGREEMENT
THIS EXCHANGE RIGHTS AGREEMENT (this "AGREEMENT"), dated as of
May 10, 1996, is entered into by and among Ramco-Gershenson Properties Trust, a
Massachusetts business trust, formerly known as RPS Realty Trust (the
"COMPANY"), and the Persons whose names are set forth on Exhibit A attached
hereto (as it may be amended from time to time).
R E C I T A L S:
A. The Company, as general partner, and the Limited Partners have
formed Ramco-Gershenson Properties, L.P., a Delaware limited partnership (the
"OPERATING PARTNERSHIP"), pursuant to the Amended and Restated Agreement of
Limited Partnership of the Operating Partnership dated the date hereof (the
"PARTNERSHIP AGREEMENT").
B. Pursuant to the Partnership Agreement, the Limited Partners hold
units of limited partnership interest ("OP UNITS") in the Operating Partnership.
C. The Company has agreed to provide the Limited Partners with
certain rights to exchange their OP Units for the Company's shares of beneficial
interest, par value $.10 per share ("REIT SHARES") in order to induce each of
the Limited Partners to enter into a Lock-Up Agreement with the Company dated
the date hereof.
Accordingly, the parties hereto do hereby agree as follows:
ARTICLE 1
DEFINED TERMS
The following definitions shall be for all purposes, unless otherwise
clearly indicated to the contrary, applied to the terms used in this Agreement.
"ASSIGNEE" means a Person to whom one or more OP Units have been
transferred in a manner determined under the Partnership Agreement, but who has
not become a substituted limited partner in accordance therewith.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized or required by law
to close.
"CASH AMOUNT" means an amount of cash per OP Unit equal to the Value
on the Valuation Date of the REIT Shares Amount.
"DECLARATION OF TRUST" means the Declaration of Trust, dated as of
October 14, 1988, as amended.
<PAGE> 2
"EXCHANGE FACTOR" means 1.0, provided, that in the event that the
Company (i) declares or pays a dividend on its outstanding REIT Shares in REIT
Shares or makes a distribution to all holders of its outstanding REIT Shares in
REIT Shares; (ii) subdivides its outstanding REIT Shares; or (iii) combines its
outstanding REIT Shares into a smaller number of REIT Shares, the Exchange
Factor shall be adjusted by multiplying the Exchange Factor by a fraction, the
numerator of which shall be the number of REIT Shares issued and outstanding on
the record date for such dividend, distribution, subdivision or combination
assuming for such purpose that such dividend, distribution, subdivision or
combination has occurred as of such time, and the denominator of which shall be
the actual number of REIT Shares (determined without the above assumption)
issued and outstanding on the record date for such dividend, distribution,
subdivision or combination. Any adjustment to the Exchange Factor shall become
effective immediately after the effective date of such event retroactive to the
record date, if any, for such event.
"EXCHANGING PARTNER" has the meaning set forth in Section 2.1 hereof.
"EXCHANGE RIGHT" has the meaning set forth in Section 2.1 hereof.
"LIEN" means any lien, security interest, mortgage, deed of trust,
charge, claim, encumbrance, pledge, option, right of first offer or first
refusal and any other right or interest of others of any kind or nature, actual
or contingent, or other similar encumbrance of any nature whatsoever.
"LIMITED PARTNER" means the Company and any other Person named as a
Limited Partner on Exhibit A, as such Exhibit may be amended from time to time.
"NOTICE OF EXCHANGE" means the Notice of Exchange substantially in the
form of Exhibit B to this Agreement.
"RAMCO TRANSACTION" means the transactions pursuant to which the
Company and Ramco-Gershenson, Inc. shall have contributed certain assets and
properties to the Operating Partnership.
"REIT SHARES AMOUNT" means that number of REIT Shares equal to the
product of the number of OP Units offered for exchange by an Exchanging Partner,
multiplied by the Exchange Factor as of the Valuation Date, provided, that in
the event the Company issues to all holders of REIT Shares rights, options,
warrants or convertible or exchangeable securities entitling the shareholders to
subscribe for or purchase REIT Shares, or any other securities or property
(collectively, the "rights"), then the REIT Shares Amount shall also include
such rights that a holder of that number of REIT Shares would be entitled to
receive.
"SEC" means the Securities and Exchange Commission.
2
<PAGE> 3
"SPECIFIED EXCHANGE DATE" means the tenth (10th) Business Day after
receipt by the Company and by the Operating Partnership of a Notice of Exchange.
"VALUATION DATE" means the date of receipt by the Company of a Notice
of Exchange or, if such date is not a Business Day, the first Business Day
thereafter.
"VALUE" means, with respect to a REIT Share, the average of the daily
market price for the five (5) consecutive trading days immediately preceding the
Valuation Date. The market price for each such trading day shall be: (i) if
the REIT Shares are listed or admitted to trading on any national securities
exchange or the NASDAQ National Market System, the closing price on such day, or
if no such sale takes place on such day, the average of the closing bid and
asked prices on such day; (ii) if the REIT Shares are not listed or admitted to
trading on any national securities exchange or the NASDAQ National Market
System, the last reported sale price on such day or, if no sale takes place on
such day, the average of the closing bid and asked prices on such day, as
reported by a reliable quotation source designated by the Company; or (iii) if
the REIT Shares are not listed or admitted to trading on any national securities
exchange or the NASDAQ National Market System and no such last reported sale
price or closing bid and asked prices are available, the average of the reported
high bid and low asked prices on such day, as reported by a reliable quotation
source designated by the Company, or if there shall be no bid and asked prices
on such day, the average of the high bid and low asked prices, as so reported,
on the most recent day (not more than five (5) days prior to the date in
question) for which prices have been so reported; provided, that if there are no
bid and asked prices reported during the five (5) days prior to the date in
question, the Value of the REIT Shares shall be determined by the independent
trustees of the Company acting in good faith on the basis of such quotations and
other information as it considers, in its reasonable judgment, appropriate. In
the event the REIT Shares Amount includes rights that a holder of REIT Shares
would be entitled to receive, then the Value of such rights shall be determined
by the Company acting in good faith on the basis of such quotations and other
information as it considers, in its reasonable judgment, appropriate.
ARTICLE 2
EXCHANGE RIGHT
Section 2.1 Exchange Right.
A. Subject to Sections 2.1.B, 2.1.C, 2.1.D and 2.1.E hereof, the
Company hereby grants to the Limited Partners and the Limited Partners do hereby
accept the right (the "EXCHANGE RIGHT"), exercisable on or after the date one
(1) year after the closing of the Ramco Transaction, to exchange on a Specified
Exchange Date all or a portion of the OP Units held by such Limited Partner at
an exchange price equal to and in the form of the REIT Shares Amount to be paid
by the Company. The Exchange Right shall be exercised pursuant to a Notice of
Exchange delivered to the Company and to the Operating
3
<PAGE> 4
Partnership by the Limited Partner who is exercising the Exchange Right (the
"EXCHANGING PARTNER"); provided, however, that the Operating Partnership may
exchange the OP Units subject to the Notice of Exchange in accordance with
Section 2.1.B. A Limited Partner may not exercise the Exchange Right for less
than one thousand (1,000) OP Units or, if such Limited Partner holds less than
one thousand (1,000) OP Units, all of the OP Units held by such Limited Partner.
Any Assignee of a Limited Partner may exercise the rights of such Limited
Partner pursuant to this Section 2.1, and such Limited Partner shall be deemed
to have assigned such rights to such Assignee and shall be bound by the exercise
of such rights by such Assignee. In connection with any exercise of such rights
by an Assignee on behalf of a Limited Partner, the REIT Shares Amount shall be
paid by the Operating Partnership directly to such Assignee and not to such
Limited Partner.
B. Notwithstanding the provisions of Section 2.1.A, the Operating
Partnership may, in its sole and absolute discretion, elect to satisfy an
Exchanging Partner's Exchange Right by paying to the Exchanging Partner the Cash
Amount on the Specified Exchange Date. If the Operating Partnership shall elect
to exercise its right to purchase OP Units for the Cash Amount under this
Section 2.1.B with respect to a Notice of Exchange, it shall so notify the
Exchanging Partner within five Business Days after the receipt by it of such
Notice of Exchange. In the event the Operating Partnership shall elect to
satisfy an Exchanging Partner's Exchange Right by exchanging REIT Shares for the
OP Units offered for exchange, each Exchanging Partner agrees to execute such
documents as the Operating Partnership may reasonably require in connection with
the issuance of REIT Shares upon exercise of the Exchange Right.
C. Notwithstanding the provisions of Section 2.1.A and Section 2.1.B,
a Limited Partner shall not be entitled to exercise the Exchange Right pursuant
to Section 2.1.A if the delivery of REIT Shares to such Partner on the Specified
Exchange Date by the Company pursuant to Section 2.1.A (regardless of whether or
not the Operating Partnership would in fact exercise its rights under Section
2.1.B) would be prohibited under the Declaration of Trust of the Company.
D. Notwithstanding the provisions of Section 2.1.A and Section 2.1.B,
the Exchange Right may be exercised prior to the date which is one (1) year
after the closing of the Ramco Transaction (i) with the prior written consent of
at least a majority of the Company's independent trustees or (ii) in the event
of the death of a Limited Partner prior to such date, to the minimum extent
necessary to permit the estate of such Limited Partner to acquire REIT Shares
pursuant to Section 2.1.A or cash pursuant to Section 2.1.B that could be
utilized to fund the payment of any estate taxes that may be payable at such
time.
E. The Exchange Right shall expire with respect to any OP Units for
which an Exchange Notice has not been delivered to the Company and to the
Operating Partnership on or before December 31, 2094.
4
<PAGE> 5
F. Any exchange of OP Units pursuant to this Article 2 shall be
deemed to have occurred as of the Specified Exchange Date for all purposes,
including without limitation the payment of distributions or dividends in
respect of OP Units or REIT shares, as applicable. Any OP Units acquired by the
Operating Partnership pursuant to an exercise by any Limited Partner of an
Exchange Right shall be deemed to be acquired by and reallocated or reissued to
the Operating Partnership. The Company, as general partner of the Operating
Partnership, shall amend the Partnership Agreement to reflect each such exchange
and reallocation or reissuance of OP Units and each corresponding recalculation
of the OP Units of the Limited Partners. The number of OP Units to be
reallocated or reissued to the Operating Partnership shall equal the number of
REIT Shares issued to a Limited Partner upon exercise of an Exchange Right.
G. Except in connection with a merger, business combination or other
reorganization transaction, the Company shall not exchange any of its OP Units
as long as there are any other holders of OP Units.
ARTICLE 3
OTHER PROVISIONS
Section 3.1 Covenants of the Company.
A. At all times during the pendency of the Exchange Right, the
Company shall reserve for issuance such number of REIT Shares as may be
necessary to enable the Company to issue such shares in full payment of the REIT
Shares Amount in regard to all OP Units held by Limited Partners which are from
time to time outstanding.
B. During the pendency of the Exchange Right, the Company shall
deliver to Limited Partners in a timely manner all reports filed by the Company
with the SEC to the extent the Company also transmits such reports to its
shareholders and all other communications transmitted from time to time by the
Company to its shareholders generally.
C. The Company shall notify each Limited Partner, upon request, of
the then current Exchange Factor.
Section 3.2 Fractional Shares.
No fractional REIT Shares shall be issued upon exchange of OP Units.
The number of full shares of REIT Shares which shall be issuable upon exchange
of OP Units (or the cash equivalent amount thereof if the Cash Amount is paid)
shall be computed on the basis of the aggregate amount of OP Units so
surrendered. Instead of any fractional REIT Shares which would otherwise be
issuable upon exchange of any OP Units, the Company shall pay a cash adjustment
in respect of such fraction in an amount equal to the Cash Amount of an OP Unit
multiplied by such fraction.
5
<PAGE> 6
ARTICLE 4
GENERAL PROVISIONS
Section 4.1 Addresses and Notice.
Any notice, demand, request or report required or permitted to be
given or made to a Limited Partner or Assignee under this Agreement shill be in
writing and shall be deemed given or made when delivered in person or when sent
by first class United States mail or by other means of written communication to
the Limited Partner or Assignee at the address listed on the records of the
Partnership. Notice to the Company shall be made to the following address:
27600 Northwestern Highway, Suite 200, Southfield, Michigan 48036, Attn:
Chairman.
Section 4.2 Titles and Captions.
All article or section titles or captions in this Agreement are for
convenience only. They shall not be deemed part of this Agreement and in no way
define, limit, extend or describe the scope or intent of any provisions hereof.
Except as specifically provided otherwise, references to "Articles" and
"Sections" are to Articles and Sections of this Agreement.
Section 4.3 Pronouns and Plurals.
Whenever the context may require, any pronoun used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns, pronouns and verbs shall include the plural and vice
versa.
Section 4.4 Further Action.
The parties shall execute and deliver all documents, provide all
information and take or refrain from taking action as may be necessary or
appropriate to achieve the purposes of this Agreement.
Section 4.5 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their heirs, executors, administrators, successors, legal
representatives and permitted assigns.
Section 4.6 Waiver.
No failure by any party to insist upon the strict performance of any
covenant, duty, agreement or condition of this Agreement or to exercise any
right or remedy
6
<PAGE> 7
consequent upon a breach thereof shall constitute waiver of any such breach or
any other covenant, duty, agreement or condition.
Section 4.7 Counterparts.
This Agreement may be executed in counterparts, all of which together
shall constitute one agreement binding on all of the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart. Each party shall become bound by this Agreement immediately
upon affixing its signature hereto.
Section 4.8 Applicable Law.
This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Delaware, without regard to the principles
of conflicts of laws thereof.
Section 4.9 Invalidity of Provisions.
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
7
<PAGE> 8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed as of the day and year first above written.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
--------------------------------
Name: Dennis Gershenson
Title: Chief Executive Officer
WEST OAKS I
WEST OAKS DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Partner
JACKSON CROSSING
RAMCO JACKSON ASSOCIATES LIMITED
PARTNERSHIP,
a Michigan limited partnership
By: RAMCO JACKSON, INC.,
a Michigan corporation,
its General Partner
By: /s/ Dennis Gershenson
------------------------------
Dennis Gershenson
Vice President
SOUTHFIELD PLAZA + S-12
SOUTHFIELD PLAZA LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO VENTURES,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
-------------------------------
Dennis Gershenson, Partner
(signature pages continued)
<PAGE> 9
ROSEVILLE PLAZA
ROSEVILLE PLAZA LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO VENTURES, a Michigan
co-partnership, its General Partner
By: /s/ Dennis Gershenson
------------------------------
Dennis Gershenson, Partner
TEL-TWELVE SHOPPING CENTER
TEL-TWELVE MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: R.G. TEL-TWELVE CO.,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
------------------------------
Dennis Gershenson, Partner
CLINTON VALLEY MALL
STERLING MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO CONSUMERS MALL ASSOCIATES
LIMITED PARTNERSHIP, a Michigan limited
partnership, its General Partner
By: /s/ Dennis Gershenson
-------------------------------------
Dennis Gershenson, a General Partner
(signature pages continued)
<PAGE> 10
EASTRIDGE COMMONS
RAMCO LAPEER ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited partnership
By: RAMCO LAPEER, INC., a Michigan
corporation, its General Partner
By: /s/ Dennis Gershenson
-------------------------------
Dennis Gershenson,
Vice President
NEW TOWNE PLAZA
FORD SHELDON PLAZA COMPANY,
a Michigan limited partnership
By: /s/ Dennis Gershenson
-------------------------------
Dennis Gershenson,
a General Partner
LAKE ORION PLAZA
W & G REALTY COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
------------------------------------
Dennis Gershenson, Partner
OAK BROOK SQUARE
RAMCO OAK BROOK SQUARE ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO OAK BROOK SQUARE, INC.,
a Michigan corporation, general partner
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Vice President
(signature pages continued)
<PAGE> 11
FRASER TOWN CENTER
RAMCO FRASER DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
--------------------------------
Dennis Gershenson, Partner
EDGEWOOD TOWN CENTER
RAMCO LANSING ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
--------------------------------
Dennis Gershenson, Partner
NORTH TOWNE OFFICE MAX
RAMCO LEWIS ALEXIS ASSOCIATES,
a Michigan partnership
By: /s/ Dennis Gershenson
---------------------------------
Dennis Gershenson, Partner
NAPLES TOWNE CENTER
RAMCO SOUTH NAPLES DEVELOPMENT,
a Florida general partnership
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Partner
(signature pages continued)
<PAGE> 12
SPRING MEADOWS SHOPPING CENTER
RAMCO SPRING MEADOWS ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
-------------------------------------
Dennis Gershenson, Partner
and
JCP REALTY, INC.,
a Delaware corporation
By: /s/ Philip O'Connell
--------------------------------------
Philip O'Connell
Its: Vice President
-------------------------------
TROY TOWNE CENTER
RAMCO SINGER ASSOCIATES LIMITED
PARTNERSHIP, an Ohio limited partnership
By: RAMCO TROY ASSOCIATES,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Partner
WEST ALLIS TOWN CENTER
WEST ALLIS SHOPPING CENTER ASSOCIATES,
a Wisconsin general partnership
By: RAMCO ALLIS DEVELOPMENT COMPANY,
its Partner
By: /s/ Dennis Gershenson
------------------------------------
Dennis Gershenson, Partner
(signature pages continued)
<PAGE> 13
FERNDALE PLAZA
MICHIGAN SHOPPING CENTER VENTURE II
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO L & W PARTNERS,
a Michigan co-partnership, its general
partner
By: RAMCO GP,
a Michigan co-partnership, Partner
By: /s/ Dennis Gershenson
--------------------------------
Dennis Gershenson, Partner
WEST OAKS II
RAMCO NOVI DEVELOPMENT ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan co-partnership
By: RAMCO NOVI DEVELOPMENT COMPANY,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
-------------------------------------
Dennis Gershenson, Partner
CLINTON VALLEY STRIP
KMW STERLING DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
-------------------------------------------
Dennis Gershenson, Partner
(signauture pages continued)
<PAGE> 14
KENTWOOD TOWNE CENTER
RAMCO KENTWOOD ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
-------------------------------
Dennis Gershenson, Partner
/s/ Joel Gershenson
----------------------------------------
Joel Gershenson
/s/ Dennis Gershenson
----------------------------------------
Dennis Gershenson
/s/ Richard Gershenson
----------------------------------------
Richard Gershenson
/s/ Bruce Gershenson
----------------------------------------
Bruce Gershenson
MICHAEL A. WARD, TRUSTEE, U/T/A DATED
2/22/77, AS AMENDED
/s/ Michael A. Ward
----------------------------------------
Michael A. Ward, Trustee U/T/A
dated 2/22/77, as amended
(End of signature pages)
<PAGE> 15
Exhibit A
Tel-Twelve Mall Associates Limited Partnership
Ramco Fraser Development Company
Ramco Lapeer Associates Limited Partnership
Roseville Plaza Limited Partnership
Ramco South Naples Development
Southfield Plaza Limited Partnership
Ramco Singer Associates Limited Partnership
West Allis Shopping Center Associates
Ford Sheldon Plaza Company
Michigan Shopping Center Ventures II Limited Partnership
KMW Sterling Development Company
Ramco Kentwood Associates
Ramco Oak Brook Square Associates Limited Partnership
Sterling Mall Associates Limited Partnership
W & G Realty Company
West Oaks Development Company
Ramco Novi Development Associates Limited Partnership
JCP Realty
Ramco Spring Meadows Associates
Ramco Jackson Associates Limited Partnership
Ramco Lansing Associates
Ramco Lewis Alexis Associates
Joel Gershenson
Dennis Gershenson
Richard Gershenson
Bruce Gershenson
Michael A. Ward, Trustee u/t/a dated 2/22/77, as amended
<PAGE> 1
EXHIBIT 10.4
1996 SHARE OPTION PLAN
OF
RAMCO-GERSHENSON PROPERTIES TRUST
<PAGE> 2
TABLE OF CONTENTS
PAGE
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS..................... 1
SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE AUTHORITY
TO SELECT PARTICIPANTS AND DETERMINE AWARDS.................. 5
SECTION 3. SHARES ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION........ 6
SECTION 4. ELIGIBILITY ................................................. 7
SECTION 5. SHARE OPTIONS................................................ 7
SECTION 6. TAX WITHHOLDING.............................................. 12
SECTION 7. TRANSFER, LEAVE OF ABSENCE, ETC.............................. 13
SECTION 8. AMENDMENTS AND TERMINATION................................... 14
SECTION 9. CHANGE OF CONTROL PROVISIONS................................. 14
SECTION 10. GENERAL PROVISIONS........................................... 16
SECTION 11. EFFECTIVE DATE OF PLAN....................................... 17
SECTION 12. GOVERNING LAW................................................ 17
<PAGE> 3
1996 SHARE OPTION PLAN
OF
RAMCO-GERSHENSON PROPERTIES TRUST
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITION
The 1996 Share Option Plan of Ramco-Gershenson Properties Trust (the
"Plan") was adopted to encourage and enable the officers and employees of
Ramco-Gershenson Properties Trust, formerly known as RPS Realty Trust, a
Massachusetts business trust (the "Company"), and the officers and employees of
Ramco-Gershenson Properties, L.P., a Delaware limited partnership (the
"Operating Partnership"), Ramco-Gershenson, Inc., a Michigan corporation (the
"Management Company"), and their respective Subsidiaries (as hereinafter
defined) upon whose judgment, initiative and efforts the Company largely
depends for the successful conduct of its business, to acquire a proprietary
interest in the Company. It is anticipated that providing such persons with a
direct stake in the Company's welfare will assure a closer identification of
their interests with those of the Company, thereby stimulating their efforts on
the Company's behalf and strengthening their desire to remain with the Company.
The following terms shall be defined as set forth below:
"Act" means the Securities Exchange Act of 1934, as amended.
"Award" or "Awards" means Share Options.
"Board" means the Board of Trustees of the Company.
"Cause" (a) if an Employee is not subject to a written employment
agreement with any Employer, means the occurrence of one or more of the
following: (i) an Employee is convicted of, pleads guilty to, or confesses to
any felony or any act of fraud, misappropriation or embezzlement which has an
immediate and materially adverse effect on an Employer, as determined by the
Board in good faith in its sole discretion, (ii) an Employee engages in a
fraudulent act to the material damage or prejudice of an Employer or in
conduct or activities materially damaging to the property, business or
reputation of an Employer, all as determined by the Board in good faith in its
sole discretion, (iii) any material act or omission by an Employee involving
malfeasance or negligence in the performance of the Employee's duties to an
Employer to the material detriment of an Employer, as determined by the Board
in good faith in its sole discretion, which has not been corrected by the
Employee within 30 days after written notice of any such act or omission, (iv)
failure by an Employee to comply in any material respect with any written
policies or directives of the Board as determined by the Board in
1
<PAGE> 4
good faith in its sole discretion, which has not been corrected by the Employee
within 30 days after written notice of such failure, or (v) material breach by
an Employee of his noncompetition agreement with an Employer, if any, as
determined by the Board in good faith in its sole discretion or (b) if an
Employee is subject to a written employment agreement with any Employer, has
the meaning set forth in such employment agreement.
"Change of Control" (a) if an Employee is not subject to a written
employment agreement with any Employer, shall have the meaning set forth in
Section 9 hereof or (b) if any Employee is subject to a written employment
agreement with any Employer, has the meaning set forth in such employment
agreement.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor Code, and related rules, regulations and interpretations.
"Committee" means the Committee of the Board referred to in Section 2
hereof.
"Company Subsidiary" means any corporation, partnership or other entity
(other than the Company) in an unbroken chain beginning with the Company if all
of them, in the aggregate, other than the last one in the unbroken chain, then
own stock or other interests possessing 50 percent or more of the total
combined economic interests or the total combined voting power of all classes
of stock or other interests in each of the others in such chain; provided,
however, that "Company Subsidiary" shall not include the Operating Partnership,
the Management Company or any of their Subsidiaries.
"Declaration of Trust" means the Amended and Restated Declaration of Trust
of the Company dated October 14, 1988, as amended.
"Disability" (a) if an Employee is not subject to a written employment
agreement with any Employer, shall mean an Employee's inability to perform his
normal required services for the Employer for a period of six consecutive
months by reason of the Employee's mental or physical disability, as determined
by the Committee in good faith in its sole discretion or (b) if an Employee is
subject to a written employment agreement with any Employer, has the meaning
set forth in such employment agreement.
"Disinterested Person" means an Independent Trustee who qualifies as such
under Rule 16b-3(c)(2)(i) promulgated under the Act, or any successor
definition under the Act.
"Effective Date" has the meaning set forth in Section 11 hereof.
2
<PAGE> 5
"Employee" means any officer or other employee (as defined in accordance
with Section 3401(c) of the Code) of an Employer.
"Employer" means, as the context may require, the Company, the Operating
Partnership, the Management Company and their respective Subsidiaries.
"Existing Option Plan" means the RPS Realty Trust 1989 Employees' Stock
Option Plan, as amended from time to time.
"Fair Market Value" on any given date means the last reported sale price
at which Shares are traded on such date or, if no Shares are traded on such
date, the most recent date on which Shares were traded, as reflected on the New
York Stock Exchange or, if applicable, any other national stock exchange on
which the Shares are traded. If the Shares are not listed on any national
exchange, the Committee will determine the Fair Market Value.
"Independent Trustee" means a member of the Board who is not also an
Employee of the Trust and who is otherwise a Disinterested Person.
"Management Company Subsidiary" means any corporation, partnership or
other entity (other than the Management Company) in an unbroken chain beginning
with the Management Company if all of them, in the aggregate, other than the
last one in the unbroken chain, then own stock or other interests possessing 80
percent or more of the total combined economic interests or the total combined
voting power of all classes of stock or other interests in each of the others
in such chain.
"OP Units" means units of limited partnership interest of Ramco-Gershenson
Properties, L.P., a Delaware limited partnership.
"Operating Partnership Subsidiary" means any corporation, partnership or
other entity (other than the Operating Partnership) in an unbroken chain
beginning with the Operating Partnership if all of them, in the aggregate,
other than the last one in the unbroken chain, then own stock or other
interests possessing 50 percent or more of the total combined economic
interests or the total combined voting power of all classes of stock or other
interests in each of the others in such chain.
"Option" or "Share Option" means any option to purchase Shares granted
pursuant to Section 5 hereof.
"Predecessor Entities" means Resources Pension Shares 1, Resources Pension
Shares 2, Resources Pension Shares 3, Integrated Resources Pension Shares 4, a
California limited
3
<PAGE> 6
partnership, Resources Pension Advisory Corp., and/or any of its affiliates, and
Ramco-Gershenson, Inc., a Michigan corporation.
"Ramco Transaction" means the transaction to be effectuated by the
Company, the Operating Partnership and Ramco-Gershenson, Inc. and its
affiliates pursuant to the Amended and Restated Master Agreement dated as of
December 27, 1995 (as amended, the "Master Agreement").
"Retirement" means an Employee's Termination of Employment after
attainment of age 55 and completion of 15 years of continuous service to the
Company and/or any other Employer and/or any Predecessor Entity as a Trustee or
Employee.
"Share" means the shares of beneficial interest, par value $.10 per share,
of the Company, subject to adjustments pursuant to Section 3 hereof.
"Share Ownership Limit" means the restrictions contained in the Company's
Declaration of Trust provided that, subject to certain exceptions, no
individual shareholder may own, or be deemed to own by virtue of the
attribution provisions of the Code, more than 9.8 percent of the aggregate
number or value of the Company's outstanding shares of beneficial interest.
"Subsidiary" means a Company Subsidiary, an Operating Partnership
Subsidiary or a Management Company Subsidiary.
"Termination of Employment" means, subject to Section 7, the time when the
employee-employer relationship between the Employer and an Employee is
terminated for any reason or, if Employee is covered by an employment
agreement, the time such employment agreement expires by its terms (provided
such Employee does not continue to serve the Employer as an Employee);
provided, however, that, if an Employer ceases to qualify as such under the
Plan as a result of a sale of shares of beneficial interest or other interests
or any similar event, a Termination of Employment of the Employees who were
employed by such Employer immediately prior to such cessation shall be deemed
to have occurred. Subject to the terms of any written employment agreement
between an Employer and an Employee, the Committee, in its sole and absolute
discretion, shall determine the effect of all other matters and questions
relating to Termination of Employment, including, but not limited to, the
question of whether a Termination of Employment resulted from Disability or for
Cause, and, subject to Section 7 hereof, all questions of whether particular
leaves of absence shall constitute Terminations of Employment.
"Trustees' Plan" means the RPS Realty Trust 1989 Trustees' Stock Option
Plan, as amended from time to time.
4
<PAGE> 7
SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE AUTHORITY TO SELECT PARTICIPANTS
AND DETERMINE AWARDS
(a) Committee. The Plan shall be administered by all of the members of
the Compensation Committee of the Board who are Independent Trustees, or any
other committee of not less than two Independent Trustees performing similar
functions, as appointed by the Board from time to time. Each member of the
Committee shall be a Disinterested Person and an "outside director" within the
meaning of Section 162(m) of the Code and the regulations promulgated thereunder
to the extent applicable.
(b) Powers of Committee. The Committee shall have the power and authority
to grant Awards consistent with the terms of the Plan, including the power and
authority:
(i) to select the officers and other Employees to whom Awards may
from time to time be granted;
(ii) to determine the time or times of grant, and the extent to
which, if any, Share Options are granted to any one or more participants;
(iii) to determine the number of Shares to be covered by any Award;
(iv) to determine and modify the terms and conditions, including
restrictions, not inconsistent with the terms of the Plan, of any Award,
which terms and conditions may differ among individual Awards and
participants, and to approve the form of written instruments evidencing the
Awards;
(v) to accelerate the exercisability or vesting of all or any portion
of any Award;
(vi) subject to the provisions of Section 5(a)(iii), to extend the
period in which Share Options may be exercised; and
(vii) to adopt, alter and repeal such rules, guidelines and practices
for administration of the Plan and for its own acts and proceedings as it
shall deem advisable; to interpret the terms and provisions of the Plan and
any Award (including related written instruments); to make all
determinations it deems advisable for the administration of the Plan; to
decide all disputes arising in connection with the Plan; and to otherwise
supervise the administration of the Plan.
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<PAGE> 8
All decisions and interpretations of the Committee shall be binding on all
persons, including the Company and Plan participants.
SECTION 3. SHARES ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION
(a) Shares Issuable. The maximum number of Shares reserved and available
for issuance under the Plan shall equal the difference between 9 percent of the
total number of issued and outstanding shares of Stock (on a fully diluted basis
assuming the exchange of all OP Units for Shares) and the number of Shares
subject to options under the Existing Option Plan and the Trustees' Plan,
calculated with respect to both clauses (i) and (ii) as of the Effective Date
(which maximum amount equates to 855,054 Shares). For purposes of this
limitation, the Shares underlying any Awards which are forfeited, cancelled,
reacquired by the Company, satisfied without the issuance of Shares or otherwise
terminated (other than by exercise) shall be added back to the shares of Shares
available for issuance under the Plan so long as the participants to whom such
Awards had been previously granted received no benefits of ownership of the
underlying Shares to which the Award related. Subject to such overall
limitation and except for the Initial Grants, Shares in respect of Awards
granted under the Plan may be issued up to such maximum number, provided,
however, that no more than 50,000 Share Options (plus, if applicable, any
Initial Grant for 1996) may be granted to any one individual during any calendar
year. The shares available for issuance under the Plan may be authorized buy
unissued Shares or Shares reacquired by the Company.
(b) Dividends, Mergers, etc. In the event of a Share dividend, Share
split or similar change in capitalization affecting the Shares, the Committee
shall make appropriate adjustments in the number and kind of shares of Stock or
securities on which Awards may thereafter be granted, the number and kind of
shares remaining subject to outstanding Awards, and the option or purchase
price in respect of such shares.
(c) Substitute Awards. The Committee may grant Awards under the Plan in
substitution for stock and stock based awards held by employees of another
corporation who concurrently become Employees as a result of a merger or
consolidation of the employing corporation with the Company or a Subsidiary or
the acquisition by the Company or a Subsidiary of property or stock of the
employing corporation. The Committee may direct that the substitute awards be
granted on such terms and conditions as the Committee considers appropriate in
the circumstances.
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<PAGE> 9
SECTION 4. ELIGIBILITY
Participants in the Plan will be the persons listed on Exhibit A and such
full or part-time officers and other key Employees who are responsible for or
contribute to the management, growth or profitability of the Company and the
other Employers and who are selected from time to time by the Committee, in its
sole discretion.
SECTION 5. SHARE OPTIONS
Any Share Option granted under the Plan shall be in such form, and shall
be evidenced by such written Option agreement, as the Committee may from time
to time approve. Share Options granted under the Plan shall be non-qualified
stock options and are not intended to qualify as "incentive stock options," as
defined in Section 422 of the Code.
(a) Share Options Granted to Employees. Upon the adoption of the Plan by
the Board, and subject to Section 11, the Share Options set forth on Exhibit A
hereto shall be granted (the "Initial Grants"). Thereafter, the Committee in
its discretion may grant Share Options to eligible Employees of the Company or
any other Employer.
Share Options granted to Employees pursuant to this Section 5(a) shall be
subject to the following terms and conditions and shall contain such additional
terms and conditions, not inconsistent with the terms of the Plan, as the
Committee shall deem desirable:
(i) Exercise Price. The exercise price per share for the Shares
covered by a Share Option granted pursuant to this Section 5(a) shall be
determined by the Committee at the time of grant but shall not be less than
100% of the Fair Market Value on the date of grant; provided that, the
exercise price per share for the Shares covered by a Share Option granted
as part of the Initial Grants shall be equal to the OPV (as defined in the
Master Agreement) per Share.
(ii) Grant of Discount Options in Lieu of Cash Bonus. If authorized
by the Committee, upon the request of an eligible Employee and with the
consent of the Committee, such Employee may elect each calendar year to
receive a Share Option in lieu of a cash bonus to which he may become
entitled during the following calendar year pursuant to any other plan of
the Company or any other Employer, but only if such Employee makes an
irrevocable election to waive receipt of all or a portion of such cash
bonus. Such election shall be made on or before the date set by the
Committee which date shall be no later than 15 days preceding January 1 of
the calendar year in which the cash bonus would otherwise be
7
<PAGE> 10
paid. A Share Option shall be granted to each Employee who makes such an
irrevocable election on the date the waived cash bonus would otherwise have
been paid; provided, however, that with respect to an Employee who is
subject to Section 16 of the Act, if such grant date is not at least six
months and one day from the date of the election, the grant shall be
delayed until the date which is six months and one day from the date of the
election (or the next following business day, if such date is not a
business day). The exercise price per share shall be determined by the
Committee but shall not be less than 50% of the Fair Market Value of the
Shares on the date the Share Option is granted. The number of Shares
subject to the Share Option shall be determined by dividing the amount of
the waived cash bonus by the difference between the Fair Market Value of
the Shares on the date the Share Option is granted and the exercise price
per Share Option. The Share Option shall be granted for a whole number of
shares so determined; the value of any fractional share shall be paid in
cash. An Employee may revoke his election under this Section 5(a)(ii) on a
prospective basis at any time; provided, however, that with respect to an
Employee who is subject to Section 16 of the Act, such revocation shall
only be effective six months and one day following the date of such
revocation.
(iii) Option Term. The term of each Share Option shall be fixed by
the Committee at the time of grant but shall in no event be longer than 10
years from the date of grant; provided, however, the term of the Initial
Grants shall be 10 years from the date the Ramco Transaction is
consummated.
(iv) Exercisability; Rights of a Stockholder. Share Options shall
become vested and exercisable at such time or times, whether or not in
installments, as shall be determined by the Committee at or after the grant
date; provided, however, that Share Options granted as part of the Initial
Grants shall become vested and exercisable in equal installments on each of
the first, second and third anniversaries of the consummation of the Ramco
Transaction and Share Options granted in lieu of a cash bonus shall be
exercisable immediately. The Committee may at any time accelerate the
exercisability of all or any portion of any Share Option. An optionee shall
have the rights of a stockholder only as to Shares acquired upon the
exercise of a Share Option and not as to unexercised Share Options.
(v) Method of Exercise.
(A) Share Options may be exercised in whole or in part, by giving
written notice of exercise to the Secretary of the Company (or its
delegate), specifying the number of
8
<PAGE> 11
shares to be purchased and payment in full of the purchase price. A copy
of such notice shall be delivered at the same time to the Operating
Partnership if the optionee is an Employee of the Operating Partnership or
an Operating Partnership Subsidiary, and to the Management Company if the
optionee is an Employee of the Management Company or a Management Company
Subsidiary. The delivery of certificates representing the shares of Stock
to be purchased pursuant to the exercise of a Share Option will be
contingent upon receipt by the Company of the full purchase price for such
shares and the fulfillment of any other requirements contained in the Share
Option agreement or applicable provisions of laws.
(B) Payment of the purchase price may be made by one or more of the
following methods:
(1) In cash, by certified or bank check or other instrument
acceptable to the Committee;
(2) In the form of Shares that are not then subject to
restrictions under any Employer plan and that have been held by the
optionee for at least six months, if permitted by the Committee in its
discretion. Such surrendered Shares shall be valued at Fair Market
Value on the exercise date; or
(3) By the optionee delivering a properly executed exercise
notice together with irrevocable instructions to a broker to promptly
deliver cash or a check acceptable to the Committee to pay the
purchase price; provided that in the event the optionee chooses to pay
the purchase price as so provided, the optionee and the broker shall
comply with such procedures and enter into such agreements of
indemnity and other agreements as the Committee shall prescribe as a
condition of such payment procedure. Payment instruments will be
received subject to collection.
Such payment of the purchase price shall be made to (x) the
Secretary of the Company (or its delegate) with respect to an Option
of an Employee of the Company or a Company Subsidiary, (y) the
Operating Partnership with respect to an Option of an Employee of the
Operating Partnership or an Operating Partnership Subsidiary, and (z)
the Management Company with respect to an Option of an Employee of the
Management Company or a Management Company Subsidiary.
(C) If the Share Option being exercised is one granted to an Employee
of the Company or a Company Subsidiary, the
9
<PAGE> 12
Company shall sell such Shares to the optionee in return for the purchase
price paid to it by the optionee.
(D) If the Share Option being exercised is one granted to an Employee
of the Operating Partnership or an Operating Partnership Subsidiary, as
soon as practicable after the Operating Partnership receives payment of the
purchase price pursuant to Section 5(a)(v)(B):
(1) the Company shall sell to the Operating Partnership and the
Operating Partnership shall purchase the number of Shares for which
such Option is being exercised for an aggregate purchase price equal
to the product of (x) such number of Shares multiplied by (y) the Fair
Market Value of a Share on the date of the exercise; and
(2) The Operating Partnership shall sell such Shares to the
optionee in return for the purchase price paid to it by the optionee.
(E) If the Share Option being exercised is one granted to an Employee
of the Management Company or a Management Company Subsidiary, as soon as
practicable after the Management Company receives payment of the purchase
price pursuant to Section 5(a)(v)(B):
(1) the Company shall sell to the Management Company and the
Management Company shall purchase the number of Shares for which such
Option is being exercised for an aggregate purchase price equal to the
product of (x) such number of Shares multiplied by (y) the Fair Market
Value of a Share on the date of the exercise; and
(2) the Management Company shall sell such Shares to the
optionee in return for the purchase price paid to it by the optionee.
(vi) Non-Transferability of Options. No Share Option shall be
transferable by the optionee otherwise than by will or by the laws of
descent and distribution and all Share Options shall be exercisable, during
the optionee's lifetime, only by the optionee. Notwithstanding the
foregoing, the Committee may provide in an Option agreement that the
optionee may transfer, without consideration for the transfer, his Share
Options to members of his immediate family (i.e., children, grandchildren,
or spouse), to trusts for the benefit of such immediate family members and
to partnerships in which such family members are the only parties.
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<PAGE> 13
(vii) Termination of Employment by Reason of Death. Upon an
optionee's Termination of Employment by reason of death, any Share Option
held by him shall become fully exercisable and may thereafter be exercised
(in whole or in part) by the legal representative or legatee of the
optionee, for a period of one year (or such longer period as the Committee
shall specify at any time) from the date of death, or until the expiration
of the stated term of the Option, if earlier, at which time all rights of
the optionee's legal representative or legatee in such Share Option shall
terminate.
(viii) Termination of Employment by Reason of Disability.
(A) Any Share Option held by an optionee whose Termination of
Employment is by reason of Disability shall become fully exercisable and
may thereafter be exercised (in whole or in part), for a period of one year
(or such longer period as the Committee shall specify at any time) from the
date of such Termination of Employment, or until the expiration of the
stated term of the Option, if earlier, at which time all of the optionee's
rights in such Share Option shall terminate.
(B) Except as otherwise provided by the Committee at the time of
grant, the death of an optionee during a period provided in this Section
5(a)(viii) for the exercise of a Share Option shall extend such period for
six additional months, subject to termination on the expiration of the
stated term of the Option, if earlier.
(ix) Termination of Employment by Reason of Retirement.
(A) Any Share Option held by an optionee whose Termination of
Employment is by reason of Retirement may thereafter be exercised, to the
extent it was exercisable at the time of such termination, for a period of
five years (or such longer period as the Committee shall specify at any
time) from the date of such termination of employment, or until the
expiration of the stated term of the Option, if earlier, at which time all
of the optionee's rights in such Share Option shall terminate.
(B) Except as otherwise provided by the Committee at the time of
grant, the death of an optionee during a period provided in this Section
5(a)(ix) for the exercise of a Share Option shall extend such period for
six additional months, subject to termination on the expiration of the
stated term of the Option, if earlier.
11
<PAGE> 14
(x) Termination of Employment for Cause. If any optionee's
Termination of Employment is for Cause, any Share Option held by such
optionee, including any Share Option that is immediately exercisable at the
time of such termination, shall immediately terminate and be of no further
force and effect; provided, however, that the Committee may, in its sole
discretion, provide that such Share Option can be exercised for a period of
up to 30 days from the date of Termination of Employment or until the
expiration of the stated term of the Option, if earlier.
(xi) Other Termination of Employment. Unless otherwise determined by
the Committee, and except as provided in any written employment agreement
between the optionee and any Employer if an optionee's Termination of
Employment is for any reason other than death, Disability, Retirement, or
for Cause, any Share Option held by such optionee may thereafter be
exercised, to the extent it was exercisable on the date of Termination of
Employment, for one year (or such other period as the Committee shall
specify at any time) from the date of Termination of Employment or until
the expiration of the stated term of the Option, if earlier, at which time
all of the optionee's rights in such Share Option shall terminate.
(xii) Form of Settlement. Shares issued upon exercise of a Share
Option shall be free of all restrictions under the Plan, except as
otherwise provided in this Plan.
(b) Reload Options. At the discretion of the Committee, Options granted
under Section 5(a) may include a so-called "reload" feature pursuant to which an
optionee exercising an Option by the delivery of a number of Shares in
accordance with Section 5(a)(v)(B)(2) hereof would automatically be granted an
additional Option (with an exercise price equal to the Fair Market Value of the
Shares on the date the additional Option is granted and with the same expiration
date as the original Option being exercised, and with such other terms as the
Committee may provide) to purchase that number of Shares equal to the number
delivered to exercise the original Option.
SECTION 6. TAX WITHHOLDING
(a) Payment by Participant. The Company and any other Employer shall have
the right to require that each optionee shall, no later than the date as of
which the value of an Award received thereunder first becomes includible in the
gross income of the optionee for Federal income tax purposes, pay to the Company
or the Employer, or make arrangement satisfactory to the Company or the Employer
regarding payment of, any Federal, state, or local taxes of any kind required by
law to be withheld with respect to such income. The Company and the other
Employers
12
<PAGE> 15
shall, to the extent permitted by law, have the right to deduct any such taxes
from any payment of any kind otherwise due to the participant.
(b) Payment in Shares. If withholding is required by the Company or any
other Employer, an optionee may elect to have such tax withholding obligation
satisfied, in whole or in part, by authorizing the Employer to withhold from
Shares to be issued pursuant to any Award a number of shares with an aggregate
Fair Market Value (as of the date the withholding is effected) that would
satisfy the withholding amount due, or transferring to the Employer Shares
owned by the optionee with an aggregate Fair Market Value (as of the date the
withholding is effected) that would satisfy the withholding amount due. With
respect to any optionee who is subject to Section 16 of the Act, the following
additional restrictions shall apply:
(A) the election to satisfy tax withholding obligations relating to
an Award in the manner permitted by this Section 6(b) shall be made either
during the period beginning on the third business day following the date of
release of quarterly or annual summary statements of revenues of the
Company and ending on the twelfth business day following such date, or at
least six months prior to the date as of which the receipt of such an Award
first becomes a taxable event for Federal income tax purposes;
(B) such election shall be irrevocable;
(C) such election shall be subject to the consent or disapproval of
the Committee; and
(D) the Shares withheld to satisfy tax withholding must pertain to an
Award which has been held by the optionee for at least six months from the
date of grant of the Award.
SECTION 7. TRANSFER, LEAVE OF ABSENCE, ETC.
For purposes of the Plan, the following events shall not be deemed a
Termination of Employment:
(a) a transfer to the employment of another Employer, or
(b) an approved leave of absence for military service or sickness, or for
any other purpose approved by the Employer, if the Employee's right to
re-employment is guaranteed either by a statute or by contract or under the
policy pursuant to which the leave of absence was granted or if the Committee
otherwise so provides in writing.
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<PAGE> 16
SECTION 8. AMENDMENTS AND TERMINATION
The Board may, at any time, amend or discontinue the Plan and the
Committee may, at any time, amend or cancel any outstanding Award (or provide
substitute Awards at the same or reduced exercise or purchase price or with no
exercise or purchase price, but such price, if any, must satisfy the
requirements which would apply to the substitute or amended Award if it were
then initially granted under this Plan) for the purpose of satisfying changes
in law or for any other lawful purpose, but no such action shall adversely
affect rights under any outstanding Award without the holder's consent. To the
extent required by the Act to ensure that Options granted under the Plan are
exempt under Rule 16b-3 promulgated under the Act and can qualify as
performance-related compensation for purposes of Section 162(m) of the Code,
Plan amendments shall be subject to approval by the Company's shareholders.
SECTION 9. CHANGE OF CONTROL PROVISIONS
Upon the occurrence of a Change of Control as defined in this Section 9:
(a) Each outstanding Share Option shall automatically become fully
exercisable notwithstanding any provision to the contrary herein. Unless
provision is made in connection with the Change in Control for the assumption of
Share Options theretofore granted, or the substitution of such Share Options
with new options of the successor entity, with appropriate adjustment as to the
number and kind of shares and the per share exercise prices, each optionee who
has not had a Termination of Employment holding an outstanding Share Option
shall receive payment from the Company in an amount equal to the excess of the
Fair Market Value per share as of the date the Change of Control occurred over
the applicable exercise price multiplied by the number of Shares covered by the
Share Option within 30 days after the occurrence of the Change of Control.
(b) "Change of Control" shall mean the occurrence of any one of the
following events:
(i) any "person," as such term is used in Sections 13(d) and 14(d) of
the Act (other than the Company, any of its Subsidiaries, any trustee,
fiduciary or other person or entity holding securities under any employee
benefit plan of the Company or any of its Subsidiaries), together with all
"affiliates" and "associates" (as such terms are defined in Rule 12b-2
under the Act) of such person, shall become the "beneficial owner" (as such
term is defined in Rule 13d-3 under the Act), directly or indirectly, of
securities of the Company representing 40% or more of either (A) the
combined voting power of the Company's then outstanding securities
14
<PAGE> 17
having the right to vote in an election of the Company's Board of
Trustees ("Voting Securities") or (B) the then outstanding Shares of the
Company (in either such case other than as a result of acquisition of
securities directly from the Company); or
(ii) persons who, as of the Effective Date of the Plan, constitute
the Company's Board of Trustees (the "Incumbent Trustees") cease for any
reason, including, without limitation, as a result of a tender offer,
proxy contest, merger or similar transaction, to constitute at least a
majority of the Board, provided that any person becoming a director of the
Company subsequent to the Effective Date whose election or nomination for
election was approved by a vote of at least a majority of the Incumbent
Trustees shall, for purposes of this Plan, be considered an Incumbent
Trustee; or
(iii) the shareholders of the Company shall approve any
consolidation or merger of the Company or any Subsidiary where the
shareholders of the Company, immediately prior to the consolidation or
merger, would not, immediately after the consolidation or merger,
beneficially own (as such term is defined in Rule 13d-3 under the Act),
directly or indirectly, shares representing in the aggregate 50% of the
voting shares of the corporation issuing cash or securities in the
consolidation or merger (or of its ultimate parent corporation, if any),
(B) any sale, lease, exchange or other transfer (in one transaction or a
series of transactions contemplated or arranged by any party as a single
plan) of all or substantially all of the assets of the Company or (C) any
plan or proposal for the liquidation or dissolution of the Company.
Notwithstanding the foregoing, a "Change of Control" shall not be deemed
to have occurred for purposes of the foregoing clause (i) solely as the result
of an acquisition of securities by the Company which, by reducing the number of
shares of Share of other Voting Securities outstanding, increases (x) the
proportionate number of Shares beneficially owned by any person to 40% or more
of the Shares then outstanding or (y) the proportionate voting power represented
by the Voting Securities beneficially owned by any person to 40% or more of the
combined voting power of all then outstanding Voting Securities; provided,
however, that if any person referred to in clause (x) or (y) of this sentence
shall thereafter become the beneficial owner of any additional Shares or other
Voting Securities (other than pursuant to a share split, stock dividend, or
similar transaction), then a "Change of Control" shall be deemed to have
occurred for purposes of the foregoing clause (i).
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<PAGE> 18
SECTION 10. GENERAL PROVISIONS
(a) No Distribution; Compliance with Legal Requirements. The Committee
may require each person acquiring Shares pursuant to an Award to represent to
and agree with the Company in writing that such person is acquiring the shares
without a view to distribution thereof.
No Shares shall be issued pursuant to an Award until all applicable
securities law and other legal and stock exchange requirements have been
satisfied. The Committee may require the placing of such stop-orders and
restrictive legends on certificates for Awards as it deems appropriate.
(b) Ownership Restrictions.
No Shares shall be issued pursuant to an Award if, in the sole and absolute
discretion of the Committee, such issuance would likely result in any of the
following:
(i) The recipient's ownership of Shares being in violation of the
Share Ownership Limit; or
(ii) Income to the Company that could impair the Company's status as a
real estate investment trust, within the meaning of Sections 856 through
860 of the Code.
Notwithstanding any other provision of the Plan, no person shall have any
rights under this Plan to acquire Shares which would otherwise be prohibited
under the Company's Declaration of Trust.
(c) Delivery of Stock Certificates. Delivery of share certificates to
optionees under this Plan shall be deemed effected for all purposes when the
Company or a stock transfer agent of the Company shall have delivered such
certificates in the United States mail, addressed to the optionee, at the
optionee's last known address on file with the Company.
(d) Other Compensation Arrangement; No Employment Rights. Nothing
contained in this Plan shall prevent the Board or any of the Employers from
adopting other or additional compensation arrangements, including trusts,
subject to shareholder approval if such approval is required; and such
arrangements may be either generally applicable or applicable only in specific
cases. The adoption of the Plan and the grant of Awards do not confer upon any
Employee any right to continued employment with the Company or any other
Employer.
16
<PAGE> 19
SECTION 11. EFFECTIVE DATE OF PLAN
The Plan shall become effective upon (i) adoption by the Board, (ii)
approval by the holders of a majority of the shares of Shares of the Company
present or represented and entitled to vote at a meeting of shareholders and
(iii) consummation of the Ramco Transaction (the "Effective Date").
SECTION 12. GOVERNING LAW
This Plan shall be governed by Massachusetts law except to the extent such
law is preempted by federal law.
17
<PAGE> 20
EXHIBIT A
Employee Option Grant
- -------- ------------
Dennis Gershenson . . . . . . . . . . . . . . . . . . . 24,000
Bruce Gershenson. . . . . . . . . . . . . . . . . . . . 24,000
Richard Gershenson. . . . . . . . . . . . . . . . . . . 24,000
Joel Gershenson . . . . . . . . . . . . . . . . . . . . 24,000
Michael A. Ward . . . . . . . . . . . . . . . . . . . . 24,000
A-1
<PAGE> 1
EXHIBIT 10.5
RPS REALTY TRUST
747 Third Avenue
New York, New York 10017
May 10, 1996
To the Persons and Entities
Party to the Master Agreement
defined below and Signatory Hereto
c/o Ramco-Gershenson, Inc.
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
Re: Closing of the Ramco Acquisition and Related Transaction
Gentlemen:
Reference is made to the Amended and Restated Master Agreement, dated as
of December 27, 1995, as amended by the First Amendment to Amended and Restated
Master Agreement, dated as of March 19, 1996, among RPS Realty Trust, a
Massachusetts business trust (the "Trust"), Ramco-Gershenson, Inc., a Michigan
corporation ("Ramco"), Dennis Gershenson, Joel Gershenson, Bruce Gershenson,
Richard Gershenson, Michael A. Ward, Michael A. Ward, Trustee U/T/A dated
2/22/77, as amended (collectively, the Ramco Principals"), Ramco-Gershenson
Properties, L.P., a Delaware limited partnership (the "Operating Partnership"),
and the Ramco affiliates listed on Schedule A thereto (the "Ramco Contributing
Parties") (as amended, the "Master Agreement"). Capitalized terms used, but
not defined, in this letter agreement (the "Letter Agreement") shall have the
respective meanings set forth in the Master Agreement.
This Letter Agreement is intended to and shall be a legally enforceable
agreement and shall be binding upon the parties signatory hereto. In connection
with today's closing of the transactions contemplated by the Master Agreement
(collectively, the "Transactions"), this Letter Agreement sets forth the
parties' agreement to proceed with the consummation of the Transactions on the
following additional, amended or modified terms and conditions:
1. Master Agreement. To the extent any term or provision of this Letter
Agreement is supplemental or contrary to, or is otherwise inconsistent with,
the terms and conditions of the Master Agreement, the Ramco Agreements or the
RPS Contribution Agreements (collectively, the "Transaction Documents"), this
Letter Agreement shall be deemed to amend, supplement or modify the Master
Agreement, as applicable, and the terms and conditions of this Letter Agreement
shall in all such cases control.
2. Indemnification by Ramco Principals. (a) Notwithstanding anything to
the contrary set forth in the Transaction Documents, the Ramco Principals shall
be jointly and severally liable (for
<PAGE> 2
indemnification or otherwise) with respect to any failure or breach of any
representation, warranty, covenant, agreement or obligation of the Ramco Group
under any of the Transactions Documents except that the Ramco Principal's
aggregate liability with respect to any such failure or breach shall be limited
to an aggregate of the greater of $16,000,000 and the value of the Pledged
Collateral (as such term is defined in the Pledge Agreement) determined, as of
the date any claim against the Ramco Principals is compromised or settled by the
parties or determined by a court of competent jurisdiction, based on the Value
(as such term is defined in the Exchange Rights Agreement dated the date hereof
among the Trust and the members of the Ramco Group which are a party thereto) of
the Shares at such time. Any limitation on liability set forth in the
proceeding sentence shall not limit claims against the Ramco Principals with
respect to any Ramco Group intentional misrepresentation or intentional breach
of warranty or intentional failure to perform and comply with any covenant,
agreement or obligation and the Ramco Principals shall be liable with respect to
all Damages with respect thereto. The Ramco Principals liability under this
paragraph 2, remains subject to the limitations set forth in Sections 7.2 and
7.3(a) of the Master Agreement.
(b) Notwithstanding anything herein or in any Transaction Document to the
contrary, the parties hereto acknowledge and agree that (a) it is not (and at
no time will be) necessary for the Trust, in order to enforce any of its rights
and remedies under any Transaction Document, to first institute or exhaust the
Trust's rights and remedies against any Ramco Principal, any holder of an
interest in the Operating Partnership ("Holders") or against any of the Pledged
Collateral (as defined in the Pledge Agreement), in each case, pursuant to the
Pledge Agreement, and (b) any delay in exercising, failure to exercise, or
non-exercise (or partial exercise), from time to time, by the Trust of any
rights or remedies under the Pledge Agreement (or to insist upon strict
performance) in any one or more instances shall not constitute a waiver thereof
(or preclude full exercise or insistence upon strict performance thereof) in
that or any other instance, and any single exercise of the Trust's rights or
remedies under the Pledge Agreement in any one or more instances shall not
preclude full exercise in any other instance.
3. Pashcow Termination Agreement and Deferred Payment. (a) At the
Closing, the Operating Partnership shall borrow $3,950,000 under the Line of
Credit (as defined below), the proceeds of which will be used by the Operating
Partnership (on behalf of the Trust) or RPS Mortgage (as applicable) to pay
certain Excluded Expenses and provide working capital to RPS Mortgage, as
directed by the Trust (the "Closing Loan").
(b) The parties to the Master Agreement hereby waive the condition set
forth in Section 3.1(f) of the Master Agreement with respect to the amounts
payable under Section 3(b)(ii) of the Termination Agreement between the Trust
and Joel M. Pashcow dated March 26, 1996 (the "Pashcow Obligation"). Neither
the Pashcow Obligation nor the Note (as defined below) shall be taken into
account for purposes of making the adjustments set forth in Section 1.10.
Nothing herein is intended to absolve the Trust of its obligation to pay Joel
M. Pashcow any amounts owed to him under such agreement and the Trust
acknowledges that the payment of such amount is not subject to any right of set
off or any right to interpose counterclaims or crossclaims.
(c) At the Closing, RPS Mortgage shall execute and deliver to the Trust a
note (the "Note") in the original principal amount of $5,550,000, in the form
set forth as Schedule 1 hereof, which is secured by a Collateral Agreement in
the form set forth in Schedule 2 hereof, in consideration of the Closing Loan
and the Trust's continuing liability under the Pashcow Obligation.
<PAGE> 3
(d) The Ramco Principals shall use their best efforts to cause the minimum
amount available under the Line of Credit (without regard to borrowings under
such Line of Credit that occur at or following the Closing) to equal at least
$50,000,000.
(e) For purposes of this letter agreement, the Line of Credit shall mean
the Master Revolving Credit Agreement, dated as of May 6, 1996, by and among
the Operating Partnership, the Trust and the other lending institutions which
may become parties thereto, and First National Bank of Boston, as Agent for the
Banks.
4. Reimbursement of Development Land Expenses. The Ramco Principals and
the Ramco Contributing Parties consent and agree with the Trust that at no time
shall the Operating Partnership reimburse the appropriate Affiliates of Ramco
for third party out-of-pocket expenses incurred by such Affiliates related to
options on the Development Land listed on schedule 1.1(b) to the Master
Agreement (but only to the extent such Affiliates are entitled to such
reimbursement under Section 1.13 of the Master Agreement) unless and until (i)
the funds available under the Line of Credit (assuming that no funds are drawn
down by the Operating Partnership under such Line of Credit) equal or exceed
$50,000,000, and (ii) such Affiliates have presented reasonably detailed
documentation evidencing the occurrence of thereof, which documentation and the
amount of such out-of-pocket expenses are verified and approved by the Trust's
Independent Trustees. The Independent Trustees shall be entitled to retain, at
the Trust's expense, an independent Person to verify such documentation and the
amount of such expenses.
5. Representations and Warranties of Sources and Uses. (a) The Ramco
Principals, jointly and severally, represent and warrant to, and agree with,
the Trust that (i) attached hereto as Schedule 3 is a true, correct and
complete copy of the Ramco Group's "sources and uses" statement relating to the
RPS Cash, the mortgage payoffs detailed therein and generally with respect to
the closing of the several contributions to the Operating Partnership by the
Ramco Contributing Parties and by the Trust, in all cases as contemplated by
the Master Agreement, and (ii) attached hereto as Schedule 4 is a true, correct
and complete copy of the Ramco Group's "sources and uses" statement relating to
the closing of the several contributions to the Operating Partnership by the
Ramco Contributing Parties, as contemplated by the Master Agreement. The
representations and warranties made in this paragraph shall be deemed for all
purposes as representations and warranties under Section 4 of the Master
Agreement.
(b) The Trust represents and warrants to the Ramco Group that attached
hereto as Schedule 5 is a true, correct and complete copy of the Trust's
statement of transaction expenses (other the Excluded Expenses) that have been
incurred through the Closing. The representation and warranty set forth in
this paragraph shall be deemed for all purposes as a representation and
warranty under Section 5 of the Master Agreement.
6. Prorations and Adjustments Procedures. The parties agree that the real
estate related prorations and adjustments contemplated by the Transaction
Documents that are required or scheduled to be made after the Closing shall be
in accordance with the procedures set forth in Schedule 6. Unless otherwise
indicated, all such prorations and adjustments shall be made as if the Closing
occurred as of May 1, 1996. The Independent Trustees shall review and approve
all such prorations and adjustments, including those prorations and adjustments
made at the Closing. The Independent Trustees shall be entitled to retain, at
the Trust's expense, an independent Person to assist them in reviewing and
approving
<PAGE> 4
such prorations and adjustments. To the extent such prorations and
adjustments result in any payments to the Trust, such amounts will be
distributed to the Trust's shareholders in the distribution to shareholders
that immediately follows the receipt of such amounts.
7. Use of RPS Cash. (a) The parties agree that Section 12.1(b) of the
Master Agreement is amended by deleting the amount $3,200,000 in such Section
and replacing it with the amount $3,605,279. The Ramco Principals represent
and warrant to, and agree with the Trust that, the Operating Partnership will
have cash on hand (without regard to amounts available under the Line of Credit
and amounts identified on the closing statements to be used by the Trust or the
Operating Partnership to pay Excluded Expenses) an amount equal to $3,558,450
to pay expenses relating to the Transactions.
8. New York Office Lease. At the Closing, (i) the space lease (the "New
York Office Lease") relating to the Trust's principal place of business in New
York City shall not be assigned to RPS Mortgage and (ii) the Trust shall enter
into a sublease with RPS Mortgage with respect to 100% of the space covered by
the New York Office Lease. The Trust represents and warrants to the Ramco
Group that the New York Office Lease expires on April 30, 1997.
9. Non-conforming Loans. The Ramco Principals, jointly and severally,
represent and warrant to, and agree with, the Trust that set forth on Schedule
7 is a true, correct and complete copy of the analysis which illustrates the
economic impact (including, without limitation, the impact on cash available
from distribution) on the Trust of the terms of the West Oaks II Loan and the
Spring Meadows Loan which do not conform to the terms set forth in Section
3.3(c)(ii) and (iii) of the Master Agreement.
10. Waivers. The Closing of the Transactions shall for all purposes
hereunder be deemed a waiver in writing of any condition to Closing which has
not been satisfied at or prior to such Closing.
11. Special Distributions. Notwithstanding anything to the contrary set
forth in the Master Agreement, any distributions or dividends that are
contemplated in the Master Agreement to be made to the Trust's shareholders of
record as of the day prior to the Closing Date (other than the dividend or
distribution relating to the shares in RPS Mortgage) shall instead be made to
the Trust's shareholders as of the record date which is established by the
Board of Trustees for distributions to shareholders after the receipt of the
funds or assets which were the subject of such special distribution.
12. Kohl's Lease. The Ramco Principals hereby acknowledge their
obligation to satisfy in full in cash the landlord's obligations under Section
3.5 of the Kohl's Lease.
13. Miscellaneous
A. Specific Performance. The parties acknowledge that the subject
matter of this Letter Agreement is unique and that no adequate remedy of law
would be available for breach of this Letter Agreement. Accordingly, each party
agrees that the other parties will be entitled to an appropriate decree
<PAGE> 5
of specific performance or other equitable remedies to enforce this Letter
Agreement (without any bond or other security being required) and each party
waives the defense in any action or proceeding brought to enforce this Letter
Agreement that there exists an adequate remedy at law.
B. Captions. The captions in this Letter Agreement are for convenience of
reference only and shall not be given any effect in the interpretation of this
Letter Agreement.
C. No Waiver. The failure of a party to insist upon strict adherence to
any term of this Letter Agreement on any occasion shall not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Letter Agreement. Any waiver
must be in writing.
D. Amendment. This Letter Agreement cannot be changed or terminated except
by a written instrument executed by the party or parties against whom
enforcement thereof is sought.
E. Counterparts. This Letter Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but all of which
together shall constitute the same instrument.
F. Governing Law. This Letter Agreement and (unless otherwise provided)
all amendments hereof and waivers and consents hereunder shall be governed by
the internal laws of the State of New York, without regard to the conflicts of
law principles thereof.
<PAGE> 6
IN WITNESS WHEREOF, the parties have executed this Letter Agreement
and caused the same to be delivered on their behalf on May 10, 1996
RPS REALTY TRUST
By: /s/ Stephen R. Blank
----------------------------------
Name: Stephen R. Blank
Title: Trustee
RAMCO GERSHENSON, INC.
By: /s/ Dennis Gershenson
----------------------------------
Name: Dennis Gershenson
Title: Chief Executive Officer
/s/ Dennis Gershenson
--------------------------------------
Dennis Gershenson
/s/ Richard Gershenson
--------------------------------------
Richard Gershenson
/s/ Bruce Gershenson
--------------------------------------
Bruce Gershenson
/s/ Joel Gershenson
--------------------------------------
Joel Gershenson
/s/ Michael A. Ward
--------------------------------------
Michael A. Ward
MICHAEL A. WARD U/T/A DATED 2/22/77,
AS AMENDED
By: /s/ Michael A. Ward
-----------------------------------
Michael A. Ward as trustee
U/T/A dated 2/22/77, as amended
<PAGE> 7
RAMCO-GERSHENSON PROPERTIES, L.P.
By: RAMCO REIT, INC., its
General Partner
By: /s/ Dennis Gershenson
-----------------------------
Name: Dennis Gershenson
Title:
RAMCO CONTRIBUTING PARTIES
TO THE EXTENT OF SECTIONS 1, 2, 3, 6, 7, 8,
9, 10, 11 and 12
KM BLUE ASH DEVELOPMENT COMPANY,
an Ohio co-partnership
By: /s/ Bruce Gershenson
----------------------------------
Bruce Gershenson
Partner
LA II GROUP, an Ohio general partnership
By: RAMCO LEWIS ALEXIS ASSOCIATES,
a Michigan general partnership,
its Partner
By: /s/ Bruce Gershenson
-------------------------------
Bruce Gershenson
Partner
<PAGE> 8
MICHIGAN SHOPPING CENTER VENTURES
II LIMITED PARTNERSHIP, a Michigan
limited partnership
By: RAMCO L & W PARTNERS
a Michigan co-partnership,
its General Partner
By: RAMCO CP, a Michigan
co-partnership, its Partner
By: /s/ Bruce Gershenson
---------------------------
Bruce Gershenson
Partner
RAMCO CANTON CO.,
a Delaware general partnership
By: FORD SHELDON PLAZA COMPANY,
a Michigan limited partnership, its Partner
By: /s/ Bruce Gershenson
------------------------------------
Bruce Gershenson
General Partner
RAMCO FRASER DEVELOPMENT
COMPANY, a Michigan co-partnership
By: /s/ Bruce Gershenson
-----------------------------------------
Bruce Gershenson
Partner
<PAGE> 9
RAMCO JACKSON DELAWARE LIMITED
PARTNERSHIP, a Delaware limited partnership
By: RAMCO JACKSON, INC.,
a Michigan corporation,
its General Partner
By: /s/ Bruce Gershenson
--------------------------------
Bruce Gershenson
Vice President
RAMCO KENTWOOD ASSOCIATES
a Michigan co-partnership
By: /s/ Bruce Gershenson
-----------------------------------
Bruce Gershenson
Partner
RAMCO LANSING ASSOCIATES,
a Michigan co-partnership
By: /s/ Bruce Gershenson
-----------------------------------
Bruce Gershenson
Partner
RAMCO LAPEER ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited partnership
By: RAMCO LAPEER, INC., a Michigan
corporation, its General Partner
By: /s/ Bruce Gershenson
--------------------------------
Bruce Gershenson
Vice President
<PAGE> 10
RAMCO NOVI I CO.,
a Delaware general partnership
By: WEST OAKS DEVELOPMENT
COMPANY, a Michigan co-partnership,
its Partner
By: /s/ Bruce Gershenson
-----------------------------------
Bruce Gershenson
Partner
RAMCO NOVI II CO.,
a Delaware general partnership
By: RAMCO NOVI DEVELOPMENT
ASSOCIATES LIMITED PARTNERSHIP,
a Michigan limited partnership, its Partner
By: RAMCO NOVI DEVELOPMENT
COMPANY, a Michigan
co-partnership, its General Partner
By: /s/ Bruce Gershenson
-----------------------------------
Bruce Gershenson
Partner
RAMCO OAK BROOK SQUARE
ASSOCIATES LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO OAK BROOK SQUARE, INC.,
a Michigan corporation,
its General Partner
By: /s/ Bruce Gershenson
---------------------------------
Bruce Gershenson
Vice President
<PAGE> 11
RAMCO ORION CO.,
a Delaware general partnership
By: W & G REALTY COMPANY,
a Michigan co-partnership, its Partner
By: /s/ Bruce Gershenson
--------------------------------------
Bruce Gershenson
Partner
RAMCO ROSEVILLE CO.,
a Delaware general partnership
By: ROSEVILLE PLAZA LIMITED
PARTNERSHIP
By: RAMCO VENTURES, a Michigan
co-partnership, its General Partner
By: /s/ Bruce Gershenson
-----------------------------------
Bruce Gershenson
Partner
RAMCO SINGER ASSOCIATES LIMITED
PARTNERSHIP, an Ohio limited partnership
By: RAMCO TROY ASSOCIATES,
a Michigan co-partnership, its
General Partner
By: /s/ Bruce Gershenson
------------------------------
Bruce Gershenson
Partner
<PAGE> 12
RAMCO SOUTHFIELD CO.,
a Delaware general partnership
By: SOUTHFIELD PLAZA LIMITED
PARTNERSHIP, a Michigan
limited partnership, its Partner
By: RAMCO VENTURES, a Michigan
co-partnership, its General Partner
By: /s/ Bruce Gershenson
-----------------------------------
Bruce Gershenson
Partner
RAMCO STERLING MALL CO.,
a Delaware general partnership
By: STERLING MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership, its Partner
By: RAMCO CONSUMER MALL
ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited
partnership, its General Partner
By: /s/ Bruce Gershenson
-----------------------------------
Bruce Gershenson
General Partner
<PAGE> 13
SOUTHFIELD PLAZA LIMITED
PARTNERSHIP, a Michigan limited partnership
By: RAMCO VENTURES, a Michigan general
partnership, its General Partner
By: /s/ Bruce Gershenson
----------------------------------
Bruce Gershenson
Partner
SPRING MEADOWS SHOPPING CENTER
ASSOCIATES, an Ohio general partnership
By: RAMCO SPRING MEADOWS
ASSOCIATES, a Michigan co-partnership,
its Partner
By: /s/ Bruce Gershenson
--------------------------------------
Bruce Gershenson
Partner
WEST ALLIS SHOPPING CENTER
ASSOCIATES, a Wisconsin general partnership
By: RAMCO ALLIS DEVELOPMENT
COMPANY, a Michigan co-partnership,
its Partner
By: /s/ Bruce Gershenson
-----------------------------------
Bruce Gershenson
Partner
<PAGE> 14
RAMCO SOUTH NAPLES DEVELOPMENT,
a Florida general partnership
By: /s/ Bruce Gershenson
-----------------------------
Bruce Gershenson
Partner
RAMCO STERLING STRIP CO.,
a Delaware general partnership
By: KMW STERLING DEVELOPMENT COMPANY,
a Michigan co-partnership, its
partner
By: /s/ Bruce Gershenson
--------------------------
Bruce Gershenson
Partner
RAMCO TEL-TWELVE CO.,
a Delaware general partnership
By: TEL-TWELVE MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership,
its partner
By: /s/ Bruce Gershenson
---------------------------
Bruce Gershenson
Partner
<PAGE> 1
EXHIBIT 10.6
PROMISSORY NOTE
$5,550,000.00 Place of Execution: New York, New York
Maturity Date: November 9, 1997 Date of Note: May 10, 1996
INDEBTEDNESS
FOR VALUE RECEIVED, the undersigned, ATLANTIC REALTY TRUST, a Maryland
real estate investment trust ("Borrower"), promises to pay to the order of
RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership ("Holder"),
at its offices at 27600 Northwestern Highway, Suite 200, Southfield, Michigan
48034, or at such other place as the Holder hereof may designate in writing
from time to time, the principal sum of Five Million Five Hundred Fifty
Thousand and 00/100 Dollars ($5,550,000.00), together with interest as
hereinafter provided, in lawful money of the United States, which shall be
legal tender in payment of all debts and dues, public and private, at the time
of payment, in the manner hereinafter provided.
RATE OF INTEREST
So long as there is no Event of Default (as defined below) hereunder,
during the term of this Promissory Note (the "Promissory Note"), the principal
balance of this Promissory Note shall bear interest per annum at the rate equal
to the rate announced by The First National Bank of Boston from time to time as
its Base Rate (the "Contract Rate").
If Borrower does not make timely payments as provided in this Promissory
Note, a late payment fee in an amount equal to five percent (5%) of the past
due amount shall be payable in connection with any amount due under this
Promissory Note that is not received by Holder within ten (10) days of when
due. In an Event of Default (as defined below), Holder shall have the right
and option to charge interest on the then outstanding principal balance at a
default rate equal to five percent (5%) over the Contract Rate, in addition to
all other rights provided by this Promissory Note or as provided by law or in
equity.
LIMITATIONS ON INTEREST RATE
It is the intention of Borrower and Holder that the rates of interest from
time to time applicable hereunder, including all sums and charges that may
properly be deemed to constitute interest, shall not exceed the maximum lawful
rate of interest applicable to each such rate. To that end, it is agreed that
any rate of interest applicable hereunder shall not at any time exceed the
rates or amount of interest then permitted to be charged by stipulation in
writing between Borrower and Holder hereunder (the "Interest Rate Limitation").
<PAGE> 2
In the event that any rate of interest otherwise applicable hereunder
(including any sums paid independent of this Promissory Note and properly
determined under applicable law to be interest) shall exceed the Interest Rate
Limitation, the interest rate applicable to this Promissory Note shall
automatically be reduced to the applicable maximum interest rate which does not
exceed the applicable Interest Rate Limitation, and sums paid as interest which
would cause any effective rate of interest hereunder to exceed the applicable
Interest Rate Limitation shall be applied to reduce the principal balance of
this Promissory Note.
MANNER OF PAYMENT
A payment of all interest which has accrued hereunder but has not been
paid shall be made on June 1, 1996, and on the first day of each and every
month thereafter until the Maturity Date of this Promissory Note. Interest
which would accrue during the month in which the Maturity Date falls will be
collected at the Maturity Date. In addition, any payment or proceeds actually
received by Borrower in connection with (i) the sale by Owner (as defined in
the Security Instrument defined below) of the real property encumbered by the
Note, Mortgage or Other Security Documents (as defined below) or (ii) insurance
or condemnation proceeds, in each case, that the Borrower (as lender under the
Mortgage) is entitled under the Mortgage to receive from the Owner, shall be
paid to Holder as principal immediately upon receipt of such payment by
Borrower.
For purposes of computing payments of principal and interest, the payments
shall be computed on the basis of a three hundred sixty (360) day year composed
of twelve (12) thirty (30) day months. Interest accruing in partial months
shall be computed on a three hundred sixty (360) day year. Payments hereunder
shall be applied first in payment of lat charges, costs, expenses, accrued
interest and thereafter in reduction of principal. All principal and accrued
interest shall be paid on November 9, 1997 ("Maturity Date").
PREPAYMENT
This Promissory Note may be prepaid in whole or in part at any time
without penalty.
SECURITY
This Promissory Note is secured by a Collateral Assignment of Mortgage of
even date herewith from Borrower to Holder (the "Security Instrument"),
pursuant to which Borrower has granted Holder a security interest in (i) the
Note (as defined in the Security Instrument) in the aggregate principal amount
of Twenty-Five Million and 00/100 Dollars ($25,000,000.00) held by Borrower,
and (ii) the Mortgage and Other Security Documents (in each case, as defined in
the Security Instrument). Holder shall be entitled to the benefits of the
Note, the Mortgage and the Other Security Documents.
2
<PAGE> 3
DEFAULT
The unpaid principal balance, all accrued and unpaid interest due under
this Promissory Note and all other amounts due hereunder shall become
immediately due and payable at the option of Holder upon any Event of Default
(as defined below). Borrower shall pay all costs and reasonable attorneys'
fees incurred in collecting or enforcing this Promissory Note, whether suit be
brought or not. Any failure of Holder to exercise such option to accelerate
shall not constitute a waiver of the right to exercise such option to
accelerate at any future time. As used herein, an "Event of Default" shall
mean (i) the failure of Borrower to make timely payments of interest hereunder,
which failure continues for a period of ten (10) days following the date any
such interest payment required to be made hereunder is due, (ii) the failure to
make any required principal payment hereunder when due, and (iii) any "Event of
Default" by Borrower under the Security Instrument (as that term is defined
therein).
Acceptance by Holder of any payment in an amount less than the amount then
due shall be deemed an acceptance on account only, and, at any time thereafter
and until the entire amount then due has been paid, Holder shall be entitled to
exercise all rights conferred upon it in this Promissory Note upon the
occurrence of an Event of Default.
Borrower and every person and entity at any time liable for the payment of
the evidenced debt expressly authorize Holder to immediately apply to the
payment of this Promissory Note any sum of money or other property belonging to
Borrower or any such person or entity, deposited or otherwise in the hands of
Holder; provided, however, that neither this authority, nor the fact that it
may not be exercised, shall alter or modify in any manner the obligation herein
incurred.
WAIVER
Borrower for itself and its legal representatives, successors and assigns,
and every person and entity at any time liable for the indebtedness hereunder,
or any part thereof, expressly waives presentment, demand, protest, notice of
dishonor, notice of nonpayment, notice of maturity, notice of protest,
presentment for the purpose of accelerating maturity, diligence in collection,
marshalling rights, subrogation rights, and any exemption under the homestead
exemption laws, if any, or any other exemption or insolvency laws whatsoever in
respect of this Promissory Note or the Security Instrument or items of
collateral described therein. Borrower consents that Holder may extend the
time for payment or otherwise modify the terms of payment of any part or the
whole of the debt evidenced hereby.
LIABILITY
Borrower shall have full personal liability for all amounts due under this
Promissory Note.
3
<PAGE> 4
GOVERNING LAW, SUCCESSORS
AND ASSIGNS AND MISCELLANEOUS
This Promissory Note is delivered and accepted in the State of New York
and shall be governed and construed in accordance with its laws. If any
provision of this Promissory Note is in conflict with any statute or applicable
rule of law, or is otherwise unenforceable for any reason whatsoever, such
provision shall be deemed null and void to the extent of such conflict or
unenforceability and shall be deemed separate from and shall not invalidate any
other provision of this Promissory Note. TIME SHALL BE OF THE ESSENCE UNDER
THIS PROMISSORY NOTE. This Promissory Note may not be amended except by a
writing signed by Borrower and Holder. This Promissory Note shall, in
accordance with its terms, be binding upon Borrower, its successors and
assigns, and shall inure to the benefit of Holder and its successors and
assigns. The paragraph captions provided in this Promissory Note are for
convenience only and shall not affect the meaning, interpretation or
construction of the provisions hereof.
IN WITNESS WHEREOF, Borrower has caused this Promissory Note to be
executed on the day and year first written above.
ATLANTIC REALTY TRUST,
a Maryland real estate investment trust
By: /s/ Edwin R. Frankel
--------------------
Its: Executive Vice President and Secretary
--------------------------------------
Address for notice purposes:
747 Third Avenue
New York, New York 10017
Attention: Joel M. Pashcow, Chairman and President
4
<PAGE> 1
EXHIBIT 10.7
ATLANTIC REALTY TRUST
747 Third Avenue
New York, New York 10017
May 10, 1996
RPS Realty Trust
(now named Ramco-Gershenson Properties Trust)
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
Re: Ramco Acquisition
Gentlemen:
Reference is made to the Amended and Restated Master Agreement, dated as
of December 27, 1995, as amended by the First Amendment to the Amended and
Restated Master Agreement, dated as of March 19, 1996, among the RPS Realty
Trust, a Massachusetts business trust ("RPS"), Ramco-Gershenson, Inc., a
Michigan corporation, Dennis Gershenson, Joel Gershenson, Bruce Gershenson,
Richard Gershenson, Michael A. Ward, Michael A. Ward, Trustee U/T/A dated
2/22/77, as amended, Ramco-Gershenson Properties Trust, L.P., a Delaware
limited partnership, and the affiliates of Ramco listed on Schedule A thereto
(as amended, the "Master Agreement"). Capitalized terms used and not otherwise
defined in this letter agreement shall have the meanings set forth in the
Master Agreement.
This letter agreement confirms and memorializes our agreement with RPS as
follows:
1. For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Atlantic Realty Trust, a Maryland real estate
investment trust ("Atlantic"), hereby assumes and agrees to be liable for, and
agrees to pay, perform and discharge as they become due, all Excluded Expenses
(other than amounts payable to Joel M. Pashcow under Section 3(b)(ii) of the
Termination Agreement between RPS and Joel M. Pashcow, dated March 26, 1996)
that were incurred or are the responsibility of RPS under the Master Agreement
and which were not paid for by RPS at or prior to the Closing (collectively, the
"Assumed Liabilities").
2. Atlantic shall indemnify, defend and hold harmless RPS from and against
any and all Assumed Liabilities and any and all liabilities, costs and expenses
in connection with any claims, actions, suits or proceedings arising out of or
resulting from the Assumed Liabilities. If RPS shall receive notice of any such
claim, action, suit or proceeding, shall promptly notify Atlantic which shall be
entitled and obligated to defend or settle the same through its own counsel and
its own expense, but RPS, shall provide any corporation reasonably requested by
Atlantic.
3. Each of Atlantic and RPS hereby agrees to take or cause to be taken
such further action, to execute, deliver and file a cause to be executed,
delivered and filed such further documents and
<PAGE> 2
2
instruments, and may be necessary or it may be reasonably requested in order to
effectuate fully the purposes, terms and conditions of this letter agreement.
4. This letter agreement shall be binding upon and shall inure to the
benefit of the parties hereof and their respective successors, heirs,
executives, administratives, legal representatives and assignees.
5. This letter agreement shall be governed by and in accordance with the
laws of the State of New York, without giving effect to conflict of laws.
Very truly yours,
ATLANTIC REALTY TRUST
By: /s/ Edwin R. Frankel
-------------------------
Name: Edwin R. Frankel
Title:
<PAGE> 1
EXHIBIT 10.8
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of May 10, 1996, is
entered into between RAMCO-GERSHENSON PROPERTIES TRUST, formerly known as RPS
Realty Trust, a Massachusetts business trust (the "Trust"), and JOEL GERSHENSON
("Executive"). Capitalized terms used but not otherwise defined in this
Agreement shall have the meanings set forth in the Amended and Restated Master
Agreement, dated as of December 27, 1995, as amended by the First Amendment to
Amended and Restated Master Agreement dated March 19, 1996, by and among RPS
Realty Trust, a Massachusetts business trust, Ramco-Gershenson, Inc., a
Michigan corporation, Joel Gershenson, Dennis Gershenson, Bruce Gershenson,
Richard Gershenson, Michael A. Ward, Michael A. Ward, Trustee U/T/A dated
2/22/77, as amended, Ramco-Gershenson Properties, L.P., a Delaware limited
partnership and the Ramco Contributing Parties listed on Schedule A attached
thereto (as amended, the "Master Agreement").
RECITALS
A. The Trust is a business trust intended to be qualified and to operate
as a real estate investment trust under the Internal Revenue Code of 1986, as
amended.
B. The Trust is the general partner of Ramco-Gershenson Properties, L.P.,
a Delaware limited partnership (the "Operating Partnership"), which has, among
other things, acquired various shopping center properties from Subsidiaries of
the Trust and partnerships managed and controlled by Ramco-Gershenson, Inc.
("Ramco Management") or its affiliates.
C. Executive is one of the five principals of Ramco Management (the "Ramco
Principals"). The Trust wishes to employ Executive and the other Ramco
Principals, and Executive wishes to be employed by the Trust, on the terms and
conditions set forth below.
THEREFORE, the parties agree as follows:
1. EMPLOYMENT DUTIES. During the Term (as defined in paragraph 2 below),
the Trust will employ Executive as its Chairman. Except as permitted by
Executive's Noncompetition Agreement with the Trust, Executive will devote
substantially all of his business time and attention to the performance of his
duties under this Agreement. Executive initially shall have the duties, rights
and responsibilities normally associated with his position with the Trust
consistent with the Amended and Restated Declaration of Trust of the Trust, as
amended, together with such other reasonable duties relating to the operation of
the business of the Trust and its affiliates as may be assigned to him from time
to time by the Board of Trustees of the Trust (the "Board") or may otherwise be
provided for in such Bylaws. If the Trust shall so request, Executive shall
become and shall, at any time during the term of this Agreement as the Trust
shall so request, act as a trustee of the Trust and/or as an officer and/or
director of any of the Subsidiaries of the Trust as they may now exist or may be
established by the Trust in the future without any compensation other than that
provided for in paragraph 3.
<PAGE> 2
2. TERM. The term of Executive's employment under this Agreement (the
"Term") will begin on the date of this Agreement and will continue, subject to
the termination provisions set forth in paragraph 5 below, until the third
anniversary of the date hereof; provided that, if the Board has considered
whether or not to extend the Term at a meeting held not more than 90 days or
less than 30 days prior to the expiration of the Term, the Term will
automatically be extended for one year unless either the Trust or Executive
gives written notice of non-extension to the other at least 20 days prior to the
expiration of the Term.
3. SALARY AND BONUS.
a. Salary. During each year of the Term, Executive will receive a
salary at the annual rate of $100,000, which salary will be subject to increase
as set forth below (as so increased, the "Base Salary"). The Compensation
Committee of the Trust's Board of Trustees (the "Committee") will review
Executive's Base Salary on an annual basis, and the Committee, upon such review
and in its sole discretion, may increase or decrease the Base Salary by an
amount which the Committee deems appropriate in light of the Trust's and
Executive's performance during the period covered by such review; provided,
however, that the Base Salary will not be reduced below $100,000 per annum. The
Base Salary will be payable to Executive in accordance with the Trust's standard
payroll practices.
b. Bonus. In addition to the Base Salary, the Trust will pay to
Executive performance-based bonus compensation for each fiscal year of the
Trust, not later than 60 days following the end of each fiscal year or the
expiration of the Term as a result of the nonextension thereof or as otherwise
specified in paragraph 6 below, as the case may be, prorated on a per diem basis
for partial fiscal years, as determined by the Committee but not less than that
determined and calculated in accordance with the formula set forth on Exhibit
"A" hereto.
4. FRINGE BENEFITS. In addition to the other compensation payable
pursuant to this Agreement, during the Term:
a. Standard Benefits. Executive will be entitled to receive such
fringe benefits and perquisites, including medical, dental, disability and life
insurance, as are generally made available from time to time to management
employees and Executives of the Trust and as was provided to Executive by Ramco
Management on December 31, 1995, and to participate in any pension,
profit-sharing, stock option or similar plan or program established from time to
time by the Trust for the benefit of its employees.
b. Vacation and Sick Leave. Executive will be entitled to such
periods of paid vacation and sick leave allowance each year (not less than four
weeks) that are consistent with the Trust's vacation and sick leave policy for
senior management.
c. Business Expenses. The Trust will pay or reimburse Executive for
all business-related expenses incurred by Executive in the course of his
performance of duties under this Agreement, subject to the procedures
established by the Trust from time to time with respect
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to incurrence, substantiation, reasonableness and approval. The
business-related expenses to be paid for or reimbursed by the Trust hereunder
will include those expenses paid for or reimbursed by Ramco Management for the
benefit of Executive for the year ending December 31, 1995, including
professional licensing and association fees and dues, professional journal
subscriptions and errors and omissions insurance coverage.
d. Stock Options. Executive shall be entitled to participate in
employee stock option plans from time to time established for the benefit of
employees of the Trust in accordance with the terms and conditions of such
plans. On the date hereof, Executive shall receive a grant of 24,000 stock
options pursuant to the Trust's 1996 Share Option Plan, which options shall vest
in three equal annual installments on the first, second and third anniversaries
of the date hereof. The option exercise price with respect to the stock options
granted on the date hereof shall be equal to $16.00 per share. None of the
terms of any such option shall be modified without Executive's consent. Within
60 days after the date hereof, the Trust shall file a registration statement on
Form S-8 registering under the Securities Act of 1933, as amended (the
"Securities Act") the shares of beneficial interest of the Trust sold to
Executive upon the exercise of the options granted to Executive pursuant to this
paragraph 4(d) (collectively, the "Registrable Securities"). The Trust shall
use commercially reasonable efforts to maintain the effectiveness of such
registration statement under the Securities Act until the earlier of (i) the
date the Registrable Securities are no longer eligible for registration on Form
S-8 or (ii) the date the Registrable Securities are permitted to be disposed of
pursuant to Rule 144(k) (or any successor rule) under the Securities Act.
5. TERMINATION OF EMPLOYMENT.
a. Death and Disability. Executive's employment under this Agreement
will terminate immediately upon his death and upon 30 days' prior written notice
given by the Trust in the event Executive is determined to be "permanently
disabled" (as defined below).
b. For Cause. The Trust may terminate Executive's employment under
this Agreement for "Cause" (as defined below), upon providing Executive 30 days'
prior written notice of termination, which notice will describe in detail the
basis of such termination and will become effective on the 30th day after
Executive's receipt thereof unless Executive (i) cures the alleged violation or
other circumstance which was the basis of such termination within such 30-day
notice period or (ii) sends, within such 30-day notice period, written notice to
the Board of Trustees of the Trust disputing in good faith the existence of
Cause and requesting arbitration of such dispute pursuant to paragraph 8 below.
During the pendency of the arbitration, Executive will continue to receive all
compensation and benefits to which he is entitled hereunder. If the Trust is
not successful in obtaining a determination by the arbitrators that there was
Cause for termination, the Trust will pay Executive's reasonable expenses,
including, without limitation, reasonable attorneys' fees and disbursements, in
connection with such dispute resolution.
c. For Good Reason. Executive may terminate his employment under
this Agreement for "Good Reason" (as defined below) upon providing the Trust 30
days' prior written
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<PAGE> 4
notice of termination, which notice will detail the basis of such termination
and will become effective on the 30th day after the Trust's receipt thereof
unless the Trust cures the alleged violation or other circumstance which was the
basis of such termination within such 30-day notice period.
d. Definitions. For purposes of this Agreement:
(i) Executive will be deemed "permanently disabled" if he
becomes unable to discharge his normal duties as contemplated under
this Agreement for more than six consecutive months as a result of
incapacity due to mental or physical illness by a physician
acceptable to Executive and the Trust and paid by the Trust, whose
determination will be final and binding. If Executive and the
Trust are unable to agree on a physician, Executive and the Trust
will each choose one physician who will mutually choose the third
physician, whose determination will be final and binding.
(ii) "Cause" means either (A) a material breach by Executive
of any material provisions of this Agreement or of the
Noncompetition Agreement, but only if, after notice provided in
subparagraph (b) above, Executive fails to cure such breach or, if
such breach is not subject to cure, fails on an on-going basis
thereafter to comply with the provisions of this Agreement or of
the Noncompetition Agreement, as the case may be, with respect to
which he was in such breach; (B) action by Executive constituting
willful malfeasance or gross negligence, having a material adverse
effect on the Trust; (C) an act of fraud, misappropriation of funds
or embezzlement by Executive in connection with his employment
hereunder; or (D) Executive is convicted of, pleads guilty to or
confesses to any felony.
(iii) "Good Reason" means the occurrence of any of the
following, without the prior written consent of Executive: (A) any
substantial diminution of duties, responsibilities or status, or
other imposition by the Trust of unreasonable requirements or
working conditions on Executive, which are not withdrawn or
corrected within a 30-day period following notice by Executive to
the Trust of such diminution or imposition; (B) a material breach
by the Trust of any of its material obligations under this
Agreement, but only if (x) after expiration of the 30-day notice
period provided in subparagraph (c) above, the Trust fails to cure
such breach or (y) notwithstanding such cure, the Trust willfully
and repeatedly breaches its obligations under this Agreement; (C) a
relocation of the Trust's principal executive offices or of
Executive's principal place of employment to a location more than
25 miles from Southfield, Michigan; (D) if, after any election of
Trustees, at least two Ramco Principals are not members of the
Board or the Ramco Principals would constitute less than 20% of the
members of the Board (provided that at least two of the Ramco
Principals are ready, willing and able to serve on the Board); or
(E) a "change of control" as defined below.
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<PAGE> 5
Notwithstanding the foregoing, if at any time after the date of this
Agreement the Ramco Principals own shares or OP Units convertible
into less than 15% of the issued and outstanding Shares of the
Trust, clause (D) shall be inapplicable and shall not be deemed
"good reason" for termination of employment. Executive will be
deemed not to have consented to any proposal resulting in any of the
foregoing changes unless he will have given written notice of his
consent thereto to the Board of Trustees of the Trust within fifteen
(15) days after receipt of a written proposal describing the change.
If Executive will not give such consent, the Trust will have the
opportunity to withdraw such proposed change by written notice to
Executive given within 15 days after expiration of the foregoing
15-day period.
(iv) A "change in control" shall occur if any person or group
of commonly controlled persons, other than the Ramco Principals or
their affiliates, owns or controls, directly or indirectly, more
than twenty-five percent (25%) of the voting control or value of
the capital stock of the Trust, or of securities convertible into
or exchangeable for capital stock of the Trust.
6. BENEFITS UPON TERMINATION.
a. Termination upon Death or Permanent Disability. Upon termination
of Executive's employment under this Agreement resulting from his death or
permanent disability, the Trust will remain obligated to pay to Executive or his
legal representatives his Base Salary and bonus, as provided in paragraph 3
above, for an additional period equal to 12 months from the effective date of
termination (such additional period being referred to in this Agreement as the
"Severance Period"). In the event of a termination upon Executive's permanent
disability, Executive will also remain entitled to receive, during the Severance
Period, those fringe benefits specified in paragraph 4 above, including coverage
under all insurance programs and plans. The payment of such Base Salary and
bonus will be made during the Severance Period at the same times as such amounts
would have been paid pursuant to paragraph 3 above had Executive's employment
not have been terminated and had the Term expired at the end of the Severance
Period.
b. Termination with Cause or Resignation. Upon termination of
Executive's employment by the Trust pursuant to paragraph 5(b) above or a
voluntary resignation by Executive (other than for Good Reason pursuant to
paragraph 5(c) above), the Trust will remain obligated to pay Executive only the
unpaid portion of his Base Salary, bonus and benefits (including the value of
any untaken vacation time to the extent Executive has, during the year in which
such termination occurs, taken less vacation time than permitted to him
hereunder), to the extent accrued through the effective date of termination. Any
amount due under this subparagraph will be payable within 30 days after the date
of termination.
c. Termination without Cause or for Good Reason. Upon termination of
Executive's employment (x) by the Trust other than for Cause or upon Executive's
death or
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<PAGE> 6
permanent disability or (y) by Executive for Good Reason, Executive will be
entitled to the benefits provided below:
(i) the Trust will pay Executive his Base Salary through the
date of termination;
(ii) the Trust will pay as severance pay to Executive, not later
than the 30th day following the date of termination, a lump sum
severance payment (the "Severance Payment") equal to the greater of
(x) the aggregate of all compensation due to Executive hereunder
during the balance of the Term, assuming that the annual bonuses
payable to Executive during such period will equal the average of the
annual bonuses paid to Executive under this Agreement prior to
termination of employment, or (y) 2.99 times (or, after the second
anniversary of the date of this Agreement, 1.99 times) the "base
amount" within the meaning of Sections 280G(b)(3) and 280G(d) of the
Internal Revenue Code of 1986, as amended (the "Code"), and any
applicable temporary or final regulations promulgated thereunder, or
its equivalent as provided in any successor statute or regulation. If
Section 280G of the Code (and any successor provisions thereto) is
repealed or otherwise inapplicable, then the Severance Payment will
equal 2.99 (or, after the second anniversary of this agreement, 1.99
times) times the average of Executive's annual compensation for both
complete and partial calendar years during so much of the five
calendar year period preceding the calendar year in which the
termination occurs during which Executive was so employed, determined
by analyzing any compensation (other than non-recurring items)
includable in Executive's gross income for any partial calendar year
and then adding such non-recurring items to such annualized
compensation. Compensation payable to Executive by the Trust will
include every type and form of compensation includable in Executive's
gross income in respect of his employment by the Trust, including
compensation income recognized as a result of Executive's exercise of
stock options or sale of the stock so acquired, except to the extent
otherwise provided in Section 280G of the Code and any temporary or
final regulations promulgated thereunder;
(iii) if in the opinion of tax counsel elected by Executive and
reasonably acceptable to the Trust, any portion of any payment made to
Executive, including without limitation, the Severance Payment
constitutes an excess "parachute payment" within the meaning of
Section 280G(b)(1) of the Code, the Trust will pay Executive an
additional amount (the "Additional Amount") equal to the sum of (i)
all taxes payable by Executive under Section 4999 of the Code with
respect to the Severance Payment and the Additional Amount, plus (ii)
all federal, state or local income taxes payable by Executive with
respect to the Additional Amount; and
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(iv) for the duration of the Term, those fringe benefits
specified in paragraph 4(a) above, including coverage under all
insurance programs and plans.
d. No Mitigation. Executive will not be required to mitigate the
amount of any payment provided for in this paragraph 6 by seeking other
employment or otherwise, nor will the amount of any payment or benefit provided
for in this paragraph 6 be reduced by any compensation earned by him as the
result of employment by another employer or by retirement benefits after the
date of termination, or otherwise.
e. Expiration of this Agreement. In the event the Term of this
Agreement expires without having otherwise been previously terminated pursuant
to paragraph 5 above or by the Trust without cause, Executive will not be
entitled to any severance compensation whatsoever under this paragraph 6.
7. INDEMNIFICATION. To the full extent permitted by applicable law,
Executive shall be indemnified and held harmless for any action or failure to
act in his capacity as a director, trustee, officer or employee of the Trust. In
furtherance of the foregoing and not by way of limitation, if Executive is a
party or is threatened to be made a party to any suit because he is a director,
trustee, officer or employee of the Trust, he shall be indemnified against
expenses, including attorney's fees, judgments, fines and amounts paid in
settlement if he acted in good faith and in a manner reasonably believed to be
in or not opposed to the best interest of the Trust, and with respect to any
criminal action or proceeding, he had no reasonable cause to believe his conduct
was unlawful. Indemnification under this Section shall be in addition to any
other indemnification by the Trust of its officers and trustees. Expenses
incurred by the Executive in defending an action, suit or proceeding for which
he claims the right to be indemnified pursuant to this Section shall be paid by
the Trust in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of the Executive to repay such
amount in the event that it shall ultimately be determined that he is not
entitled to indemnification by the Trust. Such undertaking shall be accepted
without reference to the financial ability of such Executive to make repayment.
The Trust shall use commercially reasonable efforts to maintain in effect for
the Term of this Agreement a directors' and officers' liability insurance
policy, with a policy limit of at least $10,000,000 (which may be spread over a
multiple year period), subject to customary exclusions, with respect to claims
made against officers and directors of the Trust; provided, however, the Trust
shall be relieved of this obligation to maintain directors' and officers'
liability insurance if, in the good faith judgment of the Trust, it cannot be
obtained at a reasonable cost.
8. ARBITRATION. The parties hereto will endeavor to resolve in good faith
any controversy, disagreement or claim arising between them, whether as to the
interpretation, performance or operation of this Agreement or any rights or
obligations hereunder. If they are unable to do so, any such controversy,
disagreement or claim will be submitted to binding arbitration, for final
resolution without appeal, by either party giving written notice to the other of
the existence of a dispute which it desires to have arbitrated. The arbitration
will be conducted in Detroit, Michigan by a panel of three (3) arbitrators and
will be held in accordance with the
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rules of the American Arbitration Association. Of the three arbitrators, one
will be selected by the Trust, one will be selected by Executive and the third
will be selected by the two arbitrators so selected. Each party will notify the
other party of the arbitrator selected by him or it within fifteen (15) days
after the giving of the written notice referred to in this paragraph 8. The
decision and award of the arbitrators must be in writing and will be final and
binding upon the parties hereto, with the same effect as an arbitration pursuant
to Michigan Compiled Laws Annotated Section 600.5001. Judgment upon the award
may be entered in any court having jurisdiction thereof, or application may be
made to such court for a judicial acceptance of the award and an order of
enforcement, as the case may be. The expenses of arbitration will be borne in
accordance with the determination of the arbitrators with respect thereto,
except as otherwise specified in paragraph 5(b) above. Pending a decision by
the arbitrators with respect to the dispute or difference undergoing
arbitration, all other obligations of the parties will continue as stipulated
herein, and all monies not directly involved in such dispute or difference will
be paid when due.
9. MISCELLANEOUS.
a. Executive represents and warrants that he is not a party to any
agreement, contract or understanding, whether employment or otherwise, which
would restrict or prohibit him from undertaking or performing employment in
accordance with the terms and conditions of this Agreement.
b. The provisions of this Agreement are severable and if any one or
more provisions may be determined to be illegal or otherwise unenforceable, in
whole or in part, the remaining provisions and any partially unenforceable
provision to the extent enforceable in any jurisdiction will remain binding and
enforceable.
c. The rights and obligations of the Trust under this Agreement inure
to the benefit of, and will be binding on, the Trust and its successors and
permitted assigns, and the rights and obligations (other than obligations to
perform services) of Executive under this Agreement will inure to the benefit
of, and will be binding upon, Executive and his heirs, personal representatives
and permitted assigns; provided, however, Executive shall not be entitled to
assign or delegate any of his rights and obligations under this Agreement
without the prior written consent of the Trust; provided, further, that the
Trust shall not have the right to assign or delegate any of its rights or
obligations under this Agreement except to a corporation, partnership or other
business entity that is, directly or indirectly, controlled by the Trust.
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d. Any notice to be given under this Agreement will be personally
delivered in writing or will have been deemed duly given when received after it
is posted in the United States mail, postage prepaid, registered or certified,
return receipt requested, and if mailed to the Trust, will be addressed to its
principal place of business, attention: Secretary, and if mailed to Executive,
will be addressed to him at his home address last known on the records of the
Trust or at such other address or addresses as either the Trust or Executive may
hereafter designate in writing to the other.
e. The failure of either party to enforce any provision or provisions
of this Agreement will not in any way be construed as a waiver of any such
provision or provisions as to any future violations thereof, nor prevent that
party thereafter from enforcing each and every other provision of this
Agreement. The rights granted the parties herein are cumulative and the waiver
of any single remedy will not constitute a waiver of such party's right to
assert all other legal remedies available to it under the circumstances.
f. This Agreement will be governed by and construed according to the
laws of the State of Michigan.
g. Captions and paragraph headings used herein are for convenience
and are not a part of this Agreement and will not be used in construing it.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
-------------------------------
Name: Dennis Gershenson
Title: Chief Executive Officer
/s/ Joel Gershenson
-------------------------------------
Joel Gershenson
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EXHIBIT A
Bonus Calculation
The bonus compensation payable to Executive pursuant to paragraph 3(b),
for each year of the Agreement, will equal the following:
(a) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase less than 5% from the Company's Funds From Operation per
outstanding Share for the previous year, then 0%;
(b) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase at least 5% but less than 7% from the Trust's Funds From
Operation per outstanding Share for the previous year, then 15% of Executive's
Base Salary for the year for which the bonus is to be paid;
(c) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase at least 7% but less than 10% from the Trust's Funds
From Operation per outstanding Share for the previous year, then 22.5% of
Executive's Base Salary for the year for which the bonus is to be paid;
(d) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase at least 10% but less than 15% from the Trust's Funds
From Operation per outstanding Share for the previous year, then 30% of
Executive's Base Salary for the year for which the bonus is to be paid;
(e) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase by 15% or more from the Trust's Funds From Operation per
outstanding Share for the previous year, then 50% of Executive's Base Salary
for the year for which the bonus is to be paid.
<PAGE> 1
EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of May 10, 1996, is
entered into between RAMCO-GERSHENSON PROPERTIES TRUST, formerly known as RPS
Realty Trust, a Massachusetts business trust (the "Trust"), and DENNIS
GERSHENSON ("Executive"). Capitalized terms used but not otherwise defined in
this Agreement shall have the meanings set forth in the Amended and Restated
Master Agreement, dated as of December 27, 1995, as amended by the First
Amendment to Amended and Restated Master Agreement dated March 19, 1996, by and
among RPS Realty Trust, a Massachusetts business trust, Ramco-Gershenson,
Inc., a Michigan corporation, Joel Gershenson, Dennis Gershenson, Bruce
Gershenson, Richard Gershenson, Michael A. Ward, Michael A. Ward, Trustee U/T/A
dated 2/22/77, as amended, Ramco-Gershenson Properties, L.P., a Delaware
limited partnership and the Ramco Contributing Parties listed on Schedule A
attached thereto (as amended, the "Master Agreement").
RECITALS
A. The Trust is a business trust intended to be qualified and to operate
as a real estate investment trust under the Internal Revenue Code of 1986, as
amended.
B. The Trust is the general partner of Ramco-Gershenson Properties, L.P.,
a Delaware limited partnership (the "Operating Partnership"), which has, among
other things, acquired various shopping center properties from Subsidiaries of
the Trust and partnerships managed and controlled by Ramco-Gershenson, Inc.
("Ramco Management") or its affiliates.
C. Executive is one of the five principals of Ramco Management (the "Ramco
Principals"). The Trust wishes to employ Executive and the other Ramco
Principals, and Executive wishes to be employed by the Trust, on the terms and
conditions set forth below.
THEREFORE, the parties agree as follows:
1. EMPLOYMENT DUTIES. During the Term (as defined in paragraph 2 below),
the Trust will employ Executive as its President and Chief Executive Officer.
Except as permitted by Executive's Noncompetition Agreement with the Trust,
Executive will devote substantially all of his business time and attention to
the performance of his duties under this Agreement. Executive initially shall
have the duties, rights and responsibilities normally associated with his
position with the Trust consistent with the Amended and Restated Declaration of
Trust of the Trust, as amended, together with such other reasonable duties
relating to the operation of the business of the Trust and its affiliates as may
be assigned to him from time to time by the Board of Trustees of the Trust (the
"Board") or may otherwise be provided for in such Bylaws. If the Trust shall so
request, Executive shall become and shall, at any time during the term of this
Agreement as the Trust shall so request, act as a trustee of the Trust and/or as
an officer and/or director of any of the Subsidiaries of the Trust as they may
now exist or may be established by the Trust in the future without any
compensation other than that provided for in paragraph 3.
2. TERM. The term of Executive's employment under this Agreement (the
"Term") will begin on the date of this Agreement and will continue, subject to
the termination provisions
<PAGE> 2
set forth in paragraph 5 below, until the third anniversary of the date hereof;
provided that, if the Board has considered whether or not to extend the Term at
a meeting held not more than 90 days or less than 30 days prior to the
expiration of the Term, the Term will automatically be extended for one year
unless either the Trust or Executive gives written notice of non-extension to
the other at least 20 days prior to the expiration of the Term.
3. SALARY AND BONUS.
a. Salary. During each year of the Term, Executive will receive a
salary at the annual rate of $100,000, which salary will be subject to increase
as set forth below (as so increased, the "Base Salary"). The Compensation
Committee of the Trust's Board of Trustees (the "Committee") will review
Executive's Base Salary on an annual basis, and the Committee, upon such review
and in its sole discretion, may increase or decrease the Base Salary by an
amount which the Committee deems appropriate in light of the Trust's and
Executive's performance during the period covered by such review; provided,
however, that the Base Salary will not be reduced below $100,000 per annum. The
Base Salary will be payable to Executive in accordance with the Trust's standard
payroll practices.
b. Bonus. In addition to the Base Salary, the Trust will pay to
Executive performance-based bonus compensation for each fiscal year of the
Trust, not later than 60 days following the end of each fiscal year or the
expiration of the Term as a result of the nonextension thereof or as otherwise
specified in paragraph 6 below, as the case may be, prorated on a per diem basis
for partial fiscal years, as determined by the Committee but not less than that
determined and calculated in accordance with the formula set forth on Exhibit
"A" hereto.
4. FRINGE BENEFITS. In addition to the other compensation payable
pursuant to this Agreement, during the Term:
a. Standard Benefits. Executive will be entitled to receive such
fringe benefits and perquisites, including medical, dental, disability and life
insurance, as are generally made available from time to time to management
employees and Executives of the Trust and as was provided to Executive by Ramco
Management on December 31, 1995, and to participate in any pension,
profit-sharing, stock option or similar plan or program established from time to
time by the Trust for the benefit of its employees.
b. Vacation and Sick Leave. Executive will be entitled to such
periods of paid vacation and sick leave allowance each year (not less than four
weeks) that are consistent with the Trust's vacation and sick leave policy for
senior management.
c. Business Expenses. The Trust will pay or reimburse Executive for
all business-related expenses incurred by Executive in the course of his
performance of duties under this Agreement, subject to the procedures
established by the Trust from time to time with respect to incurrence,
substantiation, reasonableness and approval. The business-related expenses to
be paid for or reimbursed by the Trust hereunder will include those expenses
paid for or reimbursed
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by Ramco Management for the benefit of Executive for the year ending December
31, 1995, including professional licensing and association fees and dues,
professional journal subscriptions and errors and omissions insurance coverage.
d. Stock Options. Executive shall be entitled to participate in
employee stock option plans from time to time established for the benefit of
employees of the Trust in accordance with the terms and conditions of such
plans. On the date hereof, Executive shall receive a grant of 24,000 stock
options pursuant to the Trust's 1996 Share Option Plan, which options shall vest
in three equal annual installments on the first, second and third anniversaries
of the date hereof. The option exercise price with respect to the stock options
granted on the date hereof shall be equal to the OPV per share. None of the
terms of any such option shall be modified without Executive's consent. Within
60 days after the date hereof, the Trust shall file a registration statement on
Form S-8 registering under the Securities Act of 1933, as amended (the
"Securities Act") the shares of beneficial interest of the Trust sold to
Executive upon the exercise of the options granted to Executive pursuant to this
paragraph 4(d) (collectively, the "Registrable Securities"). The Trust shall
use commercially reasonable efforts to maintain the effectiveness of such
registration statement under the Securities Act until the earlier of (i) the
date the Registrable Securities are no longer eligible for registration on Form
S-8 or (ii) the date the Registrable Securities are permitted to be disposed of
pursuant to Rule 144(k) (or any successor rule) under the Securities Act.
5. TERMINATION OF EMPLOYMENT.
a. Death and Disability. Executive's employment under this Agreement
will terminate immediately upon his death and upon 30 days' prior written notice
given by the Trust in the event Executive is determined to be "permanently
disabled" (as defined below).
b. For Cause. The Trust may terminate Executive's employment under
this Agreement for "Cause" (as defined below), upon providing Executive 30 days'
prior written notice of termination, which notice will describe in detail the
basis of such termination and will become effective on the 30th day after
Executive's receipt thereof unless Executive (i) cures the alleged violation or
other circumstance which was the basis of such termination within such 30-day
notice period or (ii) sends, within such 30-day notice period, written notice to
the Board of Trustees of the Trust disputing in good faith the existence of
Cause and requesting arbitration of such dispute pursuant to paragraph 8 below.
During the pendency of the arbitration, Executive will continue to receive all
compensation and benefits to which he is entitled hereunder. If the Trust is
not successful in obtaining a determination by the arbitrators that there was
Cause for termination, the Trust will pay Executive's reasonable expenses,
including, without limitation, reasonable attorneys' fees and disbursements, in
connection with such dispute resolution.
c. For Good Reason. Executive may terminate his employment under
this Agreement for "Good Reason" (as defined below) upon providing the Trust 30
days' prior written notice of termination, which notice will detail the basis of
such termination and will become effective on the 30th day after the Trust's
receipt thereof unless the Trust cures the alleged
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violation or other circumstance which was the basis of such termination
within such 30-day notice period.
d. Definitions. For purposes of this Agreement:
(i) Executive will be deemed "permanently disabled" if he
becomes unable to discharge his normal duties as contemplated under
this Agreement for more than six consecutive months as a result of
incapacity due to mental or physical illness by a physician
acceptable to Executive and the Trust and paid by the Trust, whose
determination will be final and binding. If Executive and the
Trust are unable to agree on a physician, Executive and the Trust
will each choose one physician who will mutually choose the third
physician, whose determination will be final and binding.
(ii) "Cause" means either (A) a material breach by Executive
of any material provisions of this Agreement or of the
Noncompetition Agreement, but only if, after notice provided in
subparagraph (b) above, Executive fails to cure such breach or, if
such breach is not subject to cure, fails on an on-going basis
thereafter to comply with the provisions of this Agreement or of
the Noncompetition Agreement, as the case may be, with respect to
which he was in such breach; (B) action by Executive constituting
willful malfeasance or gross negligence, having a material adverse
effect on the Trust; (C) an act of fraud, misappropriation of funds
or embezzlement by Executive in connection with his employment
hereunder; or (D) Executive is convicted of, pleads guilty to or
confesses to any felony.
(iii) "Good Reason" means the occurrence of any of the
following, without the prior written consent of Executive: (A) any
substantial diminution of duties, responsibilities or status, or
other imposition by the Trust of unreasonable requirements or
working conditions on Executive, which are not withdrawn or
corrected within a 30-day period following notice by Executive to
the Trust of such diminution or imposition; (B) a material breach
by the Trust of any of its material obligations under this
Agreement, but only if (x) after expiration of the 30-day notice
period provided in subparagraph (c) above, the Trust fails to cure
such breach or (y) notwithstanding such cure, the Trust willfully
and repeatedly breaches its obligations under this Agreement; (C) a
relocation of the Trust's principal executive offices or of
Executive's principal place of employment to a location more than
25 miles from Southfield, Michigan; (D) if, after any election of
Trustees, at least two Ramco Principals are not members of the
Board or the Ramco Principals would constitute less than 20% of the
members of the Board (provided that at least two of the Ramco
Principals are ready, willing and able to serve on the Board); or
(E) a "change of control" as defined below. Notwithstanding the
foregoing, if at any time after the date of this Agreement the
Ramco Principals own shares or OP Units convertible into less than
15% of the
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issued and outstanding Shares of the Trust, clause (D) shall be
inapplicable and shall not be deemed "good reason" for termination
of employment. Executive will be deemed not to have consented to any
proposal resulting in any of the foregoing changes unless he will
have given written notice of his consent thereto to the Board of
Trustees of the Trust within fifteen (15) days after receipt of a
written proposal describing the change. If Executive will not give
such consent, the Trust will have the opportunity to withdraw such
proposed change by written notice to Executive given within 15 days
after expiration of the foregoing 15-day period.
(iv) A "change in control" shall occur if any person or group
of commonly controlled persons, other than the Ramco Principals or
their affiliates, owns or controls, directly or indirectly, more
than twenty-five percent (25%) of the voting control or value of
the capital stock of the Trust, or of securities convertible into
or exchangeable for capital stock of the Trust.
6. BENEFITS UPON TERMINATION.
a. Termination upon Death or Permanent Disability. Upon
termination of Executive's employment under this Agreement resulting from his
death or permanent disability, the Trust will remain obligated to pay to
Executive or his legal representatives his Base Salary and bonus, as provided in
paragraph 3 above, for an additional period equal to 12 months from the
effective date of termination (such additional period being referred to in this
Agreement as the "Severance Period"). In the event of a termination upon
Executive's permanent disability, Executive will also remain entitled to
receive, during the Severance Period, those fringe benefits specified in
paragraph 4 above, including coverage under all insurance programs and plans.
The payment of such Base Salary and bonus will be made during the Severance
Period at the same times as such amounts would have been paid pursuant to
paragraph 3 above had Executive's employment not have been terminated and had
the Term expired at the end of the Severance Period.
b. Termination with Cause or Resignation. Upon termination of
Executive's employment by the Trust pursuant to paragraph 5(b) above or a
voluntary resignation by Executive (other than for Good Reason pursuant to
paragraph 5(c) above), the Trust will remain obligated to pay Executive only the
unpaid portion of his Base Salary, bonus and benefits (including the value of
any untaken vacation time to the extent Executive has, during the year in which
such termination occurs, taken less vacation time than permitted to him
hereunder), to the extent accrued through the effective date of termination. Any
amount due under this subparagraph will be payable within 30 days after the date
of termination.
c. Termination without Cause or for Good Reason. Upon termination
of Executive's employment (x) by the Trust other than for Cause or upon
Executive's death or permanent disability or (y) by Executive for Good Reason,
Executive will be entitled to the benefits provided below:
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(i) the Trust will pay Executive his Base Salary through the
date of termination;
(ii) the Trust will pay as severance pay to Executive, not
later than the 30th day following the date of termination, a lump
sum severance payment (the "Severance Payment") equal to the
greater of (x) the aggregate of all compensation due to Executive
hereunder during the balance of the Term, assuming that the annual
bonuses payable to Executive during such period will equal the
average of the annual bonuses paid to Executive under this
Agreement prior to termination of employment, or (y) 2.99 times
(or, after the second anniversary of the date of this Agreement,
1.99 times) the "base amount" within the meaning of Sections
280G(b)(3) and 280G(d) of the Internal Revenue Code of 1986, as
amended (the "Code"), and any applicable temporary or final
regulations promulgated thereunder, or its equivalent as provided
in any successor statute or regulation. If Section 280G of the
Code (and any successor provisions thereto) is repealed or
otherwise inapplicable, then the Severance Payment will equal 2.99
(or, after the second anniversary of this agreement, 1.99 times)
times the average of Executive's annual compensation for both
complete and partial calendar years during so much of the five
calendar year period preceding the calendar year in which the
termination occurs during which Executive was so employed,
determined by analyzing any compensation (other than non-recurring
items) includable in Executive's gross income for any partial
calendar year and then adding such non-recurring items to such
annualized compensation. Compensation payable to Executive by the
Trust will include every type and form of compensation includable
in Executive's gross income in respect of his employment by the
Trust, including compensation income recognized as a result of
Executive's exercise of stock options or sale of the stock so
acquired, except to the extent otherwise provided in Section 280G
of the Code and any temporary or final regulations promulgated
thereunder;
(iii) if in the opinion of tax counsel elected by Executive
and reasonably acceptable to the Trust, any portion of any payment
made to Executive, including without limitation, the Severance
Payment constitutes an excess "parachute payment" within the
meaning of Section 280G(b)(1) of the Code, the Trust will pay
Executive an additional amount (the "Additional Amount") equal to
the sum of (i) all taxes payable by Executive under Section 4999 of
the Code with respect to the Severance Payment and the Additional
Amount, plus (ii) all federal, state or local income taxes payable
by Executive with respect to the Additional Amount; and
(iv) for the duration of the Term, those fringe benefits
specified in paragraph 4(a) above, including coverage under all
insurance programs and plans.
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d. No Mitigation. Executive will not be required to mitigate the
amount of any payment provided for in this paragraph 6 by seeking other
employment or otherwise, nor will the amount of any payment or benefit provided
for in this paragraph 6 be reduced by any compensation earned by him as the
result of employment by another employer or by retirement benefits after the
date of termination, or otherwise.
e. Expiration of this Agreement. In the event the Term of this
Agreement expires without having otherwise been previously terminated pursuant
to paragraph 5 above or by the Trust without cause, Executive will not be
entitled to any severance compensation whatsoever under this paragraph 6.
7. INDEMNIFICATION. To the full extent permitted by applicable law,
Executive shall be indemnified and held harmless for any action or failure to
act in his capacity as a director, trustee, officer or employee of the Trust. In
furtherance of the foregoing and not by way of limitation, if Executive is a
party or is threatened to be made a party to any suit because he is a director,
trustee, officer or employee of the Trust, he shall be indemnified against
expenses, including attorney's fees, judgments, fines and amounts paid in
settlement if he acted in good faith and in a manner reasonably believed to be
in or not opposed to the best interest of the Trust, and with respect to any
criminal action or proceeding, he had no reasonable cause to believe his conduct
was unlawful. Indemnification under this Section shall be in addition to any
other indemnification by the Trust of its officers and trustees. Expenses
incurred by the Executive in defending an action, suit or proceeding for which
he claims the right to be indemnified pursuant to this Section shall be paid by
the Trust in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of the Executive to repay such
amount in the event that it shall ultimately be determined that he is not
entitled to indemnification by the Trust. Such undertaking shall be accepted
without reference to the financial ability of such Executive to make repayment.
The Trust shall use commercially reasonable efforts to maintain in effect for
the Term of this Agreement a directors' and officers' liability insurance
policy, with a policy limit of at least $10,000,000 (which may be spread over a
multiple year period), subject to customary exclusions, with respect to claims
made against officers and directors of the Trust; provided, however, the Trust
shall be relieved of this obligation to maintain directors' and officers'
liability insurance if, in the good faith judgment of the Trust, it cannot be
obtained at a reasonable cost.
8. ARBITRATION. The parties hereto will endeavor to resolve in good
faith any controversy, disagreement or claim arising between them, whether as to
the interpretation, performance or operation of this Agreement or any rights or
obligations hereunder. If they are unable to do so, any such controversy,
disagreement or claim will be submitted to binding arbitration, for final
resolution without appeal, by either party giving written notice to the other of
the existence of a dispute which it desires to have arbitrated. The arbitration
will be conducted in Detroit, Michigan by a panel of three (3) arbitrators and
will be held in accordance with the rules of the American Arbitration
Association. Of the three arbitrators, one will be selected by the Trust, one
will be selected by Executive and the third will be selected by the two
arbitrators so selected. Each party will notify the other party of the
arbitrator selected by him or it within
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fifteen (15) days after the giving of the written notice referred to in this
paragraph 8. The decision and award of the arbitrators must be in writing and
will be final and binding upon the parties hereto, with the same effect as an
arbitration pursuant to Michigan Compiled Laws Annotated Section 600.5001.
Judgment upon the award may be entered in any court having jurisdiction thereof,
or application may be made to such court for a judicial acceptance of the award
and an order of enforcement, as the case may be. The expenses of arbitration
will be borne in accordance with the determination of the arbitrators with
respect thereto, except as otherwise specified in paragraph 5(b) above. Pending
a decision by the arbitrators with respect to the dispute or difference
undergoing arbitration, all other obligations of the parties will continue as
stipulated herein, and all monies not directly involved in such dispute or
difference will be paid when due.
9. MISCELLANEOUS.
a. Executive represents and warrants that he is not a party to any
agreement, contract or understanding, whether employment or otherwise, which
would restrict or prohibit him from undertaking or performing employment in
accordance with the terms and conditions of this Agreement.
b. The provisions of this Agreement are severable and if any one or
more provisions may be determined to be illegal or otherwise unenforceable, in
whole or in part, the remaining provisions and any partially unenforceable
provision to the extent enforceable in any jurisdiction will remain binding and
enforceable.
c. The rights and obligations of the Trust under this Agreement
inure to the benefit of, and will be binding on, the Trust and its successors
and permitted assigns, and the rights and obligations (other than obligations to
perform services) of Executive under this Agreement will inure to the benefit
of, and will be binding upon, Executive and his heirs, personal representatives
and permitted assigns; provided, however, Executive shall not be entitled to
assign or delegate any of his rights and obligations under this Agreement
without the prior written consent of the Trust; provided, further, that the
Trust shall not have the right to assign or delegate any of its rights or
obligations under this Agreement except to a corporation, partnership or other
business entity that is, directly or indirectly, controlled by the Trust.
d. Any notice to be given under this Agreement will be personally
delivered in writing or will have been deemed duly given when received after it
is posted in the United States mail, postage prepaid, registered or certified,
return receipt requested, and if mailed to the Trust, will be addressed to its
principal place of business, attention: Secretary, and if mailed to
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Executive, will be addressed to him at his home address last known on the
records of the Trust or at such other address or addresses as either the Trust
or Executive may hereafter designate in writing to the other.
e. The failure of either party to enforce any provision or
provisions of this Agreement will not in any way be construed as a waiver of any
such provision or provisions as to any future violations thereof, nor prevent
that party thereafter from enforcing each and every other provision of this
Agreement. The rights granted the parties herein are cumulative and the waiver
of any single remedy will not constitute a waiver of such party's right to
assert all other legal remedies available to it under the circumstances.
f. This Agreement will be governed by and construed according to
the laws of the State of Michigan.
g. Captions and paragraph headings used herein are for convenience
and are not a part of this Agreement and will not be used in construing it.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Bruce Gershenson
---------------------------------
Name: Bruce Gershenson
Title: Treasurer
/s/ Dennis Gershenson
----------------------------------
Dennis Gershenson
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EXHIBIT A
Bonus Calculation
The bonus compensation payable to Executive pursuant to paragraph 3(b),
for each year of the Agreement, will equal the following:
(a) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase less than 5% from the Company's Funds From Operation per
outstanding Share for the previous year, then 0%;
(b) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase at least 5% but less than 7% from the Trust's Funds From
Operation per outstanding Share for the previous year, then 15% of Executive's
Base Salary for the year for which the bonus is to be paid;
(c) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase at least 7% but less than 10% from the Trust's Funds
From Operation per outstanding Share for the previous year, then 22.5% of
Executive's Base Salary for the year for which the bonus is to be paid;
(d) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase at least 10% but less than 15% from the Trust's Funds
From Operation per outstanding Share for the previous year, then 30% of
Executive's Base Salary for the year for which the bonus is to be paid;
(e) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase by 15% or more from the Trust's Funds From Operation per
outstanding Share for the previous year, then 50% of Executive's Base Salary
for the year for which the bonus is to be paid.
<PAGE> 1
EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of May 10, 1996, is
entered into between RAMCO-GERSHENSON PROPERTIES TRUST, formerly known as RPS
Realty Trust, a Massachusetts business trust (the "Trust"), and MICHAEL A. WARD
("Executive"). Capitalized terms used but not otherwise defined in this
Agreement shall have the meanings set forth in the Amended and Restated Master
Agreement, dated as of December 27, 1995, as amended by the First Amendment to
Amended and Restated Master Agreement dated March 19, 1996, by and among RPS
Realty Trust, a Massachusetts business trust, Ramco-Gershenson, Inc., a
Michigan corporation, Joel Gershenson, Dennis Gershenson, Bruce Gershenson,
Richard Gershenson, Michael A. Ward, Michael A. Ward, Trustee U/T/A dated
2/22/77, as amended, Ramco-Gershenson Properties, L.P., a Delaware limited
partnership and the Ramco Contributing Parties listed on Schedule A attached
thereto (as amended, the "Master Agreement").
RECITALS
A. The Trust is a business trust intended to be qualified and to operate
as a real estate investment trust under the Internal Revenue Code of 1986, as
amended.
B. The Trust is the general partner of Ramco-Gershenson Properties, L.P.,
a Delaware limited partnership (the "Operating Partnership"), which has, among
other things, acquired various shopping center properties from Subsidiaries of
the Trust and partnerships managed and controlled by Ramco-Gershenson, Inc.
("Ramco Management") or its affiliates.
C. Executive is one of the five principals of Ramco Management (the "Ramco
Principals"). The Trust wishes to employ Executive and the other Ramco
Principals, and Executive wishes to be employed by the Trust, on the terms and
conditions set forth below.
THEREFORE, the parties agree as follows:
1. EMPLOYMENT DUTIES. During the Term (as defined in paragraph 2 below),
the Trust will employ Executive as its Executive Vice President and Chief
Operating Officer. Except as permitted by Executive's Noncompetition Agreement
with the Trust, Executive will devote substantially all of his business time and
attention to the performance of his duties under this Agreement. Executive
initially shall have the duties, rights and responsibilities normally associated
with his position with the Trust consistent with the Amended and Restated
Declaration of Trust of the Trust, as amended, together with such other
reasonable duties relating to the operation of the business of the Trust and its
affiliates as may be assigned to him from time to time by the Board of Trustees
of the Trust (the "Board") or may otherwise be provided for in such Bylaws. If
the Trust shall so request, Executive shall become and shall, at any time during
the term of this Agreement as the Trust shall so request, act as a trustee of
the Trust and/or as an officer and/or director of any of the Subsidiaries of the
Trust as they may now exist or may be established by the Trust in the future
without any compensation other than that provided for in paragraph 3.
<PAGE> 2
2. TERM. The term of Executive's employment under this Agreement (the
"Term") will begin on the date of this Agreement and will continue, subject to
the termination provisions set forth in paragraph 5 below, until the third
anniversary of the date hereof; provided that, if the Board has considered
whether or not to extend the Term at a meeting held not more than 90 days or
less than 30 days prior to the expiration of the Term, the Term will
automatically be extended for one year unless either the Trust or Executive
gives written notice of non-extension to the other at least 20 days prior to the
expiration of the Term.
3. SALARY AND BONUS.
a. Salary. During each year of the Term, Executive will receive a
salary at the annual rate of $100,000, which salary will be subject to increase
as set forth below (as so increased, the "Base Salary"). The Compensation
Committee of the Trust's Board of Trustees (the "Committee") will review
Executive's Base Salary on an annual basis, and the Committee, upon such review
and in its sole discretion, may increase or decrease the Base Salary by an
amount which the Committee deems appropriate in light of the Trust's and
Executive's performance during the period covered by such review; provided,
however, that the Base Salary will not be reduced below $100,000 per annum. The
Base Salary will be payable to Executive in accordance with the Trust's standard
payroll practices.
b. Bonus. In addition to the Base Salary, the Trust will pay to
Executive performance-based bonus compensation for each fiscal year of the
Trust, not later than 60 days following the end of each fiscal year or the
expiration of the Term as a result of the nonextension thereof or as otherwise
specified in paragraph 6 below, as the case may be, prorated on a per diem basis
for partial fiscal years, as determined by the Committee but not less than that
determined and calculated in accordance with the formula set forth on Exhibit
"A" hereto.
4. FRINGE BENEFITS. In addition to the other compensation payable
pursuant to this Agreement, during the Term:
a. Standard Benefits. Executive will be entitled to receive such
fringe benefits and perquisites, including medical, dental, disability and life
insurance, as are generally made available from time to time to management
employees and Executives of the Trust and as was provided to Executive by Ramco
Management on December 31, 1995, and to participate in any pension,
profit-sharing, stock option or similar plan or program established from time to
time by the Trust for the benefit of its employees.
b. Vacation and Sick Leave. Executive will be entitled to such
periods of paid vacation and sick leave allowance each year (not less than four
weeks) that are consistent with the Trust's vacation and sick leave policy for
senior management.
c. Business Expenses. The Trust will pay or reimburse Executive for
all business-related expenses incurred by Executive in the course of his
performance of duties under this Agreement, subject to the procedures
established by the Trust from time to time with respect
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to incurrence, substantiation, reasonableness and approval. The
business-related expenses to be paid for or reimbursed by the Trust hereunder
will include those expenses paid for or reimbursed by Ramco Management for the
benefit of Executive for the year ending December 31, 1995, including
professional licensing and association fees and dues, professional journal
subscriptions and errors and omissions insurance coverage.
d. Stock Options. Executive shall be entitled to participate in
employee stock option plans from time to time established for the benefit of
employees of the Trust in accordance with the terms and conditions of such
plans. On the date hereof, Executive shall receive a grant of 24,000 stock
options pursuant to the Trust's 1996 Share Option Plan, which options shall vest
in three equal annual installments on the first, second and third anniversaries
of the date hereof. The option exercise price with respect to the stock options
granted on the date hereof shall be equal to $16.00 per share. None of the
terms of any such option shall be modified without Executive's consent. Within
60 days after the date hereof, the Trust shall file a registration statement on
Form S-8 registering under the Securities Act of 1933, as amended (the
"Securities Act") the shares of beneficial interest of the Trust sold to
Executive upon the exercise of the options granted to Executive pursuant to this
paragraph 4(d) (collectively, the "Registrable Securities"). The Trust shall
use commercially reasonable efforts to maintain the effectiveness of such
registration statement under the Securities Act until the earlier of (i) the
date the Registrable Securities are no longer eligible for registration on Form
S-8 or (ii) the date the Registrable Securities are permitted to be disposed of
pursuant to Rule 144(k) (or any successor rule) under the Securities Act.
5. TERMINATION OF EMPLOYMENT.
a. Death and Disability. Executive's employment under this Agreement
will terminate immediately upon his death and upon 30 days' prior written notice
given by the Trust in the event Executive is determined to be "permanently
disabled" (as defined below).
b. For Cause. The Trust may terminate Executive's employment under
this Agreement for "Cause" (as defined below), upon providing Executive 30 days'
prior written notice of termination, which notice will describe in detail the
basis of such termination and will become effective on the 30th day after
Executive's receipt thereof unless Executive (i) cures the alleged violation or
other circumstance which was the basis of such termination within such 30-day
notice period or (ii) sends, within such 30-day notice period, written notice to
the Board of Trustees of the Trust disputing in good faith the existence of
Cause and requesting arbitration of such dispute pursuant to paragraph 8 below.
During the pendency of the arbitration, Executive will continue to receive all
compensation and benefits to which he is entitled hereunder. If the Trust is
not successful in obtaining a determination by the arbitrators that there was
Cause for termination, the Trust will pay Executive's reasonable expenses,
including, without limitation, reasonable attorneys' fees and disbursements, in
connection with such dispute resolution.
c. For Good Reason. Executive may terminate his employment under
this Agreement for "Good Reason" (as defined below) upon providing the Trust 30
days' prior written
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notice of termination, which notice will detail the basis of such termination
and will become effective on the 30th day after the Trust's receipt thereof
unless the Trust cures the alleged violation or other circumstance which was the
basis of such termination within such 30-day notice period.
d. Definitions. For purposes of this Agreement:
(i) Executive will be deemed "permanently disabled" if he
becomes unable to discharge his normal duties as contemplated under
this Agreement for more than six consecutive months as a result of
incapacity due to mental or physical illness by a physician
acceptable to Executive and the Trust and paid by the Trust, whose
determination will be final and binding. If Executive and the
Trust are unable to agree on a physician, Executive and the Trust
will each choose one physician who will mutually choose the third
physician, whose determination will be final and binding.
(ii) "Cause" means either (A) a material breach by Executive
of any material provisions of this Agreement or of the
Noncompetition Agreement, but only if, after notice provided in
subparagraph (b) above, Executive fails to cure such breach or, if
such breach is not subject to cure, fails on an on-going basis
thereafter to comply with the provisions of this Agreement or of
the Noncompetition Agreement, as the case may be, with respect to
which he was in such breach; (B) action by Executive constituting
willful malfeasance or gross negligence, having a material adverse
effect on the Trust; (C) an act of fraud, misappropriation of funds
or embezzlement by Executive in connection with his employment
hereunder; or (D) Executive is convicted of, pleads guilty to or
confesses to any felony.
(iii) "Good Reason" means the occurrence of any of the
following, without the prior written consent of Executive: (A) any
substantial diminution of duties, responsibilities or status, or
other imposition by the Trust of unreasonable requirements or
working conditions on Executive, which are not withdrawn or
corrected within a 30-day period following notice by Executive to
the Trust of such diminution or imposition; (B) a material breach
by the Trust of any of its material obligations under this
Agreement, but only if (x) after expiration of the 30-day notice
period provided in subparagraph (c) above, the Trust fails to cure
such breach or (y) notwithstanding such cure, the Trust willfully
and repeatedly breaches its obligations under this Agreement; (C) a
relocation of the Trust's principal executive offices or of
Executive's principal place of employment to a location more than
25 miles from Southfield, Michigan; (D) if, after any election of
Trustees, at least two Ramco Principals are not members of the
Board or the Ramco Principals would constitute less than 20% of the
members of the Board (provided that at least two of the Ramco
Principals are ready, willing and able to serve on the Board); or
(E) a "change of control" as defined below.
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Notwithstanding the foregoing, if at any time after the date of this
Agreement the Ramco Principals own shares or OP Units convertible into
less than 15% of the issued and outstanding Shares of the Trust,
clause (D) shall be inapplicable and shall not be deemed "good reason"
for termination of employment. Executive will be deemed not to have
consented to any proposal resulting in any of the foregoing changes
unless he will have given written notice of his consent thereto to the
Board of Trustees of the Trust within fifteen (15) days after receipt
of a written proposal describing the change. If Executive will not
give such consent, the Trust will have the opportunity to withdraw
such proposed change by written notice to Executive given within 15
days after expiration of the foregoing 15-day period.
(iv) A "change in control" shall occur if any person or group of
commonly controlled persons, other than the Ramco Principals or their
affiliates, owns or controls, directly or indirectly, more than
twenty-five percent (25%) of the voting control or value of the
capital stock of the Trust, or of securities convertible into or
exchangeable for capital stock of the Trust.
6. BENEFITS UPON TERMINATION.
a. Termination upon Death or Permanent Disability. Upon termination
of Executive's employment under this Agreement resulting from his death or
permanent disability, the Trust will remain obligated to pay to Executive or his
legal representatives his Base Salary and bonus, as provided in paragraph 3
above, for an additional period equal to 12 months from the effective date of
termination (such additional period being referred to in this Agreement as the
"Severance Period"). In the event of a termination upon Executive's permanent
disability, Executive will also remain entitled to receive, during the Severance
Period, those fringe benefits specified in paragraph 4 above, including coverage
under all insurance programs and plans. The payment of such Base Salary and
bonus will be made during the Severance Period at the same times as such amounts
would have been paid pursuant to paragraph 3 above had Executive's employment
not have been terminated and had the Term expired at the end of the Severance
Period.
b. Termination with Cause or Resignation. Upon termination of
Executive's employment by the Trust pursuant to paragraph 5(b) above or a
voluntary resignation by Executive (other than for Good Reason pursuant to
paragraph 5(c) above), the Trust will remain obligated to pay Executive only the
unpaid portion of his Base Salary, bonus and benefits (including the value of
any untaken vacation time to the extent Executive has, during the year in which
such termination occurs, taken less vacation time than permitted to him
hereunder), to the extent accrued through the effective date of termination. Any
amount due under this subparagraph will be payable within 30 days after the date
of termination.
c. Termination without Cause or for Good Reason. Upon termination of
Executive's employment (x) by the Trust other than for Cause or upon Executive's
death or
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permanent disability or (y) by Executive for Good Reason, Executive will be
entitled to the benefits provided below:
(i) the Trust will pay Executive his Base Salary through the
date of termination;
(ii) the Trust will pay as severance pay to Executive, not later
than the 30th day following the date of termination, a lump sum
severance payment (the "Severance Payment") equal to the greater of
(x) the aggregate of all compensation due to Executive hereunder
during the balance of the Term, assuming that the annual bonuses
payable to Executive during such period will equal the average of the
annual bonuses paid to Executive under this Agreement prior to
termination of employment, or (y) 2.99 times (or, after the second
anniversary of the date of this Agreement, 1.99 times) the "base
amount" within the meaning of Sections 280G(b)(3) and 280G(d) of the
Internal Revenue Code of 1986, as amended (the "Code"), and any
applicable temporary or final regulations promulgated thereunder, or
its equivalent as provided in any successor statute or regulation. If
Section 280G of the Code (and any successor provisions thereto) is
repealed or otherwise inapplicable, then the Severance Payment will
equal 2.99 (or, after the second anniversary of this agreement, 1.99
times) times the average of Executive's annual compensation for both
complete and partial calendar years during so much of the five
calendar year period preceding the calendar year in which the
termination occurs during which Executive was so employed, determined
by analyzing any compensation (other than non-recurring items)
includable in Executive's gross income for any partial calendar year
and then adding such non-recurring items to such annualized
compensation. Compensation payable to Executive by the Trust will
include every type and form of compensation includable in Executive's
gross income in respect of his employment by the Trust, including
compensation income recognized as a result of Executive's exercise of
stock options or sale of the stock so acquired, except to the extent
otherwise provided in Section 280G of the Code and any temporary or
final regulations promulgated thereunder;
(iii) if in the opinion of tax counsel elected by Executive and
reasonably acceptable to the Trust, any portion of any payment made to
Executive, including without limitation, the Severance Payment
constitutes an excess "parachute payment" within the meaning of
Section 280G(b)(1) of the Code, the Trust will pay Executive an
additional amount (the "Additional Amount") equal to the sum of (i)
all taxes payable by Executive under Section 4999 of the Code with
respect to the Severance Payment and the Additional Amount, plus (ii)
all federal, state or local income taxes payable by Executive with
respect to the Additional Amount; and
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(iv) for the duration of the Term, those fringe benefits
specified in paragraph 4(a) above, including coverage under all
insurance programs and plans.
d. No Mitigation. Executive will not be required to mitigate the
amount of any payment provided for in this paragraph 6 by seeking other
employment or otherwise, nor will the amount of any payment or benefit provided
for in this paragraph 6 be reduced by any compensation earned by him as the
result of employment by another employer or by retirement benefits after the
date of termination, or otherwise.
e. Expiration of this Agreement. In the event the Term of this
Agreement expires without having otherwise been previously terminated pursuant
to paragraph 5 above or by the Trust without cause, Executive will not be
entitled to any severance compensation whatsoever under this paragraph 6.
7. INDEMNIFICATION. To the full extent permitted by applicable law,
Executive shall be indemnified and held harmless for any action or failure to
act in his capacity as a director, trustee, officer or employee of the Trust. In
furtherance of the foregoing and not by way of limitation, if Executive is a
party or is threatened to be made a party to any suit because he is a director,
trustee, officer or employee of the Trust, he shall be indemnified against
expenses, including attorney's fees, judgments, fines and amounts paid in
settlement if he acted in good faith and in a manner reasonably believed to be
in or not opposed to the best interest of the Trust, and with respect to any
criminal action or proceeding, he had no reasonable cause to believe his conduct
was unlawful. Indemnification under this Section shall be in addition to any
other indemnification by the Trust of its officers and trustees. Expenses
incurred by the Executive in defending an action, suit or proceeding for which
he claims the right to be indemnified pursuant to this Section shall be paid by
the Trust in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of the Executive to repay such
amount in the event that it shall ultimately be determined that he is not
entitled to indemnification by the Trust. Such undertaking shall be accepted
without reference to the financial ability of such Executive to make repayment.
The Trust shall use commercially reasonable efforts to maintain in effect for
the Term of this Agreement a directors' and officers' liability insurance
policy, with a policy limit of at least $10,000,000 (which may be spread over a
multiple year period), subject to customary exclusions, with respect to claims
made against officers and directors of the Trust; provided, however, the Trust
shall be relieved of this obligation to maintain directors' and officers'
liability insurance if, in the good faith judgment of the Trust, it cannot be
obtained at a reasonable cost.
8. ARBITRATION. The parties hereto will endeavor to resolve in good
faith any controversy, disagreement or claim arising between them, whether as to
the interpretation, performance or operation of this Agreement or any rights or
obligations hereunder. If they are unable to do so, any such controversy,
disagreement or claim will be submitted to binding arbitration, for final
resolution without appeal, by either party giving written notice to the other of
the existence of a dispute which it desires to have arbitrated. The arbitration
will be conducted in Detroit, Michigan by a panel of three (3) arbitrators and
will be held in accordance with the
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rules of the American Arbitration Association. Of the three arbitrators, one
will be selected by the Trust, one will be selected by Executive and the third
will be selected by the two arbitrators so selected. Each party will notify the
other party of the arbitrator selected by him or it within fifteen (15) days
after the giving of the written notice referred to in this paragraph 8. The
decision and award of the arbitrators must be in writing and will be final and
binding upon the parties hereto, with the same effect as an arbitration pursuant
to Michigan Compiled Laws Annotated Section 600.5001. Judgment upon the award
may be entered in any court having jurisdiction thereof, or application may be
made to such court for a judicial acceptance of the award and an order of
enforcement, as the case may be. The expenses of arbitration will be borne in
accordance with the determination of the arbitrators with respect thereto,
except as otherwise specified in paragraph 5(b) above. Pending a decision by
the arbitrators with respect to the dispute or difference undergoing
arbitration, all other obligations of the parties will continue as stipulated
herein, and all monies not directly involved in such dispute or difference will
be paid when due.
9. MISCELLANEOUS.
a. Executive represents and warrants that he is not a party to any
agreement, contract or understanding, whether employment or otherwise, which
would restrict or prohibit him from undertaking or performing employment in
accordance with the terms and conditions of this Agreement.
b. The provisions of this Agreement are severable and if any one or
more provisions may be determined to be illegal or otherwise unenforceable, in
whole or in part, the remaining provisions and any partially unenforceable
provision to the extent enforceable in any jurisdiction will remain binding and
enforceable.
c. The rights and obligations of the Trust under this Agreement
inure to the benefit of, and will be binding on, the Trust and its successors
and permitted assigns, and the rights and obligations (other than obligations to
perform services) of Executive under this Agreement will inure to the benefit
of, and will be binding upon, Executive and his heirs, personal representatives
and permitted assigns; provided, however, Executive shall not be entitled to
assign or delegate any of his rights and obligations under this Agreement
without the prior written consent of the Trust; provided, further, that the
Trust shall not have the right to assign or delegate any of its rights or
obligations under this Agreement except to a corporation, partnership or other
business entity that is, directly or indirectly, controlled by the Trust.
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d. Any notice to be given under this Agreement will be personally
delivered in writing or will have been deemed duly given when received after it
is posted in the United States mail, postage prepaid, registered or certified,
return receipt requested, and if mailed to the Trust, will be addressed to its
principal place of business, attention: Secretary, and if mailed to Executive,
will be addressed to him at his home address last known on the records of the
Trust or at such other address or addresses as either the Trust or Executive may
hereafter designate in writing to the other.
e. The failure of either party to enforce any provision or
provisions of this Agreement will not in any way be construed as a waiver of any
such provision or provisions as to any future violations thereof, nor prevent
that party thereafter from enforcing each and every other provision of this
Agreement. The rights granted the parties herein are cumulative and the waiver
of any single remedy will not constitute a waiver of such party's right to
assert all other legal remedies available to it under the circumstances.
f. This Agreement will be governed by and construed according to
the laws of the State of Michigan.
g. Captions and paragraph headings used herein are for convenience
and are not a part of this Agreement and will not be used in construing it.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
------------------------------------
Name: Dennis Gershenson
Title: Chief Executive Officer
/s/ Michael A. Ward
-----------------------------------------
Michael A. Ward
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EXHIBIT A
Bonus Calculation
The bonus compensation payable to Executive pursuant to paragraph 3(b),
for each year of the Agreement, will equal the following:
(a) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase less than 5% from the Company's Funds From Operation per
outstanding Share for the previous year, then 0%;
(b) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase at least 5% but less than 7% from the Trust's Funds From
Operation per outstanding Share for the previous year, then 15% of Executive's
Base Salary for the year for which the bonus is to be paid;
(c) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase at least 7% but less than 10% from the Trust's Funds
From Operation per outstanding Share for the previous year, then 22.5% of
Executive's Base Salary for the year for which the bonus is to be paid;
(d) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase at least 10% but less than 15% from the Trust's Funds
From Operation per outstanding Share for the previous year, then 30% of
Executive's Base Salary for the year for which the bonus is to be paid;
(e) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase by 15% or more from the Trust's Funds From Operation per
outstanding Share for the previous year, then 50% of Executive's Base Salary
for the year for which the bonus is to be paid.
<PAGE> 1
EXHIBIT 10.11
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of May 10, 1996, is
entered into between RAMCO-GERSHENSON PROPERTIES TRUST, formerly known as RPS
Realty Trust, a Massachusetts business trust (the "Trust"), and RICHARD
GERSHENSON ("Executive"). Capitalized terms used but not otherwise defined in
this Agreement shall have the meanings set forth in the Amended and Restated
Master Agreement, dated as of December 27, 1995, as amended by the First
Amendment to Amended and Restated Master Agreement dated March 19, 1996, by and
among RPS Realty Trust, a Massachusetts business trust, Ramco-Gershenson, Inc.,
a Michigan corporation, Joel Gershenson, Dennis Gershenson, Bruce Gershenson,
Richard Gershenson, Michael A. Ward, Michael A. Ward, Trustee U/T/A dated
2/22/77, as amended, Ramco-Gershenson Properties, L.P., a Delaware limited
partnership and the Ramco Contributing Parties listed on Schedule A attached
thereto (as amended, the "Master Agreement").
RECITALS
A. The Trust is a business trust intended to be qualified and to operate
as a real estate investment trust under the Internal Revenue Code of 1986, as
amended.
B. The Trust is the general partner of Ramco-Gershenson Properties, L.P.,
a Delaware limited partnership (the "Operating Partnership"), which has, among
other things, acquired various shopping center properties from Subsidiaries of
the Trust and partnerships managed and controlled by Ramco-Gershenson, Inc.
("Ramco Management") or its affiliates.
C. Executive is one of the five principals of Ramco Management (the "Ramco
Principals"). The Trust wishes to employ Executive and the other Ramco
Principals, and Executive wishes to be employed by the Trust, on the terms and
conditions set forth below.
THEREFORE, the parties agree as follows:
1. EMPLOYMENT DUTIES. During the Term (as defined in paragraph 2 below),
the Trust will employ Executive as its Executive Vice President and Secretary.
Except as permitted by Executive's Noncompetition Agreement with the Trust,
Executive will devote substantially all of his business time and attention to
the performance of his duties under this Agreement. Executive initially shall
have the duties, rights and responsibilities normally associated with his
position with the Trust consistent with the Amended and Restated Declaration of
Trust of the Trust, as amended, together with such other reasonable duties
relating to the operation of the business of the Trust and its affiliates as may
be assigned to him from time to time by the Board of Trustees of the Trust (the
"Board") or may otherwise be provided for in such Bylaws. If the
<PAGE> 2
Trust shall so request, Executive shall become and shall, at any time during the
term of this Agreement as the Trust shall so request, act as a trustee of the
Trust and/or as an officer and/or director of any of the Subsidiaries of the
Trust as they may now exist or may be established by the Trust in the future
without any compensation other than that provided for in paragraph 3.
2. TERM. The term of Executive's employment under this Agreement (the
"Term") will begin on the date of this Agreement and will continue, subject to
the termination provisions set forth in paragraph 5 below, until the third
anniversary of the date hereof; provided that, if the Board has considered
whether or not to extend the Term at a meeting held not more than 90 days or
less than 30 days prior to the expiration of the Term, the Term will
automatically be extended for one year unless either the Trust or Executive
gives written notice of non-extension to the other at least 20 days prior to the
expiration of the Term.
3. SALARY AND BONUS.
a. Salary. During each year of the Term, Executive will receive a
salary at the annual rate of $100,000, which salary will be subject to increase
as set forth below (as so increased, the "Base Salary"). The Compensation
Committee of the Trust's Board of Trustees (the "Committee") will review
Executive's Base Salary on an annual basis, and the Committee, upon such review
and in its sole discretion, may increase or decrease the Base Salary by an
amount which the Committee deems appropriate in light of the Trust's and
Executive's performance during the period covered by such review; provided,
however, that the Base Salary will not be reduced below $100,000 per annum. The
Base Salary will be payable to Executive in accordance with the Trust's standard
payroll practices.
b. Bonus. In addition to the Base Salary, the Trust will pay to
Executive performance-based bonus compensation for each fiscal year of the
Trust, not later than 60 days following the end of each fiscal year or the
expiration of the Term as a result of the nonextension thereof or as otherwise
specified in paragraph 6 below, as the case may be, prorated on a per diem basis
for partial fiscal years, as determined by the Committee but not less than that
determined and calculated in accordance with the formula set forth on Exhibit
"A" hereto.
4. FRINGE BENEFITS. In addition to the other compensation payable
pursuant to this Agreement, during the Term:
a. Standard Benefits. Executive will be entitled to receive such
fringe benefits and perquisites, including medical, dental, disability and life
insurance, as are generally made available from time to time to management
employees and Executives of the Trust and as was provided to Executive by Ramco
Management on December 31, 1995, and to participate in any pension,
profit-sharing, stock option or similar plan or program established from time to
time by the Trust for the benefit of its employees.
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b. Vacation and Sick Leave. Executive will be entitled to such
periods of paid vacation and sick leave allowance each year (not less than four
weeks) that are consistent with the Trust's vacation and sick leave policy for
senior management.
c. Business Expenses. The Trust will pay or reimburse Executive
for all business-related expenses incurred by Executive in the course of his
performance of duties under this Agreement, subject to the procedures
established by the Trust from time to time with respect to incurrence,
substantiation, reasonableness and approval. The business-related expenses to
be paid for or reimbursed by the Trust hereunder will include those expenses
paid for or reimbursed by Ramco Management for the benefit of Executive for the
year ending December 31, 1995, including professional licensing and association
fees and dues, professional journal subscriptions and errors and omissions
insurance coverage.
d. Stock Options. Executive shall be entitled to participate in
employee stock option plans from time to time established for the benefit of
employees of the Trust in accordance with the terms and conditions of such
plans. On the date hereof, Executive shall receive a grant of 24,000 stock
options pursuant to the Trust's 1996 Share Option Plan, which options shall vest
in three equal annual installments on the first, second and third anniversaries
of the date hereof. The option exercise price with respect to the stock options
granted on the date hereof shall be equal to $16.00 per share. None of the
terms of any such option shall be modified without Executive's consent. Within
60 days after the date hereof, the Trust shall file a registration statement on
Form S-8 registering under the Securities Act of 1933, as amended (the
"Securities Act") the shares of beneficial interest of the Trust sold to
Executive upon the exercise of the options granted to Executive pursuant to this
paragraph 4(d) (collectively, the "Registrable Securities"). The Trust shall
use commercially reasonable efforts to maintain the effectiveness of such
registration statement under the Securities Act until the earlier of (i) the
date the Registrable Securities are no longer eligible for registration on Form
S-8 or (ii) the date the Registrable Securities are permitted to be disposed of
pursuant to Rule 144(k) (or any successor rule) under the Securities Act.
5. TERMINATION OF EMPLOYMENT.
a. Death and Disability. Executive's employment under this
Agreement will terminate immediately upon his death and upon 30 days' prior
written notice given by the Trust in the event Executive is determined to be
"permanently disabled" (as defined below).
b. For Cause. The Trust may terminate Executive's employment under
this Agreement for "Cause" (as defined below), upon providing Executive 30 days'
prior written notice of termination, which notice will describe in detail the
basis of such termination and will become effective on the 30th day after
Executive's receipt thereof unless Executive (i) cures the alleged violation or
other circumstance which was the basis of such termination within such 30-day
notice period or (ii) sends, within such 30-day notice period, written notice to
the Board of Trustees of the Trust disputing in good faith the existence of
Cause and requesting arbitration of such dispute pursuant to paragraph 8 below.
During the pendency of the arbitration, Executive
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will continue to receive all compensation and benefits to which he is entitled
hereunder. If the Trust is not successful in obtaining a determination by the
arbitrators that there was Cause for termination, the Trust will pay Executive's
reasonable expenses, including, without limitation, reasonable attorneys' fees
and disbursements, in connection with such dispute resolution.
c. For Good Reason. Executive may terminate his employment under
this Agreement for "Good Reason" (as defined below) upon providing the Trust 30
days' prior written notice of termination, which notice will detail the basis of
such termination and will become effective on the 30th day after the Trust's
receipt thereof unless the Trust cures the alleged violation or other
circumstance which was the basis of such termination within such 30-day notice
period.
d. Definitions. For purposes of this Agreement:
(i) Executive will be deemed "permanently disabled" if he
becomes unable to discharge his normal duties as contemplated under
this Agreement for more than six consecutive months as a result of
incapacity due to mental or physical illness by a physician
acceptable to Executive and the Trust and paid by the Trust, whose
determination will be final and binding. If Executive and the
Trust are unable to agree on a physician, Executive and the Trust
will each choose one physician who will mutually choose the third
physician, whose determination will be final and binding.
(ii) "Cause" means either (A) a material breach by Executive
of any material provisions of this Agreement or of the
Noncompetition Agreement, but only if, after notice provided in
subparagraph (b) above, Executive fails to cure such breach or, if
such breach is not subject to cure, fails on an on-going basis
thereafter to comply with the provisions of this Agreement or of
the Noncompetition Agreement, as the case may be, with respect to
which he was in such breach; (B) action by Executive constituting
willful malfeasance or gross negligence, having a material adverse
effect on the Trust; (C) an act of fraud, misappropriation of funds
or embezzlement by Executive in connection with his employment
hereunder; or (D) Executive is convicted of, pleads guilty to or
confesses to any felony.
(iii) "Good Reason" means the occurrence of any of the
following, without the prior written consent of Executive: (A) any
substantial diminution of duties, responsibilities or status, or
other imposition by the Trust of unreasonable requirements or
working conditions on Executive, which are not withdrawn or
corrected within a 30-day period following notice by Executive to
the Trust of such diminution or imposition; (B) a material breach
by the Trust of any of its material obligations under this
Agreement, but only if (x) after expiration of the 30-day notice
period provided in subparagraph (c) above, the Trust fails to cure
such breach or (y) notwithstanding such cure, the Trust willfully
and repeatedly
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breaches its obligations under this Agreement; (C) a relocation of
the Trust's principal executive offices or of Executive's principal
place of employment to a location more than 25 miles from
Southfield, Michigan; (D) if, after any election of Trustees, at
least two Ramco Principals are not members of the Board or the Ramco
Principals would constitute less than 20% of the members of the
Board (provided that at least two of the Ramco Principals are ready,
willing and able to serve on the Board); or (E) a "change of
control" as defined below. Notwithstanding the foregoing, if at any
time after the date of this Agreement the Ramco Principals own
shares or OP Units convertible into less than 15% of the issued and
outstanding Shares of the Trust, clause (D) shall be inapplicable
and shall not be deemed "good reason" for termination of employment.
Executive will be deemed not to have consented to any proposal
resulting in any of the foregoing changes unless he will have given
written notice of his consent thereto to the Board of Trustees of
the Trust within fifteen (15) days after receipt of a written
proposal describing the change. If Executive will not give such
consent, the Trust will have the opportunity to withdraw such
proposed change by written notice to Executive given within 15 days
after expiration of the foregoing 15-day period.
(iv) A "change in control" shall occur if any person or group
of commonly controlled persons, other than the Ramco Principals or
their affiliates, owns or controls, directly or indirectly, more
than twenty-five percent (25%) of the voting control or value of
the capital stock of the Trust, or of securities convertible into
or exchangeable for capital stock of the Trust.
6. BENEFITS UPON TERMINATION.
a. Termination upon Death or Permanent Disability. Upon
termination of Executive's employment under this Agreement resulting from his
death or permanent disability, the Trust will remain obligated to pay to
Executive or his legal representatives his Base Salary and bonus, as provided in
paragraph 3 above, for an additional period equal to 12 months from the
effective date of termination (such additional period being referred to in this
Agreement as the "Severance Period"). In the event of a termination upon
Executive's permanent disability, Executive will also remain entitled to
receive, during the Severance Period, those fringe benefits specified in
paragraph 4 above, including coverage under all insurance programs and plans.
The payment of such Base Salary and bonus will be made during the Severance
Period at the same times as such amounts would have been paid pursuant to
paragraph 3 above had Executive's employment not have been terminated and had
the Term expired at the end of the Severance Period.
b. Termination with Cause or Resignation. Upon termination of
Executive's employment by the Trust pursuant to paragraph 5(b) above or a
voluntary resignation by Executive (other than for Good Reason pursuant to
paragraph 5(c) above), the Trust will remain obligated to pay Executive only the
unpaid portion of his Base Salary, bonus and benefits (including the value of
any untaken vacation time to the extent Executive has, during the year
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<PAGE> 6
in which such termination occurs, taken less vacation time than permitted to him
hereunder), to the extent accrued through the effective date of termination. Any
amount due under this subparagraph will be payable within 30 days after the date
of termination.
c. Termination without Cause or for Good Reason. Upon termination
of Executive's employment (x) by the Trust other than for Cause or upon
Executive's death or permanent disability or (y) by Executive for Good Reason,
Executive will be entitled to the benefits provided below:
(i) the Trust will pay Executive his Base Salary through the
date of termination;
(ii) the Trust will pay as severance pay to Executive, not
later than the 30th day following the date of termination, a lump
sum severance payment (the "Severance Payment") equal to the
greater of (x) the aggregate of all compensation due to Executive
hereunder during the balance of the Term, assuming that the annual
bonuses payable to Executive during such period will equal the
average of the annual bonuses paid to Executive under this
Agreement prior to termination of employment, or (y) 2.99 times
(or, after the second anniversary of the date of this Agreement,
1.99 times) the "base amount" within the meaning of Sections
280G(b)(3) and 280G(d) of the Internal Revenue Code of 1986, as
amended (the "Code"), and any applicable temporary or final
regulations promulgated thereunder, or its equivalent as provided
in any successor statute or regulation. If Section 280G of the
Code (and any successor provisions thereto) is repealed or
otherwise inapplicable, then the Severance Payment will equal 2.99
(or, after the second anniversary of this agreement, 1.99 times)
times the average of Executive's annual compensation for both
complete and partial calendar years during so much of the five
calendar year period preceding the calendar year in which the
termination occurs during which Executive was so employed,
determined by analyzing any compensation (other than non-recurring
items) includable in Executive's gross income for any partial
calendar year and then adding such non-recurring items to such
annualized compensation. Compensation payable to Executive by the
Trust will include every type and form of compensation includable
in Executive's gross income in respect of his employment by the
Trust, including compensation income recognized as a result of
Executive's exercise of stock options or sale of the stock so
acquired, except to the extent otherwise provided in Section 280G
of the Code and any temporary or final regulations promulgated
thereunder;
(iii) if in the opinion of tax counsel elected by Executive
and reasonably acceptable to the Trust, any portion of any payment
made to Executive, including without limitation, the Severance
Payment constitutes an excess "parachute payment" within the
meaning of Section 280G(b)(1) of the Code, the Trust will pay
Executive an additional amount (the "Additional Amount") equal to
the sum
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of (i) all taxes payable by Executive under Section 4999 of the Code
with respect to the Severance Payment and the Additional Amount,
plus (ii) all federal, state or local income taxes payable by
Executive with respect to the Additional Amount; and
(iv) for the duration of the Term, those fringe benefits
specified in paragraph 4(a) above, including coverage under all
insurance programs and plans.
d. No Mitigation. Executive will not be required to mitigate the
amount of any payment provided for in this paragraph 6 by seeking other
employment or otherwise, nor will the amount of any payment or benefit provided
for in this paragraph 6 be reduced by any compensation earned by him as the
result of employment by another employer or by retirement benefits after the
date of termination, or otherwise.
e. Expiration of this Agreement. In the event the Term of this
Agreement expires without having otherwise been previously terminated pursuant
to paragraph 5 above or by the Trust without cause, Executive will not be
entitled to any severance compensation whatsoever under this paragraph 6.
7. INDEMNIFICATION. To the full extent permitted by applicable law,
Executive shall be indemnified and held harmless for any action or failure to
act in his capacity as a director, trustee, officer or employee of the Trust. In
furtherance of the foregoing and not by way of limitation, if Executive is a
party or is threatened to be made a party to any suit because he is a director,
trustee, officer or employee of the Trust, he shall be indemnified against
expenses, including attorney's fees, judgments, fines and amounts paid in
settlement if he acted in good faith and in a manner reasonably believed to be
in or not opposed to the best interest of the Trust, and with respect to any
criminal action or proceeding, he had no reasonable cause to believe his conduct
was unlawful. Indemnification under this Section shall be in addition to any
other indemnification by the Trust of its officers and trustees. Expenses
incurred by the Executive in defending an action, suit or proceeding for which
he claims the right to be indemnified pursuant to this Section shall be paid by
the Trust in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of the Executive to repay such
amount in the event that it shall ultimately be determined that he is not
entitled to indemnification by the Trust. Such undertaking shall be accepted
without reference to the financial ability of such Executive to make repayment.
The Trust shall use commercially reasonable efforts to maintain in effect for
the Term of this Agreement a directors' and officers' liability insurance
policy, with a policy limit of at least $10,000,000 (which may be spread over a
multiple year period), subject to customary exclusions, with respect to claims
made against officers and directors of the Trust; provided, however, the Trust
shall be relieved of this obligation to maintain directors' and officers'
liability insurance if, in the good faith judgment of the Trust, it cannot be
obtained at a reasonable cost.
8. ARBITRATION. The parties hereto will endeavor to resolve in good
faith any controversy, disagreement or claim arising between them, whether as to
the interpretation,
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performance or operation of this Agreement or any rights or obligations
hereunder. If they are unable to do so, any such controversy, disagreement or
claim will be submitted to binding arbitration, for final resolution without
appeal, by either party giving written notice to the other of the existence of a
dispute which it desires to have arbitrated. The arbitration will be conducted
in Detroit, Michigan by a panel of three (3) arbitrators and will be held in
accordance with the rules of the American Arbitration Association. Of the three
arbitrators, one will be selected by the Trust, one will be selected by
Executive and the third will be selected by the two arbitrators so selected.
Each party will notify the other party of the arbitrator selected by him or it
within fifteen (15) days after the giving of the written notice referred to in
this paragraph 8. The decision and award of the arbitrators must be in writing
and will be final and binding upon the parties hereto, with the same effect as
an arbitration pursuant to Michigan Compiled Laws Annotated Section 600.5001.
Judgment upon the award may be entered in any court having jurisdiction thereof,
or application may be made to such court for a judicial acceptance of the award
and an order of enforcement, as the case may be. The expenses of arbitration
will be borne in accordance with the determination of the arbitrators with
respect thereto, except as otherwise specified in paragraph 5(b) above. Pending
a decision by the arbitrators with respect to the dispute or difference
undergoing arbitration, all other obligations of the parties will continue as
stipulated herein, and all monies not directly involved in such dispute or
difference will be paid when due.
9. MISCELLANEOUS.
a. Executive represents and warrants that he is not a party to any
agreement, contract or understanding, whether employment or otherwise, which
would restrict or prohibit him from undertaking or performing employment in
accordance with the terms and conditions of this Agreement.
b. The provisions of this Agreement are severable and if any one or
more provisions may be determined to be illegal or otherwise unenforceable, in
whole or in part, the remaining provisions and any partially unenforceable
provision to the extent enforceable in any jurisdiction will remain binding and
enforceable.
c. The rights and obligations of the Trust under this Agreement
inure to the benefit of, and will be binding on, the Trust and its successors
and permitted assigns, and the rights and obligations (other than obligations to
perform services) of Executive under this Agreement will inure to the benefit
of, and will be binding upon, Executive and his heirs, personal representatives
and permitted assigns; provided, however, Executive shall not be entitled to
assign or delegate any of his rights and obligations under this Agreement
without the prior written consent of the Trust; provided, further, that the
Trust shall not have the right to assign or delegate any of its rights or
obligations under this Agreement except to a corporation, partnership or other
business entity that is, directly or indirectly, controlled by the Trust.
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d. Any notice to be given under this Agreement will be personally
delivered in writing or will have been deemed duly given when received after it
is posted in the United States mail, postage prepaid, registered or certified,
return receipt requested, and if mailed to the Trust, will be addressed to its
principal place of business, attention: Secretary, and if mailed to Executive,
will be addressed to him at his home address last known on the records of the
Trust or at such other address or addresses as either the Trust or Executive may
hereafter designate in writing to the other.
e. The failure of either party to enforce any provision or
provisions of this Agreement will not in any way be construed as a waiver of any
such provision or provisions as to any future violations thereof, nor prevent
that party thereafter from enforcing each and every other provision of this
Agreement. The rights granted the parties herein are cumulative and the waiver
of any single remedy will not constitute a waiver of such party's right to
assert all other legal remedies available to it under the circumstances.
f. This Agreement will be governed by and construed according to
the laws of the State of Michigan.
g. Captions and paragraph headings used herein are for convenience
and are not a part of this Agreement and will not be used in construing it.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
-----------------------------
Name: Dennis Gershenson
Title: Chief Executive Officer
/s/ Richard Gershenson
----------------------------------
Richard Gershenson
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EXHIBIT A
Bonus Calculation
The bonus compensation payable to Executive pursuant to paragraph 3(b),
for each year of the Agreement, will equal the following:
(a) if the Trust's Funds From Operation per outstanding Common Share, on
an annualized basis, for the year for which the bonus is to be paid increase
less than 5% from the Company's Funds From Operation per outstanding Common
Share for the previous year, then 0%;
(b) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase at least 5% but less than 7% from the Trust's Funds From
Operation per outstanding Share for the previous year, then 15% of Executive's
Base Salary for the year for which the bonus is to be paid;
(c) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase at least 7% but less than 10% from the Trust's Funds
From Operation per outstanding Share for the previous year, then 22.5% of
Executive's Base Salary for the year for which the bonus is to be paid;
(d) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase at least 10% but less than 15% from the Trust's Funds
From Operation per outstanding Share for the previous year, then 30% of
Executive's Base Salary for the year for which the bonus is to be paid;
(e) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase by 15% or more from the Trust's Funds From Operation per
outstanding Share for the previous year, then 50%; of Executive's Base Salary
for the year for which the bonus is to be paid.
<PAGE> 1
EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of May 10, 1996, is
entered into between RAMCO-GERSHENSON PROPERTIES TRUST, formerly known as RPS
Realty Trust, a Massachusetts business trust (the "Trust"), and BRUCE
GERSHENSON ("Executive"). Capitalized terms used but not otherwise defined in
this Agreement shall have the meanings set forth in the Amended and Restated
Master Agreement, dated as of December 27, 1995, as amended by the First
Amendment to Amended and Restated Master Agreement dated March 19, 1996, by and
among RPS Realty Trust, a Massachusetts business trust, Ramco-Gershenson, Inc.,
a Michigan corporation, Joel Gershenson, Dennis Gershenson, Bruce Gershenson,
Richard Gershenson, Michael A. Ward, Michael A. Ward, Trustee U/T/A dated
2/22/77, as amended, Ramco-Gershenson Properties, L.P., a Delaware limited
partnership and the Ramco Contributing Parties listed on Schedule A attached
thereto (as amended, the "Master Agreement").
RECITALS
A. The Trust is a business trust intended to be qualified and to operate
as a real estate investment trust under the Internal Revenue Code of 1986, as
amended.
B. The Trust is the general partner of Ramco-Gershenson Properties, L.P.,
a Delaware limited partnership (the "Operating Partnership"), which has, among
other things, acquired various shopping center properties from Subsidiaries of
the Trust and partnerships managed and controlled by Ramco-Gershenson, Inc.
("Ramco Management") or its affiliates.
C. Executive is one of the five principals of Ramco Management (the "Ramco
Principals"). The Trust wishes to employ Executive and the other Ramco
Principals, and Executive wishes to be employed by the Trust, on the terms and
conditions set forth below.
THEREFORE, the parties agree as follows:
1. EMPLOYMENT DUTIES. During the Term (as defined in paragraph 2 below),
the Trust will employ Executive as its Executive Vice President and Treasurer.
Except as permitted by Executive's Noncompetition Agreement with the Trust,
Executive will devote substantially all of his business time and attention to
the performance of his duties under this Agreement. Executive initially shall
have the duties, rights and responsibilities normally associated with his
position with the Trust consistent with the Amended and Restated Declaration of
Trust of the Trust, as amended, together with such other reasonable duties
relating to the operation of the business of the Trust and its affiliates as may
be assigned to him from time to time by the Board of Trustees of the Trust (the
"Board") or may otherwise be provided for in such Bylaws. If the Trust shall so
request, Executive shall become and shall, at any time during the term of this
Agreement as the Trust shall so request, act as a trustee of the Trust and/or as
an officer and/or director of any of the Subsidiaries of the Trust as they may
now exist or may be established by the Trust in the future without any
compensation other than that provided for in paragraph 3.
<PAGE> 2
2. TERM. The term of Executive's employment under this Agreement (the
"Term") will begin on the date of this Agreement and will continue, subject to
the termination provisions set forth in paragraph 5 below, until the third
anniversary of the date hereof; provided that, if the Board has considered
whether or not to extend the Term at a meeting held not more than 90 days or
less than 30 days prior to the expiration of the Term, the Term will
automatically be extended for one year unless either the Trust or Executive
gives written notice of non-extension to the other at least 20 days prior to the
expiration of the Term.
3. SALARY AND BONUS.
a. Salary. During each year of the Term, Executive will receive a
salary at the annual rate of $100,000, which salary will be subject to increase
as set forth below (as so increased, the "Base Salary"). The Compensation
Committee of the Trust's Board of Trustees (the "Committee") will review
Executive's Base Salary on an annual basis, and the Committee, upon such review
and in its sole discretion, may increase or decrease the Base Salary by an
amount which the Committee deems appropriate in light of the Trust's and
Executive's performance during the period covered by such review; provided,
however, that the Base Salary will not be reduced below $100,000 per annum. The
Base Salary will be payable to Executive in accordance with the Trust's standard
payroll practices.
b. Bonus. In addition to the Base Salary, the Trust will pay to
Executive performance-based bonus compensation for each fiscal year of the
Trust, not later than 60 days following the end of each fiscal year or the
expiration of the Term as a result of the nonextension thereof or as otherwise
specified in paragraph 6 below, as the case may be, prorated on a per diem basis
for partial fiscal years, as determined by the Committee but not less than that
determined and calculated in accordance with the formula set forth on Exhibit
"A" hereto.
4. FRINGE BENEFITS. In addition to the other compensation payable
pursuant to this Agreement, during the Term:
a. Standard Benefits. Executive will be entitled to receive such
fringe benefits and perquisites, including medical, dental, disability and life
insurance, as are generally made available from time to time to management
employees and Executives of the Trust and as was provided to Executive by Ramco
Management on December 31, 1995, and to participate in any pension,
profit-sharing, stock option or similar plan or program established from time to
time by the Trust for the benefit of its employees.
b. Vacation and Sick Leave. Executive will be entitled to such
periods of paid vacation and sick leave allowance each year (not less than four
weeks) that are consistent with the Trust's vacation and sick leave policy for
senior management.
c. Business Expenses. The Trust will pay or reimburse Executive for
all business-related expenses incurred by Executive in the course of his
performance of duties under this Agreement, subject to the procedures
established by the Trust from time to time with respect
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to incurrence, substantiation, reasonableness and approval. The
business-related expenses to be paid for or reimbursed by the Trust hereunder
will include those expenses paid for or reimbursed by Ramco Management for the
benefit of Executive for the year ending December 31, 1995, including
professional licensing and association fees and dues, professional journal
subscriptions and errors and omissions insurance coverage.
d. Stock Options. Executive shall be entitled to participate in
employee stock option plans from time to time established for the benefit of
employees of the Trust in accordance with the terms and conditions of such
plans. On the date hereof, Executive shall receive a grant of 24,000 stock
options pursuant to the Trust's 1996 Share Option Plan, which options shall vest
in three equal annual installments on the first, second and third anniversaries
of the date hereof. The option exercise price with respect to the stock options
granted on the date hereof shall be equal to $16.00 per share. None of the
terms of any such option shall be modified without Executive's consent. Within
60 days after the date hereof, the Trust shall file a registration statement on
Form S-8 registering under the Securities Act of 1933, as amended (the
"Securities Act") the shares of beneficial interest of the Trust sold to
Executive upon the exercise of the options granted to Executive pursuant to this
paragraph 4(d) (collectively, the "Registrable Securities"). The Trust shall
use commercially reasonable efforts to maintain the effectiveness of such
registration statement under the Securities Act until the earlier of (i) the
date the Registrable Securities are no longer eligible for registration on Form
S-8 or (ii) the date the Registrable Securities are permitted to be disposed of
pursuant to Rule 144(k) (or any successor rule) under the Securities Act.
5. TERMINATION OF EMPLOYMENT.
a. Death and Disability. Executive's employment under this Agreement
will terminate immediately upon his death and upon 30 days' prior written notice
given by the Trust in the event Executive is determined to be "permanently
disabled" (as defined below).
b. For Cause. The Trust may terminate Executive's employment under
this Agreement for "Cause" (as defined below), upon providing Executive 30 days'
prior written notice of termination, which notice will describe in detail the
basis of such termination and will become effective on the 30th day after
Executive's receipt thereof unless Executive (i) cures the alleged violation or
other circumstance which was the basis of such termination within such 30-day
notice period or (ii) sends, within such 30-day notice period, written notice to
the Board of Trustees of the Trust disputing in good faith the existence of
Cause and requesting arbitration of such dispute pursuant to paragraph 8 below.
During the pendency of the arbitration, Executive will continue to receive all
compensation and benefits to which he is entitled hereunder. If the Trust is
not successful in obtaining a determination by the arbitrators that there was
Cause for termination, the Trust will pay Executive's reasonable expenses,
including, without limitation, reasonable attorneys' fees and disbursements, in
connection with such dispute resolution.
c. For Good Reason. Executive may terminate his employment under
this Agreement for "Good Reason" (as defined below) upon providing the Trust 30
days' prior written
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notice of termination, which notice will detail the basis of such termination
and will become effective on the 30th day after the Trust's receipt thereof
unless the Trust cures the alleged violation or other circumstance which was the
basis of such termination within such 30-day notice period.
d. Definitions. For purposes of this Agreement:
(i) Executive will be deemed "permanently disabled" if he
becomes unable to discharge his normal duties as contemplated under
this Agreement for more than six consecutive months as a result of
incapacity due to mental or physical illness by a physician
acceptable to Executive and the Trust and paid by the Trust, whose
determination will be final and binding. If Executive and the
Trust are unable to agree on a physician, Executive and the Trust
will each choose one physician who will mutually choose the third
physician, whose determination will be final and binding.
(ii) "Cause" means either (A) a material breach by Executive
of any material provisions of this Agreement or of the
Noncompetition Agreement, but only if, after notice provided in
subparagraph (b) above, Executive fails to cure such breach or, if
such breach is not subject to cure, fails on an on-going basis
thereafter to comply with the provisions of this Agreement or of
the Noncompetition Agreement, as the case may be, with respect to
which he was in such breach; (B) action by Executive constituting
willful malfeasance or gross negligence, having a material adverse
effect on the Trust; (C) an act of fraud, misappropriation of funds
or embezzlement by Executive in connection with his employment
hereunder; or (D) Executive is convicted of, pleads guilty to or
confesses to any felony.
(iii) "Good Reason" means the occurrence of any of the
following, without the prior written consent of Executive: (A) any
substantial diminution of duties, responsibilities or status, or
other imposition by the Trust of unreasonable requirements or
working conditions on Executive, which are not withdrawn or
corrected within a 30-day period following notice by Executive to
the Trust of such diminution or imposition; (B) a material breach
by the Trust of any of its material obligations under this
Agreement, but only if (x) after expiration of the 30-day notice
period provided in subparagraph (c) above, the Trust fails to cure
such breach or (y) notwithstanding such cure, the Trust willfully
and repeatedly breaches its obligations under this Agreement; (C) a
relocation of the Trust's principal executive offices or of
Executive's principal place of employment to a location more than
25 miles from Southfield, Michigan; (D) if, after any election of
Trustees, at least two Ramco Principals are not members of the
Board or the Ramco Principals would constitute less than 20% of the
members of the Board (provided that at least two of the Ramco
Principals are ready, willing and able to serve on the Board); or
(E) a "change of control" as defined below.
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Notwithstanding the foregoing, if at any time after the date of this
Agreement the Ramco Principals own shares or OP Units convertible
into less than 15% of the issued and outstanding Shares of the
Trust, clause (D) shall be inapplicable and shall not be deemed
"good reason" for termination of employment. Executive will be
deemed not to have consented to any proposal resulting in any of the
foregoing changes unless he will have given written notice of his
consent thereto to the Board of Trustees of the Trust within fifteen
(15) days after receipt of a written proposal describing the change.
If Executive will not give such consent, the Trust will have the
opportunity to withdraw such proposed change by written notice to
Executive given within 15 days after expiration of the foregoing
15-day period.
(iv) A "change in control" shall occur if any person or group
of commonly controlled persons, other than the Ramco Principals or
their affiliates, owns or controls, directly or indirectly, more
than twenty-five percent (25%) of the voting control or value of
the capital stock of the Trust, or of securities convertible into
or exchangeable for capital stock of the Trust.
6. BENEFITS UPON TERMINATION.
a. Termination upon Death or Permanent Disability. Upon
termination of Executive's employment under this Agreement resulting from his
death or permanent disability, the Trust will remain obligated to pay to
Executive or his legal representatives his Base Salary and bonus, as provided in
paragraph 3 above, for an additional period equal to 12 months from the
effective date of termination (such additional period being referred to in this
Agreement as the "Severance Period"). In the event of a termination upon
Executive's permanent disability, Executive will also remain entitled to
receive, during the Severance Period, those fringe benefits specified in
paragraph 4 above, including coverage under all insurance programs and plans.
The payment of such Base Salary and bonus will be made during the Severance
Period at the same times as such amounts would have been paid pursuant to
paragraph 3 above had Executive's employment not have been terminated and had
the Term expired at the end of the Severance Period.
b. Termination with Cause or Resignation. Upon termination of
Executive's employment by the Trust pursuant to paragraph 5(b) above or a
voluntary resignation by Executive (other than for Good Reason pursuant to
paragraph 5(c) above), the Trust will remain obligated to pay Executive only the
unpaid portion of his Base Salary, bonus and benefits (including the value of
any untaken vacation time to the extent Executive has, during the year in which
such termination occurs, taken less vacation time than permitted to him
hereunder), to the extent accrued through the effective date of termination. Any
amount due under this subparagraph will be payable within 30 days after the date
of termination.
c. Termination without Cause or for Good Reason. Upon termination
of Executive's employment (x) by the Trust other than for Cause or upon
Executive's death or
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permanent disability or (y) by Executive for Good Reason, Executive will be
entitled to the benefits provided below:
(i) the Trust will pay Executive his Base Salary through the
date of termination;
(ii) the Trust will pay as severance pay to Executive, not
later than the 30th day following the date of termination, a lump
sum severance payment (the "Severance Payment") equal to the
greater of (x) the aggregate of all compensation due to Executive
hereunder during the balance of the Term, assuming that the annual
bonuses payable to Executive during such period will equal the
average of the annual bonuses paid to Executive under this
Agreement prior to termination of employment, or (y) 2.99 times
(or, after the second anniversary of the date of this Agreement,
1.99 times) the "base amount" within the meaning of Sections
280G(b)(3) and 280G(d) of the Internal Revenue Code of 1986, as
amended (the "Code"), and any applicable temporary or final
regulations promulgated thereunder, or its equivalent as provided
in any successor statute or regulation. If Section 280G of the
Code (and any successor provisions thereto) is repealed or
otherwise inapplicable, then the Severance Payment will equal 2.99
(or, after the second anniversary of this agreement, 1.99 times)
times the average of Executive's annual compensation for both
complete and partial calendar years during so much of the five
calendar year period preceding the calendar year in which the
termination occurs during which Executive was so employed,
determined by analyzing any compensation (other than non-recurring
items) includable in Executive's gross income for any partial
calendar year and then adding such non-recurring items to such
annualized compensation. Compensation payable to Executive by the
Trust will include every type and form of compensation includable
in Executive's gross income in respect of his employment by the
Trust, including compensation income recognized as a result of
Executive's exercise of stock options or sale of the stock so
acquired, except to the extent otherwise provided in Section 280G
of the Code and any temporary or final regulations promulgated
thereunder;
(iii) if in the opinion of tax counsel elected by Executive
and reasonably acceptable to the Trust, any portion of any payment
made to Executive, including without limitation, the Severance
Payment constitutes an excess "parachute payment" within the
meaning of Section 280G(b)(1) of the Code, the Trust will pay
Executive an additional amount (the "Additional Amount") equal to
the sum of (i) all taxes payable by Executive under Section 4999 of
the Code with respect to the Severance Payment and the Additional
Amount, plus (ii) all federal, state or local income taxes payable
by Executive with respect to the Additional Amount; and
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(iv) for the duration of the Term, those fringe benefits
specified in paragraph 4(a) above, including coverage under all
insurance programs and plans.
d. No Mitigation. Executive will not be required to mitigate the
amount of any payment provided for in this paragraph 6 by seeking other
employment or otherwise, nor will the amount of any payment or benefit provided
for in this paragraph 6 be reduced by any compensation earned by him as the
result of employment by another employer or by retirement benefits after the
date of termination, or otherwise.
e. Expiration of this Agreement. In the event the Term of this
Agreement expires without having otherwise been previously terminated pursuant
to paragraph 5 above or by the Trust without cause, Executive will not be
entitled to any severance compensation whatsoever under this paragraph 6.
7. INDEMNIFICATION. To the full extent permitted by applicable law,
Executive shall be indemnified and held harmless for any action or failure to
act in his capacity as a director, trustee, officer or employee of the Trust. In
furtherance of the foregoing and not by way of limitation, if Executive is a
party or is threatened to be made a party to any suit because he is a director,
trustee, officer or employee of the Trust, he shall be indemnified against
expenses, including attorney's fees, judgments, fines and amounts paid in
settlement if he acted in good faith and in a manner reasonably believed to be
in or not opposed to the best interest of the Trust, and with respect to any
criminal action or proceeding, he had no reasonable cause to believe his conduct
was unlawful. Indemnification under this Section shall be in addition to any
other indemnification by the Trust of its officers and trustees. Expenses
incurred by the Executive in defending an action, suit or proceeding for which
he claims the right to be indemnified pursuant to this Section shall be paid by
the Trust in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of the Executive to repay such
amount in the event that it shall ultimately be determined that he is not
entitled to indemnification by the Trust. Such undertaking shall be accepted
without reference to the financial ability of such Executive to make repayment.
The Trust shall use commercially reasonable efforts to maintain in effect for
the Term of this Agreement a directors' and officers' liability insurance
policy, with a policy limit of at least $10,000,000 (which may be spread over a
multiple year period), subject to customary exclusions, with respect to claims
made against officers and directors of the Trust; provided, however, the Trust
shall be relieved of this obligation to maintain directors' and officers'
liability insurance if, in the good faith judgment of the Trust, it cannot be
obtained at a reasonable cost.
8. ARBITRATION. The parties hereto will endeavor to resolve in good
faith any controversy, disagreement or claim arising between them, whether as to
the interpretation, performance or operation of this Agreement or any rights or
obligations hereunder. If they are unable to do so, any such controversy,
disagreement or claim will be submitted to binding arbitration, for final
resolution without appeal, by either party giving written notice to the other of
the existence of a dispute which it desires to have arbitrated. The arbitration
will be conducted in Detroit, Michigan by a panel of three (3) arbitrators and
will be held in accordance with the
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rules of the American Arbitration Association. Of the three arbitrators, one
will be selected by the Trust, one will be selected by Executive and the third
will be selected by the two arbitrators so selected. Each party will notify the
other party of the arbitrator selected by him or it within fifteen (15) days
after the giving of the written notice referred to in this paragraph 8. The
decision and award of the arbitrators must be in writing and will be final and
binding upon the parties hereto, with the same effect as an arbitration pursuant
to Michigan Compiled Laws Annotated Section 600.5001. Judgment upon the award
may be entered in any court having jurisdiction thereof, or application may be
made to such court for a judicial acceptance of the award and an order of
enforcement, as the case may be. The expenses of arbitration will be borne in
accordance with the determination of the arbitrators with respect thereto,
except as otherwise specified in paragraph 5(b) above. Pending a decision by
the arbitrators with respect to the dispute or difference undergoing
arbitration, all other obligations of the parties will continue as stipulated
herein, and all monies not directly involved in such dispute or difference will
be paid when due.
9. MISCELLANEOUS.
a. Executive represents and warrants that he is not a party to any
agreement, contract or understanding, whether employment or otherwise, which
would restrict or prohibit him from undertaking or performing employment in
accordance with the terms and conditions of this Agreement.
b. The provisions of this Agreement are severable and if any one or
more provisions may be determined to be illegal or otherwise unenforceable, in
whole or in part, the remaining provisions and any partially unenforceable
provision to the extent enforceable in any jurisdiction will remain binding and
enforceable.
c. The rights and obligations of the Trust under this Agreement
inure to the benefit of, and will be binding on, the Trust and its successors
and permitted assigns, and the rights and obligations (other than obligations to
perform services) of Executive under this Agreement will inure to the benefit
of, and will be binding upon, Executive and his heirs, personal representatives
and permitted assigns; provided, however, Executive shall not be entitled to
assign or delegate any of his rights and obligations under this Agreement
without the prior written consent of the Trust; provided, further, that the
Trust shall not have the right to assign or delegate any of its rights or
obligations under this Agreement except to a corporation, partnership or other
business entity that is, directly or indirectly, controlled by the Trust.
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<PAGE> 9
d. Any notice to be given under this Agreement will be personally
delivered in writing or will have been deemed duly given when received after it
is posted in the United States mail, postage prepaid, registered or certified,
return receipt requested, and if mailed to the Trust, will be addressed to its
principal place of business, attention: Secretary, and if mailed to Executive,
will be addressed to him at his home address last known on the records of the
Trust or at such other address or addresses as either the Trust or Executive may
hereafter designate in writing to the other.
e. The failure of either party to enforce any provision or
provisions of this Agreement will not in any way be construed as a waiver of any
such provision or provisions as to any future violations thereof, nor prevent
that party thereafter from enforcing each and every other provision of this
Agreement. The rights granted the parties herein are cumulative and the waiver
of any single remedy will not constitute a waiver of such party's right to
assert all other legal remedies available to it under the circumstances.
f. This Agreement will be governed by and construed according to
the laws of the State of Michigan.
g. Captions and paragraph headings used herein are for convenience
and are not a part of this Agreement and will not be used in construing it.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
-----------------------------
Name: Dennis Gershenson
Title: Chief Executive Officer
/s/ Bruce Gershenson
----------------------------------
Bruce Gershenson
<PAGE> 10
EXHIBIT A
Bonus Calculation
The bonus compensation payable to Executive pursuant to paragraph 3(b),
for each year of the Agreement, will equal the following:
(a) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase less than 5% from the Company's Funds From Operation per
outstanding Share for the previous year, then 0%;
(b) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase at least 5% but less than 7% from the Trust's Funds From
Operation per outstanding Share for the previous year, then 15% of Executive's
Base Salary for the year for which the bonus is to be paid;
(c) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase at least 7% but less than 10% from the Trust's Funds
From Operation per outstanding Share for the previous year, then 22.5% of
Executive's Base Salary for the year for which the bonus is to be paid;
(d) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase at least 10% but less than 15% from the Trust's Funds
From Operation per outstanding Share for the previous year, then 30% of
Executive's Base Salary for the year for which the bonus is to be paid;
(e) if the Trust's Funds From Operation per outstanding Share, on an
annualized basis for any partial year, with respect to the year for which the
bonus relates increase by 15% or more from the Trust's Funds From Operation per
outstanding Share for the previous year, then 50% of Executive's Base Salary
for the year for which the bonus is to be paid.
<PAGE> 1
EXHIBIT 10.13
NONCOMPETITION AGREEMENT
This NONCOMPETITION AGREEMENT (this "AGREEMENT") is entered into as of
May 10, 1996 by and between Joel Gershenson ("EXECUTIVE") and Ramco-Gershenson
Properties Trust, formerly known as RPS Realty Trust, a Massachusetts business
trust (the "TRUST").
R E C I T A L S :
A. On the date hereof, the Company (as defined below) and
Ramco-Gershenson, Inc. and its affiliates (collectively "RAMCO") have
consummated a transaction (the "RAMCO TRANSACTION") pursuant to which the
Company and Ramco have contributed cash and properties to Ramco-Gershenson
Properties, L.P., a Delaware limited partnership.
B. It was a condition to the consummation of the Ramco Transaction
that the Trust and Executive enter into an agreement restricting the activities
of Executive that would eliminate potential conflicts of interest that may arise
in the future and would otherwise protect the Company's legitimate business
interests.
Accordingly, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein shall have the
meanings set forth below:
"AFFILIATE" means (i) any entity directly or indirectly controlling
(including without limitation an entity for which Executive serves as an
officer, director, employee, consultant or other agent), controlled by, or under
common control with Executive, and (ii) each other entity in which Executive,
directly or indirectly, owns any controlling interest or of which Executive
serves as a general partner.
"AGREEMENT" shall have the meaning set forth in the heading of this
Agreement.
"COMPANY" means (i) Ramco-Gershenson Properties Trust, formerly known
as RPS Realty Trust, (ii) Ramco-Gershenson, Inc., a Michigan corporation, (iii)
any corporation, partnership or other business entity that is, directly or
indirectly, controlled by or under common control with Ramco-Gershenson
Properties Trust and (iv) their respective successors.
"COMPANY PROJECT" means any properties, development land and
development out parcels that the Company owns, operates or manages as of the
date of Executive's termination of employment with the Company or that the
Company has in any manner taken steps to acquire, develop, construct, operate,
manage or lease (including without limitation making market surveys of a site,
talking to the owner or his agent concerning the purchase or joint venture of a
site, optioning or contracting to buy a site or discussions with the owner or
his agent regarding managing or leasing
<PAGE> 2
a property) during the twelve (12) month period immediately preceding
Executive's termination of employment with the Company.
"COVENANT PERIOD" means the period commencing on the Effective Date
and ending on the later of the following:
(i) one year after Executive is no longer an officer or trustee of the
Company and
(ii) four years following the Effective Date.
"EFFECTIVE DATE" means the date of the closing of the Ramco
Transaction.
"EMPLOYMENT AGREEMENT" shall mean the Employment Agreement dated the
date hereof between the Trust and Executive.
"EXECUTIVE" shall have the meaning set forth in the heading of this
Agreement.
"OPERATING PARTNERSHIP" shall have the meaning set forth in Recital A.
"RAMCO" shall have the meaning set forth in Recital A.
"RAMCO TRANSACTION" shall have the meaning set forth in Recital A.
"PROPERTY" means any real property on which shopping center or retail
use (or any combination of the foregoing) development has been constructed or is
now or hereafter proposed to be constructed or any other type of real property
which hereafter the Company may acquire, develop, own, construct, manage or may
disclose or authorize any intention, plan or arrangement to acquire, develop,
own, construct or manage.
2. Executive's Obligations While Employed by the Company.
(a) Sole Employment. Subject to the provisions of paragraph
2(b) below, Executive agrees to devote substantially his full time during the
customary business hours of the Company and give his best efforts to the
business of the Company and, during the period of his employment by the Company,
Executive shall not engage in any manner, whether as an officer, employee,
owner, partner, stockholder, trustee, director, consultant or otherwise,
directly or indirectly, in any business other than on behalf of the Company
without the prior written approval of the Board of Trustees of the Company, and
Executive shall not accept any other employment whatsoever from any other
person, firm, corporation or entity.
(b) Exceptions. Notwithstanding the provisions of paragraph
2(a) above and of paragraph 3, Executive may during the term of his employment
by the Company and at any time thereafter (i) acquire an interest in any
corporation, partnership, venture or other business entity so long as (A) any
such interest is a passive investment of Executive, provided such interest does
not
2
<PAGE> 3
represent a direct or indirect interest in any Property, (B) such interest does
not afford Executive the power to influence in any material fashion the decision
making processes of the entity in which such interest is held and (C) Executive
is not the sponsor, promoter or similar initiator of such entity, (ii) continue
(W) to serve as a general or limited partner of each of the partnerships which
own the Properties identified on Schedule 1, attached hereto and incorporated by
this reference, as an officer, director and shareholder of each of the
corporations identified on such Schedule 1, and as a beneficiary of the estate
properties listed on Schedule 1, (X) to discharge Executive's fiduciary and
contractual duties and obligations with respect thereto, even though such
limited partnerships and corporations (or any partnership of which any such
limited partnership or corporation is a general or limited partner) may directly
compete with the Company, (Y) to serve on not more than three (3) Boards of
Directors of publicly traded entities and (Z) to serve on the Board of Directors
of any charitable institution, and (iii) continue to engage in Executive's
existing video arcade and fast food businesses, as those businesses may be
expanded in the ordinary course.
3. Executive's Obligations Following Termination of Employment with
the Company.
(a) Anti-Pirating of Employees. During the Covenant Period,
Executive agrees not to hire, directly or indirectly, or entice or participate
in any efforts to entice to leave the Company's employ, any person who was or is
a "key employee" (as hereinafter defined) of the Company at any time during the
twelve (12) month period immediately preceding the termination date of
Executive's employment with the Company. For purposes of this Agreement, "key
employee" means an employee who has an annualized rate of base salary equaling
or exceeding sixty thousand dollars ($60,000).
(b) Anti-Pirating of Company Projects. During the Covenant
Period, Executive agrees not to, directly or indirectly, own, manage, join or
control, or participate in the ownership, operation or control of, or be an
officer of, director, employee or owner of, or a consultant to, or otherwise
authorize the use of his name by, or be connected in any manner with, any
business, firm or corporation which engages or attempts to engage, directly or
indirectly, in the acquisition, development, construction, operation, management
or leasing of any Company Project, other than on behalf of the Company.
(c) Noncompetition. During the Covenant Period, Executive
agrees not to, directly or indirectly, own, manage, join or control, or
participate in the ownership, operation or control of, or be an officer,
director, employee or owner of, or a consultant to, or otherwise authorize the
use of his name by, or be connected in any manner with, any business, firm or
corporation which at the time or at any time during the Covenant Period is
involved in the acquisition, development, construction, operation, management or
leasing of any Property within a 200 mile radius of any Company Project that
existed at any time during the twelve (12) month period immediately preceding
the termination date of Executive's employment with the Company.
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<PAGE> 4
(d) Trade Secrets and Confidential Information. Executive
hereby agrees that he will hold in a fiduciary capacity for the benefit of the
Company, and shall not directly or indirectly use or disclose any Trade Secret
(as hereinafter defined), that Executive may have acquired during the term of
his employment by the Company for so long as such information remains a Trade
Secret. The term "Trade Secret" as used in this Agreement shall mean
information including, but not limited to, technical or nontechnical data, a
formula, a pattern, a compilation, a program, a device, a method, a technique, a
drawing, a process, financial data, financial plans, product plans, or a list of
actual or potential customers or suppliers which:
derives economic value, actual or
potential from not being generally known
to, and not being readily ascertainable
by proper means by, other persons who
can obtain economic value from its
disclosure or use; and is the subject of
reasonable efforts by the Company to
maintain its secrecy.
In addition to the foregoing and not in limitation thereof,
Executive agrees that during the period of his employment by the Company and the
Covenant Period, he will hold in a fiduciary capacity for the benefit of the
Company and shall not directly or indirectly use or disclose, any Confidential
or Proprietary Information (as hereinafter defined), that Executive may have
acquired (whether or not developed or compiled by Executive and whether or not
Executive was authorized to have access to such Information) during the term of,
in the course of or as a result of his employment by the Company and Ramco. The
term "Confidential or Proprietary Information" as used in this Agreement means
any secret, confidential or proprietary information of the Company and Ramco not
otherwise included in the definition of "Trade Secret" above. The term
"Confidential and Proprietary Information" does not include information that has
become generally available to the public by the act of one who has the right to
disclose such information without violating any right of the Company.
(e) Exceptions. Notwithstanding any provision of paragraph 3(c)
to the contrary, Executive shall not be restricted at any time after his
termination of employment with the Company from engaging in any activities for
which Executive would not be restricted from performing during the term of his
employment with the Company as set forth in paragraph 2(b) above.
4. Reasonable and Necessary Restrictions. Executive acknowledges
that the restrictions, prohibitions and other provisions hereof, including
without limitation the 200-mile radius set forth in paragraph 3(c) and the
Covenant Period, are reasonable, fair and equitable in scope, terms and
duration, are necessary to protect the legitimate business interests of the
Company, and are a material inducement to the Company to enter into the Ramco
Transaction. Executive hereby waives, and covenants not to assert in any action
or proceeding relating to this Agreement, any claim or defense that there exists
an adequate remedy at law for breach of this Agreement.
5. Restrictions In Addition to Employment Agreement. Executive
acknowledges that the restrictions, prohibitions and other provisions hereof
shall be in addition to and not in
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<PAGE> 5
substitution of the restrictions, prohibitions and other provisions of the
Employment Agreement, as such agreement shall be amended and supplemented from
time to time.
6. Specific Performance. Executive acknowledges that the
obligations undertaken by him pursuant to this Agreement are unique and that the
Company likely will have no adequate remedy at law if Executive shall fail to
perform any of his obligations hereunder, and Executive therefore confirms that
the Company's right to specific performance of the terms of this Agreement is
essential to protect the rights and interests of the Company. Accordingly, in
addition to any other remedies that the Company may have at law or in equity,
the Company shall have the right to have all obligations, covenants, agreements
and other provisions of this Agreement specifically performed by Executive, and
the Company shall have the right to obtain preliminary and permanent injunctive
relief to secure specific performance and to prevent a breach or contemplated
breach of this Agreement by Executive, and Executive submits to the jurisdiction
of the courts of the State of Michigan for this purpose.
7. Operations of Affiliates. Executive agrees that he will refrain
from (i) authorizing any Affiliate to perform or (ii) assisting in any manner
any Affiliate in performing any activities that would be prohibited by the terms
of this Agreement if they were performed by Executive. Notwithstanding anything
to the contrary contained in this paragraph 7 (or in any other paragraph of this
Agreement), Executive shall not be required by the terms of this Agreement to
violate any fiduciary or contractual duty he owes as a director or officer of a
corporation, as a partner of a partnership or as a trustee of a trust, which
position he holds not in violation of this Agreement or the Employment
Agreement.
8. Miscellaneous Provisions.
(a) Binding Effect. Subject to any provisions hereof
restricting assignment, all covenants and agreements in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors, assigns, heirs, and personal representatives. None of
the parties hereto may assign any of its rights under this Agreement or attempt
to have any other person or entity assume any of its obligations hereunder.
(b) Severability. If any clause, provision or section of this
Agreement shall be invalid or unenforceable, the invalidity or unenforceability
of such clause, provision or section shall not affect the enforceability or
validity of any of the remaining clauses, provisions or sections hereof to the
extent permitted by applicable law.
(c) Governing Law. This Agreement shall be construed and
enforced in accordance with the internal laws of the State of New York, without
reference to its rules as to conflicts or choice of laws.
(d) Amendment. This Agreement may not be changed, modified,
discharged or amended, except by an instrument signed by all of the parties
hereto.
5
<PAGE> 6
(e) Headings. Paragraph and subparagraph headings contained in
this Agreement are inserted for convenience of reference only, shall not be
deemed to be a part of this Agreement for any purpose, and shall not in any way
define or affect the meaning, construction or scope of any of the provisions
hereof.
(f) Pronouns. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural, as the
identity of the person or entity may require.
(g) Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
(h) Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties and supersedes any prior
understandings and/or written or oral agreements among them respecting the
subject matter herein.
(i) Notices. All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by overnight courier delivery service
or by certified mail, return receipt requested, postage prepaid. Notices shall
be deemed given when actually received, which shall be deemed to be no later
than the next business day if sent by overnight courier or after five business
days if sent by mail. Notice to the Company shall be made at 27600 Northwestern
Highway, Suite 200, Southhold, Michigan 48034; Attn: Chairman. Notice to
Executive shall be made at the address set forth on the books of the Company.
6
<PAGE> 7
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement,
or caused this Agreement to be duly executed on its behalf, as of the date
first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
--------------------------------
Name: Dennis Gershenson
Title: Chief Executive Officer
/s/ Joel Gershenson
--------------------------------------
Joel Gershenson
7
<PAGE> 8
Schedule 1
River's Edge Office Building Waterford, Michigan
Summit Complex (Summit Place, Summit Livonia, Michigan
Crossing, Summit North) Saginaw, Michigan
Livonia Towne Square Sterling Heights, Michigan
Bay Towne Plaza Sandusky, Ohio
Builders Square (vacant) Toledo, Ohio
Park Place Shopping Center
North Towne Commons
Estate Properties
Land Contracts
Southfield Properties - GGJ Associates
Melvindale Plaza
Gershenson-Wittbold Mt. Clemens
Nine Mile & Harper
Southfield Properties - Plymouth/
Southfield
Southfield Properties - Van Born
Southfield Properties - Ypsilanti
Partnership Interest in Sale/Leaseback
Assets
Southfield Properties - Southgate
Southfield Properties - Westland
Partnership Interest in Real Estate Owned
in Fee
Southfield Properties - Cedar/Jolly
Maple & Livernois Plaza
G & R Development
G & S Realty Company
Southfield Properties - Lansing Mart
Gershenson-Wittbold Louisville
Michigan Mart Associates
Southfield, Michigan
<PAGE> 1
EXHIBIT 10.14
NONCOMPETITION AGREEMENT
This NONCOMPETITION AGREEMENT (this "AGREEMENT") is entered into as of
May 10, 1996 by and between Dennis Gershenson ("EXECUTIVE") and Ramco-Gershenson
Properties Trust, formerly known as RPS Realty Trust, a Massachusetts business
trust (the "TRUST").
R E C I T A L S :
A. On the date hereof, the Company (as defined below) and
Ramco-Gershenson, Inc. and its affiliates (collectively "RAMCO") have
consummated a transaction (the "RAMCO TRANSACTION") pursuant to which the
Company and Ramco have contributed cash and properties to Ramco-Gershenson
Properties, L.P., a Delaware limited partnership.
B. It was a condition to the consummation of the Ramco Transaction
that the Trust and Executive enter into an agreement restricting the activities
of Executive that would eliminate potential conflicts of interest that may arise
in the future and would otherwise protect the Company's legitimate business
interests.
Accordingly, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein shall have the
meanings set forth below:
"AFFILIATE" means (i) any entity directly or indirectly controlling
(including without limitation an entity for which Executive serves as an
officer, director, employee, consultant or other agent), controlled by, or under
common control with Executive, and (ii) each other entity in which Executive,
directly or indirectly, owns any controlling interest or of which Executive
serves as a general partner.
"AGREEMENT" shall have the meaning set forth in the heading of this
Agreement.
"COMPANY" means (i) Ramco-Gershenson Properties Trust, formerly known
as RPS Realty Trust, (ii) Ramco-Gershenson, Inc., a Michigan corporation, (iii)
any corporation, partnership or other business entity that is, directly or
indirectly, controlled by or under common control with Ramco-Gershenson
Properties Trust and (iv) their respective successors.
"COMPANY PROJECT" means any properties, development land and
development out parcels that the Company owns, operates or manages as of the
date of Executive's termination of employment with the Company or that the
Company has in any manner taken steps to acquire, develop, construct, operate,
manage or lease (including without limitation making market surveys of a site,
talking to the owner or his agent concerning the purchase or joint venture of a
site, optioning or contracting to buy a site or discussions with the owner or
his agent regarding managing or leasing
<PAGE> 2
a property) during the twelve (12) month period immediately preceding
Executive's termination of employment with the Company.
"COVENANT PERIOD" means the period commencing on the Effective Date
and ending on the later of the following:
(i) one year after Executive is no longer an officer or trustee of the
Company and
(ii) four years following the Effective Date.
"EFFECTIVE DATE" means the date of the closing of the Ramco
Transaction.
"EMPLOYMENT AGREEMENT" shall mean the Employment Agreement dated the
date hereof between the Trust and Executive.
"EXECUTIVE" shall have the meaning set forth in the heading of this
Agreement.
"OPERATING PARTNERSHIP" shall have the meaning set forth in Recital A.
"RAMCO" shall have the meaning set forth in Recital A.
"RAMCO TRANSACTION" shall have the meaning set forth in Recital A.
"PROPERTY" means any real property on which shopping center or retail
use (or any combination of the foregoing) development has been constructed or is
now or hereafter proposed to be constructed or any other type of real property
which hereafter the Company may acquire, develop, own, construct, manage or may
disclose or authorize any intention, plan or arrangement to acquire, develop,
own, construct or manage.
2. Executive's Obligations While Employed by the Company.
(a) Sole Employment. Subject to the provisions of paragraph
2(b) below, Executive agrees to devote substantially his full time during the
customary business hours of the Company and give his best efforts to the
business of the Company and, during the period of his employment by the Company,
Executive shall not engage in any manner, whether as an officer, employee,
owner, partner, stockholder, trustee, director, consultant or otherwise,
directly or indirectly, in any business other than on behalf of the Company
without the prior written approval of the Board of Trustees of the Company, and
Executive shall not accept any other employment whatsoever from any other
person, firm, corporation or entity.
(b) Exceptions. Notwithstanding the provisions of paragraph
2(a) above and of paragraph 3, Executive may during the term of his employment
by the Company and at any time thereafter (i) acquire an interest in any
corporation, partnership, venture or other business entity so long as (A) any
such interest is a passive investment of Executive, provided such interest does
not
2
<PAGE> 3
represent a direct or indirect interest in any Property, (B) such interest does
not afford Executive the power to influence in any material fashion the decision
making processes of the entity in which such interest is held and (C) Executive
is not the sponsor, promoter or similar initiator of such entity, (ii) continue
(W) to serve as a general or limited partner of each of the partnerships which
own the Properties identified on Schedule 1, attached hereto and incorporated by
this reference, as an officer, director and shareholder of each of the
corporations identified on such Schedule 1, and as a beneficiary of the estate
properties listed on Schedule 1, (X) to discharge Executive's fiduciary and
contractual duties and obligations with respect thereto, even though such
limited partnerships and corporations (or any partnership of which any such
limited partnership or corporation is a general or limited partner) may directly
compete with the Company, (Y) to serve on not more than three (3) Boards of
Directors of publicly traded entities and (Z) to serve on the Board of Directors
of any charitable institution, and (iii) continue to engage in Executive's
existing video arcade and fast food businesses, as those businesses may be
expanded in the ordinary course.
3. Executive's Obligations Following Termination of Employment with
the Company.
(a) Anti-Pirating of Employees. During the Covenant Period,
Executive agrees not to hire, directly or indirectly, or entice or participate
in any efforts to entice to leave the Company's employ, any person who was or is
a "key employee" (as hereinafter defined) of the Company at any time during the
twelve (12) month period immediately preceding the termination date of
Executive's employment with the Company. For purposes of this Agreement, "key
employee" means an employee who has an annualized rate of base salary equaling
or exceeding sixty thousand dollars ($60,000).
(b) Anti-Pirating of Company Projects. During the Covenant
Period, Executive agrees not to, directly or indirectly, own, manage, join or
control, or participate in the ownership, operation or control of, or be an
officer of, director, employee or owner of, or a consultant to, or otherwise
authorize the use of his name by, or be connected in any manner with, any
business, firm or corporation which engages or attempts to engage, directly or
indirectly, in the acquisition, development, construction, operation, management
or leasing of any Company Project, other than on behalf of the Company.
(c) Noncompetition. During the Covenant Period, Executive
agrees not to, directly or indirectly, own, manage, join or control, or
participate in the ownership, operation or control of, or be an officer,
director, employee or owner of, or a consultant to, or otherwise authorize the
use of his name by, or be connected in any manner with, any business, firm or
corporation which at the time or at any time during the Covenant Period is
involved in the acquisition, development, construction, operation, management or
leasing of any Property within a 200 mile radius of any Company Project that
existed at any time during the twelve (12) month period immediately preceding
the termination date of Executive's employment with the Company.
3
<PAGE> 4
(d) Trade Secrets and Confidential Information. Executive
hereby agrees that he will hold in a fiduciary capacity for the benefit of the
Company, and shall not directly or indirectly use or disclose any Trade Secret
(as hereinafter defined), that Executive may have acquired during the term of
his employment by the Company for so long as such information remains a Trade
Secret. The term "Trade Secret" as used in this Agreement shall mean
information including, but not limited to, technical or nontechnical data, a
formula, a pattern, a compilation, a program, a device, a method, a technique, a
drawing, a process, financial data, financial plans, product plans, or a list of
actual or potential customers or suppliers which:
derives economic value, actual or
potential from not being generally known
to, and not being readily ascertainable
by proper means by, other persons who
can obtain economic value from its
disclosure or use; and is the subject of
reasonable efforts by the Company to
maintain its secrecy.
In addition to the foregoing and not in limitation thereof,
Executive agrees that during the period of his employment by the Company and the
Covenant Period, he will hold in a fiduciary capacity for the benefit of the
Company and shall not directly or indirectly use or disclose, any Confidential
or Proprietary Information (as hereinafter defined), that Executive may have
acquired (whether or not developed or compiled by Executive and whether or not
Executive was authorized to have access to such Information) during the term of,
in the course of or as a result of his employment by the Company and Ramco. The
term "Confidential or Proprietary Information" as used in this Agreement means
any secret, confidential or proprietary information of the Company and Ramco not
otherwise included in the definition of "Trade Secret" above. The term
"Confidential and Proprietary Information" does not include information that has
become generally available to the public by the act of one who has the right to
disclose such information without violating any right of the Company.
(e) Exceptions. Notwithstanding any provision of paragraph 3(c)
to the contrary, Executive shall not be restricted at any time after his
termination of employment with the Company from engaging in any activities for
which Executive would not be restricted from performing during the term of his
employment with the Company as set forth in paragraph 2(b) above.
4. Reasonable and Necessary Restrictions. Executive acknowledges
that the restrictions, prohibitions and other provisions hereof, including
without limitation the 200-mile radius set forth in paragraph 3(c) and the
Covenant Period, are reasonable, fair and equitable in scope, terms and
duration, are necessary to protect the legitimate business interests of the
Company, and are a material inducement to the Company to enter into the Ramco
Transaction. Executive hereby waives, and covenants not to assert in any action
or proceeding relating to this Agreement, any claim or defense that there exists
an adequate remedy at law for breach of this Agreement.
5. Restrictions In Addition to Employment Agreement. Executive
acknowledges that the restrictions, prohibitions and other provisions hereof
shall be in addition to and not in
4
<PAGE> 5
substitution of the restrictions, prohibitions and other provisions of the
Employment Agreement, as such agreement shall be amended and supplemented from
time to time.
6. Specific Performance. Executive acknowledges that the
obligations undertaken by him pursuant to this Agreement are unique and that the
Company likely will have no adequate remedy at law if Executive shall fail to
perform any of his obligations hereunder, and Executive therefore confirms that
the Company's right to specific performance of the terms of this Agreement is
essential to protect the rights and interests of the Company. Accordingly, in
addition to any other remedies that the Company may have at law or in equity,
the Company shall have the right to have all obligations, covenants, agreements
and other provisions of this Agreement specifically performed by Executive, and
the Company shall have the right to obtain preliminary and permanent injunctive
relief to secure specific performance and to prevent a breach or contemplated
breach of this Agreement by Executive, and Executive submits to the jurisdiction
of the courts of the State of Michigan for this purpose.
7. Operations of Affiliates. Executive agrees that he will refrain
from (i) authorizing any Affiliate to perform or (ii) assisting in any manner
any Affiliate in performing any activities that would be prohibited by the terms
of this Agreement if they were performed by Executive. Notwithstanding anything
to the contrary contained in this paragraph 7 (or in any other paragraph of this
Agreement), Executive shall not be required by the terms of this Agreement to
violate any fiduciary or contractual duty he owes as a director or officer of a
corporation, as a partner of a partnership or as a trustee of a trust, which
position he holds not in violation of this Agreement or the Employment
Agreement.
8. Miscellaneous Provisions.
(a) Binding Effect. Subject to any provisions hereof
restricting assignment, all covenants and agreements in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors, assigns, heirs, and personal representatives. None of
the parties hereto may assign any of its rights under this Agreement or attempt
to have any other person or entity assume any of its obligations hereunder.
(b) Severability. If any clause, provision or section of this
Agreement shall be invalid or unenforceable, the invalidity or unenforceability
of such clause, provision or section shall not affect the enforceability or
validity of any of the remaining clauses, provisions or sections hereof to the
extent permitted by applicable law.
(c) Governing Law. This Agreement shall be construed and
enforced in accordance with the internal laws of the State of New York, without
reference to its rules as to conflicts or choice of laws.
(d) Amendment. This Agreement may not be changed, modified,
discharged or amended, except by an instrument signed by all of the parties
hereto.
5
<PAGE> 6
(e) Headings. Paragraph and subparagraph headings contained in
this Agreement are inserted for convenience of reference only, shall not be
deemed to be a part of this Agreement for any purpose, and shall not in any way
define or affect the meaning, construction or scope of any of the provisions
hereof.
(f) Pronouns. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural, as the
identity of the person or entity may require.
(g) Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
(h) Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties and supersedes any prior
understandings and/or written or oral agreements among them respecting the
subject matter herein.
(i) Notices. All notices, requests, demands, consents and
other communications required or permitted to be given pursuant to this
Agreement shall be in writing and delivered by hand, by overnight courier
delivery service or by certified mail, return receipt requested, postage
prepaid. Notices shall be deemed given when actually received, which shall be
deemed to be no later than the next business day if sent by overnight courier or
after five business days if sent by mail. Notice to the Company shall be made
at 27600 Northwestern Highway, Suite 200, Southhold, Michigan 48034; Attn:
Chairman. Notice to Executive shall be made at the address set forth on the
books of the Company.
6
<PAGE> 7
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement,
or caused this Agreement to be duly executed on its behalf, as of the date
first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Joel Gershenson
--------------------------------
Name: Joel Gershenson
Title: Treasurer
/s/ Dennis Gershenson
-------------------------------------------
Dennis Gershenson
7
<PAGE> 8
Schedule 1
River's Edge Office Building Saginaw, Michigan
Summit Complex (Summit Place, Summit Sterling Heights, Michigan
Crossing, Summit North) Sandusky, Ohio
Livonia Towne Square Toledo, Ohio
Bay Towne Plaza
Builders Square (vacant)
Park Place Shopping Center
North Towne Commons
Estate Properties
Land Contracts
Southfield Properties - GGJ Associates
Melvindale Plaza
Gershenson-Wittbold Mt. Clemens
Nine Mile & Harper
Southfield Properties - Plymouth/
Southfield
Southfield Properties - Van Born
Southfield Properties - Ypsilanti
Partnership Interest in Sale/Leaseback
Assets
Southfield Properties - Southgate
Southfield Properties - Westland
Partnership Interest in Real Estate Owned
in Fee
Southfield Properties - Cedar/Jolly
Maple & Livernois Plaza
G & R Development
G & S Realty Company
Southfield Properties - Lansing Mart
Gershenson-Wittbold Louisville
Michigan Mart Associates
Southfield, Michigan
Waterford, Michigan
Livonia, Michigan
<PAGE> 1
EXHIBIT 10.15
NONCOMPETITION AGREEMENT
This NONCOMPETITION AGREEMENT (this "AGREEMENT") is entered into as of
May 10, 1996 by and between Michael A. Ward ("EXECUTIVE") and Ramco-Gershenson
Properties Trust, formerly known as RPS Realty Trust, a Massachusetts business
trust (the "TRUST").
R E C I T A L S :
A. On the date hereof, the Company (as defined below) and
Ramco-Gershenson, Inc. and its affiliates (collectively "RAMCO") have
consummated a transaction (the "RAMCO TRANSACTION") pursuant to which the
Company and Ramco have contributed cash and properties to Ramco-Gershenson
Properties, L.P., a Delaware limited partnership.
B. It was a condition to the consummation of the Ramco Transaction
that the Trust and Executive enter into an agreement restricting the activities
of Executive that would eliminate potential conflicts of interest that may arise
in the future and would otherwise protect the Company's legitimate business
interests.
Accordingly, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein shall have the
meanings set forth below:
"AFFILIATE" means (i) any entity directly or indirectly controlling
(including without limitation an entity for which Executive serves as an
officer, director, employee, consultant or other agent), controlled by, or under
common control with Executive, and (ii) each other entity in which Executive,
directly or indirectly, owns any controlling interest or of which Executive
serves as a general partner.
"AGREEMENT" shall have the meaning set forth in the heading of this
Agreement.
"COMPANY" means (i) Ramco-Gershenson Properties Trust, formerly known
as RPS Realty Trust, (ii) Ramco-Gershenson, Inc., a Michigan corporation, (iii)
any corporation, partnership or other business entity that is, directly or
indirectly, controlled by or under common control with Ramco-Gershenson
Properties Trust and (iv) their respective successors.
"COMPANY PROJECT" means any properties, development land and
development out parcels that the Company owns, operates or manages as of the
date of Executive's termination of employment with the Company or that the
Company has in any manner taken steps to acquire, develop, construct, operate,
manage or lease (including without limitation making market surveys of a site,
talking to the owner or his agent concerning the purchase or joint venture of a
site, optioning or contracting to buy a site or discussions with the owner or
his agent regarding managing or leasing
<PAGE> 2
a property) during the twelve (12) month period immediately preceding
Executive's termination of employment with the Company.
"COVENANT PERIOD" means the period commencing on the Effective Date
and ending on the later of the following:
(i) the date Executive is no longer an officer or trustee of the
Company and
(ii) three (3) years following the Effective Date;
provided, that if at any time during Covenant Period Executive becomes Chairman,
Vice Chairman, President or Chief Executive Officer of the Company (or holds any
other office in the Company that is vested with powers and duties substantially
similar to those powers and duties typically vested by corporations or business
trusts in the office of Chairman and President, the Covenant Period shall expire
on the later of the following:
(x) one year after the date Executive is no longer an officer or
trustee of the Company and
(y) four years following the Effective Date.
"EFFECTIVE DATE" means the date of the closing of the Ramco
Transaction.
"EMPLOYMENT AGREEMENT" shall mean the Employment Agreement dated the
date hereof between the Trust and Executive.
"EXECUTIVE" shall have the meaning set forth in the heading of this
Agreement.
"OPERATING PARTNERSHIP" shall have the meaning set forth in Recital A.
"RAMCO" shall have the meaning set forth in Recital A.
"RAMCO TRANSACTION" shall have the meaning set forth in RecitalEA.
"PROPERTY" means any real property on which shopping center or retail
use (or any combination of the foregoing) development has been constructed or is
now or hereafter proposed to be constructed or any other type of real property
which hereafter the Company may acquire, develop, own, construct, manage or may
disclose or authorize any intention, plan or arrangement to acquire, develop,
own, construct or manage.
2
<PAGE> 3
2. Executive's Obligations While Employed by the Company.
(a) Sole Employment. Subject to the provisions of paragraph
2(b) below, Executive agrees to devote substantially his full time during the
customary business hours of the Company and give his best efforts to the
business of the Company and, during the period of his employment by the Company,
Executive shall not engage in any manner, whether as an officer, employee,
owner, partner, stockholder, trustee, director, consultant or otherwise,
directly or indirectly, in any business other than on behalf of the Company
without the prior written approval of the Board of Trustees of the Company, and
Executive shall not accept any other employment whatsoever from any other
person, firm, corporation or entity.
(b) Exceptions. Notwithstanding the provisions of paragraph
2(a) above and of paragraph 3, Executive may during the term of his employment
by the Company and at any time thereafter (i) acquire an interest in any
corporation, partnership, venture or other business entity so long as (A) any
such interest is a passive investment of Executive, provided such interest does
not represent a direct or indirect interest in any Property, (B) such interest
does not afford Executive the power to influence in any material fashion the
decision making processes of the entity in which such interest is held and (C)
Executive is not the sponsor, promoter or similar initiator of such entity, (ii)
continue (W) to serve as a general or limited partner of each of the
partnerships which own the Properties identified on Schedule 1, attached hereto
and incorporated by this reference, as an officer, director and shareholder of
each of the corporations identified on such Schedule 1, and as a beneficiary of
the estate properties listed on ScheduleE1, (X) to discharge Executive's
fiduciary and contractual duties and obligations with respect thereto, even
though such limited partnerships and corporations (or any partnership of which
any such limited partnership or corporation is a general or limited partner) may
directly compete with the Company, (Y) to serve on not more than three (3)
Boards of Directors of publicly traded entities and (Z) to serve on the Board of
Directors of any charitable institution, and (iii) continue to engage in
Executive's existing video arcade and fast food businesses, as those businesses
may be expanded in the ordinary course.
3. Executive's Obligations Following Termination of Employment with
the Company.
(a) Anti-Pirating of Employees. During the Covenant Period,
Executive agrees not to hire, directly or indirectly, or entice or participate
in any efforts to entice to leave the Company's employ, any person who was or is
a "key employee" (as hereinafter defined) of the Company at any time during the
twelve (12) month period immediately preceding the termination date of
Executive's employment with the Company. For purposes of this Agreement, "key
employee" means an employee who has an annualized rate of base salary equaling
or exceeding sixty thousand dollars ($60,000).
(b) Anti-Pirating of Company Projects. During the Covenant
Period, Executive agrees not to, directly or indirectly, own, manage, join or
control, or participate in the ownership, operation or control of, or be an
officer of, director, employee or owner of, or a consultant to, or
3
<PAGE> 4
otherwise authorize the use of his name by, or be connected in any manner with,
any business, firm or corporation which engages or attempts to engage, directly
or indirectly, in the acquisition, development, construction, operation,
management or leasing of any Company Project, other than on behalf of the
Company.
(c) Noncompetition. During the Covenant Period, Executive
agrees not to, directly or indirectly, own, manage, join or control, or
participate in the ownership, operation or control of, or be an officer,
director, employee or owner of, or a consultant to, or otherwise authorize the
use of his name by, or be connected in any manner with, any business, firm or
corporation which at the time or at any time during the Covenant Period is
involved in the acquisition, development, construction, operation, management or
leasing of any Property within a 200 mile radius of any Company Project that
existed at any time during the twelve (12) month period immediately preceding
the termination date of Executive's employment with the Company.
(d) Trade Secrets and Confidential Information. Executive
hereby agrees that he will hold in a fiduciary capacity for the benefit of the
Company, and shall not directly or indirectly use or disclose any Trade Secret
(as hereinafter defined), that Executive may have acquired during the term of
his employment by the Company for so long as such information remains a Trade
Secret. The term "Trade Secret" as used in this Agreement shall mean
information including, but not limited to, technical or nontechnical data, a
formula, a pattern, a compilation, a program, a device, a method, a technique, a
drawing, a process, financial data, financial plans, product plans, or a list of
actual or potential customers or suppliers which:
derives economic value, actual or
potential from not being generally known
to, and not being readily ascertainable by
proper means by, other persons who can
obtain economic value from its disclosure
or use; and is the subject of reasonable
efforts by the Company to maintain its
secrecy.
In addition to the foregoing and not in limitation thereof,
Executive agrees that during the period of his employment by the Company and the
Covenant Period, he will hold in a fiduciary capacity for the benefit of the
Company and shall not directly or indirectly use or disclose, any Confidential
or Proprietary Information (as hereinafter defined), that Executive may have
acquired (whether or not developed or compiled by Executive and whether or not
Executive was authorized to have access to such Information) during the term of,
in the course of or as a result of his employment by the Company and Ramco. The
term "Confidential or Proprietary Information" as used in this Agreement means
any secret, confidential or proprietary information of the Company and Ramco not
otherwise included in the definition of "Trade Secret" above. The term
"Confidential and Proprietary Information" does not include information that has
become generally available to the public by the act of one who has the right to
disclose such information without violating any right of the Company.
4
<PAGE> 5
(e) Exceptions. Notwithstanding any provision of paragraph 3(c)
to the contrary, Executive shall not be restricted at any time after his
termination of employment with the Company from engaging in any activities for
which Executive would not be restricted from performing during the term of his
employment with the Company as set forth in paragraph 2(b) above.
4. Reasonable and Necessary Restrictions. Executive acknowledges
that the restrictions, prohibitions and other provisions hereof, including
without limitation the 200-mile radius set forth in paragraph 3(c) and the
Covenant Period, are reasonable, fair and equitable in scope, terms and
duration, are necessary to protect the legitimate business interests of the
Company, and are a material inducement to the Company to enter into the Ramco
Transaction. Executive hereby waives, and covenants not to assert in any action
or proceeding relating to this Agreement, any claim or defense that there exists
an adequate remedy at law for breach of this Agreement.
5. Restrictions In Addition to Employment Agreement. Executive
acknowledges that the restrictions, prohibitions and other provisions hereof
shall be in addition to and not in substitution of the restrictions,
prohibitions and other provisions of the Employment Agreement, as such agreement
shall be amended and supplemented from time to time.
6. Specific Performance. Executive acknowledges that the
obligations undertaken by him pursuant to this Agreement are unique and that the
Company likely will have no adequate remedy at law if Executive shall fail to
perform any of his obligations hereunder, and Executive therefore confirms that
the Company's right to specific performance of the terms of this Agreement is
essential to protect the rights and interests of the Company. Accordingly, in
addition to any other remedies that the Company may have at law or in equity,
the Company shall have the right to have all obligations, covenants, agreements
and other provisions of this Agreement specifically performed by Executive, and
the Company shall have the right to obtain preliminary and permanent injunctive
relief to secure specific performance and to prevent a breach or contemplated
breach of this Agreement by Executive, and Executive submits to the jurisdiction
of the courts of the State of Michigan for this purpose.
7. Operations of Affiliates. Executive agrees that he will refrain
from (i) authorizing any Affiliate to perform or (ii) assisting in any manner
any Affiliate in performing any activities that would be prohibited by the terms
of this Agreement if they were performed by Executive. Notwithstanding anything
to the contrary contained in this paragraph 7 (or in any other paragraph of this
Agreement), Executive shall not be required by the terms of this Agreement to
violate any fiduciary or contractual duty he owes as a director or officer of a
corporation, as a partner of a partnership or as a trustee of a trust, which
position he holds not in violation of this Agreement or the Employment
Agreement.
8. Miscellaneous Provisions.
(a) Binding Effect. Subject to any provisions hereof
restricting assignment, all covenants and agreements in this Agreement by or on
behalf of any of the parties hereto shall bind
5
<PAGE> 6
and inure to the benefit of the respective successors, assigns, heirs, and
personal representatives. None of the parties hereto may assign any of its
rights under this Agreement or attempt to have any other person or entity assume
any of its obligations hereunder.
(b) Severability. If any clause, provision or section of this
Agreement shall be invalid or unenforceable, the invalidity or unenforceability
of such clause, provision or section shall not affect the enforceability or
validity of any of the remaining clauses, provisions or sections hereof to the
extent permitted by applicable law.
(c) Governing Law. This Agreement shall be construed and
enforced in accordance with the internal laws of the State of New York, without
reference to its rules as to conflicts or choice of laws.
(d) Amendment. This Agreement may not be changed, modified,
discharged or amended, except by an instrument signed by all of the parties
hereto.
(e) Headings. Paragraph and subparagraph headings contained in
this Agreement are inserted for convenience of reference only, shall not be
deemed to be a part of this Agreement for any purpose, and shall not in any way
define or affect the meaning, construction or scope of any of the provisions
hereof.
(f) Pronouns. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural, as the
identity of the person or entity may require.
(g) Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
(h) Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties and supersedes any prior
understandings and/or written or oral agreements among them respecting the
subject matter herein.
(i) Notices. All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by overnight courier delivery service
or by certified mail, return receipt requested, postage prepaid. Notices shall
be deemed given when actually received, which shall be deemed to be no later
than the next business day if sent by overnight courier or after five business
days if sent by mail. Notice to the Company shall be made at 27600 Northwestern
Highway, Suite 200, Southhold, Michigan 48034; Attn: Chairman. Notice to
Executive shall be made at the address set forth on the books of the Company.
6
<PAGE> 7
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement,
or caused this Agreement to be duly executed on its behalf, as of the date
first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
--------------------------------
Name: Dennis Gershenson
Title: Chief Executive Officer
/s/ Michael A. Ward
-------------------------------------------
Michael A. Ward
7
<PAGE> 8
Schedule 1
River's Edge Office Building Saginaw, Michigan
Summit Complex (Summit Place, Summit Sterling Heights, Michigan
Crossing, Summit North) Sandusky, Ohio
Livonia Towne Square Toledo, Ohio
Bay Towne Plaza
Builders Square (vacant)
Park Place Shopping Center
North Towne Commons
Estate Properties
Land Contracts
Southfield Properties - GGJ Associates
Melvindale Plaza
Gershenson-Wittbold Mt. Clemens
Nine Mile & Harper
Southfield Properties - Plymouth/
Southfield
Southfield Properties - Van Born
Southfield Properties - Ypsilanti
Partnership Interest in Sale/Leaseback
Assets
Southfield Properties - Southgate
Southfield Properties - Westland
Partnership Interest in Real Estate Owned
in Fee
Southfield Properties - Cedar/Jolly
Maple & Livernois Plaza
G & R Development
G & S Realty Company
Southfield Properties - Lansing Mart
Gershenson-Wittbold Louisville
Michigan Mart Associates
Southfield, Michigan
Waterford, Michigan
Livonia, Michigan
<PAGE> 1
EXHIBIT 10.16
NONCOMPETITION AGREEMENT
This NONCOMPETITION AGREEMENT (this "AGREEMENT") is entered into as of
May 10, 1996 by and between Richard Gershenson ("EXECUTIVE") and
Ramco-Gershenson Properties Trust, formerly known as RPS Realty Trust, a
Massachusetts business trust (the "TRUST").
R E C I T A L S :
A. On the date hereof, the Company (as defined below) and
Ramco-Gershenson, Inc. and its affiliates (collectively "RAMCO") have
consummated a transaction (the "RAMCO TRANSACTION") pursuant to which the
Company and Ramco have contributed cash and properties to Ramco-Gershenson
Properties, L.P., a Delaware limited partnership.
B. It was a condition to the consummation of the Ramco Transaction
that the Trust and Executive enter into an agreement restricting the activities
of Executive that would eliminate potential conflicts of interest that may arise
in the future and would otherwise protect the Company's legitimate business
interests.
Accordingly, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein shall have the
meanings set forth below:
"AFFILIATE" means (i) any entity directly or indirectly controlling
(including without limitation an entity for which Executive serves as an
officer, director, employee, consultant or other agent), controlled by, or under
common control with Executive, and (ii) each other entity in which Executive,
directly or indirectly, owns any controlling interest or of which Executive
serves as a general partner.
"AGREEMENT" shall have the meaning set forth in the heading of this
Agreement.
"COMPANY" means (i) Ramco-Gershenson Properties Trust, formerly known
as RPS Realty Trust, (ii) Ramco-Gershenson, Inc., a Michigan corporation, (iii)
any corporation, partnership or other business entity that is, directly or
indirectly, controlled by or under common control with Ramco-Gershenson
Properties Trust and (iv) their respective successors.
"COMPANY PROJECT" means any properties, development land and
development out parcels that the Company owns, operates or manages as of the
date of Executive's termination of employment with the Company or that the
Company has in any manner taken steps to acquire, develop, construct, operate,
manage or lease (including without limitation making market surveys of a site,
talking to the owner or his agent concerning the purchase or joint venture of a
site, optioning or contracting to buy a site or discussions with the owner or
his agent regarding managing or leasing
<PAGE> 2
a property) during the twelve (12) month period immediately preceding
Executive's termination of employment with the Company.
"COVENANT PERIOD" means the period commencing on the Effective Date
and ending on the later of the following:
(i) the date Executive is no longer an officer or trustee of the
Company and
(ii) three (3) years following the Effective Date;
provided, that if at any time during Covenant Period Executive becomes
Chairman, Vice Chairman, President or Chief Executive Officer of the Company
(or holds any other office in the Company that is vested with powers and duties
substantially similar to those powers and duties typically vested by
corporations or business trusts in the office of Chairman and President, the
Covenant Period shall expire on the later of the following:
(x) one year after the date Executive is no longer an
officer or trustee of the Company and
(y) four years following the Effective Date.
"EFFECTIVE DATE" means the date of the closing of the Ramco
Transaction.
"EMPLOYMENT AGREEMENT" shall mean the Employment Agreement dated the
date hereof between the Trust and Executive.
"EXECUTIVE" shall have the meaning set forth in the heading of this
Agreement.
"OPERATING PARTNERSHIP" shall have the meaning set forth in Recital A.
"RAMCO" shall have the meaning set forth in Recital A.
"RAMCO TRANSACTION" shall have the meaning set forth in RecitalEA.
"PROPERTY" means any real property on which shopping center or retail
use (or any combination of the foregoing) development has been constructed or is
now or hereafter proposed to be constructed or any other type of real property
which hereafter the Company may acquire, develop, own, construct, manage or may
disclose or authorize any intention, plan or arrangement to acquire, develop,
own, construct or manage.
2
<PAGE> 3
2. Executive's Obligations While Employed by the Company.
(a) Sole Employment. Subject to the provisions of paragraph
2(b) below, Executive agrees to devote substantially his full time during the
customary business hours of the Company and give his best efforts to the
business of the Company and, during the period of his employment by the Company,
Executive shall not engage in any manner, whether as an officer, employee,
owner, partner, stockholder, trustee, director, consultant or otherwise,
directly or indirectly, in any business other than on behalf of the Company
without the prior written approval of the Board of Trustees of the Company, and
Executive shall not accept any other employment whatsoever from any other
person, firm, corporation or entity.
(b) Exceptions. Notwithstanding the provisions of paragraph
2(a) above and of paragraph 3, Executive may during the term of his employment
by the Company and at any time thereafter (i) acquire an interest in any
corporation, partnership, venture or other business entity so long as (A) any
such interest is a passive investment of Executive, provided such interest does
not represent a direct or indirect interest in any Property, (B) such interest
does not afford Executive the power to influence in any material fashion the
decision making processes of the entity in which such interest is held and (C)
Executive is not the sponsor, promoter or similar initiator of such entity, (ii)
continue (W) to serve as a general or limited partner of each of the
partnerships which own the Properties identified on Schedule 1, attached hereto
and incorporated by this reference, as an officer, director and shareholder of
each of the corporations identified on such Schedule 1, and as a beneficiary of
the estate properties listed on ScheduleE1, (X) to discharge Executive's
fiduciary and contractual duties and obligations with respect thereto, even
though such limited partnerships and corporations (or any partnership of which
any such limited partnership or corporation is a general or limited partner) may
directly compete with the Company, (Y) to serve on not more than three (3)
Boards of Directors of publicly traded entities and (Z) to serve on the Board of
Directors of any charitable institution, and (iii) continue to engage in
Executive's existing video arcade and fast food businesses, as those businesses
may be expanded in the ordinary course.
3. Executive's Obligations Following Termination of Employment with
the Company.
(a) Anti-Pirating of Employees. During the Covenant Period,
Executive agrees not to hire, directly or indirectly, or entice or participate
in any efforts to entice to leave the Company's employ, any person who was or is
a "key employee" (as hereinafter defined) of the Company at any time during the
twelve (12) month period immediately preceding the termination date of
Executive's employment with the Company. For purposes of this Agreement, "key
employee" means an employee who has an annualized rate of base salary equaling
or exceeding sixty thousand dollars ($60,000).
(b) Anti-Pirating of Company Projects. During the Covenant
Period, Executive agrees not to, directly or indirectly, own, manage, join or
control, or participate in the ownership, operation or control of, or be an
officer of, director, employee or owner of, or a consultant to, or
3
<PAGE> 4
otherwise authorize the use of his name by, or be connected in any manner with,
any business, firm or corporation which engages or attempts to engage, directly
or indirectly, in the acquisition, development, construction, operation,
management or leasing of any Company Project, other than on behalf of the
Company.
(c) Noncompetition. During the Covenant Period, Executive
agrees not to, directly or indirectly, own, manage, join or control, or
participate in the ownership, operation or control of, or be an officer,
director, employee or owner of, or a consultant to, or otherwise authorize the
use of his name by, or be connected in any manner with, any business, firm or
corporation which at the time or at any time during the Covenant Period is
involved in the acquisition, development, construction, operation, management or
leasing of any Property within a 200 mile radius of any Company Project that
existed at any time during the twelve (12) month period immediately preceding
the termination date of Executive's employment with the Company.
(d) Trade Secrets and Confidential Information. Executive
hereby agrees that he will hold in a fiduciary capacity for the benefit of the
Company, and shall not directly or indirectly use or disclose any Trade Secret
(as hereinafter defined), that Executive may have acquired during the term of
his employment by the Company for so long as such information remains a Trade
Secret. The term "Trade Secret" as used in this Agreement shall mean
information including, but not limited to, technical or nontechnical data, a
formula, a pattern, a compilation, a program, a device, a method, a technique, a
drawing, a process, financial data, financial plans, product plans, or a list of
actual or potential customers or suppliers which:
derives economic value, actual or
potential from not being generally known
to, and not being readily ascertainable by
proper means by, other persons who can
obtain economic value from its disclosure
or use; and is the subject of reasonable
efforts by the Company to maintain its
secrecy.
In addition to the foregoing and not in limitation thereof,
Executive agrees that during the period of his employment by the Company and the
Covenant Period, he will hold in a fiduciary capacity for the benefit of the
Company and shall not directly or indirectly use or disclose, any Confidential
or Proprietary Information (as hereinafter defined), that Executive may have
acquired (whether or not developed or compiled by Executive and whether or not
Executive was authorized to have access to such Information) during the term of,
in the course of or as a result of his employment by the Company and Ramco. The
term "Confidential or Proprietary Information" as used in this Agreement means
any secret, confidential or proprietary information of the Company and Ramco not
otherwise included in the definition of "Trade Secret" above. The term
"Confidential and Proprietary Information" does not include information that has
become generally available to the public by the act of one who has the right to
disclose such information without violating any right of the Company.
4
<PAGE> 5
(e) Exceptions. Notwithstanding any provision of paragraph 3(c)
to the contrary, Executive shall not be restricted at any time after his
termination of employment with the Company from engaging in any activities for
which Executive would not be restricted from performing during the term of his
employment with the Company as set forth in paragraph 2(b) above.
4. Reasonable and Necessary Restrictions. Executive acknowledges
that the restrictions, prohibitions and other provisions hereof, including
without limitation the 200-mile radius set forth in paragraph 3(c) and the
Covenant Period, are reasonable, fair and equitable in scope, terms and
duration, are necessary to protect the legitimate business interests of the
Company, and are a material inducement to the Company to enter into the Ramco
Transaction. Executive hereby waives, and covenants not to assert in any action
or proceeding relating to this Agreement, any claim or defense that there exists
an adequate remedy at law for breach of this Agreement.
5. Restrictions In Addition to Employment Agreement. Executive
acknowledges that the restrictions, prohibitions and other provisions hereof
shall be in addition to and not in substitution of the restrictions,
prohibitions and other provisions of the Employment Agreement, as such agreement
shall be amended and supplemented from time to time.
6. Specific Performance. Executive acknowledges that the
obligations undertaken by him pursuant to this Agreement are unique and that the
Company likely will have no adequate remedy at law if Executive shall fail to
perform any of his obligations hereunder, and Executive therefore confirms that
the Company's right to specific performance of the terms of this Agreement is
essential to protect the rights and interests of the Company. Accordingly, in
addition to any other remedies that the Company may have at law or in equity,
the Company shall have the right to have all obligations, covenants, agreements
and other provisions of this Agreement specifically performed by Executive, and
the Company shall have the right to obtain preliminary and permanent injunctive
relief to secure specific performance and to prevent a breach or contemplated
breach of this Agreement by Executive, and Executive submits to the jurisdiction
of the courts of the State of Michigan for this purpose.
7. Operations of Affiliates. Executive agrees that he will refrain
from (i) authorizing any Affiliate to perform or (ii) assisting in any manner
any Affiliate in performing any activities that would be prohibited by the terms
of this Agreement if they were performed by Executive. Notwithstanding anything
to the contrary contained in this paragraph 7 (or in any other paragraph of this
Agreement), Executive shall not be required by the terms of this Agreement to
violate any fiduciary or contractual duty he owes as a director or officer of a
corporation, as a partner of a partnership or as a trustee of a trust, which
position he holds not in violation of this Agreement or the Employment
Agreement.
8. Miscellaneous Provisions.
(a) Binding Effect. Subject to any provisions hereof
restricting assignment, all covenants and agreements in this Agreement by or on
behalf of any of the parties hereto shall bind
5
<PAGE> 6
and inure to the benefit of the respective successors, assigns, heirs, and
personal representatives. None of the parties hereto may assign any of its
rights under this Agreement or attempt to have any other person or entity assume
any of its obligations hereunder.
(b) Severability. If any clause, provision or section of this
Agreement shall be invalid or unenforceable, the invalidity or unenforceability
of such clause, provision or section shall not affect the enforceability or
validity of any of the remaining clauses, provisions or sections hereof to the
extent permitted by applicable law.
(c) Governing Law. This Agreement shall be construed and
enforced in accordance with the internal laws of the State of New York, without
reference to its rules as to conflicts or choice of laws.
(d) Amendment. This Agreement may not be changed, modified,
discharged or amended, except by an instrument signed by all of the parties
hereto.
(e) Headings. Paragraph and subparagraph headings contained in
this Agreement are inserted for convenience of reference only, shall not be
deemed to be a part of this Agreement for any purpose, and shall not in any way
define or affect the meaning, construction or scope of any of the provisions
hereof.
(f) Pronouns. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural, as the
identity of the person or entity may require.
(g) Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
(h) Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties and supersedes any prior
understandings and/or written or oral agreements among them respecting the
subject matter herein.
(i) Notices. All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by overnight courier delivery service
or by certified mail, return receipt requested, postage prepaid. Notices shall
be deemed given when actually received, which shall be deemed to be no later
than the next business day if sent by overnight courier or after five business
days if sent by mail. Notice to the Company shall be made at 27600 Northwestern
Highway, Suite 200, Southhold, Michigan 48034; Attn: Chairman. Notice to
Executive shall be made at the address set forth on the books of the Company.
6
<PAGE> 7
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement,
or caused this Agreement to be duly executed on its behalf, as of the date
first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
-----------------------------
Name: Dennis Gershenson
Title: Chief Executive Officer
/s/ Richard Gershenson
-------------------------------------------
Richard Gershenson
7
<PAGE> 8
Schedule 1
River's Edge Office Building Saginaw, Michigan
Summit Complex (Summit Place, Summit Sterling Heights, Michigan
Crossing, Summit North) Sandusky, Ohio
Livonia Towne Square Toledo, Ohio
Bay Towne Plaza
Builders Square (vacant)
Park Place Shopping Center
North Towne Commons
Estate Properties
Land Contracts
Southfield Properties - GGJ Associates
Melvindale Plaza
Gershenson-Wittbold Mt. Clemens
Nine Mile & Harper
Southfield Properties - Plymouth/
Southfield
Southfield Properties - Van Born
Southfield Properties - Ypsilanti
Partnership Interest in Sale/Leaseback
Assets
Southfield Properties - Southgate
Southfield Properties - Westland
Partnership Interest in Real Estate Owned
in Fee
Southfield Properties - Cedar/Jolly
Maple & Livernois Plaza
G & R Development
G & S Realty Company
Southfield Properties - Lansing Mart
Gershenson-Wittbold Louisville
Michigan Mart Associates
Southfield, Michigan
Waterford, Michigan
Livonia, Michigan
<PAGE> 1
EXHIBIT 10.17
NONCOMPETITION AGREEMENT
This NONCOMPETITION AGREEMENT (this "AGREEMENT") is entered into as of
May 10, 1996 by and between Bruce Gershenson ("EXECUTIVE") and Ramco-Gershenson
Properties Trust, formerly known as RPS Realty Trust, a Massachusetts business
trust (the "TRUST").
R E C I T A L S :
A. On the date hereof, the Company (as defined below) and
Ramco-Gershenson, Inc. and its affiliates (collectively "RAMCO") have
consummated a transaction (the "RAMCO TRANSACTION") pursuant to which the
Company and Ramco have contributed cash and properties to Ramco-Gershenson
Properties, L.P., a Delaware limited partnership.
B. It was a condition to the consummation of the Ramco Transaction
that the Trust and Executive enter into an agreement restricting the activities
of Executive that would eliminate potential conflicts of interest that may arise
in the future and would otherwise protect the Company's legitimate business
interests.
Accordingly, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein shall have the
meanings set forth below:
"AFFILIATE" means (i) any entity directly or indirectly controlling
(including without limitation an entity for which Executive serves as an
officer, director, employee, consultant or other agent), controlled by, or under
common control with Executive, and (ii) each other entity in which Executive,
directly or indirectly, owns any controlling interest or of which Executive
serves as a general partner.
"AGREEMENT" shall have the meaning set forth in the heading of this
Agreement.
"COMPANY" means (i) Ramco-Gershenson Properties Trust, formerly known
as RPS Realty Trust, (ii) Ramco-Gershenson, Inc., a Michigan corporation, (iii)
any corporation, partnership or other business entity that is, directly or
indirectly, controlled by or under common control with Ramco-Gershenson
Properties Trust and (iv) their respective successors.
"COMPANY PROJECT" means any properties, development land and
development out parcels that the Company owns, operates or manages as of the
date of Executive's termination of employment with the Company or that the
Company has in any manner taken steps to acquire, develop, construct, operate,
manage or lease (including without limitation making market surveys of a site,
talking to the owner or his agent concerning the purchase or joint venture of a
site, optioning or contracting to buy a site or discussions with the owner or
his agent regarding managing or leasing
<PAGE> 2
a property) during the twelve (12) month period immediately preceding
Executive's termination of employment with the Company.
"COVENANT PERIOD" means the period commencing on the Effective Date
and ending on the later of the following:
(i) the date Executive is no longer an officer or
trustee of the Company and
(ii) three (3) years following the Effective Date;
provided, that if at any time during Covenant Period Executive becomes
Chairman, Vice Chairman, President or Chief Executive Officer of the Company
(or holds any other office in the Company that is vested with powers and duties
substantially similar to those powers and duties typically vested by
corporations or business trusts in the office of Chairman and President, the
Covenant Period shall expire on the later of the following:
(x) one year after the date Executive is no longer an
officer or trustee of the Company and
(y) four years following the Effective Date.
"EFFECTIVE DATE" means the date of the closing of the Ramco
Transaction.
"EMPLOYMENT AGREEMENT" shall mean the Employment Agreement dated the
date hereof between the Trust and Executive.
"EXECUTIVE" shall have the meaning set forth in the heading of this
Agreement.
"OPERATING PARTNERSHIP" shall have the meaning set forth in Recital A.
"RAMCO" shall have the meaning set forth in Recital A.
"RAMCO TRANSACTION" shall have the meaning set forth in RecitalEA.
"PROPERTY" means any real property on which shopping center or retail
use (or any combination of the foregoing) development has been constructed or is
now or hereafter proposed to be constructed or any other type of real property
which hereafter the Company may acquire, develop, own, construct, manage or may
disclose or authorize any intention, plan or arrangement to acquire, develop,
own, construct or manage.
2
<PAGE> 3
2. Executive's Obligations While Employed by the Company.
(a) Sole Employment. Subject to the provisions of paragraph
2(b) below, Executive agrees to devote substantially his full time during the
customary business hours of the Company and give his best efforts to the
business of the Company and, during the period of his employment by the Company,
Executive shall not engage in any manner, whether as an officer, employee,
owner, partner, stockholder, trustee, director, consultant or otherwise,
directly or indirectly, in any business other than on behalf of the Company
without the prior written approval of the Board of Trustees of the Company, and
Executive shall not accept any other employment whatsoever from any other
person, firm, corporation or entity.
(b) Exceptions. Notwithstanding the provisions of paragraph
2(a) above and of paragraph 3, Executive may during the term of his employment
by the Company and at any time thereafter (i) acquire an interest in any
corporation, partnership, venture or other business entity so long as (A) any
such interest is a passive investment of Executive, provided such interest does
not represent a direct or indirect interest in any Property, (B) such interest
does not afford Executive the power to influence in any material fashion the
decision making processes of the entity in which such interest is held and (C)
Executive is not the sponsor, promoter or similar initiator of such entity, (ii)
continue (W) to serve as a general or limited partner of each of the
partnerships which own the Properties identified on Schedule 1, attached hereto
and incorporated by this reference, as an officer, director and shareholder of
each of the corporations identified on such Schedule 1, and as a beneficiary of
the estate properties listed on ScheduleE1, (X) to discharge Executive's
fiduciary and contractual duties and obligations with respect thereto, even
though such limited partnerships and corporations (or any partnership of which
any such limited partnership or corporation is a general or limited partner) may
directly compete with the Company, (Y) to serve on not more than three (3)
Boards of Directors of publicly traded entities and (Z) to serve on the Board of
Directors of any charitable institution, and (iii) continue to engage in
Executive's existing video arcade and fast food businesses, as those businesses
may be expanded in the ordinary course.
3. Executive's Obligations Following Termination of Employment with
the Company.
(a) Anti-Pirating of Employees. During the Covenant Period,
Executive agrees not to hire, directly or indirectly, or entice or participate
in any efforts to entice to leave the Company's employ, any person who was or is
a "key employee" (as hereinafter defined) of the Company at any time during the
twelve (12) month period immediately preceding the termination date of
Executive's employment with the Company. For purposes of this Agreement, "key
employee" means an employee who has an annualized rate of base salary equaling
or exceeding sixty thousand dollars ($60,000).
(b) Anti-Pirating of Company Projects. During the Covenant
Period, Executive agrees not to, directly or indirectly, own, manage, join or
control, or participate in the ownership, operation or control of, or be an
officer of, director, employee or owner of, or a consultant to, or
3
<PAGE> 4
otherwise authorize the use of his name by, or be connected in any manner with,
any business, firm or corporation which engages or attempts to engage, directly
or indirectly, in the acquisition, development, construction, operation,
management or leasing of any Company Project, other than on behalf of the
Company.
(c) Noncompetition. During the Covenant Period, Executive
agrees not to, directly or indirectly, own, manage, join or control, or
participate in the ownership, operation or control of, or be an officer,
director, employee or owner of, or a consultant to, or otherwise authorize the
use of his name by, or be connected in any manner with, any business, firm or
corporation which at the time or at any time during the Covenant Period is
involved in the acquisition, development, construction, operation, management or
leasing of any Property within a 200 mile radius of any Company Project that
existed at any time during the twelve (12) month period immediately preceding
the termination date of Executive's employment with the Company.
(d) Trade Secrets and Confidential Information. Executive
hereby agrees that he will hold in a fiduciary capacity for the benefit of the
Company, and shall not directly or indirectly use or disclose any Trade Secret
(as hereinafter defined), that Executive may have acquired during the term of
his employment by the Company for so long as such information remains a Trade
Secret. The term "Trade Secret" as used in this Agreement shall mean
information including, but not limited to, technical or nontechnical data, a
formula, a pattern, a compilation, a program, a device, a method, a technique, a
drawing, a process, financial data, financial plans, product plans, or a list of
actual or potential customers or suppliers which:
derives economic value, actual or
potential from not being generally known
to, and not being readily ascertainable by
proper means by, other persons who can
obtain economic value from its disclosure
or use; and is the subject of reasonable
efforts by the Company to maintain its
secrecy.
In addition to the foregoing and not in limitation thereof,
Executive agrees that during the period of his employment by the Company and the
Covenant Period, he will hold in a fiduciary capacity for the benefit of the
Company and shall not directly or indirectly use or disclose, any Confidential
or Proprietary Information (as hereinafter defined), that Executive may have
acquired (whether or not developed or compiled by Executive and whether or not
Executive was authorized to have access to such Information) during the term of,
in the course of or as a result of his employment by the Company and Ramco. The
term "Confidential or Proprietary Information" as used in this Agreement means
any secret, confidential or proprietary information of the Company and Ramco not
otherwise included in the definition of "Trade Secret" above. The term
"Confidential and Proprietary Information" does not include information that has
become generally available to the public by the act of one who has the right to
disclose such information without violating any right of the Company.
4
<PAGE> 5
(e) Exceptions. Notwithstanding any provision of paragraph 3(c)
to the contrary, Executive shall not be restricted at any time after his
termination of employment with the Company from engaging in any activities for
which Executive would not be restricted from performing during the term of his
employment with the Company as set forth in paragraph 2(b) above.
4. Reasonable and Necessary Restrictions. Executive acknowledges
that the restrictions, prohibitions and other provisions hereof, including
without limitation the 200-mile radius set forth in paragraph 3(c) and the
Covenant Period, are reasonable, fair and equitable in scope, terms and
duration, are necessary to protect the legitimate business interests of the
Company, and are a material inducement to the Company to enter into the Ramco
Transaction. Executive hereby waives, and covenants not to assert in any action
or proceeding relating to this Agreement, any claim or defense that there exists
an adequate remedy at law for breach of this Agreement.
5. Restrictions In Addition to Employment Agreement. Executive
acknowledges that the restrictions, prohibitions and other provisions hereof
shall be in addition to and not in substitution of the restrictions,
prohibitions and other provisions of the Employment Agreement, as such agreement
shall be amended and supplemented from time to time.
6. Specific Performance. Executive acknowledges that the
obligations undertaken by him pursuant to this Agreement are unique and that the
Company likely will have no adequate remedy at law if Executive shall fail to
perform any of his obligations hereunder, and Executive therefore confirms that
the Company's right to specific performance of the terms of this Agreement is
essential to protect the rights and interests of the Company. Accordingly, in
addition to any other remedies that the Company may have at law or in equity,
the Company shall have the right to have all obligations, covenants, agreements
and other provisions of this Agreement specifically performed by Executive, and
the Company shall have the right to obtain preliminary and permanent injunctive
relief to secure specific performance and to prevent a breach or contemplated
breach of this Agreement by Executive, and Executive submits to the jurisdiction
of the courts of the State of Michigan for this purpose.
7. Operations of Affiliates. Executive agrees that he will refrain
from (i) authorizing any Affiliate to perform or (ii) assisting in any manner
any Affiliate in performing any activities that would be prohibited by the terms
of this Agreement if they were performed by Executive. Notwithstanding anything
to the contrary contained in this paragraph 7 (or in any other paragraph of this
Agreement), Executive shall not be required by the terms of this Agreement to
violate any fiduciary or contractual duty he owes as a director or officer of a
corporation, as a partner of a partnership or as a trustee of a trust, which
position he holds not in violation of this Agreement or the Employment
Agreement.
8. Miscellaneous Provisions.
(a) Binding Effect. Subject to any provisions hereof
restricting assignment, all covenants and agreements in this Agreement by or on
behalf of any of the parties hereto shall bind
5
<PAGE> 6
and inure to the benefit of the respective successors, assigns, heirs, and
personal representatives. None of the parties hereto may assign any of its
rights under this Agreement or attempt to have any other person or entity assume
any of its obligations hereunder.
(b) Severability. If any clause, provision or section of this
Agreement shall be invalid or unenforceable, the invalidity or unenforceability
of such clause, provision or section shall not affect the enforceability or
validity of any of the remaining clauses, provisions or sections hereof to the
extent permitted by applicable law.
(c) Governing Law. This Agreement shall be construed and
enforced in accordance with the internal laws of the State of New York, without
reference to its rules as to conflicts or choice of laws.
(d) Amendment. This Agreement may not be changed, modified,
discharged or amended, except by an instrument signed by all of the parties
hereto.
(e) Headings. Paragraph and subparagraph headings contained in
this Agreement are inserted for convenience of reference only, shall not be
deemed to be a part of this Agreement for any purpose, and shall not in any way
define or affect the meaning, construction or scope of any of the provisions
hereof.
(f) Pronouns. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural, as the
identity of the person or entity may require.
(g) Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
(h) Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties and supersedes any prior
understandings and/or written or oral agreements among them respecting the
subject matter herein.
(i) Notices. All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by overnight courier delivery service
or by certified mail, return receipt requested, postage prepaid. Notices shall
be deemed given when actually received, which shall be deemed to be no later
than the next business day if sent by overnight courier or after five business
days if sent by mail. Notice to the Company shall be made at 27600 Northwestern
Highway, Suite 200, Southhold, Michigan 48034; Attn: Chairman. Notice to
Executive shall be made at the address set forth on the books of the Company.
6
<PAGE> 7
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement,
or caused this Agreement to be duly executed on its behalf, as of the date
first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
-----------------------------
Name: Dennis Gershenson
Title: Chief Executive Officer
/s/ Bruce Gershenson
-------------------------------------------
Bruce Gershenson
7
<PAGE> 8
Schedule 1
River's Edge Office Building Saginaw, Michigan
Summit Complex (Summit Place, Summit Sterling Heights, Michigan
Crossing, Summit North) Sandusky, Ohio
Livonia Towne Square Toledo, Ohio
Bay Towne Plaza
Builders Square (vacant)
Park Place Shopping Center
North Towne Commons
Estate Properties
Land Contracts
Southfield Properties - GGJ Associates
Melvindale Plaza
Gershenson-Wittbold Mt. Clemens
Nine Mile & Harper
Southfield Properties - Plymouth/
Southfield
Southfield Properties - Van Born
Southfield Properties - Ypsilanti
Partnership Interest in Sale/Leaseback
Assets
Southfield Properties - Southgate
Southfield Properties - Westland
Partnership Interest in Real Estate Owned
in Fee
Southfield Properties - Cedar/Jolly
Maple & Livernois Plaza
G & R Development
G & S Realty Company
Southfield Properties - Lansing Mart
Gershenson-Wittbold Louisville
Michigan Mart Associates
Southfield, Michigan
Waterford, Michigan
Livonia, Michigan
<PAGE> 1
EXHIBIT 10.18
RAMCO-GERSHENSON, INC.
27600 Northwestern Hwy., Suite 200
Southfield, Michigan 48034
April 15, 1996
Mr. Richard Smith
10538 Wellington Boulevard
Powell, Ohio 43065
Dear Richard:
This letter states our agreement with respect to your employment with
Ramco-Gershenson, Inc. (the "Company").
1. Your Employment Duties and Responsibilities.
(a) During the "Term" (as defined in paragraph 2 below), you will be
employed by the Company as its Chief Financial Officer and will devote
substantially all of your full working time and attention, as well as your best
efforts, to such position. You will report to the President and Chief
Executive Officer of the Company and will have such authority and
responsibilities and perform such duties for the Company as may from time to
time be established by the Board of Directors of the Company.
(b) It is currently contemplated that, upon consummation of a series of
transactions, Ramco-Gershenson Properties L.P., a Delaware limited partnership
which will be controlled by Ramco-Gershenson Properties Trust, a Maryland
business trust (the "Trust"), will acquire the Company (the "Acquisition").
You hereby consent in such event to the assignment by the Company of this
Agreement to the Trust, and agree that, from and after consummation of the
Acquisition, (i) all rights and obligations of the Company under this Agreement
will be vested in the Trust and (ii) all references in this Agreement to the
"Company" will be deemed references to the "Trust".
2. Term. The term of your employment under this Agreement (the "Term")
will begin on the date you will commence your employment with Company, which
date, subject to the mutual agreement of the parties, is expected to occur
approximately May 15, 1996 and will continue, subject to the termination
provisions set forth in paragraph 5 below, until the third anniversary of that
date.
<PAGE> 2
Mr. Richard Smith
April 15, 1996
Page 2
3. Compensation.
(a) During each year of the Term, you will receive the following
compensation, payable in accordance with the Company's standard payroll
procedures:
(i) For the portion of the Term ending
December 31, 1996, you will receive a base salary at the
annual rate of $150,000, plus a bonus of $25,000
prorated for the number of weeks during the Term ending
on or prior to December 31, 1996.
(ii) For subsequent calendar years of the
Company, or portions thereof, during the Term, you will
receive a base salary and bonus as will be determined to
be appropriate from time to time by the Company's Board
of Directors, in its sole discretion; provided that in
no event will your base salary be less than $150,000 on
an annualized basis nor will your base salary plus bonus
for the 1997 calendar year, or for any subsequent year,
be less than $175,000 on an annualized basis.
(b) At the time the Acquisition is consummated, and simultaneously with
the closing thereof (the "Grant Date"), you will be granted options, pursuant
to a stock option agreement from the Trust, to purchase 25,000 shares of the
Trust (the "Options"). The stock option agreement will provide that the
Options will vest, subject to paragraph 6(c) below, in two equal installments
of 8,333 shares on the first and second anniversaries of the Grant Date and in
a single installment of 8,334 shares on the third anniversary of the Grant
Date. The Options will be exercisable at the closing price of Trust shares on
the New York Stock Exchange on the date of consummation of the Acquisition, and
except as otherwise specifically described in this Agreement, the Options will
be subject to the same general terms and conditions as other options granted by
the Trust.
4. Fringe Benefits.
(a) In addition to your other compensation, during the Term, you will be
entitled to receive from the Company the same fringe benefits as are generally
made available from time to time to other executives of the Company; except
(i) you will be entitled to three weeks of vacation for each 12-month period of
the Term and (ii) the Company will reimburse you, until you become eligible
for the Company's medical and hospitalization coverage, for the cost to you of
continuing to purchase your current medical and hospitalization insurance
through your current employer pursuant to the Consolidated Omnibus Budget
Reconciliation Act ("COBRA").
<PAGE> 3
Mr. Richard Smith
April 15, 1996
Page 3
(b) The Company also agrees to pay and/or reimburse you for those moving
and living expenses in connection with your relocation to the Metropolitan
Detroit area as will be mutually agreeable to you and the Company, including
the following:
(i) reasonable expenses incurred in
moving your home furnishings from Columbus, Ohio to the
Metropolitan Detroit area;
(ii) reasonable commuting costs between
your home in Columbus and the Metropolitan Detroit area
prior to your purchase of a new home;
(iii) reasonable apartment rental costs
(to the extent necessary) in the Metropolitan Detroit
area for a period not to exceed six months from the
commencement of your employment under this Agreement;
and
(iv) reasonable and customary realtor fees
and closing costs incurred by you in connection with the
sale of your current house in Ohio plus any loss
incurred by you in connection with the sale of your
current house (such loss to be measured by the excess,
if any, of (a) the sum of your original acquisition cost
of the house over (b) the net sales proceeds you receive
for the house), but not to exceed, in the aggregate,
$30,000.
(c) You will be responsible for accounting for and payment of taxes on
benefits provided to you by the Company and you will keep such records
regarding usage of these benefits as the Company requires.
5. Termination.
(a) Death. This Agreement will terminate immediately upon your death.
(b) Disability. This Agreement will terminate immediately upon your
Disability. "Disability" means your inability, whether mental or physical,
to perform the normal duties of your position for six consecutive
months. If the Company and you are unable to agree as to whether you are
Disabled, the question will be decided by a physician mutually agreed upon by
each of us and paid for by the Company, whose decision will be conclusive and
binding. If you and the Company are unable to agree on a physician, you and
the Company will each choose one physician who will mutually choose a third
physician, whose decision will be conclusive and binding.
<PAGE> 4
Mr. Richard Smith
April 15, 1996
Page 4
(c) With Cause. The Company will have the right, upon written notice to
you, to terminate your employment under this Agreement for Cause. Such
termination will be effective immediately upon such written notice. For
purposes of this Agreement, termination of your employment for "Cause" means
termination for your commission of a felony or crime involving moral turpitude;
embezzlement, misappropriation of Company property or other acts of dishonesty
or fraud; material breach of this Agreement or any other agreement with the
Company (or its successors or assigns) to which you are a party which is not
cured within 10 days of your receipt of written notice of such breach; or
repeated failure, after written notice, to follow reasonable directions from
the President and Chief Executive Officer and/or the Board of Directors of the
Company.
(d) Change in Control. If your employment is terminated by the Company
prior to expiration of the Term and within twelve months after a Change in
Control (as defined below), the provisions of paragraph 6(c) below will apply.
The term "Change in Control" means the first to occur of the following events:
(i) any person or group of commonly controlled persons, other than the existing
shareholders of the Company as of the date of this Agreement (the "Ramco
Principals") or their affiliates, owns or controls, directly or indirectly,
more than twenty-five percent (25%) of the voting control or value of the
capital stock of the Company; or (B) the shareholders of the Company approve an
agreement to merge or consolidate with another corporation or other entity,
other than a corporation or entity controlled by the Ramco Principals or their
affiliates, resulting (whether separately or in connection with a series of
transactions) in a change in ownership of twenty-five percent (25%) or more of
the voting control or value of the capital stock of the Company, or an
agreement to sell or otherwise dispose of all or substantially all of the
Company's assets (including a plan of liquidation or dissolution), or otherwise
approve a fundamental change in the nature of the Company's business.
Notwithstanding the foregoing, the Acquisition will not constitute a Change in
Control.
6. Termination Benefits.
(a) The amounts described in this paragraph 6 will be in lieu of any
termination or severance payments required by the Company's policy or
applicable law (other than continued medical or disability coverage to which
you or your family are entitled under the Company's then existing employment
policies covering Company executives or then applicable law), and will
constitute your sole and exclusive rights and remedies with respect to the
termination of your employment with the Company. All payments under this
paragraph 6 will be payable in accordance with the Company's normal payroll
procedures, and the Company may withhold from any payments made under this
paragraph 6 all federal, state, city or other taxes to the extent such taxes
are required to be withheld by applicable law.
<PAGE> 5
Mr. Richard Smith
April 15, 1996
Page 5
(b) If your employment is terminated because of your death or
Disability or by the Company for Cause, you will receive the pro-rata portion of
your salary under paragraph 3(a) above through the date of termination, and no
other payment.
(c) If your employment is terminated by the Company prior to
expiration of the Term and within twelve months after a Change in Control, (i)
you will receive the pro-rata portion of your salary under paragraph 3(a) above
through the date of termination, (ii) you will also receive an additional amount
equal to one year's salary at the rate in effect on the date of termination,
payable in accordance with the Company's standard payroll procedures, (iii) the
Company will pay you an amount equal to the most recent bonus paid you, under
paragraph 3(a) above, prior to your termination, (iv) any Options or other plan
benefits, if any, remaining unvested on the date of your termination will
immediately vest, and (v) you will be entitled to a continuation of your fringe
benefits under paragraph 4(a) above for one year following your termination, and
no other payment.
7. Confidentiality/Nonsolicitation.
(a) During your employment with the Company and thereafter, you will
not disclose or make accessible to any person or entity or use in any way for
your own personal gain or to the Company's detriment any confidential
information relating to the business of the Company or its affiliates. Upon
termination of your employment with the Company for any reason, you will
immediately return to the Company all confidential materials over which you
exercise any control.
(b) You will not at any time during your employment with the Company,
and for a period of one year after the termination of such employment for any
reason, directly or indirectly, induce or solicit any employee of the Company to
leave the employ of, any independent contractor to terminate any independent
contractor relationship with, or any customer, tenant, lender or other party
which transacts business with the Company to adversely change any relationship
with, the Company.
(c) Paragraphs 7(a) and (b) above are intended to protect
confidential information of the Company and its affiliates, and relate to
matters which are of a special and unique character, and their violation would
cause irreparable injury to the Company, the amount of which will be extremely
difficult, if not impossible, to determine and cannot be adequately
compensated by monetary damages alone. Therefore, if you breach or threaten
to breach either of those paragraphs, in addition to any other remedies which
may be available to the Company under this Agreement or at law or equity, the
Company may obtain an injunction, restraining order, or other equitable
relief against you and such other persons and entities as are appropriate.
<PAGE> 6
Mr. Richard Smith
April 15, 1996
Page 6
8. Continuation of Employment Beyond Term. There is not, nor will there
be, unless in writing signed by both of us, any express or implied agreement as
to your continued employment with the Company after the Term. Any continued
employment after the Term will be employment at will and your compensation,
benefits and termination benefits, if any, will be determined by the Board of
Directors of the Company in its sole discretion.
9. Miscellaneous.
(a) This Agreement is the complete agreement between us, supersedes
any prior agreements between us and may be modified only by written instrument
executed by both of us.
(b) This Agreement will be governed by and construed in accordance
with the laws of the State of Michigan.
(c) The provisions of this Agreement will be deemed severable, and if
any part of any provision is held illegal, void or invalid under
applicable law, such provision will be changed to the extent reasonably
necessary to make the provision, as so changed, legal, valid and binding. If any
provision of this Agreement is held illegal, void or invalid in its entirety,
the remaining provisions of this Agreement will not in any way be affected or
impaired but will remain binding in accordance with their terms.
(d) This Agreement will be binding upon and will inure to the benefit
of the Company and its successors and assigns (including the Trust) but is
personal to you and cannot be sold, assigned or pledged by you without the
Company's written consent.
(e) We will give notices under this Agreement to you in writing
either by personal delivery or certified or registered mail at your address, as
listed on our records at the time of the notice, and you will give notices to
us in writing in care of the Company's President and Chief Executive Officer.
Any such notice will be deemed given when delivered or mailed in accordance with
the preceding sentence.
(f) You represent and warrant that you have the right to enter into
and perform your obligations under this Agreement and that you are not currently
and will not during the Term become a party to or bound by any agreement or
understanding, written or otherwise, which would in any way restrict or conflict
with your performance under this Agreement.
(g) The failure of either party to enforce any provision or provisions
of this Agreement will not in any way be construed as a waiver of any such
provision or provisions as to any future violations thereof, nor prevent that
party thereafter from enforcing each and every other provision of this
Agreement. The rights granted the parties herein are cumulative and the
<PAGE> 7
Mr. Richard Smith
April 15, 1996
Page 7
waiver of any single remedy will not constitute a waiver of such party's right
to assert all other legal remedies available to it under the circumstances.
If this Agreement correctly expresses our mutual understanding, please
sign and date the enclosed copy and return it to us.
Very truly yours,
RAMCO-GERSHENSON, INC.
By: /s/ Dennis Gershenson
-----------------------------
Dennis Gershenson
Its: President
-----------------
The terms of this Agreement
are accepted and agreed to
on April 30, 1996:
/s/ Richard Smith
- ----------------------
Richard Smith
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