EXHIBIT 10.45
EXECUTIVE AGREEMENT
-------------------
THIS AGREEMENT ("Agreement"), made and entered into as of this 6th day
of March, 1998 between FEDERAL REALTY INVESTMENT TRUST, an unincorporated
business trust organized under the laws of the District of Columbia ("Trust"),
and Xxx X. Xxxxxx ("Executive").
RECITALS
--------
WHEREAS, the Trust recognizes the valuable services that Executive has
rendered to the Trust as Senior Vice President, Capital Markets and Chief
Investment Officer and desires assurance that Executive will continue his
services to the Trust;
WHEREAS, Executive is willing to continue to serve the Trust, but
desires assurance that in the event of any Change in Control of the Trust he
will continue to have the responsibilities and privileges he now has; and
WHEREAS, the Board of Trustees of the Trust ("Board of Trustees") has
determined that the best interests of the Trust would be served by providing
Executive with certain protections and benefits following any Change in Control
of the Trust;
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises herein contained and of other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties, hereto,
intended to be legally bound, agree as follows:
PROVISIONS
----------
1. Change in Control. No benefits shall be payable under this
-----------------
Agreement unless there shall have occurred a Change in Control of the Trust, as
defined below. For purposes of this Agreement a "Change in Control" of the
Trust shall mean any of the following events:
(a) An acquisition in one or more transactions (other than
directly from the Trust or pursuant to options granted by the Trust) of any
voting securities of the Trust (the "Voting Securities") by any "Person" (as the
term is used for purposes of Section 13(d) or 14(d) of the Securities Act of
1934, as amended (the "Exchange Act")) immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of the combined voting power of the Trust's then
outstanding Voting Securities; provided, however, in determining whether a
Change in Control has occurred, Voting Securities which are acquired in a "Non-
Control Acquisition" (as hereinafter defined) shall not constitute an
acquisition which would cause a Change in Control. A "Non-Control Acquisition"
shall mean an acquisition by (i) an employee benefit plan (or a trust forming a
part thereof) maintained by (x) the Trust or (y) any corporation or other Person
of which a majority of its voting power or its equity securities or equity
interest is owned directly or indirectly by the Trust (a "Subsidiary"), (ii) the
Trust or any Subsidiary, or (iii) any Person in connection with a "Non-Control
Transaction" (as hereinafter defined);
(b) The individuals who, as of the date of this Agreement, are
members of the Board of Trustees (the "Incumbent Trustees"), cease for any
reason to constitute at least two-thirds of the Board; provided, however, that
if the election, or nomination for election by the Trust's shareholders, of any
new member was approved by a vote of at least two-thirds of the Incumbent
Trustees, such new member shall, for purposes of this Agreement, be considered
as a member of the Incumbent Trustees; provided, further, however, that no
individual shall be considered a member of the Incumbent Trustees if such
individual initially assumed office as a result of either an actual or
threatened "Election Contest" (as described in Rule 14a-11 promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board of Trustees (a "Proxy Contest")
including by reason of any agreement intended to avoid or settle any Election
Contest or Proxy Contest; or
(c) Approval by shareholders of the Trust of
2
(i) A merger, consolidation or reorganization involving the
Trust,
unless:
(A) the shareholders of the Trust, immediately before such
merger, consolidation or reorganization, own, directly
or indirectly immediately following such merger,
consolidation or reorganization, at least a majority of
the combined voting power of the outstanding voting
securities of the Person resulting from such merger or
consolidation or reorganization (the "Surviving
Person") in substantially the same proportion as their
ownership of the Voting Securities immediately before
such merger, consolidation or reorganization,
(B) the individuals who were members of the Incumbent
Trustees immediately prior to the execution of the
agreement providing for such merger, consolidation or
reorganization constitute at least two-thirds of the
members of the board of directors of the Surviving
Person,
(C) no Person (other than the Trust or any Subsidiary, any
employee benefit plan (or any trust forming a part
thereof) maintained by the Trust, or any Subsidiary, or
any Person which, immediately prior to such merger,
consolidation or reorganization had Beneficial
Ownership of 20% or more of the then outstanding Voting
Securities) has Beneficial Ownership of 20% or more of
the combined voting power of the Surviving Person's
then outstanding voting securities, and
(D) a transaction described in clauses (A) through (C)
shall herein be referred to as a "Non-Control
Transaction;"
(ii) A complete liquidation or dissolution of the Trust; or
(iii) An agreement for the sale or other disposition of all
or substantially all of the assets of the Trust to any
Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be
deemed to occur (i) solely because any Person (the "Subject Person") acquired
Beneficial
3
Ownership of more than the permitted amount of the outstanding Voting Securities
as a result of the acquisition of Voting Securities by the Trust which, by
reducing the number of Voting Securities outstanding, increases the proportional
number of Voting Securities Beneficially Owned by the Subject Person; provided,
however, that if a Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of Voting Securities by the Trust, and
after such share acquisition by the Trust, the Subject Person becomes the
Beneficial Owner of any additional Voting Securities which increases the
percentage of the then outstanding Voting Securities Beneficially Owned by the
Subject Person, then a Change in Control shall occur; or (ii) if the Trust (1)
establishes a wholly-owned subsidiary ("Holding Company"), (2) causes the
Holding Company to establish a wholly-owned subsidiary ("Merger Sub"), and (3)
merges with Merger Sub, with the Trust as the surviving entity (such
transactions collectively are referred as the "Reorganization"). Immediately
following the completion of the Reorganization, all references to the Voting
Securities shall be deemed to refer to the voting securities of the Holding
Company.
(d) Notwithstanding anything contained in this Agreement to the
contrary, if Executive's employment is terminated while this Agreement is in
effect and Executive reasonably demonstrates that such termination (i) was at
the request of a third party who has indicated an intention or taken steps
reasonably calculated to effect a Change in Control and who effectuates a Change
in Control (a "Third Party") or (ii) otherwise occurred in connection with, or
in anticipation of, a Change in Control which actually occurs, then for all
purposes of this Agreement, the date of a Change in Control with respect to
Executive shall mean the date immediately prior to the date of such termination
of Executive's employment.
2. Termination of Employment Following Change in Control. If a
-----------------------------------------------------
Change in Control of the Trust occurs, Executive shall be entitled to the
benefits provided in Section 3 upon the subsequent termination of Executive's
employment with the Trust for any reason, either voluntarily or involuntarily,
within six (6) months of such Change of
4
Control, unless such termination is because of Executive's death, Disability or
retirement. The term "Disability" shall have the meaning assigned to it in the
Trust's group long-term disability policy. The term "Retirement" shall mean
termination of employment in accordance with (i) a qualified employee pension or
profit-sharing plan maintained by the Trust, or (ii) the Trust's retirement
policy in effect immediately prior to the Change in Control. For purposes of
this Agreement, Executive's employment shall be terminated by written notice
delivered by either the Trust or Executive to the other party. The date of
Executive's termination of employment shall be the earlier of the date of
Executive's or the Trust's written notice terminating Executive's employment
with the Trust, unless such notice shall specify an effective date of
termination occurring later than the date of such notice, in which event such
specified effective date shall govern ("Termination Date").
3. Payment of Benefits upon Termination. If, after a Change in
------------------------------------
Control has occurred, Executive's employment with the Trust is terminated for
any reason other than for his death, Disability or Retirement, then the Trust
shall pay to Executive and provide Executive, his beneficiaries and estate, the
following:
(a) The Trust shall pay to Executive a single cash payment equal
to 200 percent of the sum of (i) his annual basic salary in effect on the day
prior to the Change in Control plus (ii) a bonus equal to the greater of (x) the
greatest annual aggregate amount of any cash or stock bonuses paid to Executive
in respect of any of the three (3) fiscal years immediately preceding such
Termination Date (it being understood and agreed that such amount shall not
include compensation paid pursuant to performance share awards) or (y) the
amount equal to Executive's maximum aggregate cash or stock bonus (it being
understood and agreed that a bonus shall not include compensation paid pursuant
to performance share awards) which could be awarded for the fiscal year in which
Executive's termination occurs had he continued his employment until the end of
such fiscal year, as if all performance targets and goals (if applicable) had
been fully met by the Trust and by Executive, as applicable, for such year plus
(iii) the greatest annual
5
aggregate amount of compensation paid to Executive pursuant to restricted share
"service" awards during the previous three (3) years. If Executive's employment
is terminated by Executive by a written notice which specifies a Termination
Date at least five (5) business days later than the date of such notice, the
payment shall be made on the Termination Date. If Executive gives less than
five (5) business days notice, then such payment shall be made within five (5)
business days of the date of such notice;
(b) The Trust shall for a period of two (2) years following the
Termination Date, except as otherwise noted, (i) maintain, at the Trust's
expense, at not less than Executive's highest levels of coverage during the last
twelve (12) months prior to the Change in Control, medical and dental insurance
coverage by paying premiums due in connection with COBRA continuation coverage
or converting its group medical and dental insurance policy to an individual
policy for the benefit of Executive and paying the annual premiums associated
with Executive's continued participation thereunder; (ii) maintain, at the
Trust's expense, at not less than his highest levels of coverage during the last
twelve (12) months prior to the Change in Control, accidental death and
dismemberment policies for the benefit of Executive and pay the annual premiums
associated therewith; (iii) maintain, at the Trust's expense, the split dollar
individual life insurance policy (or policies) for the benefit of Executive for
as long as is necessary so that the Trust shall have made a total of seven (7)
annual premium payments associated therewith; (iv) maintain, at the Trust's
expense, any other individual life insurance policy (or policies) in effect on
the Termination Date for one (1) year following the Termination Date; and (v) to
the extent that the Trust maintains a long-term disability policy (or policies)
that provided coverage to Executive in excess of the coverage provided under the
Trust's group long-term disability policy, maintain at not less than his highest
levels of coverage during the last twelve (12) months prior to the Change in
Control an individual long-term disability policy for the benefit of Executive
and pay the annual premiums associated therewith. The Trust also shall convert
its group long-term disability policy to an individual policy for the benefit of
Executive and pay the annual
6
premiums associated with Executive's continued participation thereunder for a
period of one (1) year following the Termination Date. Notwithstanding the
foregoing, Executive shall be required to pay the premiums and any other costs
of such benefits in the same dollar amount that he was required to pay such
costs immediately prior to the Termination Date. If the Trust is unable to
provide any of the foregoing benefits directly for any reason, the Trust shall
arrange to provide Executive with benefits substantially similar to those which
Executive is entitled to receive under the preceding sentences;
(c) The Trust, to the extent legally permissible, shall continue
to provide to Executive all other principal executive officer perquisites,
allowances, accommodations of employment, and benefits on the same terms and
conditions as such are from time to time made available generally to the other
principal executive officers of the Trust but in no event less than the highest
level of the perquisites, allowances, accommodations of employment and benefits
that were available to Executive during the last twelve (12) months of his
employment prior to the Change in Control for a period of two (2) years
following the Termination Date;
(d) For the purposes of this Subsection (3), Executive's right to
receive executive officer perquisites, allowances and accommodations of
employment is intended to include (i) Executive's right to have the Trust
provide Executive for a period not to exceed six (6) months from Executive's
Termination Date with a telephone number assigned to Executive at the Trust's
offices, telephone mail and a secretary to answer the telephone; provided,
however, such benefits described in this Subsection 3(d)(i) shall not include an
office or physical access to the Trust's offices and will cease upon the
acceptance by Executive of a position with another employer, and (ii)
Executive's right to have the Trust make available at the Trust's expense to
Executive at Executive's option the services of an employment
search/outplacement agency selected by Executive for a period not to exceed six
(6) months.
4. Purchase Loan Forgiveness. Upon the occurrence of a Change in
-------------------------
Control, the Trust shall accelerate the forgiveness of the repayment of any or
all of the outstanding
7
principal on any and all Purchase Loans pursuant to the terms of such Purchase
Loans as set forth in the agreement or instrument granting such Purchase Loans.
5. Acceleration of Options. Upon the occurrence of a Change in
-----------------------
Control, all restrictions on the receipt of any option to acquire or grant of
Voting Securities to Executive shall lapse and such option shall become
immediately and fully exercisable. Notwithstanding any applicable restrictions
or any agreement to the contrary, Executive may exercise any options to acquire
Voting Securities as of the Change in Control by delivery to the Trust of a
written notice dated on or prior to the expiration of the stated term of the
option.
6. Redemption.
----------
(a) Except as provided in paragraph (b) below, the Trust shall
within five (5) business days of receipt of written notice from Executive given
at any time after the occurrence of a Change in Control but prior to the latest
stated expiration date of any option held by Executive on the date of the Change
in Control, redeem any Voting Securities held by Executive (whether acquired by
exercise of any such option or grant or otherwise), at a price equal to the
average closing price of Voting Securities as quoted on the New York Stock
Exchange, or if such Voting Securities are not listed thereon, then the average
of the closing "bid" and "ask" prices per share in the over-the-counter
securities market for the fifteen (15) trading days prior to the date of such
notice;
(b) If, during the fifteen (15) day trading period, Voting
Securities are not listed, quoted or reported on any publicly traded securities
market for at least two-thirds (2/3) of the days included in such period, then
the redemption price shall be determined as follows: (i) Executive shall
designate in a written notice to the Trust an appraiser to appraise the value of
the Voting Securities to be redeemed; (ii) within ten (10) business days of
receipt of such notice the Trust shall designate an appraiser to appraise the
value of the Voting Securities to be redeemed, (iii) such designated appraisers
shall together designate, within ten (10) business days of the date the
appraiser is designated by the Trust, a third appraiser to appraise the value of
such Voting
8
Securities, (iv) each appraiser shall value such Voting Securities within twenty
(20) business days of the designation of the third appraiser using generally
accepted appraisal methods for valuing such securities based upon the value of
all of the Trust's assets less all of its liabilities without giving effect for
any costs of liquidation or distress sale, if otherwise applicable, and (v) the
average of the three (3) values determined by the three (3) appraisers shall
constitute the price at which the Trust must redeem the Voting Securities
covered by Executive's written notice within five (5) business days of the
completion of this appraisal process. All costs and expenses associated with
any appraisal prepared pursuant to this paragraph (b) shall be borne entirely by
the Trust.
7. Excise Tax Payments.
-------------------
(a) In the event that any payment or benefit (within the meaning
of Section 280G(b)(2) of the Code) that are provided for hereunder (other than
the payment provided for in this Section 7(a)) to be paid to or for the benefit
of Executive (including, without limitation, the payments or benefits provided
for under any provision of this Amended and Restated Agreement) or payments or
benefits under any other plan, agreements or arrangement between Executive and
the Trust (a "Payment" or "Payments"), be determined or alleged to be subject to
an excise or similar purpose tax pursuant to Section 4999 of the Code or any
successor or other comparable federal, state, or local tax laws or any interest
or penalties incurred by Executive with respect to such excise or similar
purpose tax (such excise tax, together with any such interest and penalties,
hereinafter collectively referred to as the "Excise Tax") the Trust shall pay to
Executive such additional compensation as is necessary (after taking into
account all federal, state and local taxes (including any interest and penalties
imposed with respect to such taxes), including any income or Excise Tax, payable
by Executive as a result of the receipt of such additional compensation) (a
"Gross-Up Payment") to place Executive in the same after-tax position (including
federal, state and local taxes) he would have been in had no such Excise Tax
been paid or incurred.
9
(b) All mathematical determinations, and all determinations as to
whether any of the Total Payments are "parachute payments" (within the meaning
of Section 280G of the Code), that are required to be made under this Section 7,
including determinations as to whether a Gross-Up Payment is required, and the
amount of such Gross-Up Payment, shall be made by an independent accounting firm
selected by the Executive from among the six (6) largest accounting firms in the
United States (the "Accounting Firm"), which shall provide its determination
(the "Determination"), together with detailed supporting calculations regarding
the amount of any Gross-Up Payment and any other relevant matter, both to the
Trust and the Executive by no later than ten (10) days following the Termination
Date, if applicable, or such earlier time as is requested by the Trust or the
Executive (if the Executive reasonably believes that any of the Payments may be
subject to the Excise Tax). If the Accounting Firm determines that no Excise
Tax is payable by the Executive, it shall furnish the Executive and the Trust
with a written statement that such Accounting Firm has concluded that no Excise
Tax is payable (including the reasons therefor) and that the Executive has
substantial authority not to report any Excise Tax on his federal income tax
return. If a Gross-Up Payment is determined to be payable, it shall be paid to
the Executive within twenty (20) days after the Determination (and all
accompanying calculations and other material supporting the Determination) is
delivered to the Trust by the Accounting Firm. The cost of obtaining the
Determination shall be borne by the Trust, any determination by the Accounting
Firm shall be binding upon the Trust and the Executive, absent manifest error.
Without limiting the obligation of the Trust hereunder, Executive agrees, in the
event that the Trust makes a Gross-Up Payment to cover any Excise Tax, to
negotiate with the Trust in good faith with respect to procedures reasonably
requested by the Trust which would afford the Trust the ability to contest the
imposition of such Excise Tax; provided, however, that Executive will not be
required to afford the Trust any right to contest the applicability of any such
Excise Tax to the extent that Executive reasonably determines
10
(based upon the opinion of the Accounting Firm) that such contest is
inconsistent with the overall tax interest of Executive.
(c) As a result of the uncertainty in the application of Sections
4999 and 280G of the Code, it is possible that a Gross-Up Payment (or a portion
thereof) will be paid which should not have been paid (an "Excess Payment") or a
Gross-Up Payment (or a portion thereof) which should have been paid will not
have been paid (an "Underpayment"). An Underpayment shall be deemed to have
occurred (i) upon notice (formal or informal) to Executive from any governmental
taxing authority that Executive's tax liability (whether in respect of
Executive's current taxable year or in respect of any prior taxable year) may be
increased by reason of the imposition of the Excise Tax on a Payment or Payments
with respect to which the Trust has failed to make a sufficient Gross-Up
Payment, (ii) upon determination by a court, (iii) by reason of determination by
the Trust (which shall include the position taken by the Trust, together with
its consolidated group, on its federal income tax return) or (iv) upon the
resolution of the Dispute to Executive's satisfaction. If an Underpayment
occurs, Executive shall promptly notify the Trust and the Trust shall promptly,
but in any event, at least five (5) days prior to the date on which the
applicable governmental taxing authority has requested payment, pay to Executive
an additional Gross-Up Payment equal to the amount of the Underpayment plus any
interest and penalties (other than interest and penalties imposed by reason of
Executive's failure to file a timely tax return or pay taxes shown due on
Executive's return where such failure is not due to the Trust's actions or
omissions) imposed on the Underpayment. An Excess Payment shall be deemed to
have occurred upon a "Final Determination" (as hereinafter defined) that the
Excise Tax shall not be imposed upon a Payment or Payments (or a portion
thereof) with respect to which Executive had previously received a Gross-Up
Payment. A "Final Determination" shall be deemed to have occurred when Executive
has received from the applicable governmental taxing authority a refund of taxes
or other reduction in Executive's tax liability by reason of the Excess Payment
and upon either (x) the date a determination is
11
made by, or an agreement is entered into with, the applicable governmental
taxing authority which finally and conclusively binds Executive and such taxing
authority, or in the event that a claim is brought before a court of competent
jurisdiction, the date upon which a final determination has been made by such
court and either all appeals have been taken and finally resolved or the time
for all appeals has expired or (y) the statute of limitations with respect to
Executive's applicable tax return has expired. If an Excess Payment is
determined to have been made, the amount of the Excess Payment shall be treated
as a loan by the Trust to Executive and Executive shall pay to the Trust on
demand (but not less than ten (10) days after the determination of such Excess
Payment and written notice has been delivered to Executive) the amount of the
Excess Payment plus interest at an annual rate equal to the Applicable Federal
Rate provided for in Section 1274(d) of the Code from the date the Gross-Up
Payment (to which the Excess Payment relates) was paid to Executive until date
of repayment of the Excess Payment to the Trust.
(d) Notwithstanding anything contained in this Amended and
Restated Agreement to the contrary, in the event that, according to the Final
Determination, an Excise Tax will be imposed on any Payment or Payments, the
Trust shall pay to the applicable governmental taxing authorities as Excise Tax
withholding, the amount of the Excise Tax that the Trust has actually withheld
from the Payment or Payments.
8. Mitigation. Executive shall not be required to mitigate the
----------
amount of any payment, benefit, or other Trust obligation provided for in this
Agreement by seeking other employment or otherwise and no such payment, benefit
or other Trust obligation shall be offset or reduced by the amount of any
compensation or benefits provided to Executive in any subsequent employment.
9. General Provisions
------------------
(a) Severability. In case any one or more of the provisions of
------------
this Agreement shall, for any reason, be held or found by final judgment of a
court of competent jurisdiction to be invalid, illegal or unenforceable in any
respect (i) such
12
invalidity, illegality or unenforceability shall not affect any other provisions
of this Agreement, (ii) this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein, and (iii) if
the effect of a holding or finding that any such provision is either invalid,
illegal or unenforceable is to modify to Executive's detriment, reduce or
eliminate any compensation, reimbursement, payment, allowance or other benefit
to Executive intended by the Trust and Executive in entering into this
Agreement, the Trust shall promptly negotiate and enter into an agreement with
Executive containing alternative provisions (reasonably acceptable to
Executive), that will restore to Executive (to the extent legally permissible)
substantially the same economic, substantive and income tax benefits Executive
would have enjoyed had any such provision of this Agreement been upheld as
legal, valid and enforceable. Failure to insist upon strict compliance with any
provision of this Agreement shall not be deemed a waiver of such provision or of
any other provision of this Agreement.
(b) No Set-Off. After a Change in Control, the Trust shall have
----------
no right of set-off, reduction or counterclaim in respect of any debt or other
obligation of Executive to the Trust against any payment, benefit or other Trust
obligation to Executive provided for in this Agreement or pursuant to any other
plan, agreement or policy.
(c) Modification and Waiver. No provision of this Agreement may
-----------------------
be amended, modified or waived unless such amendment, modification or waiver
shall be agreed to in writing and signed by Executive and by a person duly
authorized by the Board of Trustees.
(d) No Assignment of Compensation. No right to or interest in any
-----------------------------
compensation or reimbursement payable hereunder shall be assignable or divisible
by Executive; provided, however, that this provision shall not preclude
Executive from designating one or more beneficiaries to receive any amount that
may be payable after his death and shall not preclude his executor or
administrator from assigning any right hereunder to the person or persons
entitled thereto.
13
(e) No Attachments. Except as required by law, no right to
--------------
receive payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge or
hypothecation, or to execution, attachment, levy or similar process or
assignment by operation of law, and any attempt, voluntary or involuntary, to
affect any such action shall be null, void and of no effect.
(f) Headings. The headings of Sections and Subsections hereof are
--------
included solely for convenience of reference and shall not control the meaning
or interpretation of any of the provisions of this Agreement.
(g) Governing Law. This Agreement has been executed and
-------------
delivered in the State of Maryland shall be construed in accordance with and
governed for all purposes by the laws of the State of Maryland.
(h) No Assignment of Agreement. This Agreement may not be
--------------------------
assigned, partitioned, subdivided, pledged, or hypothecated in whole or in part
without the express prior written-consent of Executive and the Trust. This
Agreement shall not be terminated either by the voluntary or involuntary
dissolution or the winding up of the affairs of the Trust, or by any merger or
consolidation wherein the Trust is not the surviving entity, or by any transfer
of all or substantially all of the Trust's assets on a consolidated basis. In
the event of any such merger, consolidation or transfer of assets, the
provisions of this Agreement shall be binding upon and shall inure to the
benefit of the surviving entity or to the entity to which such assets shall be
transferred.
(i) Interest on Amounts Payable. After a Change of Control, if
---------------------------
any amounts which are required or determined to be paid or payable or reimbursed
or reimbursable to Executive under this Agreement (or under any other plan,
agreement, policy or arrangement with the Trust) are not so paid promptly at the
times provided herein or therein, such amounts shall accrue interest, compounded
daily at the annual percentage rate which is three percentage points (3%) above
the interest rate which is announced by The Xxxxx National Bank (Washington,
D.C.) from time to time as its prime lending rate, from the date such amounts
were required or determined to have been
14
paid or payable or reimbursed or reimbursable to Executive until such amounts
and any interest accrued thereon are finally and fully paid; provided, however,
that in no event shall the amount of interest contracted for, charged or
received hereunder exceed the maximum non-usurious amount of interest allowed by
applicable law.
(j) Confidentiality of Employment Relationship. The Trust,
------------------------------------------
except to the extent required by law, will not make or publish, without the
express prior written consent of Executive, any written or oral statement
concerning the terms of Executive's employment relationship with the Trust and
will not, if for any reason he xxxxxx his employment with the Trust, make or
publish any written or oral statement concerning Executive including, without
limitation, his work-related performance or the reasons or basis for Executive
severing his employment relationship with the Trust; provided, however, that the
foregoing restriction is not applicable to information concerning the
Executive's employment relationship with the Trust which was or became generally
available to the public other than as a result of a disclosure by the Trust.
(k) Termination of Prior Agreements. Except as may otherwise be
-------------------------------
provided herein, this Agreement shall terminate and supersede any and all prior
written agreements existing between the Trust and Executive prior to the date
hereof which principally concern payments or benefits in the event of a Change
of Control, and the Trust and Executive hereby mutually release and discharge
each other from any further obligation, liability or responsibility under any of
the foregoing.
(l) Notices. Any notice required or permitted to be given under
-------
this Agreement shall be in writing and shall be deemed to have been given when
delivered in person or when deposited in the U.S. mail, registered or certified,
postage prepaid, and mailed to the respective addresses set forth herein, unless
a party changes its address for receiving notices by giving notice in accordance
with this Subsection, in which case, to the address specified in such notice.
(m) Disputes; Payment of Expenses. At any time after a Change of
------------------------------
Control, all costs and expenses (including legal, accounting and other advisory
fees and
15
expenses of investigation) incurred by Executive in connection with (a) any
dispute as to the validity, interpretation or application of any term or
condition of this Amended and Restated Agreement, (b) the determination in any
tax year of the tax consequences to Executive of any amounts payable (or
reimbursable) under this Amended and Restated Agreement, or (c) the preparation
of responses to an Internal Revenue Service audit of, and other defense of,
Executive's personal income tax return for any year which is the subject of any
such audit or an adverse determination, administrative proceeding or civil
litigation arising therefrom that is occasioned by or related to an audit of the
Internal Revenue Service of the Trust's income tax returns are, upon written
demand by Executive, to be paid by the Trust (and Executive shall be entitled,
upon application to any court of competent jurisdiction, to the entry of a
mandatory injunction, without the necessity of posting any bond with respect
thereto, compelling the Trust) promptly on a current basis (either directly or
by reimbursing Executive). Under no circumstances shall Executive be obligated
to pay or reimburse the Trust for any attorneys' fees, costs or expenses
incurred by the Trust.
(n) Federal Income Tax Withholding. The Trust may withhold from
------------------------------
any benefits payable under this Agreement all federal, state, city or other
taxes (other than any excise tax imposed under Section 4999 of the Code or any
similar tax to which the indemnity provisions of Section 7 of this Agreement
apply) as shall be required pursuant to any law or governmental regulation or
ruling.
(o) Continued Employment. This Agreement shall not confer upon
--------------------
the Executive any right with respect to continuance of employment by the Trust.
(p) Source of Payments. All payments provided under this
------------------
Agreement shall be paid in cash from the general funds of the Trust, and no
special or separate fund shall be established and no other segregation of assets
shall be made to assure payment.
(q) Exculpatory Clause. Neither the Trust's shareholders nor the
------------------
Trustees, officers, employees or agents of the Trust shall be liable under this
Agreement, and the Executive shall look solely to the Trust's estate for the
payment of any claim
16
under or for performance of this Agreement. The Trust is organized pursuant to
a Third Amended and Restated Declaration of Trust dated as of May 24, 1984.
(r) Counterparts. This Agreement may be executed in multiple
------------
counterparts with the same effect as if each of the signing parties had signed
the same document. All counterparts shall be construed together and constitute
the same instrument.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year indicated above.
/s/ Xxx X. Xxxxxx
-----------------------------------------
(Executive's Signature)
Executive's Permanent Address:
0000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
FEDERAL REALTY INVESTMENT TRUST
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chair, Compensation Committee
Address:
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
17
